Kerry Elizabeth Berger v Wee Waa & District Home and Community Care Incorporated

Kerry Elizabeth Berger v Wee Waa & District Home and Community Care Incorporated - [2008] NSWIRComm 1074 - NSWIRComm 2008 case summary — Zoe

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6 Wee Waa & District Home and Community Care Association Inc. is a multi- service organisation providing a range of services to frail, aged and younger disabled persons and carers in the local community. It is a not for profit organisation receiving funding from both Federal and State governments. The Association also auspices the Namoi Family Support Service. The Association is staffed by a combination of paid workers and volunteers. 7 The Association has a number of Policies and Procedures in place covering both employees and volunteer drivers, copies of which are kept in the office. 8 The Association has four vehicles, three are allocated to staff members, including Mrs Gallaher, and one (a utility) is used as a Toy Library. 9 The Management Committee is comprised of unpaid volunteers from the local community. Volunteers are also used in the following areas: Car Drivers Activities Assistants Social & Recreational Outings Assistants Meals on Wheels 10 The Association operates a transport service to assist clients to access medical care not available in Wee Waa. The services of volunteer drivers and their vehicles are used for this purpose. Volunteer drivers receive a per kilometre allowance for the service they provide. 11 Mrs Gallaher, as the Service Manager, was responsible for the co-ordination of the volunteer drivers. 12 The Association's Volunteer Policy relevantly requires of volunteer drivers that - "13. Copies of insurance, licence and registration must be given bi-annually to the Service Manager." 13 Ms Southwell is the OH & S Officer for the Association. The Association keeps a register of all vehicles used by the volunteers (Safety Equipment Register) containing various information including registration and insurance details etc,. Ms Southwell performed a twice yearly check to ensure all vehicles used in the program were registered and insured. Volunteer drivers were required to show their current registration and insurance documentation. The first such check was carried out in 2006. Ms Southwell also carried out such a check on 15 May 2007. 14 Mrs Berger had "signed off" on such a check list on the 16 May 2007 (Exhibit 9). Mrs Berger's evidence was that she could not recall signing Exhibit 9. 15 The Association also has a Vehicle Inspection Form which provides a list of items pertaining to a vehicle to be checked off (fuel, lights, various issues as to the condition of the vehicle). Vehicles are required to be inspected and the form completed prior to each trip (see Exhibit 8). Mrs Berger's evidence was that she had never completed such a form before a trip. 16 Mrs Kerry Berger is 37 years of age and has one dependent teenage child. She commenced full time employment with the Association in April 2005. She was paid $405 per week. 17 She was also a volunteer driver for the Association and was paid 53 cents per km for the use of her vehicle for such driving. The vehicle is registered in her name (a 2004 Holden Commodore) with the registration sticker affixed to the left rear window. As part of her volunteer driving she had one regular weekly client (each Tuesday afternoon). 18 Mr Robert Berger, her husband, was also a volunteer driver for the Association, driving his wife's vehicle for that purpose. He was also paid the 53 cents per km rate for such driving. 19 The Bergers have their mail is delivered to a Post Office box in Wee Waa. 20 In the week in which the events below occurred Mrs Gallaher, the HACC Service Manager, was on annual leave, in her absence Mrs Berger was responsible for the co-ordination of the volunteer drivers. 21 On the 26 July 2007 a client of the Association advised Ms Southwell that the day before (25 July), the client's partner and another client had been driven to Tamworth by Mr Berger and on the return journey the client's partner noticed that the car was not registered and drew this to Mr Berger's attention. 