Brailsford v Liverpool City Council; Arce v Liverpool City Council; Wojciechowski v Liverpool City Council

Industrial Relations Commission (NSW)|2016-05-13|Before: Guidice J

Solicitors: M Dunstan New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Applicant)

Sparke Helmore Lawyers (Respondent) File Number(s): 2015/377059 (IRC 555 of 2015); 2015/377098 (IRC 553 of 2015); 2015/377078 (IRC 554 of 2015)

DECISION

David Brailsford, Luis Arce and Harry Wojciechowski have each made an application for relief in relation to unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ('the Act') following the termination of their employment by Liverpool City Council ('the Council') on 19 August 2015. Each of the applicants was represented in these proceedings by Mr M Dunstan of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ('USU'). The Council was represented by Mr D Mahendra of counsel.

The applicants David Brailsford

At the time of his dismissal David Brailsford had worked for the Council for approximately 15 years. For most of that time Mr Brailsford worked in the household pickup team but, in 2014, he was moved to the metal and whitegoods team.
In 2014 Mr Brailsford was disciplined for taking unauthorised breaks from work. Apart from that matter, and the incidents in 2015 which led to his dismissal, there is no evidence of any previous disciplinary or performance issue involving Mr Brailsford. Luis Arce
Luis Arce had held the position of Plant Operator Waste at the Council for approximately nine and a half years. Mr Arce worked in a team primarily doing household waste collections.
In 2008 Mr Arce was required to attend a meeting concerning an allegation that he took an unauthorised break from duties without prior approval. The evidence does not disclose what, if anything, occurred as a consequence of that allegation. In 2012 Mr Arce received a letter reminding him of his obligations following an incident which was unrelated to any allegation of taking an unauthorised break. No disciplinary action was taken by the Council over this incident.
Apart from those two matters, as well as an allegation of taking unauthorised breaks in 2014 and the incidents in 2015 which led to his dismissal, there is no evidence of any other disciplinary or performance issue involving Mr Arce. Harry Wojciechowski
Harry Wojciechowski had worked for the Council since 2001. On or around 28 April 2010 he was appointed Team Leader Household Rubbish. In accordance with the salary administration system adopted by the Council, the salary for this position was classified as a Grade 10. The letter of appointment, which was signed by Vikki Lee, Manager Human Resources, offered Mr Wojciechowski a commencing salary as Team Leader at the rate for Grade 10, Level 1. This letter makes no reference to the appointment being on an acting basis.
Apart from an allegation of taking unauthorised breaks in 2014, and the incidents in 2015 which led to his dismissal, there is no evidence of any previous disciplinary or performance issue involving Mr Wojciechowski.

2014 - Unauthorised breaks David Brailsford

By letter dated 30 September 2014 Mr Brailsford was advised by Gino Belsito, Director City Presentation, that he was required to attend a meeting with Anna Rizos, Coordinator People and Workplace, and Mr Belsito on 2 October 2014 to respond to an allegation that, on three occasions, he was on an unauthorised break, the details of which are listed below: 4 August 2014 Ireland Park Truck No 842 64 minutes 11 August 2014 Ireland Park Truck No 842 56 minutes 1 September 2014 Ireland Park Truck No 842 60 minutes

According to Mr Brailsford, at the meeting on 2 October 2014 he readily admitted to being at Ireland Park for approximately the times alleged but claimed that each of the three instances was around the lunch break which is usually at 12.00 midday. He further claimed that those occurrences were on days when the employees met to discuss how each truck was going with their runs and to see if they could help each other make sure that they finished for the day. He also thought it was raining on at least one of those days and, when it rains really heavily, the teams stop under shelter until the rain gets lighter. According to Mr Brailsford, Mr Belsito responded with words to the effect "Mate, I don't care".
On or around 16 October 2014 Mr Brailsford was issued with a first and final warning letter, had his grade reduced from a Grade 8/4 to a Grade 8/2 for a period of three months and was required to repay 1.5 hours pay back to the Council as recovering the time related to the unapproved breaks. Luis Arce
On or around 11 November 2014 Mr Arce was required to attend a meeting to respond to an allegation that on eight occasions he was on an unauthorised break, the details of which are listed below: 4 August 2014 Ireland Park Truck No 54 58 minutes 11 August 2014 Ireland Park Truck No 54 46 minutes 28 August 2014 Browns Farm Reserve Truck No 54 61 minutes 1 September 2014 Ireland Park Truck No 852 57 minutes 2 September 2014 Landa Park Truck No 852 68 minutes 4 September 2014 Browns Farm Reserve Truck No 852 66 minutes 9 September 2014 Landa Park Truck No 54 44 minutes 11September 2014 Browns Farm Reserve Truck No 54 46 minutes

According to Mr Arce, at the meeting he was told that he had been taking long lunch breaks and was provided with a list of alleged instances. He recalled explaining that their lunch breaks were extended because they had been having discussions between the teams about how they could help each other finish runs on time. There were also a number of times when there was very heavy rain and they waited to get dry or for the rain to die down before they went back to work. Mr Arce had understood that this was the appropriate step to take when rain was very heavy.
On or around 19 November 2014 Mr Arce was given a first and final warning letter, had his grade reduced from a Grade 8/4 to a Grade 8/2 for a period of three months and was required to repay 3.433 hours pay back to the Council as recovering the time related to the unapproved breaks. Harry Wojciechowski
On or around 30 September 2014 Mr Wojciechowski received a letter from the Council which advised him that he was required to attend a meeting on 2 October 2014 to respond to an allegation that on four occasions he was on an unauthorised break, the details of which are listed below: 4 August 2014 Ireland Park Truck No 852 65 minutes 11 August 2014 Ireland Park Truck No 852 60 minutes 26 August 2014 Landa Park Truck No 852 69 minutes 28 August 2014 Browns Farm Reserve Truck No 852 70 minutes

Mr Wojciechowski recalled that most of the four alleged long breaks were at lunchtime around 12.00 noon.
At the meeting on 2 October 2014 Mr Wojciechowski explained to Mr Belsito that the reason why the team had taken breaks at the alleged times was that it was raining on all four of those days and that, as Team Leader, he would get the guys to stop work if there was excessive rain and wait until the rain dies down.
At a second meeting about two weeks later, Mr Wojciechowski had more time to prepare and had looked up weather reports to confirm that it had been raining on the days of the alleged incidents.
On or around 16 October 2014 Mr Wojciechowski was issued with a first and final warning letter, was demoted from "acting Team Leader" to team member for a period of 12 months, had his grade reduced from what was said to be a Grade 8/4 (despite what was stated in the letter of appointment as Team Leader of 28 April 2010) to a Grade 8/2 for a period of three months, and was required to repay 2.4 hours pay back to the Council as recovering the time related to the unapproved breaks.
As at the time of his dismissal, Mr Wojciechowski had not been restored to the position of Team Leader.

2014 - Disciplinary action

It appears that the Council accepted that 30 minutes of each of the unauthorised breaks taken by the applicants in 2014 was attributable to the 30 minute unpaid lunch break to which employees were legitimately entitled. This is so because the amounts which each of the applicants was required to repay to the Council did not include the equivalent of 30 minutes pay for each unauthorised break. It appears, therefore, that the misconduct on these occasions can properly be characterised as taking extended lunch breaks without approval.
Each of the letters of 30 September 2014 sent to the applicants made reference to Clause 36 "Disciplinary Procedures", of the Local Government (State) Award 2014. That award provision contemplates, in cases of unsatisfactory work performance or conduct, that the following steps will be taken: 1. An initial warning with a written record to be kept on file (subclauses 36C(i) and (ii)); 2. In the case of re-occurrence, a formal written warning and counselling (subclause 36C(iii)); 3. If the unsatisfactory work performance or conduct continues or resumes, a final written warning (subclause 36C(iv)). 4. After complying with the above requirements, the employer may then impose a penalty, including demotion or termination of employment.
In relation to the applicants taking extended lunch breaks without approval in 2014, the Council, despite the provisions of the award referred to above, moved directly to a first and final warning and a reduction in grade.
None of the letters issued to the applicants concerning the unauthorised breaks taken by them in 2014 made any reference to the issue of congregating with members of other teams.

Morning routine

Mr Brailsford gave evidence that, when he first arrived at work at 5.00am, the team would meet together at the depot. They would start the day by doing daily checks on the truck and other equipment. This included the truck's "rescue system", tires, oil, water, lights and the air system. This process usually took five to fifteen minutes. This was also the time of day when there might be a short meeting of team leaders or a toolbox meeting. For as long as Mr Brailsford had worked at the Council, the goal of the team was to be out of the depot within fifteen minutes of the start time.
According to Mr Brailsford, the team leader and supervisors had always encouraged the teams to leave the depot as quickly as possible. Mr Belsito had advised the employees that they were permitted to stop on their way out to grab a coffee so long as they got out there and got their work done.
Mr Arce gave evidence that their supervisor, Graham Hope, often said to the team words to the effect "I would prefer you leave the yard as soon after 5:00 as possible. It looks bad to have you sitting in the yard".
According to Mr Arce, the first activity of the day would be to check the truck, which involved checking the tire pressure, making sure there was enough diesel in the tank and visually checking the truck for any damage. Occasionally there would be a loose nut or a flat tire that needed to be dealt with.
In the roughly six years that Mr Arce had worked in household waste, the employees had always planned out the run for each truck themselves. This had always taken place outside of the yard, on a quiet street or near a park. Mr Arce had always understood that this was to give the impression that they weren't wasting time at the depot. He described the process as follows: The two people in each truck would sit down together. Usually one person would read out the addresses and one person would look them up and mark the addresses on a printed map that a member of the team had created on their own initiative. David Brailsford and I had both worked on these maps in the past in our own time to make it easier to plan runs. Once we had marked all of the addresses, I would then 'connect the dots' and mark out how we would go about the run.
Mr Wojciechowski gave evidence that, when the day starts at 5.00am, they would check for absentees and arrange any necessary reshuffling of staff to fill in. The team would do administrative tasks including organising clothing, requests and requisitions for equipment, checking vehicles and, occasionally, there would be a toolbox talk. This sort of activity usually took the first 15 minutes of the day.
Mr Wojciechowski would then plan the runs using street maps and some home-made maps that Mr Brailsford had helped to make. Mapping of the routes always took place outside of the depot, first thing in the morning.
For as long as Mr Wojciechowski had worked at the Council, the household waste teams would leave the depot and go and find somewhere in the areas in which they were working to park and do the mapping of the runs. They would find somewhere quiet which wasn't near residences. On some days all the trucks would park in the same place to do planning. On other days they would go to different places.
According to Mr Wojciechowski, it took two people to do the route mapping as one looked up addresses and the other found them on the map. Each team might have a minimum of 35 pickups, plus other requests that might have come in late. During the summer months this number was often higher. Mr Wojciechowski stated that it would have been impossible for them to perform their job and get the runs done without planning a route.
Mr Wojciechowski recalled that, from the very first time he worked on household waste, the coordinators had always said that they should make sure that they were out of the depot within 15 minutes of their start time, as it was not a good look to have people in the depot for long periods of time. Mr Wojciechowski produced a memo from David Tuxford, Corporate Manager, Services, to the Household Collection Team dated 3 April 2007, when the commencement of work time was 6.00am. The memo stated: The Household Collection Team members are to make there way to the compactor trucks by no later than 6:00am in order to start and warm up the vehicles. It is expected that all three teams/trucks would have left the depot by no later than 6:10am. Mr Wojciechowski recalled that this changed to 6.15am some years later as there were issues of work not being done if one vehicle broke down and the other trucks had already left. The time by which the trucks had to leave the depot became 5.15am around 2010 when the start time was moved to 5.00am.

2015 - Unauthorised breaks/absences

In 2015 the three applicants, along with a number of other employees, found themselves in trouble again for taking unauthorised breaks. However, unlike the 2014 incidents, the alleged unauthorised breaks in 2015 were not extended lunch breaks, but breaks taken for a different purpose, which is discussed below.
By letters dated 5 August 2015 the applicants were provided with details of the unauthorised breaks allegedly taken by them.
Each of the applicants was required to attend a meeting on 10 August 2015 with Mr Belsito and Ms Rizos. Those meetings were also attended by Brandon Rhodes, USU delegate at the Council, and Shane Pinter, USU organiser (on secondment). A further round of meetings was conducted on 17 August 2015 at which Brett Goodridge, Manager People and Organisational Development at the Council, attended in place of Ms Rizos.

Dismissal of David Brailsford

The dates, location and duration of the alleged unauthorised breaks taken by Mr Brailsford were as follows: 14 July 2015 Illaroo St/Yarrawa Rd Truck No 19 44 minutes 20 July 2015 Illaroo St/Yarrawa Rd Truck No 19 45 minutes 21 July 2015 Illaroo St/Yarrawa Rd Truck No 19 44 minutes

During the meeting on 10 August 2015 Mr Brailsford said he thought he was parked at Illaroo Street at the times alleged and explained that they were plotting the runs. He said words to the following effect: We were marking the runs. Some of the runs are going backwards and forth so we need to organise them. Harry, Terry and Luis were sometimes doing extra metal pickups to make sure we got them all done… You haven't reduced the numbers for the metal truck so I need help some days.
On 12 August 2015 Mr Brailsford received a letter requesting that he attend a Show Cause meeting on 17 August 2015, following which he received two further letters both dated 18 August 2015.
The first letter advised Mr Brailsford that the Council had considered his response and will provide him with the outcome at a meeting on Wednesday 19 August 2015.
The second letter, which was also dated 18 August 2015, advised Mr Brailsford that the Council had carefully evaluated and considered the material presented during the investigation, and his response, and had come to the conclusion that he did indeed: • Attend 3 unauthorised absences from the workplace • Did not seek approval for these absences
The letter went on to state "Council considers your actions constitute serious misconduct warranting termination of your employment effective 19 August 2015".
The dismissal of Mr Brailsford left him feeling shattered. He has a mortgage on his home and lives with his wife, daughter, son-in-law and granddaughter. Since his dismissal he has applied for a number of positions and has done a work trial for different companies. He has found it difficult to get a job at 58 years of age. He has worked in Local Government for a long time and, before that, he was in the army for 22 years.

Dismissal of Luis Arce

The dates, locations and duration of the alleged unauthorised breaks taken by Mr Arce were as follows: 22 April 2015 Dampier Place Truck No 54 15 minutes 24 April 2015 Dampier Place Truck No 54 40 minutes 30 April 2015 Dampier Place Truck No 54 22 minutes 7 May 2015 Euro Café, Jedda Rd Truck No 54 30 minutes 14 July 2015 Illaroo St/Yarrawa Rd Truck No 54 41 minutes 20 July 2015 Illaroo St/Yarrawa Rd Truck No 842 4 minutes 21 July 2015 Illaroo St/Yarrawa Rd Truck No 842 35 minutes 23 July 2015 Illaroo St/Yarrawa Rd Truck No 842 33 minutes

The duration of the eight unauthorised breaks which Mr Arce was accused of taking range from four to 41 minutes. He gave evidence that, on 22 April 2015, he was not at the location alleged, namely Dampier Place. He also gave evidence in relation to the allegation concerning 7 May 2015 and the Euro Café, Jedda Road, that it was definitely false. He stated "We often go to this café and get a takeway coffee at the start of the day, which is with the agreement of our team leader and supervisors. I did not stay there for 30 minutes. I don't ever recall being there for more than 5 minutes".
Mr Arce further claimed that, on 23 July 2015, he was on light duties which began on 22 July 2015. He claimed that he was not in the truck on that day. He was unsure about the exact dates of the other allegations.
At the meeting on 10 August 2015 Mr Arce explained the process of planning routes in the morning and also explained why he wasn't present at all on some of the days alleged. He claimed that Mr Belsito responded with words to the effect "I don't need to prove it".
It appears that none of Mr Arce's explanations as to a number of the alleged unauthorised breaks was accepted by the Council. On 12 August 2015 he was provided with a further letter requesting that he attend a Show Cause meeting on 17 August 2015. That letter repeated the same eight alleged unauthorised breaks as were set out in the previous letter, including the alleged four minute absence on 20 July 2015, as well as those for which Mr Arce had provided an explanation at the meeting on 10 August 2015.
The same eight alleged unauthorised absences were set out again in the two letters dated 18 August 2015 which were couched in virtually identical terms as the letters provided to Mr Brailsford, apart from the number and duration of the unauthorised absences from the workplace.
The second letter dated 18 August 2015 advised Mr Arce that the Council had carefully evaluated and considered the material presented during the investigation, and his response, and had come to the conclusion that he did indeed: • Attend 8 unauthorised absences from the workplace • Did not seek approval for these absences
The letter went on to state "Council considers your actions constitute serious misconduct warranting summary dismissal". Mr Arce was dismissed with effect from 19 August 2015.
At the time of his dismissal Mr Arce was undertaking light duties as a result of a workers compensation injury. He has also been battling prostate cancer. As a consequence it has been very difficult for Mr Arce to find the time or energy to seek out new work.