22 Ms Southwell contacted the Chairperson Ms Verwey and advised her of the information received. She also made further enquiries of Association's Safety Equipment Register as to the particular vehicle's registration details. It confirmed Mrs Berger's vehicle registration had expired on 30 June 2007. Further checks of the travel sheets for the vehicle showed that it had been used for ten trips in the period in which the vehicle was not registered (see table Exhibit 8 - A2). 23 On the 26 July 2007, Mr Berger in his capacity as a volunteer driver, conveyed a client and his carer (which happened to be his father and brother) to a medical appointment in Tamworth driving his wife's unregistered vehicle. The medical appointment was for either 9 or 9.30 a.m. Because of Marilyn Gallaher's absence on annual leave this trip had been arranged by Mrs Berger and Mr Berger allocated as the volunteer driver. 24 A trip to Tamworth from Wee Waa takes about two and a half hours but three hours are usually allowed by drivers. 25 Whilst he was in Tamworth Mr Berger arranged for the requisite "pink slip" to be issued for the vehicle, obtained the requisite CTP Green slip from NRMA Insurance and then had the vehicle registered. 26 Later that same day, following a discussion between Ms Southwell and Ms Verwey, Mrs Berger was spoken to about the complaint. She advised Ms Southwell that her husband was registering the vehicle, that day, whilst in Tamworth. 27 As Mrs Berger was due to go on a week's annual leave the matter was not taken further until a meeting was held with her on 6 August 2007. Present at the meeting was Ms Southwell, Ms Verwey, Mr Smith (Vice President) and Ms Gallaher. Mrs Berger was offered the opportunity of resigning which was rejected. Mrs Berger also maintained that at this meeting she was offered the alternative option of a three month trail under supervision. The Association accepted this was mentioned but denied that the issue was pursued and that it was an actual offer. 28 A general meeting of the Association was held on 8 August 2007 to consider the issue and legal advice was to be sought. 29 A further meeting was held with Mrs Berger on the 10 August 2007 and an offer of two weeks stress leave was made pending investigation of the issue. Mrs Berger had provided a medical certificate from Dr Sivanathan indicating she was suffering from stress and would be unfit for a week. 30 On the 16 August the Association met and considered the legal advice received and to "finalise the grievance procedure regarding Kerry Berger and her misconduct to the Wee Waa & District HACC Association." Minutes of the meeting (Exhibit 8 - A5) indicate that a number of points were considered. The Minutes relevantly recorded as follows: "The Committee stated that Kerry Berger may not have realised that her car was not registered for a period of time, but she admitted at least for 1 day that she was aware of this fact and allowed volunteer transport to proceed. Under the Workplace Relations Act, this is reasonable grounds for instant dismissal, as the staff member is deliberately and knowingly breaching the policies of the Organisation." The specific policies breached were then listed and the following recorded: "A long discussion was held between the Committee Members regarding Kerry urges misconduct and the reasonable grounds for dismissal. On the evidence presented regarding facts on her breaches to policies, the Committee voted and the unanimous decision was to dismiss Kerry Berger on Monday 27/08/07 after her return from stress relief." 31 On the 27 August the following letter of termination was given to Mrs Berger by Mrs Verwey on her return to work: Dear Kerry Termination of Employment We refer to the meeting held with you on Friday 10th August 2007 in relation to your misconduct in allowing volunteer transport to proceed when you knew your vehicle was unregistered.

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41 When shown a copy of the Safety Equipment Register for her vehicle (Exhibit 9), Mrs Berger confirmed that it was her signature on the form but said that she had no recollection of signing it. The other details completed on the form were not in her handwriting. 42 Mrs Berger also confirmed that she had completed two transport trips on the 3 and 10 July as detailed in the relevant Service Provider Form that she had completed (Exhibit 4). However she disputed that all of the trips summarised in Exhibit 8 - A2 were in her vehicle. She maintained the day centre ones were carried out by Mrs Beryl Berger, her mother-in-law, who was also a volunteer driver. 43 Mrs Berger said she did not realise until the night of the 25 July that the vehicle was unregistered when she opened an RTA reminder notice about the registration renewal. In relation to the CTP Green Slip, she had seen an NRMA envelope but had not opened it. She had not seen any reminder notice from the NRMA. The registration papers and the NRMA envelope were in the same pile of unopened mail. She had assumed her husband was taking care of the mail as he was not working. She did not consider any consequences to the HACC and said to her husband that they had better organise the registration the next day. 44 She confirmed that her husband had told her that evening that a client had observed that the vehicle was unregistered. However she denied that it was this that led her to open the mail and find the registration papers. She maintained she had already opened the mail when her husband spoke to her about this. 45 She had placed her husband with the client (who was his father) for the trip to Tamworth on the 26 July as there were no other volunteer cars available, they were all busy. 46 There were only three volunteer drivers and vehicles (including her husband) in Wee Waa and she knew they were not available as she had gone through the travel sheets earlier that week to see who she could allocate to the trip. She didn't want to use her husband because of the perceived conflict of interest. 47 She said she didn't know why she didn't contact the Association and ask what she should do. To her knowledge there was only one other vehicle available (the utility), which wasn't suitable. She never considered Mrs Gallaher's vehicle as she and her husband were away and her vehicle was at her house. She was not aware of anyone ever taking Mrs Gallaher's work vehicle for use without her knowledge. She did agree that two of the Association's vehicles (including Mrs Gallaher's, but not the utility) had been used on occasion to transport HACC clients and that a set of keys for Mrs Gallaher's vehicle was kept at the office. However she said she never even thought of that as her mind was on her job (a large annual event taking place the next day). 48 Mrs Berger denied that the motivation for not organising another vehicle for the trip to Tamworth was the remuneration that would be received by her husband and that organising someone else was inconvenient for her because it was family that was involved.

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49 Mrs Berger said that when her husband was being used as a volunteer driver, driving her motor vehicle, it was normally Mrs Gallaher who made those arrangements. This was because they had both agreed that in order to avoid a conflict of interest that Mrs Gallaher would organise transport with Mrs Berger's husband as a volunteer driver. 50 Mrs Berger acknowledged that it was a requirement of the Association that volunteer drivers' vehicles had to remain registered. Whilst it wasn't her responsibility to check the Safety Register, she acknowledged that she was in a special position in terms of the need to ensure that her vehicle "was right". She was aware that there was a potential for a conflict of interest in organising trips involving her husband and was thus aware that she was in a special position in relation to organising trips for which she ultimately received remuneration. 51 Mrs Berger agreed that after drawing it to the attention of her husband the week before she thought no more of it than to bring it to his attention and walk away from it. She said that it was simply overlooked. It was an honest mistake. She denied that she knew the vehicle was unregistered, continued to know and wilfully carried out those actions for which she received remuneration. 52 Mr Berger deposed that he accepted responsibility for driving the vehicle when it was unregistered. He also indicated initially that the failure to open the mail was his fault. At that time he was unemployed and at home. He indicated that they would only collect the mail every second day. Mail would not always be opened and was left various locations in the house. Whilst he was unemployed and at home he would open the mail but he also sometimes shared that task with his wife. 53 He said in cross examination that he couldn't recall opening any envelopes from the RTA or the NRMA. They usually opened mail like that together. They knew it was coming up at the end of the month. 54 Mr Berger initially maintained that they knew the vehicle had to be registered that month and that the first he became aware that it was unregistered was the evening before he took his father to Tamworth. They knew it had to be registered that month so they went through the mail and discovered they had a reminder on the registration and when they looked at that, it had been out of registration. 