Dismissal of Harry Wojciechowski

The dates, locations and duration of the alleged unauthorised breaks taken by Mr Wojciechowski were as follows: 22 April 2015 Dampier Place Truck No 852 25 minutes 24 April 2015 Dampier Place Truck No 852 39 minutes 30 April 2015 Dampier Place Truck No 19 13 minutes 14 July 2015 Illaroo St/Yarrawa Rd Truck No 852 42 minutes 20 July 2015 Illaroo St/Yarrawa Rd Truck No 852 38 minutes 21 July 2015 Illaroo St/Yarrawa Rd Truck No 852 42 minutes 23 July 2015 Illaroo St/Yarrawa Rd Truck No 852 37 minutes

The dismissal of Mr Wojciechowski followed much the same pattern as that of Mr Brailsford and Mr Arce. According to the evidence given in Mr Wojciechowski's witness statement, an exchange occurred at the meeting on 10 August 2015 in words to the following effect: Mr Wojciechowski: This is when we plan our runs. You told us that we could grab a coffee when we left in the mornings and then we do our runs out of the depot as you've always said we should be out by 5:15 Gino did not disagree about telling us that we could go and grab a coffee in the morning. Instead he said words to the effect: Mr Belsito: Why are you still congregating with all of the trucks? You're organising this aren't you? Why do you all park together? Mr Wojciechowski: I don't organise this, I'm not the team leader. This is always how the day has been organised. Trevor and Terry Sykes know about it, so do the coordinators. It's no different to what we've always done.
Mr Wojciechowski also attended a Show Cause meeting on 17 August 2015 at which he said words to the effect: I've been working at Liverpool City Council for 14 years and I'm very proud of the work I do. I can't afford to lose my job. I have family issues with my wife taking care of her mother with dementia. I haven't told my wife about the fact I might lose my job. I really want to keep my job as I don't want to put my wife through any more difficulty.
Following this meeting Mr Wojciechowski was provided with two letters, both dated 18 August 2015 and couched in virtually identical terms as the letters provided to Mr Brailsford and Mr Arce, apart from the number and duration of the unauthorised absences from the workplace.
The second letter dated 18 August 2015 advised Mr Wojciechowski that the Council had carefully evaluated and considered the material presented during the investigation, and his response, and had come to the conclusion that he did indeed: • Attend 7 unauthorised absences from the workplace • Did not seek approval for these absences
The letter went on to state "Council considers your actions constitute serious misconduct warranting termination of your employment effective 19 August 2015".
At the time of his dismissal Mr Wojciechowski was on light duties as a result of a workers compensation injury to his shoulder. He had been on light duties since his original workers compensation claim on or about 30 July 2015. Mr Wojciechowski has been unable to find new work because he is still an injured worker and only able to participate in light duties.

Requirement to leave the depot by 5.15am

One of the vigorously contested factual issues in dispute was the requirement, according to the applicants, that they had to leave the depot between 5.00am and 5.15am each morning, which, again according to the applicants, meant that they did not have time to plot their runs at the depot. These propositions were firmly denied by the Council.
Mr Brailsford and Mr Arce claimed that it was a requirement of management that household pickup crews be out of the depot as soon as possible after their start time of 5.00am. Mr Wojciechowski claimed that the requirement was that they be out of the depot within 15 minutes of their starting time. He produced the 2007 memo from Mr Tuxford which stated "It is expected that all three teams/trucks would have left the depot by no later than 6:10am". The start time back then was 6.00am.
Russell Woods had held the role of Team Leader for household pickup from 2002 until about 2009 and, later, held the roles of Assistant Coordinator of Cleansing and Waste Services and Acting Senior Coordinator of Waste Services and Cleansing. He was called as a witness for the applicants and gave the following evidence: I recall that during the time I was working in Waste Services and Cleansing there were repeated directions from various Council managers that workers were meant to leave the depot within ten or fifteen minutes of starting. …………………… I recall that when I was working in the household pickup crew, we could usually plot the day's work in twenty or thirty minutes depending on how many jobs there were. That was partly because I had been working in Liverpool for so long and knew where all the streets were. ……………………... I recall that at different times in my involvement in the team, the team would sometimes plan their runs in the depot, but there were many periods where we did our planning in a quiet street somewhere. Mr Woods was not challenged on this evidence.
In the Employer's Reply to Application for Relief in Relation to Unfair Dismissal filed on 14 September 2015 the Council stated: 2.2 The employees are required to attend work at the Council depot by 5 am each work day at which time they are provided with a list of houses requiring "Council Pick-Up". Contrary to the assertions of the Union on behalf of each applicant, there is no requirement that the employees leave the depot within 15 minutes of arrival. Rather, as documented evidence will show, the requirement is for all employees to commence work within 15 minutes of arriving at the depot. On any view, such a requirement is entirely reasonable. And further: 3.4 More concerning was the failure on the part of each applicant to accept responsibility for their actions. Rather than accepting wrongdoing, on 10 August 2015, the Applicants sought to explain their conduct by asserting that it was Council's direction to start work within 15 minutes of attending the depot that led to the Applicants meeting in the early morning to plan their route for the day. This explanation was not credible for a number of reasons including: ……………………… (d) the direction to commence work within 15 minutes of arriving at the depot was unambiguous and did not require the Plant Operators to leave the depot within 15 minutes of arrival; This attack on the credibility of the applicants was ultimately demonstrated to be entirely misconceived. Unhappily for the Council, the above propositions were firmly refuted by evidence in the proceedings which was led by the Council itself.
The transcript of a record of interview on 21 August 2015 with Richard Fetu'ufuka, Mr Arce's occasional offsider, was tendered into evidence by counsel for the Council and became Exhibit 9 in the proceedings. This transcript records the following: 30 Why didn't everyone do the mappings at the depot before going out? A. Because at 5am we were told to leave the yard by Graham, but now he's changing he story saying you can stay for 15 minutes. When I started 2 years ago we were told to leave the yard at 5 o'clock. I do my mappings in the yard now. Once that's finished I go out to do my work straight away. It does not appear that Mr Fetu'ufuka was challenged by the interviewer in relation to this response and yet the Council persisted with putting contrary propositions such as those set out at paragraph 67 above.
Graham Hope is employed by the Council as a Coordinator. He was called as a witness for the Council. Mr Hope disputed that there was a direction that the workers needed to leave the depot by 5.15am, or that they have been told not to do their mapping in the depot. Mr Hope stated that, on many occasions, he had stressed with staff that they were expected to be working within 15 minutes of commencement times. He claimed that these comments were always aimed at staff sitting in the lunch room or around the depot doing nothing whilst being paid.
Under cross-examination Mr Hope agreed that the sort of work he expected the teams to be doing by 5.15am included the vehicle inspection process and preparing paper work for the day, such as making sure they have enough compliance slips, getting the run sheet, putting their names on it, filling out which truck they're in and liaising with their Team Leader about some specific instructions for late jobs that get called in. Mr Hope agreed that the crews were out of the depot on most days by 5.15am. He was unaware that the plotting of the runs was taking some of them up to 40 minutes or that it was being done outside the depot. He believed that it could be done in 15 minutes but that might change for people with lower levels of literacy than his, or who have English as a second language, such as Mr Arce.
Trevor Fellows was employed by the Council as the Team Leader Household Waste. He was also called as a witness for the Council. In his evidence in chief Mr Fellows stated that he was aware that the teams had to stop driving to plot the runs but unaware that they were congregating to do this. It follows that, despite the case presented by the Council to the effect that the plotting of runs could have and should have been done before leaving the depot, the Team Leader was aware that this was not happening.
The following exchange occurred during the cross-examination of Mr Fellows: DUNSTAN Q. I think we were talking somewhat about the daily routine, just of how the day worked and was constructed. So, now, there was a - some evidence and some questions asked of Mr Hope the other day about a direction regarding the first fifteen minutes of the day. Do you recall getting directions from Mr Hope about what was to happen in the first fifteen minutes of the day? A. Yes. He'd ask us to start the truck and we'd have to leave - he'd like us to leave the yard instead of hanging around the yard to do the tidying out of the runs. Q. And from your understanding, that came from the fact that it wasn't a good look to have trucks still parked in the yard well after the day had started, is that right? A. I believe so, yes. Q. And did Mr Hope reiterate that view on a number of occasions, that you needed to get out within fifteen minutes? A. No. It was just relayed generally within talk within toolbox meetings. Not every time but I would say every third toolbox meeting. Q. So it was reasonably often. I just want to make sure that I understand that. It was quite often that Mr Hope would say to the teams, "You need to be out of the yard within fifteen minutes of starting"? A. Yes, he'd like us out of the yard within fifteen minutes. Q. Now, Mr Hope gave some evidence yesterday that in the first fifteen minutes of the day he was okay with people not doing what you might call work, if they were doing - just getting themselves ready for the day, going to the toilet, grabbing a coffee from the lunchroom. Did you understand that as well? A. Sorry, I don't-- Q. Mr Hope had said - I'm sorry, I think I asked that in a confusing way and I apologise, Mr Fellows. Mr Hope gave evidence yesterday that he had told staff at the depot that in the first fifteen minutes of the day if they were in the lunchroom getting a coffee, if they were using the toilet, if they were having a quick social chat, that that wasn't a problem for him. Do you understand what I've just said? A. Yes. Q. Was that your understanding of Mr Hope's instructions as well? A. No, I didn't really understand why he'd say that, no. Q. You understood it at 5 o'clock people needed to be working and that by 5.15 they needed to be out of the depot. That's your understanding, is that right? A. Yes. Q. And for the household team a lot of - you and a lot of your team would actually start before 5 o'clock. At 4.50, 4.55, you might be at work and already working? A. Yes, on occasions, yes. Q. And it would be pretty unusual for you or your team members to be still in the depot at quarter past five, wouldn't it, or past that time? A. Yeah, I never seen them in the yard at quarter past five. I think we all left the yard all at once. Q. You always left all together? A. Yes. Q. Mr Belsito had given instructions that it was acceptable for team members starting the day at your time, at 5 o'clock, to go to one of the local cafés in the area and get a coffee as long as they just got the coffee and then went straight on to the day. Is that right? A. Yes. Q. And you often did that, didn't you? A. Yes, I did.
This evidence of Mr Fellows, which I accept, supports the applicants' proposition that they were required by management to be out of the depot by 5.15am and refutes the Council's proposition that they were only required to commence work, but not be out of the depot, by 5.15am. Therefore, even if Mr Hope's estimate of 15 minutes as the time needed to plot the runs is accepted, this must lead to the conclusion that it would not have been feasible for the applicants to perform the tasks associated with checking their vehicles and so forth and to plot their runs at the depot and then depart by 5.15am as they were required to do by management according to Mr Fellows, a witness called by the Council.
This then leaves open the question as to when and where the applicants were able to plot their runs because, as a consequence of the directive from management, now denied by the Council, that they be out of the depot by 5.15am, plotting the runs at the depot was not an option. It should have come as no surprise to management that the employees were parking their trucks at locations away from the depot for the purpose of plotting their runs for the day.

Connecting the dots

The applicants claim that, during each of their alleged unauthorised breaks, the bulk of the time was spent plotting their runs for the day by marking the address of each pickup with a dot on an enlarged laminated page from the street directory. The length of time usually taken to complete this task became an issue in the proceedings.
The applicants were each cross-examined at length on the amount of time it took them to complete the task of plotting their runs.
Mr Woods recalled that, when he was working in the household pickup crew, they could usually plot the day's work in 20 or 30 minutes depending on how many jobs there were. That was partly because he had been working in Liverpool for so long and knew where all the streets were. On the basis of Mr Woods' estimate, on a day when there were 35 pickups to perform, it would, on average, take between 35 and 52 seconds to plot each address on the map.
It was Mr Brailsford's evidence that the process of marking out the runs on the map was best done by two people. One would read out the addresses and the other would look for them and mark them down. If there were odd or distant pickups, they would discuss between the teams which team would be best placed to do them. The process of planning the day would usually take between 30 and 45 minutes.
Mr Arce concurred with the estimate of 30 to 40 minutes to plan the route for the day.
Mr Wojciechowski gave evidence that the route mapping takes two people to perform the task as one looks up addresses and the other finds them on the map. Each team might have a minimum of 35 pickups, plus other requests that might have come in late. During the summer months this number is often higher. According to Mr Wojciechowski, it was not unusual for the route planning to take 30 to 40 minutes.
Mr Wojciechowski stated that it would be impossible for them to perform their job and get the runs done without planning a route. Under cross-examination, he agreed that it would be far more practical to do the route mapping in the depot and stated that they had asked Mr Hope about this but had always been told to vacate the depot.
Mr Rhodes gave evidence that he sat in the lunchroom one morning with Joel Kelly and another member as they planned the day's runs. It took them 45 minutes to complete the task.
Mr Hope stated that he had not really given any thought to the time it might take to plot a run. He later stated that, on a day with 38 pickups on 30 different streets it might take "maybe 15 minutes" to plot the run. That works out to an average of 24 seconds per pickup. Mr Hope had not worked as a Plant Operator Waste at the Council and, as a consequence of that, had not ever been in a position where he would have actually plotted a run in the Liverpool area.
Mr Fellows concurred with Mr Hope's estimate of 15 minutes as the time necessary to plot the runs for the day, but he agreed that 20 minutes was not unreasonable. He also stated that the metal truck, which was driven by Mr Brailsford on the days of each of his alleged unauthorised breaks, had a harder job to plot because it crosses more suburbs.
In any event, given Mr Fellows' evidence as to the requirement for the teams to be out of the depot within 15 minutes of the start time, it follows that it would not have been feasible for the teams to plot their runs before leaving the depot.
In this regard, Mr Fellows gave the following evidence in cross-examination, which does not sit comfortably with the assertion in the Employer's Reply to the effect that the routing task could have been carried out in the depot where there were "appropriate facilities (eg lighting, tables, chairs etc)": Q. Would that be more common or less common, that you would start doing the mapping job in the depot? This is just you and your partner. A. We'd generally get in the truck, he would start as I was warming the truck up. Q. And then you would complete the job, the mapping job, somewhere else, is that right? A. Correct. Q. You would usually go and park somewhere to do that, is that right? A. Yes, because we have to. Q. When you say you have to, you would be concerned about doing that while you're driving, is that right? A. No, it's just lighting, and the driving as well, that would come into it. Q. And as you said, you'd prefer to do it with the two of you working at the same time, is that right? A. Yes. Q. When you say lighting, it's that you don't want to have the light on inside the cab of the truck while someone is driving it, is that right? A. That's correct. Q. Now, when you go to park, do you usually park outside a residence, when you're going to park and do your mapping in the morning, do you park outside somebody's house? A. No. Q. You'd usually park in a quieter street, perhaps in an industrial area, is that right? A. Yes. Q. You'd often do it near to where you went and had coffee, is that right? A. Me personally, no. Q. You'd go to a new spot, somewhere else? A. I would be in the area that I had marked on my sheet. Q. Now, have you told Mr Hope or Mr Belsito about this process of - have you spoken to them about this process of mapping that you do in the morning, at any point? A. Yes. Q. They're fully aware that that's how you operate? A. Yes. Q. You were aware that that's how the other teams operated as well, is that right, as their team leader? A. Yes, I believe so. Q. You were aware that they would go to a quiet street to do this, they didn't do it in the depot? A. Yes. Q. You'd never had a problem with that before, had you? A. It's the only way we can do the role properly, I believe.
In the Employer's Reply it was stated: 3.4(f) given Plant Operators work in pairs, with a driver and a passenger in the truck, and who work within the same geographical area repeatedly, none of the applicants could provide any adequate explanation as to why the routing task could not be performed by the passenger during their transit between locations.
However, in his evidence in chief Mr Fellows stated: I knew that they had to stop driving to do this. I was not aware that they were congregating to do this.
I accept the evidence of Mr Fellows that it was his practice, and that of the other teams, to leave the depot by 5.15am in the morning, to park their trucks in a quiet street and to perform or complete the task of plotting the route for the day. According to Mr Fellows, both Mr Hope and Mr Belsito were aware of this practice.
It does not follow, however, that either Mr Hope or Mr Belsito were aware, prior to the investigation which was undertaken in 2015, that teams were congregating together in the one place to plot their routes, to discuss their runs and to socialise.
Taking into account all of the evidence on this issue, including that given by the Council's witnesses, I estimate that a reasonable amount of time for the teams to plot and discuss their runs would be between 20 and 30 minutes. On the basis of this estimate, the non-work related time spent by each of the applicants during each of their alleged unauthorised breaks would have been: David Brailsford 14 July 2015……………….14-24 minutes 20 July 2015……………….15-25 minutes 21 July 2015……………….14-24 minutes These are likely to be conservative estimates. Both Mr Hope and Mr Fellows stated that the metal truck run takes longer to plot than the others because it covers a larger area. Luis Arce 24 April 2015……………….10-20 minutes 30 April 2015………………..up to 2 minutes 14 July 2015………………..11-21 minutes 21 July 2015………………...5-15 minutes 23 July 2015…………………3-13 minutes Harry Wojciechowski 22 April 2015…………………up to 5 minutes 24 April 2015…………………9-19 minutes 14 July 2015………………….12-22 minutes 20 July 2015………………….8-18 minutes 21 July 2015………………….12-22 minutes 23 July 2015…………………..7-17 minutes

Congregating

The term "congregating" does not appear in any of the disciplinary letters issued to the applicants in 2014 or in 2015. However, it emerged during the proceedings that one of the main concerns of the Council was that trucks or teams were seen to be congregating together in the one place.
In the Employer's Reply the Council stated: 2.4 In mid 2014, Council became aware that Plant Operators were congregating during the morning at various locations within the Liverpool City Council area. These locations were mostly reserves and parks. ………………… 2.6 None of the employees were able to adequately explain why the Plant Operators, who work in different geographical areas, were congregating in the one spot for such long periods of time. …………………. 2.8 Some four months later, Plant Operators were congregating during the early morning at various locations within the Liverpool City Council area. These locations were now back-streets rather than parks or reserves.
On Tuesday 14 April 2015 Mr Belsito sent an email to Deva Sivapragasam, the Council's Head of Audit and Risk, which stated: Deva As discussed it has been reported to me that on a regular basis trucks are congregating between the hours of 6.30am to 7.30am each morning at Dampier Place, Prestons. Could you please investigate and advise me accordingly. It was this email that initiated the investigation which eventually led to the dismissal of the three applicants. It should be noted that, according to the investigation log prepared by Mr Sivapragasam, all of the unauthorised breaks which the applicants were alleged to have taken in 2015 concluded well before 6.30am.
In her witness statement, Ms Rizos set out the exchanges which occurred between Mr Belsito and each of the applicants during the meetings which took place on 10 August 2015. On a number of occasions Mr Belsito made reference to a toolbox talk which occurred on 27 May 2015 in the context of the employees being told that there was no need for them to congregate away from the depot to plot their runs. For example, Ms Rizos records that Mr Belsito said to Mr Wojciechowski words to the following effect: What have you got to say about the directions given at the toolbox on 27 May 2015? Why were the others there with you?
Ms Rizos also recorded an exchange between Mr Belsito and Mr Brailsford in words to the following effect: Gino: It looks like you were congregating. David: This is not my problem. I'm not their boss? Gino: Did you report it? David: We drove away from sight to mark the run. We chose a location which was out of the eye of public. We are doing the run and Graham told us to get out of the yard by 5.00am. Gino: What about the toolbox meetings were you were reminded about being allocated 15 minutes? David: That's bullshit. We are out of the yard at 5.00am. There's no time available. Gino: You have been reminded that there is 15 minutes allocated in the morning. David: Graham told us to be out of the yard at 5.00am. I've gotta do my run somehow and I figure out of mind out of sight. Better than at someone's house idling.
In his own witness statement, Mr Belsito recorded his response to Mr Wojciechowski's explanation as to why they had to congregate, as including the following comment: Me: It was raised at a toolbox talk that you had 15 minutes at the depot to plot the run. Harry: Graham told us to get out, so we find a quiet area to plot the run.
The only minutes of a toolbox talk in evidence are those of 27 May 2015. Those minutes record the following: Starting & Finishing time - Staff is reminded of the KPIs requirement to start work within 15 minutes and work until at least 15 minutes before knock off. If staff head back to the yard early, they are requested to clean trucks, complete paperwork, etc. Contrary to the position put by the Council, these minutes do not record:

any directive that runs are to be plotted during the 15 minutes after the start time at 5.00am; or
any directive that runs are to be plotted before leaving the depot; or
any directive that teams are not to congregate away from the depot to plot their runs and exchange information about their runs.

Further, the notion that the time between 5.00am and 5.15am is available to the employees to plot their runs is entirely contrary to Mr Hope's evidence that, on many occasions, he had stressed with staff that they were expected to be working within 15 minutes of the commencement time, and that these comments were always aimed at staff sitting in the lunch room or around the depot doing nothing whilst being paid.
In his witness statement Mr Belsito referred to comments which he claimed he regularly made to all staff about not congregating in open space as it is not a good look for them or the Council. However, there is no direct evidence that such comments were ever directed at any of the three applicants.
Prior to leaving the depot in the morning, each of the household waste teams was provided with a run sheet showing all of the addresses for household waste pickups for the day. The pickups for each truck on this list of addresses had been highlighted by the Team Leader but each team could see the addresses for the pickups to be done by the other teams. The metal truck had its own separate run sheet or list of addresses.
Mr Brailsford gave evidence to the effect that there was often a bit of confusion as trucks' runs were often crossing each other and different trucks were operating in the same suburbs. Sometimes it was necessary to trade pickups so that their runs didn't cut across each other. It was about being more efficient. If there were odd or distant pickups, they would discuss between the teams which team would be best placed to do them.
Mr Arce claimed that, at the 10 August 2015 meeting, the following exchange occurred: Gino: Who organises these meetings where all the trucks are together in the morning? Who told you to do it? Me: I don't know, sometimes I call the others and say where to meet, sometimes others do it. We do it together because sometimes we can do the runs quicker if we trade a few addresses. It doesn't make sense for different trucks to pick up on the same street.
Mr Wojciechowski gave evidence that, in the period before Mr Fellows was appointed Team Leader, the lists of jobs were usually contradictory and didn't make geographic sense. For example, there were instances where there would be three trucks doing jobs on Apex Street in Liverpool on the same day. After Mr Fellows was appointed as Team Leader there were still some issues with the routes which put three trucks in the same area and were inefficient.
In his evidence in chief Mr Fellows stated: The metal truck has its own run sheet. If a particular household has both metal and household to pick up this is specified during the booking process and both the household and metal trucks are assigned to collect this job on the same day. This means that there can be cross over between household and metal up to 50 to 60 per cent of the time. The metal truck has a harder job to plot because it crosses more suburbs. Sometimes if there is only a small amount of metal, the household trucks will collect this, but the metal trucks still needs to drive by to make sure they can sign off that there was no metal sighted.

Socialising

Two of the applicants admitted that, in addition to plotting and discussing their runs, for some of the time they were observed to be congregating, they were, in effect, socialising with each other in the sense of having a coffee, smoking a cigarette and having a chat. Clearly, this type of activity was not performing the work for which they were being paid at the time.
Under cross-examination Mr Brailsford gave evidence that, on a couple of occasions, his reason for congregating with the other teams was that the metal truck had a longer list and, in order to try and even things out, he met with the other team members to spread out the work. However, he did accept that 14 July 2015 was not a day when he needed to talk to the other drivers about trying to offload some work. He also stated that, after plotting his run, he got out of his truck and had a chat with his work colleagues. He gave similar evidence in relation to the other two allegations against him relating to 20 and 21 July 2015.
Mr Brailsford ultimately admitted that he knew that what he was doing was wrong and that what he had said during the interview process to try and justify his actions was not true.
It was not put to Mr Brailsford in cross-examination that, during his three unauthorised breaks, none of the time which was recorded as having been taken by him was spent on plotting his route for that day.
In re-examination Mr Brailsford stated that the chat he had with his colleagues on 14 July 2015 would probably have taken five or ten minutes.
In accepting that he had done the "wrong thing", Mr Brailsford stated "Well, we went there because - it was the wrong thing, but if you can't do your dots in the yard, where else are you going to do them?". He claimed that he had never had any directions from his supervisors about where he should do his planning.
Whilst Mr Arce was unable to recall specific instances when it was alleged that he was seen socialising with other employees, under cross-examination he agreed with a statement that had been made in a recorded interview by his offsider, Richard Fetu'ufuka, that, at Dampier Place and Illaroo Street, Mr Arce got out of the truck after doing the mapping of the run and had a smoke and a coffee with other employees.
Mr Hope, under cross-examination, agreed that it was accepted by management that, in addition to a 30 minute lunch break, some outdoor workers take a ten to 15 minute morning tea break. He also agreed that it was appropriate for a smoker to step out of the truck on occasion and have a cigarette.

Reliability of investigation log

The dates, locations and duration of each of the unauthorised absences, which formed the basis for the dismissal of each of the applicants, were gathered and collated as the result of covert observations of the trucks operated by the applicants. These observations were part of an investigation conducted by Mr Sivapragasam and his staff at the request of Mr Belsito.
The times of the day of the unauthorised absences were not provided to the applicants during the disciplinary process which led to their dismissals, but were set out in an investigation log which was contained in the two volume tender bundle prepared by the Council which became Exhibit 10 in the proceedings.
There is a real question as to the accuracy and reliability of some of the information contained in the investigation log.
One of the unauthorised absences which formed the basis of the dismissal of Mr Arce occurred on 7 May 2015 when it was alleged that he was absent from work without authorisation for 30 minutes at the Euro Café, Jedda Road. Mr Arce was adamant that this allegation was false. Ms Rizos, in her witness statement, recorded that at the meeting on 10 August 2015, that Mr Arce stated "I worked overtime on 7 May 2015. I was not there for more than 5 minutes as I ordered a coffee and got out of there".
In his own witness statement Mr Arce stated "The allegation marked 4 is definitely false. We often go to this café and get a takeway coffee at the start of the day, which is with the agreement of our team leader and supervisors. I did not stay there for 30 minutes. I don't ever recall being there for more than 5 minutes". This explanation was not accepted by the Council and the alleged unauthorised absence of Mr Arce on 7 May 2015 formed part of the basis for the finding of serious misconduct against him, and of the decision to summarily dismiss him.
However, the investigation log, which shows "Deva" (Mr Sivapragasam) as the "observer" on 7 May 2015, discloses that this 30 minute unauthorised absence commenced at 4.55am, which is five minutes before Mr Arce's start time and 20 minutes before the time when he is expected to be working at 5.15am, according to the evidence of Mr Hope. The investigation log records that this unauthorised absence concluded at 5.25am. This information was not disclosed to Mr Arce or to the USU during the investigation and was first disclosed as part of the Council's tender bundle in these proceedings.
The investigation log also shows that, on 7 May 2015, in addition to Mr Arce's truck number 54, three other trucks, numbers 842, 846 and 15, were observed by Mr Sivapragasam to be at the Euro Café for precisely the same period that morning as Mr Arce's truck. Truck 842 was driven by Mr Fellows on that day. John Virag was his offsider.
Mr Fellows and Mr Virag both received letters in August 2015 concerning this alleged unauthorised absence and were required to meet Mr Belsito and Ms Rizos to explain themselves. During those meetings both men denied that they were at the café on that day for any longer than three minutes. Mr Belsito recalled that Mr Fellows had produced telephone records that substantiated that he made a call to the Euro Café for the purpose of ordering coffee and that he was on his way to pick it up. Their denials were accepted by the Council and no further action was taken against either of them, apart from the issuing of counselling letters.
Mr Goodridge was present at the meetings with each of the applicants which occurred on 17 August 2015. In his witness statement, in reference to Mr Arce, Mr Goodridge stated "His assertion that he had only been there for 5 minutes did not appear to me to be an honest response". However, in relation to the meeting with Mr Fellows, and the allegation that he was present at the Euro Café for 30 minutes on 7 May 2015, Mr Goodridge recorded "Mr Fellows refuted that allegation, however stated the he did purchase a coffee at that site which would have taken no longer than 3 minutes as the coffee is pre-ordered via telephone (and provided records to show this)".
No explanation was proffered by the Council as to why Mr Arce's denial of this allegation was not accepted and why it remained as part of the basis for his dismissal, along with the other instance on 22 April 2015 where he denied being present, as well as the alleged unauthorised absence of four minutes duration on 20 July 2015.
During the hearing the Council ultimately disavowed any reliance on the alleged unauthorised absence of 7 May 2015. However, this incident was relied upon at the time of Mr Arce's dismissal and at the time of preparing and filing the Council's evidence in these proceedings. Further, if the investigation log, which records the information used to justify the dismissal of the three applicants, is inaccurate with respect to the incident of 7 May 2015, it is difficult to maintain confidence in the accuracy and reliability of the other data recorded in it.
Another of the alleged unauthorised absences relied upon as a basis for the dismissal of Mr Arce occurred on 22 April 2015 at Dampier Place for 15 minutes duration. Mr Arce maintained at the meeting on 10 August 2015, and has maintained since then, that he was not at that location on that date. As with the incident of 7 May 2015, the Council rejected his denial of this allegation. However, the only entry in the investigation log for a 15 minute unauthorised absence at Dampier Place on 22 April 2015 records the truck number as "Unknown" and contains the comment "Number of vehicle could not be recorded". The observer that day was Investigations Officer, John Bow, one of Mr Sivapragasam's staff.
In a memo from Mr Sivapragasam to Mr Belsito dated July 2015 the truck involved in this particular incident is nominated as truck number 54, which was the vehicle being operated by Mr Arce on 22 April 2015. However, no explanation was provided as to how this vehicle, the number of which could not be recorded by Mr Bow on the day in question, was apparently, at some later time and by some undisclosed means, identified as truck number 54.
Only two trucks were sighted at Dampier on 22 April 2015, truck number 852 which was Mr Wojciechowski's truck and the truck which could not be identified by the observer, Mr Bow. In final submissions counsel for the Council stated that the previously unknown truck had been identified as truck number 54 by way of a process of deduction but did not explain, and there is no evidence to demonstrate, how that was done. There is no evidence before the Commission which would eliminate other trucks which had been observed taking unauthorised breaks during Mr Sivapragasam's investigation such as truck number 821, truck number 33, truck number 15, truck number 19, which was usually operated by Joel Kelly and Mr Brailsford, truck number 842, which was usually operated by Mr Fellows and John Virag, or truck number 846, which was usually operated by Jon Eckhold and Justin Hudson.
In cross-examination the following was put to Mr Arce, apparently in relation to Wednesday 22 April 2015, but this is less than clear from the transcript: Q. Now, you stayed in Dampier Place for 15 minutes that morning. A. Yeah. I don't really know now, when I say before to you, we do the 25 centimetres (as said) to do the plot and coffee and cigarette-- This answer does not, in my opinion, constitute any admission by Mr Arce that he was, in fact, at Dampier Place on the morning of Wednesday 22 April 2015.
These issues cast some doubt upon the reliability and accuracy of the data collected as part of the investigation which was then used as the basis for the specific allegations which led to the dismissal of the three applicants.
Further, the investigation by Mr Sivapragasam and his staff did not attempt to quantify what part of time during the unauthorised breaks was occupied by the applicants performing work such as plotting their routes for the day, as opposed to engaging in non-work related activities, such as socialising.