55 The next day after dropping off his father and his carer (which was also his brother) he went and organised the pink slip, then the Green slip and then went straight to the RTA and the vehicle was registered before he picked anybody up. 56 The previous day on a trip to Tamworth there had been a mention of it in the afternoon by way of one of the passengers in the vehicle saying that he noticed the "rego" label was out. Mr Berger said he told him no, he didn't think it was because if it was, the rego label would be at home and he was sure they wouldn't drive the car to Tamworth unregistered, it would be too much risk. 57 In cross examination he said that this was brought to his attention late in the afternoon while they were waiting for the last passenger at the doctor, and they were stretching their legs because it had been a long day. At the time they were a couple of metres away from the car. When it was brought to his attention he didn't go up and have a look at the label because he didn't think it would be out of registration because he wouldn't drive a car to Tamworth unregistered. However the client said it was out and he just believed him. 58 He then said that when he got home he told his wife that it had been mentioned that it was out of registration and they just sat down and went through the mail and found out that it was. 59 He could not explain why, at the time that it was brought to his attention that afternoon, he did not walk to the vehicle to check and to make sure about the registration. 60 Mr Berger took the unregistered vehicle to Tamworth the next day because there were no other vehicles to take his father at that time and he was booked in to do it. He was aware that he was breaking the law and that there may have been consequences for his wife and the Association if there had been an accident while he was unregistered. He thought that was right but said "you are still covered". 61 There was further extensive cross-examination of Mr Berger where he indicated that it was usually his wife that opened the mail. He also said he didn't come across a registration renewal in the mail and only got the reminder, he didn't see the original. He said because they had the renewal they didn't need to find the original, they had the reminder and that was when the car got done. 62 However he subsequently agreed that there was no written letter received from the RTA about a reminder and that whatever he got he was able to take to the RTA and register the vehicle, it was the renewal slip with the rego label contained within it. 63 When he picked the mail he didn't always look through the envelopes. He didn't see any letters from the RTA or the NRMA before that night despite the fact that he was the person who collect collected the mail. 64 He acknowledged that they didn't check the mail all the time and that in the case of the RTA and NRMA renewals they would have had to have remained unchecked for two months. He said it shouldn't be possible that any mail would remain unchecked the two months because they wouldn't have any electricity, but in the case of the registration, that might have done. This was probably because "I was lazy". Some things might have been looked at by his wife but she was "that busy. It's just got overlooked". 65 It was Mrs Southwell's evidence that when Deanna Grey came into the office on the 26 July, she told her that the day before her partner noticed that the registration on Mr Berger's vehicle had expired and had mentioned that to him. In cross examination Mrs Southwell said Mrs Gray told her that Mr Berger had told her partner the registration sticker was at home. After this complaint was made, she checked the Safety Equipment Register which confirmed that the registration expired on the 30 July 2007. She also completed an OH & S Incident Report (Exhibit 8 - A1). 66 Mrs Southwell deposed that she had spoken to Mrs Berger at the time of doing the twice yearly vehicle check with her back on 16 May 2007. At that time Mrs Berger had provided the previous year's registration papers (expiring June 2006) but not the current year telling her that they must have been thrown out and that she would obtain copies. Mrs Southwell considered that this meant that at that time Mrs Berger would have been on notice that her vehicle's registration was due in about six weeks. She maintained that she had mentioned to her that she would get her renewal notice in about two weeks time as they were usually sent out about a month before the registration expired. 67 At that time (16 May) Mrs Southwell had a staff member go out and check that the vehicle had the current registration label on it, which it did. 68 Mrs Berger did not admit that this conversation took place. She identified the signature on the form as hers but could not recall signing it. 69 Mrs Southwell then discussed the matter with Mrs Verway when she came into the office and it was agreed that Mrs Southwell could contact Mrs Berger and ask her for her current registration papers to be provided. When she spoke to Mrs Berger in the office (after her return from a trip to Narrabri) she indicated that she didn't know the vehicle was unregistered until she opened the mail the night before. Mrs Berger confirmed that the car was unregistered telling Mrs Southwell that her husband was registering it that day in Tamworth. She subsequently provided copies of the registration papers.