Attack on the credit of the applicants

In its written closing submissions the Council focussed a great deal attention on attacking the credibility and honesty of each of the applicants, both in the investigation process and in their evidence before the Commission. It was submitted that the dishonesty of the applicants during the investigation process, their statements to the Commission, their evidence in chief and (in the case of Mr Wojceichowski) provided a further basis to justify their dismissals which the applicants cannot overcome. These attacks on the applicants' credit require careful analysis and consideration. David Brailsford
According to Mr Belsito, at the meeting on 10 August 2015, Mr Brailsford stated that they "drive away from the eye of the public to mark the run because Graham tells us to get out of the yard by 5.00am". Mr Belsito responded by referring to toolbox meetings where the employees were reminded that they have 15 minutes, presumably to plot their runs. Mr Brailsford replied "That's bullshit…". It was. Mr Brailsford went on to reiterate that they were told to get out at 5.00am and that he had to do his run somehow out of sight out of mind.
Ms Rizos' witness statement recorded a more extensive exchange between Mr Belsito and Mr Brailsford which is largely consistent with Mr Belsito's evidence. Neither Ms Rizos nor Mr Belsito gave evidence that it was put to Mr Brailsford that not all of the time he spent on his unauthorised breaks was spent plotting his run and that some of the time was spent socialising with other employees.
I find nothing in the responses given by Mr Brailsford at this meeting, as recorded by Mr Belsito, to be dishonest.
In the face of the claims made by Mr Brailsford about the necessity of plotting the runs away from the depot because they didn't have sufficient time to perform the task before they were required by management to depart, the Council persisted, in the Employer's Reply to the three unfair dismissal applications, with the propositions that: 2.2 The employees are required to attend work at the Council depot by 5 am each work day at which time they are provided with a list of houses requiring "Council Pick-Up". Contrary to the assertions of the Union on behalf of each applicant, there is no requirement that the employees leave the depot within 15 minutes of arrival. Rather, as documented evidence will show, the requirement is for all employees to commence work within 15 minutes of arriving at the depot. On any view, such a requirement is entirely reasonable. 3.4 More concerning was the failure on the part of each applicant to accept responsibility for their actions. Rather than accepting wrongdoing, on 10 August 2015, the Applicants sought to explain their conduct by asserting that it was Council's direction to start work within 15 minutes of attending the depot that led to the Applicants meeting in the early morning to plan their route for the day. This explanation was not credible for a number of reasons including: ……………………. (d) the direction to commence work within 15 minutes of arriving at the depot was unambiguous and did not require the Plant Operators to leave the depot within 15 minutes of arrival; (e) each employee accepted that they had not been instructed to carry out the routing task from outside the depot where there are appropriate facilities (eg lighting, tables, chairs etc); and (f) given Plant Operators work in pairs, with a driver and a passenger in the truck, and who work within the same geographical area repeatedly, none of the applicants could provide any adequate explanation as to why the routing task could not be performed by the passenger during their transit between locations.
These propositions were ultimately proved to be false by the Council's own witnesses but, at the time when Mr Brailsford and the other two applicants were preparing and giving their evidence, they were doing so in the context of propositions that were being put against them by the Council which they knew to be wrong. In this context it is unsurprising that they would not simply put up their hands and admit their wrongdoing.
According to Mr Brailsford, at the meeting on 10 August 2015, he gave the following explanation for his truck being parked at Illaroo St/Yarrawa Rd on the mornings of 14, 20 and 21 July 2015: We were plotting the runs. These are first thing in the morning. We were marking the runs. Some of the runs are going backwards and forth so we need to organise them. Harry, Terry and Luis were sometimes doing extra metal pickups to make sure we got them all done…You haven't reduced the numbers for the metal truck so I need help some days It does not appear that Mr Brailsford was shown his truck's run sheet, or informed of the number of pickups for the days in question, at this meeting.
During his cross-examination Mr Brailsford was shown his run sheets for 14, 20 and 21 July 2015 and the number of pickups for those days. For 14 July there were 33 pickups and 31 streets. He agreed with counsel that, on that day, there was no need for him to talk to the other drivers about trying to offload some work if there were only 33 pickups. It was not put to Mr Brailsford that he had not spent some of the time on that morning plotting his run. He was cross-examined about being seen out of his truck talking to Mr Arce. He claimed that he may have finished plotting his run, that he left to do his work not long after, that he got down from his tuck and had a conversation because he "had a stretch" and that he could not see a problem with having a bit of a chat to work colleagues.
The following exchange then occurred: Q. That's not what you said in your interview with Mr Belsito, is it? A. No. Q. No. What you said to him was, "Well, I had to, because we were so busy I had to offload some work." A. Yes. Q. That's not true, is it? A. It was true to a certain degree. Q. It wasn't true for 14 July. A. Well, if you're saying that, yes, and I'll have to agree with you.
In its written closing written submissions the Council contended that the above exchange amounted to a concession by Mr Brailsford that he had not told Mr Belsito the truth about his reasons for meeting the other drivers on 14 July 2015. I do not accept this contention. According to his witness statement, Mr Brailsford's response to the question from Mr Belsito "Were you parked at Illaroo st at these times?" was "Yes, I think so. We were plotting the runs…" It was not put to Mr Brailsford that this statement was untrue. Both Mr Belsito and Ms Rizos confirmed in their witness statements that Mr Brailsford made reference to marking the run.
Mr Brailsford's comment at the meeting of 10 August 2015 about the other teams doing extra metal pickups was not specifically referring to the workload on 14 July 2015. He was not shown the run sheet for that day at that meeting. Acceptance by him during cross-examination, after being shown the run sheet, that there was no need to offload work on that day, does not amount to a concession that he had not told Mr Belsito the truth at the 10 August 2015 meeting.
Mr Brailsford was cross-examined in a similar vein after being shown the workload for his truck on 20 and 21 July 2015. He again conceded that there was no reason for him to be meeting with, or talking to, the other drivers on those days. In relation to 21 July 2015, the following exchange occurred: Q. Why were you there? A. Because I go there to plot my run. Q. Well, why were you talking to Harry-- A. I think I was there to plot my run. I've been - the three times I went there, because I had Joel Kelly working with me, who was very inexperienced. Q. Why were you talking to Harry, Terry and Mr Arce on those days - on that day? Why would you need to talk to them? A. There's no reason. Q. No reason. But you didn't see it as a problem. A. Well, I do see it as a problem. Q. You do? You didn't say that in your interview with Mr Belsito, did you? A. No, I didn't. No. Q. In fact, what you did was say, well, you had to meet to try and offload your work. And that wasn't true, was it? A. No.
I reject the Council's submission that this exchange amounts to a concession by Mr Brailsford that he had not told Mr Belsito the truth during the investigation into the 2015 unauthorised breaks because: 1. Mr Brailsford was consistent in stating that he was at Illaroo St/Yarrawa Rd on the days in question to plot his run; and 2. Mr Brailsford's reference to workload issues at the 10 August 2015 meeting was made as a general statement and without the benefit of being shown the workload for his truck on the days in question.
At worst, Mr Brailsford was less than forthcoming at the 10 August 2015 meeting about spending some of the time, on the days in question, socialising with the other drivers. However, despite the Council having knowledge that some employees were seen to be socialising for varying periods of time during the unauthorised breaks, there is no evidence that this was directly put to Mr Brailsford and denied by him.
During the cross-examination of Mr Brailsford, counsel took him to paragraph 27 of his witness statement where he sets out the explanation he gave to Mr Belsito at the meeting on 2 October 2014 in relation to the 2014 allegations, which is, in part, in the following terms: Gino, those times are days where we met to discuss how each truck was going with their runs and to see if we could help each other make sure that we finished for the day.
It was put to Mr Brailsford "That's not what you actually said in the meeting, is it?" He replied "Yes it would have been". He was then taken to Ms Rizos' handwritten notes of this meeting which do not include any reference to the explanation set out at paragraph 27 of Mr Brailsford's witness statement. Ms Rizos' notes are as follows: BR, DB, GB Clear on letter * I was there * Got caught * Honesty * Nothing to add
The following exchange then occurred in the cross-examination of Mr Brailsford: Q. Well, Ms Rizzos recorded the conversation, recorded in her notes that you admitted you were there, admitted you'd been caught, you were being honest in the responses you gave, and you had nothing to add. What's true? A. What you see. Q. That you admitted you were there. A. Yes I did. Q. Admitted you got caught. A. Yes. Q. That you were being honest. A. Yes. Q. And you had nothing to add. A. That's right. Q. So where you set out in your statement that you've provided this explanation to justify being there, is that untrue? A. Probably, yes. Q. So what you've set out in this statement is untrue? A. Possibly, yes. Q. And the reason you've inserted this in your statement is because you thought it would be better for your case, correct? A. I was hoping it would help; would help. Q. Right. The truth is, when you admitted you got caught, you knew you were doing something wrong, didn't you? A. Yes, I must admit, I have to.
Counsel submitted that this exchange demonstrated the extent of Mr Brailsford's dishonesty in his witness statement.
A number of observations need to be made about this exchange. Firstly, it relates to an explanation given by Mr Brailsford in relation to the 2014 allegations so its relevance to the present matter is limited. As I understand the submission of the Council, this exchange demonstrates that Mr Brailsford is a dishonest person because he now claims that he proffered an explanation for the 2014 allegations which he did not proffer at the time.
The immediate difficulty with that submission is that, in his own witness statement, Mr Belsito refers specifically to paragraphs 26-27 of Mr Brailsford's witness statement and states "I agree with the statement however there was no explanation given why they then decided to go out of their designated area and to regularly congregate with others for lengthy periods". In other words, Mr Belsito was confirming that Mr Brailsford did, in fact, at the meeting on 2 October 2014, give the explanation which he claimed to have given at paragraph 27 of his witness statement, but Mr Belsito was complaining that the explanation was inadequate.
Ms Rizos, in her witness statement, confirms the notes she took of the 2 October 2014 meeting but does not refute the contents of paragraph 27 of Mr Brailsford's witness statement.
Having observed Mr Brailsford's demeanour under cross-examination, I gained the strong impression that, knowing that he and the other applicants had done the wrong thing by socialising during work time after they had completed plotting their runs, he was only too willing to agree with whatever counsel put to him, to his detriment. He was clearly out of his element in the witness box, to the point of conceding that he had probably not, or possibly not, given the explanation in 2014 which Mr Belsito confirmed that he did give, and Ms Rizos did not dispute.
I reject the attack on Mr Brailsford's credit based on the proposition that paragraph 27 of his witness statement records an explanation that he did not give at the meeting on 2 October 2014.
Following on immediately from the cross-examination recorded at paragraph 151 above, the following exchange occurred: Q. And you admit that taking these extended breaks in July 2015, the more recent ones, you knew what you were doing was wrong. A. Yes. Q. And yet during the interview process you continued to try and justify your actions, didn't you? A. Yes. Q. And that was - and what you said to justify your actions again was not true, was it? A. Correct.
As I have already stated, my observation of Mr Brailsford in the witness box at this point, having just been subjected to an attack on his credit for which there was no sound basis, indicated that he was willing to agree with whatever was being put to him in cross-examination, even when it was clear that he did not accept that everything he had said to justify his actions was untrue. Clearly, Mr Brailsford did not resile from the proposition that he spent some of the time during the unauthorised breaks on the three days in question plotting his run and, on some occasions at least, there were workload issues to discuss with the other teams.
The overall impression I formed of Mr Brailsford was that he was an honest witness who attempted to give truthful evidence. He accepted that he and the other applicants had done the wrong thing by socialising in the morning after any work related activities were completed. He accepted that this was the wrong thing to do as the following exchange in re-examination demonstrates: Q. Now, you said, when Mr Mahendra asked you about the allegations of 21 July, he followed up and said, "Did you see meeting" - I think he said that you were - he put to you the allegation that you'd stopped for 44 minutes, and he asked you the question, "Did you see that as a problem?" And you said, "I guess I see it as a problem," or words to those effect. Do you remember that? A. Yes I do. Q. Why did you see it as - why do you see it as a problem? A. Well, obviously, you know, it is a problem, because I did the wrong thing. Q. And what precisely do you mean when you say you did the wrong thing? What was the wrong thing that you're talking about? A. Well, we went there because - it was the wrong thing, but if you can't do your dots in the yard, where else are you going to do them? Q. I understand. And can I ask you, have you ever had any directions about where you should do your planning in the morning? A. No. Q. Any directions from Mr Fellows or from Mr Hope or Mr Douglass? A. No.
During the investigation in 2015, Mr Brailsford may have been less than forthcoming about the social aspect to the unauthorised breaks. However, it has not been demonstrated that he lied to the Council. On the other side of the coin, Mr Brailsford was being confronted with a proposition that he had been advised that 15 minutes had been allocated in the morning for the employees to plot their runs at the depot. He knew then, and the evidence of the Council's own witnesses in these proceedings has since confirmed, that this was not true.
I do not accept the submission of the Council that Mr Brailsford's answers given to the Council during the investigation process about his absences from work were dishonest so as to provide a further reason to justify his dismissal.
I do not find that Mr Brailsford's evidence in these proceedings was so lacking in credit as to provide a basis for the Commission to refuse the granting of discretionary relief if his dismissal is found to be unfair. Luis Arce
I also reject the attack by the Council on the credit of Mr Arce.
It was readily apparent, during Mr Arce's time in the witness box, that English is not his first language and, at times, he was struggling to understand a question and to articulate an answer.
In its written closing submissions the Council identified certain aspects of the evidence given by Mr Arce in respect of the "2015 Incident". Although not expressly stated, it seems to be implied that these aspects of Mr Arce's evidence lack credit. Unhelpfully, the Council does not identify the evidence in its case which would support a finding that these aspects of Mr Arce's evidence are lacking in credit. I set them out and deal with each of them in turn: (i) he was not at Dampier Place on 21 April 2015; It was not one of the allegations against Mr Arce that he was at Dampier Place on 21 April 2015. If the date is meant to be 22 April 2015, Mr Arce has consistently denied that he was at Dampier Place on that date for 15 minutes, as alleged, or at all. As set out at paragraph 129 above, the only entry in the investigation log for a 15 minute unauthorised absence at Dampier Place on 22 April 2015 records the truck number as "Unknown" and contains the comment "Number of vehicle could not be recorded". There is no other evidence which places Mr Arce at Dampier Place on 22 April 2015. During closing submissions I asked counsel for the Council how was it determined that the unidentified truck was the truck operated by Mr Arce on that day. His response was by a process of deduction which he thought was explained by Mr Hope's statement as to how the trucks were identified based on who was on the road at the time. This process was not explained in Mr Hope's statement or anywhere else in the evidence. I am simply unable to conclude that Mr Arce's denial that he was at Dampier Place on 22 April 2015 is untrue and I decline to so conclude. (ii) he was not in Truck 54 and accordingly not at Illaroo Street on 23 July 2015; The allegation concerning 23 July 2015 was that Mr Arce was at Illaroo St/Yarrawa Rd in truck number 842, not truck number 54. Mr Arce claimed that, on 23 July 2015, he was on light duties and not in the truck. In response, Mr Hope stated "I am aware that Luis Arce does not admit to being present at the locations and times alleged - I have checked the leave record and can confirm that Luis was at work on these dates". But Mr Arce did not claim that he was not at work on 23 July 2015. He claimed that he was on light duties and not in the truck. Mr Hope further states that Mr Arce was on light duties after 23 July 2015. However, in the tender bundle produced by the Council, which became Exhibit 10 in the proceedings, there is a Return to Work Plan for Mr Arce dated 23 July 2015 which states that he is to avoid hand gripping. The commencement date is 23 July 2015. This tends to support Mr Arce's belief that he was on light duties and not in the truck on that date. The run sheet for truck number 842 for 23 July 2015 has the name "Luis" on it. However, this run sheet was not shown to Mr Arce during the investigation, nor was he taken to it during cross-examination in these proceedings. On the basis of the evidence produced by the Council, I am unable to conclude that Mr Arce's statement that he was not in the truck on 23 July 2015, was deliberately dishonest. (iii) that the teams were meeting in order to "swap addresses" and plan their routes; This statement is supported by the evidence of the other applicants. I accept the truth of this statement but acknowledge that it is incomplete insofar as it makes no reference to the socialising aspect of the meetings. Nevertheless, I am unable to make an adverse credit finding against Mr Arce on the basis of this statement. (iv) that he was not given the opportunity to respond to the allegations in writing; None of the evidence produced by the Council refutes this statement. None of the letters provided to Mr Arce, or to the other applicants, invites a written response. Neither Mr Belsito nor M Rizos dispute this statement by Mr Arce. Mr Goodridge simply stated "Mr Arce did not request an opportunity to provide a written response, despite being given prior notice of the various meetings". There is no basis for making an adverse credit finding against Mr Arce in relation to this statement. (v) that the content of his statement is true and correct; The Council has not demonstrated that the content of Mr Arce's statement is untrue or incorrect. At worst, his statement is incomplete in that he makes no reference to the socialising part of the morning meetings. However, this omission does not, of itself, provide a sufficient basis for an adverse credit finding against Mr Arce.