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70 Mrs Southwell deposed that when Mrs Berger told her that the car was being registered in Tamworth that day she realised it was even more serious as Mrs Berger had admitted she knew the car was unregistered but had still organised the trip to Tamworth. She said she told her "well, I don't know where we stand now, Kerry". 71 Mrs Southwell also said that she didn't believe Mrs Berger when she told her that she had only found out the vehicle was unregistered when she opened the mail the night before as Mrs Gray had said Mr Berger told her partner the registration sticker was at home. 72 Mrs Southwell also denied that there were no other vehicles available at the time. She said it could have been co-ordinated to change drivers and re-arrange the trips and re-coordinate another driver to do the trip to Tamworth. She also maintained that everyone knew that Mrs Gallaher's vehicle was available for driving. It had been used for activities such as meals on wheels and the keys were kept in a common place at the office. The vehicle was parked at Mrs Gallaher's overnights for insurance purposes. 73 Mrs Southwell deposed that as Mrs Berger was going on annual leave the next day she told her she would discuss the matter with the Chairperson and see what action might be taken. 74 Mrs Berger denied that she was told the matter would be raised with the Chairperson. 75 Mrs Southwell and Mrs Gallaher (when she returned from leave) subsequently checked the travel sheets for Mrs Berger's vehicle and found that it had been used for 10 (ten) trips whilst it had been unregistered (Exhibit 8 - A2). Mrs Gallaher prepared the summary sheet (A2) based on the relevant travel sheets. 76 Mrs Gallahar said she told all staff members (and acknowledged that that was only three at the time) that her vehicle would be parked at her private residence whilst she was on leave. There was no secure parking at the Association's office and they allowed her to off street park at her residence. She confirmed the spare keys were in the normal cupboard where all the keys were. She couldn't remember a specific discussion at that time with Mrs Berger, but she felt "quite certain" she was there when she told the staff. 77 Mrs Gallaher said that there had been occasions when they had had to make last minute changes because of "hiccups". There were hitches occasionally, they were dealing with frail and aged clients but she couldn't recall any specific incidents. Mrs Berger also was involved in the oversight of the volunteer program. They cross-shared the tasks. Mrs Berger was quite trained in it. She said she would have thought that before this happened, if Mrs Berger had a problem, she would be able to sort it out herself or come to her or if she was away she could contact the management committee, they had mobiles and those numbers were readily available in the office. 78 Mrs Gallaher considered that if a new driver was put on Mrs Berger knew the situation, she knew the things that had to be signed off on, their registration, third party, and insurance. All volunteers had to have comprehensive insurance and Mrs Berger was aware of that.

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87 Mrs Verway indicated that under the policy covering the volunteer drivers, driving an unregistered vehicle was the subject of instant dismissal and she had the authority to make that decision. She didn't have the authority to dismiss Mrs Berger from her paid employment, that was for the Committee to decide. 88 Mrs Berger was then asked if she wanted an advocate. This was declined. The issue of the unregistered vehicle was discussed as was Mrs Berger's position of trust and the breach of policies. Mrs Verway told her that it was proposed that she tender her resignation for family matters which would not hinder her prospects of employment in the community. The meeting lasted for about two hours. Mrs Berger became upset during the meeting and there was a short break during which time she went outside. 89 Mrs Verway conceded that during the meeting the issue of maybe being put on a three month trial under the supervision of Marilyn (Gallaher) was raised but when she looked at Mrs Gallaher she said no. It was not an offer and the matter was just dropped there. The issue was not mentioned by anyone at any subsequent meeting with Mrs Berger. 90 Mrs Verway indicated that if Mrs Berger had notified anyone else that there was an offer of three months' trial, then whatever she did outside of the meeting wasn't up to her. The offer was not made. 91 Towards the end of the meeting Mrs Berger said that she didn't want to resign, she was emotional and the meeting ended. 92 Both Mrs Southwell and Mrs Gallaher confirmed that the issue of a three months' trial was raised during the meeting by Mrs Verway. Mrs Southwell said that after this was raised she actually asked who would do the supervision and Mrs Verwey said Marilyn, at this Marilyn threw her hands in the air and queried how was that going to work and how could she do her job and complete supervision as well. Mrs Gallaher confirmed that account and said that she basically refused to do it. She also believed, given just where they were all sitting at the table, that Mrs Berger would have heard her reply. Both Mrs Southwell and Mrs Gallaher said the issue wasn't taken any further in the meeting. 