In relation to the "2014 Incident", the Council suggests that Mr Arce gave untruthful evidence that the teams were meeting to have discussions about how they could help each other finish their runs and that there was very heavy rain on some of the days in question. Mr Belsito considered this information to be misleading and untrue given that, during each sighting where Mr Arce was absent from work, it was not raining nor was there a backlog in work to justify the need for any discussion regarding workloads.
The statement about the rain was supported by the other two applicants, as well as a number of the other employees who were interviewed about that matter in 2014, namely, Terry Sykes, Joel Kelly, Gavin Singleton and Stewart Tully, according to the notes taken by Ms Rizos. The Council produced records of rainfall at Bankstown Airport which showed that it only rained on one of the days in question in 2014, being 28 August. However, these records do not disprove that it was raining heavily on the days in question, or some of them, at the locations where the teams had congregated.
Mr Arce's statement about meeting to discuss their runs was also supported by the other two applicants as well as Joel Kelly and Stewart Tully.
Neither of these statements by Mr Arce has been demonstrated to be untrue such as to warrant the making of an adverse credit finding against him.
The Council further submitted, in relation to the 2015 unauthorised breaks, that Mr Arce admitted, for the first time that, on the days in question, he would get down from his truck in order to drink his coffee, have a cigarette break and speak with Mr Wojciechowski and Mr Sykes. Reliance was placed on the following exchange during the cross-examination of Mr Arce: Q. Your offsider Richard? A. Yeah. Q. He says in a record of interview that he stayed in the truck and did the plotting and you went and had coffee with Harry and Terry. What do you say about that? A. That's true. I don't deny that one but he stay on the truck to do his thing on his private life with the telephone, and I go after we finished and do the plots, then I go out for the truck. Q. So what was Harry - sorry, after you'd done the plots you'd go out from the truck and you'd have coffee with Harry and Terry? A. Yeah. Q. And what were Harry and Terry doing at that time? A. The same thing. They do the plots. Q. Why were they having coffee with you? What was there to discuss? A. Just talking. I am a smoker and I get off the truck for smoking because we're not allowed to smoke inside the truck. Q. So Harry and Terry were with you outside the truck? A. Pardon? Q. Were they with you outside the truck? A. On the back of the truck and I was a little bit further. Q. So you accept, don't you, that what you were doing was taking a break after you had - after you say you had finished plotting the run? A. Yeah. Q. So if the break was only thirty-eight minutes, as an example-- A. Yeah. Q. --you would've plotted the run, you get out of the truck, you have a smoke, you have a coffee, you talk to Terry and Harry, and then you get back in the truck and leave, do you? A. Yeah. Q. And is that what happened on each occasion? A. Pardon? Q. Is that what happened on each occasion in April and in July this year - sorry, last year, 2015? A. What we're talking about is 2014 or you come back-- Q. I'm coming to 2015 now. A. Fifteen now. Q. Because Richard wasn't there in 2014, was he? A. Yeah, he was. Q. He was there as a casual but he wasn't-- A. He's a-- Q. Was he in the truck with you? A. Yeah, all the time. Q. In 2014? A. Yep. Q. Let's go to 2015, April 2015 in particular? A. Yeah. Q. April and July, I should say. Richard says in his record of interview that he stayed in the truck to do the plotting and that you went outside to have a coffee with Harry and Terry. You've just given evidence that that's something that would occur. Yes? A. Yeah. Q. How often did that happen? A. All the time when we go there for the dot. Q. So every time you went there to do the dots Richard would stay in the truck and do the dots? A. We do the dot together. Q. You do the dots together? A. Yeah. Q. And then you get out? A. Yeah. Q. You'd have a smoke, you'd have a coffee with Terry-- A. Finish my coffee, yeah, because I don't make the coffee there in the truck. I got a coffee, take it and when we finish the dot I take it out with me. Q. And you stand around with Harry and Terry? A. Not around. Yes, we park one behind the other one.
It was submitted that this evidence directly contradicted the evidence given by Mr Wojciechowski. I disagree. A number of observations need to be made in relation to these submissions by the Council and the evidence which is said to support them: 1. With respect to the proposition that this is the first time that Mr Arce admitted to getting down from his truck to drink his coffee, smoke a cigarette and speak with Mr Wojciechowski and Mr Sykes, it does not appear from the evidence of Mr Belsito, Ms Rizos or Mr Goodridge that it was squarely put to Mr Arce at either of the two meetings with him in August 2015 that, during the unauthorised breaks, he got down from his truck, drank coffee, smoked a cigarette and socialised with other employees. This was not put directly to him despite the fact that some employees undertaking such activities had been observed doing this by Mr Sivapragasam and his team during the investigation. 2. The proposition put to Mr Arce that in the record of interview of Richard Fetu'ufuka, which became Exhibit 9 in the proceedings, Mr Fetu'ufuka said that Mr Arce went and had a coffee with Harry and Terry is simply untrue. Mr Fetu'ufuka did not identify Harry Wojciechowski or Terry Sykes as being present, although he did nominate Mr Wojciechowski's truck, number 852, and Mr Brailsford's truck, number 19, as being present at Dampier Place and Illaroo Street. There is no allegation against Mr Brailsford that he took an unauthorised break at Dampier Place. 3. Of the three alleged unauthorised breaks taken by Mr Arce and Mr Wojciechowski at Dampier Place on 22, 24 and 30 April 2015, Mr Arce has denied being there on 22 April and the evidence does not establish that he or his truck were there on that day. In any event, the allegation against Mr Arce on this day is that he was at Dampier Place for 15 minutes and left ten minutes before Mr Wojciechowski left. There is no evidence that any socialising between Mr Arce and Mr Wojciechowski occurred on this occasion. It is not alleged that Mr Fetu'ufuka was Mr Arce's offsider or present in Dampier Place at all on 24 April 2015. The run sheet for Mr Arce's truck, number 54, for 24 April 2015 indicates that his offsider on that day was Yarth Grant. The record of interview of Mr Grant concerning this incident was part of the Council's tender bundle (Exhibit 10) but it was not tested as Mr Grant was not called as a witness. It carries very little, if any, weight. The allegation concerning 30 April 2015 was that Mr Arce was at Dampier Place for 22 minutes but that Mr Wojciechowski was only there for 13 minutes which, according to the Council's submissions, would have been fully occupied in plotting the run for the day. The investigation log discloses that Mr Wojciechowski's truck left Dampier Place nine minutes before Mr Arce's truck on that day. There is no direct evidence that Mr Arce and Mr Wojciechowski were seen at any time by Mr Fetu'ufuka, or anybody else, to be socialising at Dampier Place in April 2015 or at any other time. 4. Mr Wojciechowski did not deny getting out of his truck at Illaroo Street. The assertion by the Council that he denied getting out of his truck at Dampier Place needs to be considered in the light of his complete testimony on this matter, which is dealt with later in this decision. 5. In the above passage from his cross-examination, Mr Arce does not state that Mr Wojciechowski actually got down from his truck. When it was put to him that Mr Wojciechowski and Mr Sykes were with him outside the truck, his response was "On the back of the truck and I was a little bit further". When asked if he stood around with Mr Wojciechowski and Mr Sykes, his response was "Not around. Yes, we park one behind the other one". 6. It appears from the transcript that Mr Arce was uncertain as to whether he was being questioned about the 2014 or the 2015 unauthorised breaks.
The passage from the cross-examination of Mr Arce set out at paragraph 171 above does not directly contradict the evidence given by Mr Wojciechowski, as was submitted by the Council.
The Council next criticised the responses given by Mr Arce to questions about an apparent sighting of his truck in Dampier Place on 21 April 2015, which was not one of the alleged unauthorised breaks previously put to him and for which he was dismissed. This was a day when, according to the run sheet, it was raining from 5.00am until 12.00 midday and only 12 out of a total of 36 pickups were completed. Mr Arce's reluctance to admit to being at Dampier Place on that day, without seeing proof, is understandable given that this incident was first put to him when he was being cross-examined in these proceedings almost one year after the event and given the fact that his repeated denials of being there on the following day, 22 April 2015, had been rejected by the Council despite there being no direct evidence that he was there on that day. His claim that he had been at the Euro Café, Jedda Road, on 7 May 2015 for less than five minutes, not 30 minutes as alleged, had also been rejected by the Council despite a similar claim by Mr Fellows and Mr Virag having been accepted. In these circumstances it is not surprising that his response to a new allegation being put to him for the first time was somewhat guarded.
I also reject the further attacks on Mr Arce's credit to the effect that he changed his evidence, that he asserted that he "lost track of time" and that he conceded that each time he attended Dampier Place to plot his route, he would socialise with Mr Wojciechowski and Mr Sykes. From my observation of him in the witness box it was apparent that, at times, he was struggling to understand the questions he was being asked and the propositions that were being put to him. That part of his cross-examination relied upon to support these attacks on Mr Arce's credit was confusing at times, especially as to the particular day about which he was being questioned. I formed the impression that he was attempting to give truthful responses and was prepared to concede that not all of the time he spent on the unauthorised breaks, which he admitted to taking, was spent working, and that some of the time was spent socialising with other employees.
The next attack on Mr Arce's credit was based on his supposed confirmation that he told Mr Belsito, during the meeting on 10 August 2015, that he knew to attend Yarrawa Road, Prestons, on 20, 21 and 23 July 2015 because he had spoken to Mr Brailsford on the telephone who told him where to attend. In relation to 20 July 2015 the allegation against Mr Arce is that he was at Yarrawa Road for a total of four minutes. In relation to 23 July 2015 there is no allegation that Mr Brailsford was present at all at Yarrawa Road. The only date upon which there would have been any opportunity for any socialising between Mr Arce and Mr Brailsford was 21 July 2015. In any event, I fail to see how his confirmation, during cross-examination, of a statement he made at the meeting on 10 August 2015, can now be used to attack Mr Arce's credit.
The Council then pointed to the following exchange during Mr Arce's cross-examination to support a submission that Mr Arce's evidence was obviously untrue because it conflicted with evidence previously given by Mr Brailsford: Q. Let's stick to Yarrawa Road, do you remember David getting down from his truck and talking to you? A. Yeah, I go talk to him, yeah, to find out what's, what I got, what he got, if it's too much, not too much, I pick them up, I don't pick them up.
The evidence of Mr Brailsford which, according to the Council, proves the above answer of Mr Arce to be "obviously untrue" is as follows: Q. There was no reason for you to meet with the other drivers on that day, was there? A. No. And: Q. Why were you talking to Harry, Terry and Mr Arce on those days - on that day? Why would you need to talk to them? A. There's no reason. Q. No reason. But you didn't see it as a problem. A. Well, I do see it as a problem.
The first of the above two exchanges with Mr Brailsford related to 20 July 2015, the day when it was alleged that Mr Arce was at Yarrawa Road for a total of four minutes. It is unlikely that there was much discussion, if any, between Mr Arce and Mr Brailsford on that occasion.
The second of these exchanges followed Mr Brailsford being shown the number of pickups which had been allocated to the metal truck on 14, 20 and 21 July 2015, the dates of the three unauthorised breaks taken by Mr Brailsford which, as he agreed, were light days on which he did not need to talk to the other drivers about trying to unload work.
It needs to be remembered that there is no evidence that Mr Arce had possession of the metal truck run sheet. That being the case, there is no reason to discredit his evidence that he went to talk to Mr Brailsford to find out what the latter's workload was for the day. The fact that on the three days in question, only two of which were days when the two men were both present at Yarrawa Road for any length of time, Mr Brailsford's workload was relatively light, is no basis for a finding that Mr Arce's evidence that he inquired about his workmate's workload, is "obviously untrue". It is not and I decline to make a finding to that effect.
It was then submitted by the Council that Mr Arce had reluctantly conceded that what he had said during his conversation with Mr Belsito on 17 August 2015 (being part of the investigation process) was "probably untrue". The exchange during Mr Arce's cross-examination which was cited as supporting this submission was as follows: Q. And you admitted, when I said to you, what you said in that conversation was untrue, and you admitted that it was probably untrue? A. Probably that what I say, yes.
This "admission" by Mr Arce needs to be considered in the light of the cross-examination which preceded it. The "conversation" which was being referred to in this exchange did not occur at the meeting on 17 August 2015, when Mr Belsito and Mr Goodridge were present, but at the meeting on 10 August 2015, when Mr Belsito and Ms Rizos were present. The immediately preceding question was: Q. --in relation to the conversation that you had with Mr Belsito in front of Ms Rizzos. About five minutes ago you admitted that you said "I only stopped there for five minutes"? A. I'm admit it, I done this thing, but I don't remember if I say five minutes.
This exchange followed a lengthy passage of cross-examination during which Mr Arce was being asked questions about what he said at these two meetings. It was apparent that there was some confusion as to which meeting was the subject of the questioning. This confusion seems to have carried over into the written closing submissions of the Council.
In the proceedings on Tuesday 15 March 2016, Mr Arce was being questioned about the meeting of 10 August 2015. The following exchange occurred: Q. Can I just run through the interview you had with Ms Rizzos and Mr Belsito in, on 10 August 2015. Now you deal with this to some degree - I withdraw that, you don't appear to deal with it in your statement in these proceedings, you've only focused on one conversation on 17 August. In your evidence yesterday you denied being present at Dampier Place on 21 April, do you recall that evidence? A. Yes. Q. Now in the meeting, however, yesterday, you agreed that you were there on 22 April, do you recall that? A. Yes, got it here. Q. In the meeting that you had with Mr Belsito and Ms Rizzos on 10 August, you denied being at work on 22 April, do you recall that? A. No, I didn't deny I wasn't working, the only thing I say on that, on that, say 22 April, was a Wednesday, and we was not even closer to that--
I do not accept that "yesterday", being Monday 14 March 2016, Mr Arce agreed that he was at Dampier Palace on Wednesday 22 April 2015. He has consistently denied being at Dampier Place on that day. The closest there is to any admission that he was at Dampier Place on 22 April 2015 occurred in an exchange during cross-examination on 14 March 2016, the day before the above exchange occurred. It was in these terms: Q. Okay. Now, on Wednesday 22 April you had 20 pickups to complete from the day before? A. Yeah. Q. Correct? But you would have already plotted those runs, those addresses, correct? A. Pardon? Q. You would have already plotted that route. A. Yes. Q. Yes? A. Yeah. Q. And you had to plot the route for Wednesday. A. Yeah. Q. And if we go to that route - sorry, I withdraw that. The route for Wednesday, you would have taken time that morning to add on to the route that you would have already plotted from the day before, correct? A. Can you repeat again? I don't understand your question. Q. Sure. Sorry, I'll go back. On Tuesday 21 April-- A. Yeah. Q. --you had wet weather, but you still managed to complete-- A. A certain amount of jobs, yes. Q. A certain number of runs, sorry, a certain amount of pickups. You had 20 pickups remaining. A. Yeah. Q. Okay, so that's 20 out of 30; a significant portion of the run, correct? A. Yeah. Q. That's already been plotted, correct? A. Yeah. Q. You were given - you had your Wednesday run as well, correct? A. Yeah, this day, yeah. Q. And you had to plot that route as well. A. Yeah. Q. Correct? So you've already finished Tuesday's-- A. Twenty pickups. Q. Sorry? I'm just talking about plotting-- A. I'm sorry-- Q. --plotting the route. A. Yeah. Q. You've already finished Tuesday. A. Yeah. Q. You just need to plot Wednesday, correct? A. Yeah. Q. Now, you stayed in Dampier Place for 15 minutes that morning. A. Yeah. I don't really know now, when I say before to you, we do the 25 centimetres (as said) to do the plot and coffee and cigarette--
In the context of the cross-examination which preceded it, I do not regard that last quoted response by Mr Arce as an admission that he was present at Dampier Place on 22 April 2015, an allegation which he has previously denied and for which there is no supporting evidence. I am fortified in that view having observed Mr Arce's demeanour in the witness box and his consistent and vehement denial of this particular allegation. I note that, at this point in the cross-examination, counsel did not suggest to Mr Arce that he had just made an admission to a previously denied allegation, and ask him to explain why.
Moving back to the cross-examination on Tuesday 15 March 2016, the following exchange occurred sometime before the alleged admission by Mr Arce of probable untruthfulness based on the exchange quoted at paragraph 182 above: Q. In that meeting you, in fact, said to Mr Belsito and Ms Rizzos, in reference to the dates where you were said to have engaged in this conduct, that is, taking an unauthorised break, you said "I was not there for more than five minutes, got my coffee and got out of there", do you remember saying that? A. Can be, yes. Q. That wasn't true, was it? A. Yeah, maybe they said was it true to say I having a coffee that day, he say to us he doesn't mind to having a coffee, get a coffee and get on from there. Q. Sure, but when you said "I was not there for more than five minutes, got my coffee and got out of there", that wasn't true, was it? A. Probably no, probably yes, because I don't know what you're talking about.
The quoted words attributed to Mr Arce, "I was not there for more than five minutes, got my coffee and got out of there", are taken from the witness statement of Ms Rizos. The actual handwritten notes taken by Ms Rizos at the meeting on 10 August 2015 contain the following entries: 7 May 2015 - More than 5 minutes Sighted - order coffee and get out And further down: LA - not more 5 mins - coffee and get out
In the cross-examination of Ms Rizos the following exchange occurred: Q. There's a point there, it says 7 May 2015, I think that's one of the incidents? A. Yes. Q. "More than five minutes sighted order coffee and get out." Can you just explain what that means as best as you recall? A. If I recall it, it was a statement around that he wouldn't have been there more than five minutes. If he was sighted, he would have ordered his coffee and got out. Q. Did you hold that to be true? A. (No verbal reply) Q. Or if you can't remember? A. I don't remember. Q. I think that that 7 May was included in the allegations against Mr Arce. I just want to check that and I'll confirm it for you. Yes, I can show it to you if you'd like, but it does say, "7 May, Euro Cafe, Jedda Road" - this is in Luis Arce's letter requesting a show cause meeting is the version I've got, but it's the "same table, 30 minutes". Would it be helpful if I showed that to you or are you happy to accept that? A. I'm happy to accept that. Q. So it appears that you and Mr Belsito did not believe that explanation that he was only there for five minutes? A. Not if the report indicated that he was there for 30 minutes.
If, as seems to be the case, these entries in Ms Rizos' notes relate to the alleged 30 minute unauthorised break at the Euro Café, Jedda Road, on 7 May 2015, which Mr Arce has consistently denied and which the Council later conceded was no longer being relied upon to justify his dismissal, it is difficult to understand the basis upon which it was put to Mr Arce that his statement, "I was not there for more than five minutes, got my coffee and got out of there", was not true.
I do not accept the submission put by the Council in final submissions that Mr Arce's claim that he was not there for more than five minutes was intended to refer to all of his unauthorised breaks, and not just the now abandoned incident of 7 May 2015. Ms Rizos' notes of the meeting of 10 August 2015 tend to suggest that both references to "5 minutes" relate to purchasing coffee from a café and getting out of there quickly.
Further on in the cross-examination of Mr Arce, the following exchange occurred: Q. Mr Arce, I'm going to ask you a few more questions in relation to the answers that you gave during the interviews you had with Ms Rizzos and later on 17 August with Mr Belsito and Mr Goodridge. I want to go back to the line of questioning that I put to you before in relation to the dates. In the conversation you had, and this is set out, for your benefit, Commissioner, paragraph 22 of Ms Rizzos' statement, in the conversation you had with Ms Rizzos and Mr Belsito on 10 August, you denied being at work on 22 April, do you recall doing that? A. (No verbal reply) Q. I don't want you to worry about what's in that letter now, I don't want you to worry about what's in - A. You know but that one is my guide to see what happened. I say I don't remember, to say to him I wasn't on there. Q. You don't remember the conversation? A. No. No, no, I don't remember saying, I know I got a lot of conversation when I go to meeting there, but to say what you say to me. Q. You don't remember saying that you were not at work on 22 April? A. Yep. Q. Because what seems to be a pattern here, Mr Arce, is that in order for you to make, to admit that you've done something wrong, you require the council to prove it to you, is that your standard mode of operation? A. No, not that one, but I say if you had proof of what, I do something wrong, that what I ask you for.
Mr Arce did not admit that he had denied being at work on 22 April 2015. He denied being at Dampier Place on that day and there is no evidence that he was. Ms Rizos, in her witness statement, recalled that Mr Arce said "On 22 April I was not at work, someone else may have had the truck". However, the handwritten notes which Ms Rizos made of the meeting record the following: 22 April not there - anyone else have truck With Richard on this truck These notes are more consistent with the denial by Mr Arce that he was at Dampier Place on 22 April 2015, rather than a statement that he was not at work on that day which, presumably, could have been easily verified or disproved by checking the run sheets for that day. In fact, the run sheet for Mr Arce's truck, number 54, for 22 April 2015 was tendered into evidence. It shows that the team on that truck for that day was Luis and Richard.
Mr Belsito recalled that Mr Arce stated at the meeting on 10 August 2015, "On 22 April I wasn't there. Do you have any photos?" Mr Belsito's recollection is consistent with Mr Arce's version of what he said.
It was then put to Mr Arce in cross-examination that he was the one who organised the meetings. There is no evidence that this allegation was ever put to Mr Arce during the investigation and no evidence to support it.
The following exchange then occurred: Q. Right, well, do you remember saying, and I'm going back to the conversation on 10 August, Mr Belsito asked you a question "Did you meet up with other trucks?", and in answer to that you said "Nobody was there, no other trucks were there", do you remember saying that? (emphasis added) A. No I don't remember saying that, to be honest, I don't. Q. Do you deny saying that? A. I say I don't remember, I say don't deny.
The quote attributed to Mr Arce, about which he was being cross-examined as to his credit, was as Ms Rizos recalled in her witness statement at paragraph 22. However, the handwritten notes which Ms Rizos made of the meeting on 10 August 2015 contained the following entry: (LA) - Nobody there - others trucks there (GB) - Why other trucks
The word "no", which found its way into paragraph 22 of the witness statement of Ms Rizos and about which Mr Arce was cross-examined, does not appear in her contemporaneous notes of the meeting.
During final submissions counsel for the Council accepted that the appearance of the word "no" in this part of Ms Rizos' witness statement might be an error.
Further on, the following exchange occurred: Q. And in the conversation you had with Mr Goodridge and Mr Belsito on 17 August, do you remember saying the words "I don't agree on certain times that have been alleged. Is there any proof of the times? I only stopped there for five minutes", do you remember saying that? A. Can be. Q. Now again, the assertion that you only stopped there for five minutes, that was a lie? A. The way you put it wrong, is there is no lie, because, I don't know, yeah, I say five minutes, I never say five minutes on the conversation, especially with Mr Belsito. Q. Well a moment ago you said you did? A. I did what? Q. Say that you were, that you remember saying to Ms Rizzos that you only stopped there-- A. I never told Mr, whatever it is, Rizzo, I don't know what it is-- Q. Ms Anna, Anna Rizzos? A. I never talk to her, because if she's a woman who was in meeting over there, and the writer. Q. She was taking notes? A. Yeah. Q. And in that meeting you said "I only stopped there for five minutes"? A. No, well she put it on, well, I say I don't remember exactly what I say that day. Q. You repeated those words in the conversation you had - do you remember when Mr Goodridge was taking notes? A. No, he was, he was like a dummy(?) over there, he sits, sitting there, doesn't say anything. Q. He didn't say anything, but you remember him being there? A. He was there, yeah. Q. And Mr Belsito did the talking? A. Yep. Q. And in that meeting do you remember saying "I don't agree on certain times that have been alleged, is there any proof of the times, I only stopped there for five minutes"? A. I don't remember say I only stop for five minutes. Q. Well, Mr Arce, what I'm suggesting to you now is that you're not being honest in your answers? A. That what you say, I am honest with what I say my culpability and all what I done it is true, what I say, and is up to you if you say to me I'm a liar, is a different story.
In relation to the above passage of cross-examination, it is apparent that there was a level of confusion on the part of Mr Arce with the questioning moving backward and forward between the meeting of 10 August and the meeting of 17 August 2015. My observation of Mr Arce's demeanour in the witness box, and his obvious difficulties with the English language, support this view. Further, if the claim about only stopping for five minutes was referrable only to the 7 May 2015 allegation, as appears to be the case from Ms Rizos' notes of the meeting on 10 August 2015, then it is, most likely, not a lie at all.
Then this exchange followed: Q. What I'm trying to focus on-- A. Yeah. Q. --is the evidence you gave about five minutes ago-- A. Yeah. Q. --in relation to the conversation that you had with Mr Belsito in front of Ms Rizzos. About five minutes ago you admitted that you said "I only stopped there for five minutes"? A. I'm admit it, I done this thing, but I don't remember if I say five minutes. Q. And you admitted, when I said to you, what you said in that conversation was untrue, and you admitted that it was probably untrue? A. Probably that what I say, yes.
This is the "concession" of probable untruthfulness which is relied upon by the Council. The closest Mr Arce had previously come to making such a "concession" was: Q. Sure, but when you said "I was not there for more than five minutes, got my coffee and got out of there", that wasn't true, was it? A. Probably no, probably yes, because I don't know what you're talking about.
I do not regard this response as a concession or an admission of anything by Mr Arce but, rather, an expression of the confusion that he was clearly experiencing in the witness box.
Lastly, it was put that Mr Arce conceded that the purpose of the team members meeting on the days in question was to socialise. The exchange relied upon to support this submission is the last part of the following extract from Mr Arce's cross-examination: Q. Does it surprise you that none of the other workers admit to discussing their runs? Does that surprise you? A. Yes. Q. And if that were the case, would they be lying? A. To be honest, yes. Q. In the interviews that you had with Liverpool city council you never mentioned anything about getting together and organising the run as a group, did you? A. Which - when you say Liverpool city council, what you mean-- Q. With Mr Belsito? A. Mr Belsito? I admitted before in front of him or in front of whatever, that what I done before I just call in to meet them there and the same. Q. In fact, Mr Brailsford in his meeting with Mr Belsito said this. Mr Belsito asked him, "It looks like you were congregating," and Mr Brailsford said, "This is not my problem. I'm not their boss." He said, "We drove away from site to mark the run. We chose a location, which was set out - which was out of the eye of the public. We are doing the run and Graham told us to get out of the yard by 5am." Mr Belsito said, "Why is it at that location and not near your run?" and Mr Brailsford said, "I didn't move away. Why are we being targeted?" At no stage does Mr Brailsford explain that you all had to get together in order to work out what routes you were doing for the day? A. We don't have to. I never say we have to. Q. So why did you do it? A. What I say before, to look at what suburb we got it and help each other. Q. That was just - it was to socialise, wasn't it, Mr Arce? A. The way you want to put it. You want to put it as socialising, it's socialising. At 5 o'clock in the morning it's socialising.
This passage of the cross-examination of Mr Arce demands some comment: 1. Firstly, the proposition that none of the other workers admit to discussing their runs is not correct. Mr Brailsford's evidence was that, in response to the 2014 allegations, he said to Mr Belsito, "Gino, those times are days where we met to discuss how each truck was going with their runs and to see if we could help each other make sure that we finished for the day". At the meeting on 10 August 2015, Mr Brailsford claims that he said, "We were marking the runs. Some of the runs are going backwards and forth so we need to organise them. Harry, Terry and Luis were sometimes doing extra metal pickups to make sure we got them all done…" 2. Mr Brailsford also gave evidence to the effect that there was often a bit of confusion as trucks' runs were often crossing each other and different trucks were operating in the same suburbs. Sometimes it was necessary to trade pickups so that their runs didn't cut across each other. It was about being more efficient. If there were odd or distant pickups, they would discuss between the teams which team would be best placed to do them. 3. Further, it was Mr Brailsford's evidence that the process of marking out the runs on the map was best done by two people. One would read out the addresses and the other would look for them and mark them down. If there were odd or distant pickups, they would discuss between the teams which team would be best placed to do them. The process of planning the day would usually take between 30 and 45 minutes. 4. Secondly, the proposition that, in the interviews that Mr Arce had with Liverpool City Council, he never mentioned anything about getting together and organising the run as a group, is also incorrect. Ms Rizos recalled that, at the 10 August 2015 meeting, Mr Arce responded to Mr Belsito's question "Why were other trucks there?" with "Organise trucks for runs as 3 trucks work on the same street". 5. Thirdly, the so-called concession by Mr Arce that the purpose of the team members meeting on the days in question was to socialise was, in reality, no concession at all. His statement "The way you want to put it. You want to put it as socialising, it's socialising. At 5 o'clock in the morning it's socialising" was clearly laced with irony. He never conceded that the purpose of the meetings was to socialise. He maintained that the purpose was to plan and discuss their runs. He conceded that, when those tasks had been completed, he did spend some time socialising.
As with Mr Brailsford, I do not accept the submission of the Council that Mr Arce's answers given to the Council during the investigation process about his absences from work were dishonest so as to provide a further reason to justify his dismissal.
I do not find that Mr Arce's evidence in these proceedings was so lacking in credit as to provide a basis for the Commission to refuse the granting of discretionary relief if this dismissal is found to be unfair. Harry Wojciechowski
The Council submitted that Mr Wojciechowski presented as a very poor witness and that his evidence was largely non-responsive, evasive and (having regard to the evidence of Mr Arce and Mr Brailsford) clearly dishonest in a number of respects. I reject this submission for reasons similar to those related to my rejection of the attack on Mr Brailsford's and Mr Arce's credit.
From the records of the meeting of 10 August 2015 with Mr Wojciechowski, contained in the witness statements of Mr Belsito and Ms Rizos, it appears that the thrust of the allegations which were put to Mr Wojciechowski related to the Council's proposition that he was given 15 minutes at the depot to plot the run, which he knew was not the case, and that the trucks were congregating. It does not appear that it was squarely put to Mr Wojciechowski at this meeting that plotting the run could not account for the whole of the duration of his seven unauthorised breaks, and that, for part of those breaks, he was socialising with other employees.
The first attack on Mr Wojciechowski's credit was the assertion, in the Council's written closing submissions, that he gave evidence that he did not get down from his truck at Dampier Place, Prestons and that this evidence was "obviously untrue" having regard to the evidence of Mr Arce and the observations of Yarth Grant, who was Mr Arce's offsider on 24 April 2015, as recorded in the transcript of an interview which took place on 24 August 2015 and which was in the Council's tender bundle (Exhibit 10). The evidence which Mr Wojciechowski actually gave on this issue was as follows: Q. And if we go to your statement in particular, you say in order to do that you've got two people, the route mapping takes two people, and this is paragraph 18. One looks up the addresses and the other finds it on the map. Do you see that? A. Yes. Q. And if that's the case there would be no need for you to exit your truck. Correct? A. Unless you have to go to the toilet or stretch your legs over a period of time. Q. Did you ever go to the toilet or stretch your legs when you were at Dampier Place first thing in the morning? A. No, at Dampier Place you wouldn't, no. Q. What about Illaroo Street? A. I have. Q. To go to the toilet? A. To, yeah, pass water, yes.
It is difficult to accept that Mr Wojciechowski was emphatically denying that he got out of his truck at Dampier Place, given that he was asked a double-barrelled question. He may well have only been denying that he went to the toilet at Dampier Place, given that he then immediately agreed that he had done so at Illaroo Street.
In re-examination the following exchange occurred: DUNSTAN Q. There were a few occasions where you, for example - there was an occasion when you were asked about a specific day in which you were seen getting out, I think it was at Dampier Place, and drinking coffee and talking, do you remember questions about that? A. I do recall. Q. And you answered "You're asking me something I don't know"? A. That's right. Q. And can you explain what you mean by that answer? A. Well I don't know if I did get out of the truck, I don't know if I didn't get out of the truck, you're asking about a date that's, you know, a fair period of time away, so I don't, like I said, sorry if I can't remember everything. MAHENDRA: Commissioner, I think there's some confusion here, because my question was more generic than that, it wasn't a specific date, it was whether or not he denies getting out of the truck. COMMISSIONER: On that basis, you might ask another question. DUNSTAN: I'm happy to move on from that, Commissioner, yep. Actually, can I just take one second? Q. Apologies for that, Mr Wojciechowski. I'm corrected in that you were asked if you deny ever getting out of the truck when you met, I think, at Dampier Place, and your answer was "You're asking something I don't know"? A. I don't remember, that's why that was my answer. If someone has seen me got out, well then I have done, like I said, my own memory, no, I don't remember. Q. You just don't remember, okay, I understand that? A. Yeah. This evidence hardly supports the submission of the Council that Mr Wojciechowski gave evidence that he did not ever get down from his truck at Dampier Place, Prestons.
The evidence of Mr Arce, which was referred to in this part of the written closing submissions of the Council, contained only the following references to Mr Wojciechowski: Q. Now, you stayed in Dampier Place for 15 minutes that morning. A. Yeah. I don't really know now, when I say before to you, we do the 25 centimetres (as said) to do the plot and coffee and cigarette-- Q. So you had a coffee and cigarette as well? A. Yeah, all the time when I go and do the plot, yes Q. Every single time. A. Yeah. Because by the manager, they say no worries about it, picking up a coffee, head out from there, and-- Q. Do you remember having a chat to Harry and Terry that day as well? A. I don't recall now, but probably yes, because we go for the same coffee shop, we go to there, to this area, because it's quiet, it's industrial area, out of the sight of the public. Q. Now, you would have heard Mr Wojciechowski give evidence that during this time there was a lot of rain? A. On that day? And later, when Mr Arce was being cross-examined about his run sheet for Thursday 23 April 2015, the completion of which apparently occurred on Friday 24 April, the following: Q. So, 20 streets. That's not a lot of dots to plot, is it? A. No, it's not a lot of dot to plot, you're right. Q. How long would that take you, with 20 streets-- A. I done in 25 minutes. Q. You did it in 25 minutes? A. Yeah, 25. Q. Why did it take you 25 minutes to plot such a small-- A. For my coffee and my cigarette. Q. Right. So why were you there for 40 minutes? A. Maybe I lost the time when I wasn't there. Q. Sorry? A. I lost the time when I was there, maybe I was-- Q. Because you were socialising? A. With who? Q. With Harry and Terry. A. I don't know. I don't remember that day. Q. You don't remember that day? A. No.
This evidence by Mr Arce falls far short of an unequivocal statement that he was, at any time, socialising with Mr Wojciechowski at Dampier Place out of their trucks. This evidence provides an insufficient basis for the submission that Mr Wojciechowski's evidence, that he did not get down from his truck at Dampier Place, was "obviously untrue".
The statements contained in the record of interview of Yarth Grant were not tested as he was not called as a witness by the Council. They appear, on their face, in some respects, to be self-serving. For example, Mr Grant is recorded as saying, in relation to Mr Arce stopping to buy coffee at the Jedda Road coffee shop on 24 April 2015, "I said to Luis 'We're not supposed to be here.' He said 'It's okay. I'm getting a coffee and them we're going'". This untested record of interview does not carry sufficient weight to support an adverse credit finding against Mr Wojciechowski.
I have formed the opinion that it is unlikely that Mr Wojciechowski spent any time socialising with any other employee at Dampier Place on 22 April 2015. The investigation log discloses that only two trucks were observed at that location on that day, Mr Wojciechowski's truck and another unidentified truck. The trucks departed Dampier Place ten minutes apart, and not at the same time which, according to the Council, would have indicated that they were socialising. I have formed the same opinion in relation to 30 April 2015. On that day Mr Wojciechowski's truck and Mr Arce's truck were apparently the only two trucks in Dampier Place and they departed nine minutes apart. Mr Wojciechowski was there for only 13 minutes which time, according to the Council, would have been fully occupied plotting the run for the metal truck, which Mr Wojciechowski was operating on that day.
However, on 24 April 2015 Mr Wojciechowski's truck and Mr Arce's truck were observed in Dampier Place for 39 and 40 minutes respectively. They arrived at the same time and left within a minute of each other. It is more likely than not that some part of that time was spent socialising. However, I am unable to make an adverse credit finding against Mr Wojciechowski on the basis of the answers he gave in relation to this incident for three reasons: 1. I do not accept that Mr Wojciechowski gave an unequivocal denial that he ever got out of his truck at Dampier Place; and 2. In any event, there is no probative evidence that he did get out of his truck at Dampier Place on 24 April 2015; and 3. To the extent that he was engaged for the last part of the time socialising with Mr Arce and his offsider, that could have been done without him physically getting out of his truck. Any one of the above reasons is a sufficient basis to reject the Council's attack on Mr Wojciechowski's credit with respect to this issue.
The next criticism of Mr Wojciechowski's evidence was made in relation to part of his cross-examination where he was being asked about the length of time it took to plot his runs in the morning when parked in a street away from the depot. It was submitted that Mr Wojciechowski gave implausible evidence or gave evasive answers to questions as to how familiar he was with the streets that he regularly worked on. I disagree. My assessment of Mr Wojciechowski in the witness box was that he was guarded in the answers he gave. This is understandable given that the position of the Council that had been put against him was that there was no need at all for the teams to be plotting their runs away from the depot as they were given sufficient time to do it at the depot before they were required to depart, when this was clearly not the case. Nevertheless, in my assessment Mr Wojciechowski was genuinely attempting to explain how the length of time it took to plot his run depended on a range of variables, a rather unremarkable proposition.
This part of the attack on Mr Wojciechowski's credit culminated in the submission that his assertion that it took him 13 minutes to plot 7 addresses on the map was absurd. This submission was made in relation to the answers given by Mr Wojciechowski in cross-examination in relation to an unauthorised absence of 13 minutes duration on Thursday 30 April 2015 at Dampier Place. This part of his cross-examination occurred immediately after the following exchange: Q. You accept, don't you, that it would be far more practical to do that route mapping in the depot? A. We asked - we've asked Graham Hope but we've always been told to vacate the depot. Q. Mr Wojciechowski, I'm going to ask you to focus on my question. A. Yeah. Q. You accept, don't you, that it would be far more practical to do the route mapping in the depot? A. If you're allowed to, yes. For the reasons stated above, it clearly wasn't practical to do the route mapping at the depot because the teams were not given sufficient time to perform this task before they were required to depart the depot.
Mr Wojciechowski was taken to his run sheet for 30 April 2015. Mr Wojciechowski normally worked on truck number 852 with Terry Sykes doing household waste pickups. On this day he was assigned to the metal truck, number 19, and was teamed up with an employee by the name of Anestis Babatzanis or Taz for short. It was put to Mr Wojciechowski that, given the number of addresses on the run sheet for this day, being 48 on 42 different streets, it would have taken him some time to plot the run. The following exchange then occurred: Q. So on that particular day you stopped for thirteen minutes at Dampier Place. Is that a fair representation of how long it would have taken you to plot the route? A. Well, on that particular day I was only an offsider, so Taz was the person who was doing it. So you're asking me something that I was only an offsider on, so I wasn't 100 per cent sure on what he had done. Q. You gave evidence before that it would take two people to plot the route? A. Yes. Q. So you and Taz were plotting it together? A. Yes. Q. And it took you thirteen minutes? A. We started - on that particular day we started out west because we knew we had that many jobs to do. So we started at the furthest - we went to Dampier Place, right, we plotted the run for Bringelly, Badgerys Creek, Austral, Greendale and then we ended up proceeding and we left because we knew we had a big area to cover and for us to plot the whole run on that particular day would've taken us a lot more time. Q. Sure. A. So we went out. Q. So it was a busy day, which meant you took a shorter break in the morning. Is that right? A. We only just did the furthest areas so we knew where to proceed. So that's why we only just was there for a short period of time.
Mr Wojciechowski was then cross-examined about the unauthorised break of 37 minutes duration on Thursday 23 July 2015. The following exchange then occurred: Q. Right. So taking 37 minutes to plot this route seems quite extraordinary to me, Mr Wojciechowski. A. Well, it may be in your eyes, but in my eyes, that's how long it takes. Q. In circumstances where it took you 13 minutes, on a day where you said you were busy-- A. I didn't plot the run on that day. I was the offsider, which I gave him the street addresses. Taz was the driver who plotted the run. I was the offsider who gave him the street addresses. Q. Well, let's explore that, shall we. You're talking about a metal truck run which goes across 42 different streets in a number of suburbs, and you're saying that you and Taz were able to do that in 13 minutes-- A. No, I said to you at the beginning, I said we started, we plotted the run out west, which we knew where we had to start on Thursday. Q. Okay. A. We plotted that one, we plotted that area and we went out west. We hadn't even finished plotting the whole run, because we went out there and did it, and then as we were out west, we ended up plotting more of the run, right, we pulled up on the side of the road, we plotted more of the run so we could continue on. Q. Now, that particular day, and you say you plotted roughly about half the run-- A. No, I didn't say half the run. I said about-- Q. Well, how much did you plot? A. I just said to you, we just did the jobs out west. And if you want me to-- Q. Yes please. Tell us A. Yes. Q. So the metal truck day sheet starts at page 752, and the run is attached to it. A. We would have did - the furthest was Greendale, Bringelly, Badgerys Creek, and as far as I'm looking at, Austral. We done that area there, because that's the furthest area. Q. Okay. So you're telling me that it took you 13 minutes to plot seven addresses? A. Yes. Q. Well, I suggest, Mr Wojciechowski, that's just not true. A. Well, I'm just telling you the addresses. Taz was the person who plotted it. He had the map, he plotted it. I can only tell you what happened on that day. I gave him the addresses, he plotted them.
Having analysed the location in the street directory of the seven addresses on the run sheet for that day in Austral, Badgery's Creek, Bringelly and Greendale, the Council, in its written closing submissions, described Mr Wojciechowski's evidence as absurd and put the following submission: It beggars belief that someone of Mr Wojciechowski's experience would consider 13 minutes as being a reasonable amount of time to plot the above addresses on the laminated maps that the driver's used. Rather, the obvious inference to draw is that on the particular day in question, being 30 April 2015, when Mr Wojciechowski was partnered with "Tas", it took them 13 minutes to plot the entire run for the day. That is consistent with the times given by other witnesses as to how long it takes to plot a run (Mr Woods and Mr Fellows in particular).
I disagree for the following reasons: 1. Mr Wojciechowski was being cross-examined on matters that had occurred on one morning almost one year previously. It is unlikely that his recollection as to the exact number of addresses which were plotted during that 13 minute period on 30 April 2015 is precisely accurate. To make an adverse credit finding against Mr Wojciechowski on the basis that exactly seven addresses, and no more, were plotted during that time would be unsafe. 2. More than once during this cross-examination, Mr Wojciechowski made it clear that he did not plot the run on this day. He read out the addresses and Mr Babatzanis or Taz did the plotting on the map. There is no evidence before the Commission as to Mr Babatzanis' experience and level of efficiency in plotting runs. Mr Babatzanis was not called as a witness. 3. The period of 13 minutes to plot the entire run for the day is not consistent with the evidence of Mr Woods. His evidence in chief was that, when he was working in the household crew, they could usually plot the day's work in 20 to 30 minutes depending on how many jobs there were. This was partly because he had been working in Liverpool for so long and knew where all the streets were. Mr Woods was not challenged on this aspect of his evidence. In cross-examination he said "So some managers didn't mind you doing it because they understood that it takes fifteen or twenty minutes to do". This evidence is not consistent with a period of 13 minutes to plot the entire run for the metal truck on a day that was described by counsel for the Council as "a busy day". 4. The period of 13 minutes to plot the entire run for the day is also not consistent with the evidence of Mr Fellows either. His evidence in chief was that he was aware that the teams were plotting the jobs in order to work out their run. This would take about 15 minutes. He stated "Often there are a number of jobs in a street so it's not the case that they are looking up 35 plus jobs each day, sometimes its less". However, Mr Fellows stated that the metal truck has a harder job to plot because it crosses more suburbs. On the day in question, Mr Wojciechowski, who normally did not work on the metal truck, was required to look up 48 addresses in 42 streets, which is 20% more than Mr Fellow's estimate of 35. Applying this percentage to his estimate of 15 minutes, the time reasonably taken to plot the metal truck run on 30 April 2015 would, in theory at least, be 18 minutes. In cross-examination, when Mr Fellows was asked if the times stated by others of 25-40 minutes, 30-40 minutes and 15-20 minutes to plot the runs, struck him as being unreasonable, he replied "No". This evidence is not consistent with a period of 13 minutes to plot the entire run for the metal truck on a day that was described by counsel for the Council as "a busy day".
Further, if, as is now asserted by the Council, the period of 13 minutes on 30 April 2015 was taken up plotting the run for the entire day, it begs the question as to why this incident is still relied upon by the Council as one of Mr Wojciechowski's unauthorised breaks to justify his dismissal.
Council then submitted that Mr Wojciechowski "gave evidence that was clearly untruthful when he denied that he got down from his truck to drink coffee (the clear inference being that this occurred with Mr Sykes and Mr Arce)". The transcript reference said to support this submission was part of the following exchange: Q. So if we go to 20 July, which is on page 642, you've noted that you had 35 pickups? A. Yes. Q. You stopped for 38 minutes to plot your route, in circumstances where you were only picking up in one suburb, Casula, and you only had 27 streets to visit. A. Yeah, again, Casula is split into different sections. Q. Sure. What I'm suggesting to you, Mr Wojciechowski, is that given your experience and your intimate knowledge of these areas, it would have taken you far less than 38 minutes-- A. That's your assumption. Q. --to plot your route. A. That's your assumption, not mine. Q. Because when you examine that, in the context of someone who is intimately familiar with an area, in circumstances where you're going to only 27 streets, taking 38 minutes to plot your route seems unreasonable. A. That's in your eyes. Q. Can you explain why you were seen drinking coffee outside of your truck if all you were doing was plotting your route? A. Beg your pardon? Q. Can you explain why you were seen drinking coffee outside of your truck with Terry Sykes and Luis Arce in circumstances where you say you were just plotting your route? A. I was plotting my route. Where we pull up, I did. That's what I've got to do. I've got to get the maps, and that's what I have to do. Q. You're not answering my question, Mr Wojciechowski. A. I'm answering the question as in, I pull up, we pull up to wherever the location is, I get then the street directory, what we call dot-to-dots, I then start marking the run. So, I don't know where they're saying that I was supposed to be having a coffee, where the coffee is sitting inside the truck. Q. Well, you were seen getting out of your truck and having a coffee outside of your truck. Can you explain why that would be the case? A. (No verbal reply) Q. Can't explain it? A. No, I don't - like I said, you're asking me something which I don't know.
Counsel did not identify the evidence that supported the proposition that Mr Wojciechowski was seen drinking coffee on 20 July 2015 outside of his truck with Mr Sykes and Mr Arce. There is no such evidence. The closest one comes to such evidence is the untested record of interview of Yarth Grant which related to 24 April 2015, not 20 July 2015, and which, as I have already stated, carries insufficient weight to support an adverse credit finding against Mr Wojciechowski. Further, the proposition that Mr Wojciechowski was seen on 20 July 2015 drinking coffee outside his truck with Mr Arce does not sit well with the allegation against Mr Arce that his unauthorised break on this day lasted a total of four minutes.
The Council next submitted that Mr Wojciechowski gave answers that were quite clearly evasive in respect of this issue in circumstances where he would have known whether he got down from his truck to drink coffee and have a discussion with Mr Sykes and Mr Arce. The exchange relied upon to support this submission is as follows: Q. So Mr Grant says he observed Mr Arce getting out of the truck that he was travelling in with Mr Arce, and meeting up with you and Terry Sykes. What do you say about that? Is there any reason for you to be getting out of the truck and having coffee? A. It doesn't say me getting out of the truck. It says meeting up, but it doesn't show me getting out of the truck. It doesn't say, state that I'm getting out of the truck. Q. Are you seriously suggesting that Mr Grant was able to observe you and Mr Sykes talking, as set out in question 9, without all of you getting out of your trucks? A. (No verbal reply) Q. Do you deny getting out of the truck? A. I can't - like I said, I don't remember. You're talking about August. Like I said, I - do you remember exactly what you do, can you recall what you did 1 January--
The reference to what Mr Grant was able to observe is a reference to the untested record of interview about the incident of 24 April 2015, not August as was apparently Mr Wojciechowski's understanding. As I have already stated, this record of interview has little, if any, probative value. I do not find that Mr Wojciechowski's answers to the questions he was asked, were "quite clearly evasive" or evasive at all. He was being cross-examined about minute details of his movements on days which occurred between eight and eleven months ago. He had already admitted to having got out of his truck in certain circumstances, but, on one view of his evidence, denied doing so at Dampier Place. I accept Mr Wojciechowski's evidence over the untested observations of Mr Grant.
The next attack on Mr Wojciechowski's credit was in relation to his answers in the following exchange concerning 21 July 2015: Q. On 21 July was there any reason why you and Mr Arce's truck had to be in the same location? A. What page is this you're talking about? Q. I'm asking you, is there any reason-- A. No, no; I'm asking you what particular-- Q. Illaroo Street. Illaroo Street. A. Illaroo Street? Q. Right? A. Like I said, 23 July, what day was it? Was it a Tuesday, a Monday? Q. 21 July. A. What particular day? Sorry. Q. Tuesday. A. That's when we do Hinchinbrook. I can't give you an answer.
These answers were said to be quite clearly evasive in respect of the reasons why he and Mr Arce had to be in the same location to plot their route on 21 July 2015. I disagree. He wasn't taken to the run sheets for 21 July 2015 at this point of the cross-examination. It's unsurprising that eight months after the event he could not give an answer to the question.
It was then put that, in the following exchange, Mr Wojciechowski gave answers that were quite clearly evasive: Q. Now, given your experience as the previous team leader, where routes for different trucks will differ, when you were doing it, how do you explain that the truck 852, truck 54 and truck 19, you all entered Yarrawa Road within a few minutes of each other and left within a few minutes of each other, how do you explain that? A. I can't explain it. Q. Can you explain why, in April 2015, you were all attending Dampier Place, and it changed to Yarrawa Road in July 2015, how do you explain that? A. Explain it, like I said, I can't give everyone's details, I don't know, like I said, I was looking after myself and the truck, that was it, I was the offsider, I wasn't even the truck driver.
The Council submits that the obvious answer is, of course, that the meetings were arranged so that the teams could socialise after having taken a short time to plot their routes. As I have already indicated, it is my finding that the applicants did spend an amount of time socialising, at least during some of the unauthorised breaks, after they had plotted and discussed their runs. I accept that this is likely to be the explanation for the trucks leaving at approximately the same time on the occasions when that occurred. However, I do not accept that Mr Wojciechowski's responses, as quoted above, warrant an adverse credit finding against him, so as to provide a further justification for his dismissal.
Lastly, the Council seeks to impugn Mr Wojciechowski's credit in relation to the following answer he gave concerning four unauthorised breaks for which he was disciplined in 2014: Q. It is inconceivable that you would all meet at the same time, for the same length of time, in the same location, unless it was organised by someone, do you accept that? A. No I don't accept that. The Council submitted that this answer was clearly evasive, and unreasonable, as to why the members of the Waste Services team were meeting in parks at the same time, for the same length of time, in the same location. He wasn't asked that question. He simply did not accept that these meetings were organised by someone.
It was apparently accepted by the Council that the 2014 unauthorised breaks were, in fact, extended lunch breaks. If this was the case then it is quite feasible that, on any particular day, one or more of the team members simply nominated a location to gather for lunch which was passed around the group. This hardly amounts to a meeting being "organised by someone". I reject the submission of the Council that Mr Wojciechowski's non-acceptance of the proposition, as it was put to him, was quite clearly unreasonable and demonstrative of his lack of credit.
My overall assessment of Mr Wojciechowski, having observed his demeanour in the witness box, was that he was guarded and not particularly forthcoming in the answers that he gave. This is not surprising given that a number of the fundamental planks of the case that were being put against him would later be disproved by the Council's own witnesses, as has been discussed above. Nevertheless, I am of the opinion that Mr Wojciechowski attempted to give honest answers to the questions as they were put to him. I reject the submission of the Council that the evidence given in these proceedings by Mr Wojciechowski was so lacking in credit as to provide a basis for the Commission to refuse the granting of discretionary relief if the dismissal is found to be unfair.

Authorities

The Council sought to support the dismissal of the applicants by reference to a number of authorities. In unfair dismissal cases based on alleged misconduct it is sometimes difficult to take too much guidance from past decisions which dealt with different factual circumstances.
I have no issue with the proposition that the Council is not limited to the reasons it relied upon at the time of the dismissals to establish a valid reason or reasons for the dismissals, and the authorities which support that proposition. However, for the reasons set out above, I do not accept the submission that the applicants were not honest with their employer during the investigation process. To the extent that each of the applicants may have been less than completely forthcoming and candid during that process, this was largely a product of being confronted by a series of factual propositions which, ultimately, were not made out on the evidence, namely:

there was no requirement to be out of the depot by 5.15am;
plotting of the runs can be completed in 15 minutes;
15 minutes was provided in the morning to plot the runs at the depot;
there was no legitimate purpose in a team discussing their run with the other teams; and
the applicants had been previously directed not to congregate. I do not regard any lack of candour on the part of any of the applicants as sufficiently serious as to now provide the Council with a further reason to justify their dismissals.

The Council submitted that I would have regard to the decision of Newall C in Slaveski v Marrickville Council [2015] NSWIRComm 1027. As appears from the decision of Newall C in that matter, the applicant was not guilty of taking a number of unauthorised breaks of less than half an hour, as is the case here, but of participating in a scheme of 'job and finish' which had been previously terminated by the Council, of claiming payment for overtime which he didn't work and of making arrangements to allow him to proceed to the South Coast - on pay, but without having to seek leave for some of the days in question - on days surrounding a number of holiday weekends. I regard the seriousness of the misconduct in that case as in an altogether different category than the misconduct in the present matters.
Further, the lack of candour in that case, which the Commissioner regarded as a serious matter, was related to the applicant's manipulation of work which allowed him to have two days off on pay leading into the Labour Day long weekend and not being candid with his employer on that and other occasions.
As set out above, I regard any lack of candour by the applicants in this matter as having been the product, at least in part, of being confronted with a case put against them by the Council which unravelled, in a number of fundamentally important respects, through the cross-examination of a number of the Council's own witnesses.
Further, it is useful to reflect upon Commissioner Newall's blunt statement that "it is just not open to employees to rort the employer's systems to gain a benefit" and his reference to Electricity Commission of NSW t/a Pacific Power v Nieass & ors (1985) 81 IR 46. In that matter the employees involved in the "rort" had been systematically clocking each other on and off work and receiving pay for periods of time when they were not at work. The practice was described as "fraudulent recording of time". I regard that type of misconduct as far more serious than the misconduct of the applicants in this matter. On appeal the Full Bench of the Commission (Fisher P, Bauer J, Patterson JJ) stated (at p.65): We consider that the Commissioner was in error in approaching these dismissals in the way that he did. The misconduct alleged and admitted was not that of some absences from the work place or poor time keeping which might be excused through the application of consideration of human frailty. The conduct of the respondents was a deliberate and concerted process not only to subvert the systems that they had a duty to administer, but also to obtain moneys in breach of their contract obligations. The essentials of the case brought against the respondents did not relate to poor time keeping, it was about dishonest conduct and organised and continued misrepresentations. The Commissioner erred in failing to define correctly the nature of the admitted offences. These observations are of assistance in putting into perspective the misconduct of the three applicants in the present matter. The Full Bench went on to state (at p.72): The Commissioner found that the dismissals were harsh, unreasonable and unjust. The decision does not distinguish between the concepts. We consider that there is no basis upon which it could be found that the dismissals were unreasonable or unjust. To that extent we would uphold the appeals against the finding of unreasonable or unjust dismissal. There remains the Commissioner's decision that in the circumstances the decisions were harsh. Included in the circumstances the Commissioner included length of service, their disciplinary history, their unchallenged good work performance and the effects of their dismissal on their personal and family life. All these matters are appropriate to consider and weigh in the balance. Where the offences are not serious or of moderate seriousness, such considerations may weigh down the balance in favour of the dismissed employees. It depends on the facts of the particular case. Unfortunately no one has said that these offences were not most serious. To deliberately and cooperatively seek to subvert the security of the Time and Attendance system for gain, strikes at the fundamentals of employment. We do not consider that on balance a case has been made out that the dismissals were harsh so as to enable the Commission to exercise its discretion to reinstate the dismissed employees, or that a finding that the dismissals were harsh was available to the Commissioner. In the present matters I assess the offences, even taking into account the 2014 incidents and warnings, to be of "moderate seriousness".
It is also worth noting that in Slaveski, Newall C saw the distinguishing feature between the applicant and another employee who had been a participant in the 'job and finish' scheme but who was not dismissed, to be the applicant's contrivance surrounding the holiday-related absences.
A bundle of authorities handed up by counsel for the Council in final submissions contained the following decisions and judgement: Redmond v Director General NSW Department of Health on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 White v Asciano [2015] FWC 7466 Bi-Lo Pty Ltd V Hooper [1992] SAIRComm 63 Edwards v Justice Guidice [1999] FCA 1836
The propositions which I draw from these authorities, and which I regard as clearly correct are: 1. The questions which arise in cases such as the present matters are first, whether the misconduct occurred (in the context of considering the fairness of the decision) and secondly, if it did occur, whether the dismissal was harsh, unreasonable or unjust in all the circumstances, having regard to all of the relevant evidence (Redmond at [66]; Edwards at [4] and [69]; White at [166]). 2. The Commission must ask itself whether there was a fair and reasonable explanation for the dismissal, which would be considered by fair-minded persons as being a totally legitimate reason for the action taken (Bi-Lo at p.7).
Mr Dunstan, for the applicants, cited that part of the following extract from the joint judgement of Gummow and McHugh JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 which dealt with the concept of "harsh" (at p.465): It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
On the issue of harshness I am guided by the decision of the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 444 (at [26]-[29]: 26 One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

Harsh, unreasonable or unjust

I accept that the socialising part of the unauthorised breaks constituted misconduct by each of the applicants, and was known by each of them to constitute misconduct.
The seriousness of the misconduct of the applicants in socialising away from the depot during working time, even if for relatively short periods of time, is compounded by the fact of the warnings they each received in 2014 for similar conduct.
I also agree with Mr Belsito that it is not a "good look".
The applicants were dilatory in getting on with their work once the route plotting had been completed. They spent some time socialising when they should have been working. The amount of time so spent cannot be precisely determined on the evidence before the Commission but these were not isolated incidents. There was a pattern of behaviour which the Council, understandably, has found to be unacceptable.
However, I find that part of the responsibility for what has occurred lies with management. The requirement that the applicants depart the depot between 5.00am and 5.15am each morning made it inevitable that they would stop somewhere away from the depot to plot their runs. Whilst the necessity for congregating to do this work may be questionable, I accept that the applicants genuinely believed that, by doing so, they could help each other out in relation to completing their work.
Adopting the tripartite test in the manner as discussed in Byrne the dismissals of the applicants were unjust because the employees, although guilty of some misconduct, were not guilty of the misconduct on which the employer acted, were unreasonable because they were decided upon a series of factual propositions which were false as set out at paragraph 239 above, and were harsh in their consequences for the personal and economic situation of the employees and because they were disproportionate to the gravity of the misconduct in respect of which the employer acted.
David Brailsford was employed by the Council for approximately 15 years. Apart from the 2014 incident he had not had any previous disciplinary or performance issues. He was dismissed for taking three unauthorised breaks lasting a total of 133 minutes. On my rough calculation the non-working component of that time is more likely to be between 43 and 73 minutes. Mr Brailsford is a man of 58 years of age who has had difficulty finding alternative employment. Dismissal is too harsh a consequence for this misconduct.
Luis Arce was employed by the Council for approximately nine and a half years. Apart from two minor matters in 2008 and 2012 and the 2014 incident he had not had any other disciplinary or performance issues. He was dismissed for taking eight unauthorised breaks lasting a total of 220 minutes. For one 15 minute break there was no evidence placing him at the scene. Another lasted a total of 4 minutes and one 30 minute break was withdrawn during the proceedings. This leaves a total of five unauthorised breaks totalling 171 minutes. On my rough calculation the non-working component of that time is more likely to be between 29 and 71 minutes. Mr Arce's workers compensation injury and his ongoing battle with prostate cancer have hindered his capacity to find alternative employment. Dismissal is too harsh a consequence for this misconduct.
Harry Wojciechowski was employed by the Council for approximately 14 years. Apart from the 2014 incident he had not had any previous disciplinary or performance issues. He was dismissed for taking seven unauthorised breaks lasting a total of 236 minutes. One 13 minute break would have been, according to the Council, fully taken up with plotting his run. This leaves a total of six unauthorised breaks totalling 233 minutes. On my rough calculation the non-working component of that time is more likely to be between 48 and 103 minutes. Mr Wojciechowski's workers compensation injury has hindered his capacity to find alternative employment. Whilst in terms of the number of unauthorised breaks and amount of non-working time taken, Mr Wojciechowski's misconduct is more serious than that of the other two applicants, I still find that dismissal is too harsh a consequence for this misconduct.

Practicality of reinstatement

Mr Belsito was of the opinion that reinstatement or re-employment of the applicants is inappropriate because: 1. They are repeat offenders; 2. Their actions were dishonest; 3. They were on their final warning; 4. Their actions did not demonstrate the values of the Council, which the applicants had been trained in; 5. He considers that he would no longer have trust and confidence in them to carry out their duties or uphold the Council's values when in the community as the Council's representatives; 6. They have not demonstrated respect for their fellow workers as they compromised their employment and he considers that their actions are a form of bullying and harassment; and 7. Their actions have displayed an absence of respect for their coordinators and himself as the Director in carrying out their duties in a professional manner.
Similar sentiments were expressed by Ms Rizos, Mr Goodridge and Mr Hope. However, in cross-examination, Mr Hope agreed that, apart from the issues in August 2014 and the issues which led to their dismissals, he was happy with the work performance of the three applicants. Mr Fellows, who no longer works in household waste, agreed that he would have no problem with the applicants again working in the depot.
To the extent that there may be some strain on the level of trust and confidence between the Council and the three applicants, management must share in the responsibility for that. It was management that created the situation where, contrary to the Council's case as presented in these proceedings, it was just not feasible for the applicants to plot and discuss their runs before they were required to be out of the depot.
On the issue of practicability of reinstatement, I am guided by the approach of the Full Court of the Industrial Relations Court of Australia (Wilcox CJ, Marshall and North JJ) in Perkins v Grace Worldwide (Aust) Pty Ltd [1997] 72 IR 186 (at p.191-2): Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.
Reinstatement is the primary remedy under the Act for unfair dismissal. I see no significant impediment to the restoration of a viable employer/employee relationship between the Council and each of the applicants going forward. I am confident that each of the applicants will, in the future, be very diligent in ensuring that he performs his role in a manner that meets the Council's legitimate expectations of him.
However, given that none of the applicants is without blame in relation to their conduct which led to their dismissals, and applying the principle of "a fair go all round", I do not think that it is fair that the Council bear the expense of back pay for the applicants for the period since their dismissals during which they have performed no work for the Council. I decline to make an order for back pay in favour of any of the applicants.
The orders which I make for the reinstatement of each of the applicants will operate on and from Monday 27 June 2016 which is 18 days from today's date. This will allow the Council time to make whatever arrangements it deems necessary in light of this decision.

Orders

In matter no. 2015/377059 I make the following orders: 1. David Brailsford is to be reinstated to the position he held at Liverpool City Council immediately before his dismissal on 19 August 2015 on the same terms and conditions as applied to his position at that time. 2. Order (1) is to take effect on and from Monday 27 June 2016. 3. No order is made for payment to Mr Brailsford for the period between the time of his dismissal and 27 June 2016, which period is not to count as service for any purpose. 4. Despite order (3) Mr Brailsford's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2).
In matter no. 2015/377098 I make the following orders: 1. Luis Arce is to be reinstated to the position he held at Liverpool City Council immediately before his dismissal on 19 August 2015 on the same terms and conditions as applied to his position at that time. 2. Order (1) is to take effect on and from Monday 27 June 2016. 3. No order is made for payment to Mr Arce for the period between the time of his dismissal and 27 June 2016, which period is not to count as service for any purpose. 4. Despite order (3) Mr Arce's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2).
In matter no. 2015/377078 I make the following orders: 1. Harry Wojciechowski is to be reinstated to the position he held at Liverpool City Council immediately before his dismissal on 19 August 2015 on the same terms and conditions as applied to his position at that time. 2. Order (1) is to take effect on and from Monday 27 June 2016. 3. No order is made for payment to Mr Wojciechowski for the period between the time of his dismissal and 27 June 2016, which period is not to count as service for any purpose. 4. Despite order (3) Mr Wojciechowski's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2).

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[2010] NSWIRComm 444

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Judgment (28 paragraphs)

Cases Cited (16)

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