93 Mrs Berger said she subsequently had a meeting with Mrs Gallaher on the 8 August at which she raised a number of personal issues as well as the issue of the vehicle registration and sought the assistance of Mrs Gallaher in essentially approaching the Committee on her behalf. Mrs Gallaher confirmed that such a meeting took place, it was a confidential meeting with no notes taken. The issue of the vehicle was discussed and Mrs Berger apologised for the error she had made and asked Mrs Gallaher to convey that information to the Committee. Mrs Gallaher didn't think she gave a reason why it had all happened. 94 Mrs Berger said that they didn't talk about the three month period but there was discussion of what supervision she'd be under. However Mrs Gallaher said she couldn't recall Mrs Berger coming to her and saying anything about the three month trial. 95 At the meeting on Friday 10 August Mrs Berger asked if she could lose her job, and it was said that it was possible and she was told they had to get advice from the Federation. In cross examination she acknowledged that in circumstances where she was unsure enough to ask if there was a chance she'd lose her job she didn't raise the issue of the three months trial. She said she didn't think of it at the time. 96 Mrs Verway's recollection was Mrs Gallaher responded "yes" when Mrs Berger asked whether she could lose her job. That was confirmed by Mrs Gallaher. 97 Mrs Berger acknowledged that at that meeting "they were very good in the sense that they were very caring, very open". She said Mrs Southwell, as the OH & S Officer had advised the Committee that they thought she needed to take two weeks' stress leave because she was a bit worried. She gave them her medical certificate. They told her go home and rest up and get herself together and try not to worry about everything. She said everything would work out fine and that she had to return to work on 27 August. During that two weeks she didn't hear anything from the Association or her manager. 98 Mrs Berger maintained she wasn't worried because they'd already offered her the three month trial and she wasn't worried or concerned in any way and Mrs Gallaher assured her after the meeting that there was nothing to worry about they just needed to contact the Federation and go over the details with them to see where they stood. 99 It was acknowledged by the witnesses for the Association that no contact was made with Mrs Berger at all during that two-week period and advice was sought from Employer's First about what they should do. 100 Mrs Verway said that the Association Executive met on the 16th of August and that based on the legal advice they had received it was resolved that Kerry Berger be dismissed as a result of the knowingly breaching the policies and guidelines of the organisation. Both Mrs Gallaher and Mrs Southwell were present at the meeting. 101 Mrs Gallaher typed up the termination letter that was given to her by Mrs Verway. Mrs Verwya gave it to Mrs Berger when she arrived in the office.

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102 It was also Mrs Southwell's evidence that everyone who came to work at the Association was inducted and told that they must read the Policy and Procedure Manual. They did not have anything where they signed off to say they had read it but everyone knew where the main policy manual was or asked to read it. When new policies were passed copies were duplicated and given to each staff member. 103 Mrs Gallaher acknowledged that she didn't know whether the policies had ever been brought to Mrs Berger's attention saying "hopefully she read that". She acknowledged there was no checking even at present. 104 Mrs Gallaher also did not consider that the issue could have been dealt with under their own policies with the steps indicated of written warnings, final written warnings, etc because she thought the "breach is too strong, it was serious misconduct. No one -- I mean, it's the Australian law that you must have a registered vehicle and also being under a government funded body and you are transporting frail, aged persons, the importance is huge. The importance is huge and that can't be overlooked." 105 In response to a question from the Commission as to whether this would raise any issues with the funding bodies she went on to say that, "if something had happened. If something had happened, had there been an accident when a car was unregistered carrying a client, a HACC client, we would have been completely de-funded. The community would not have had a service. That is the strength of it all. That was the her view "absolutely". However she acknowledged that although she felt that strongly that that was the position, she didn't know that. 106 In cross examination none of the Association's witnesses were aware of the situation regarding "the nominal defendant" and being fully protected if there were any third-party persons injured as a result of being in an unregistered vehicle. Mrs Southwell said the Association had public liability insurance. 107 The policy for checking vehicle documentation twice a year had only started in 2006. Mrs Southwell acknowledged they had discovered that this was not a good system but only since the 26th of July 2007. They now had a program on the computer with everyone's details in there and the month before the registration is due she sends a reminder letter to the person that she must be given a copy of their renewal within that time. 108 Mrs Verway acknowledged that previously the system had worked on trust and they had only changed it as a result of the registration issue with Mrs Berger.

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120 It was submitted this was particularly important because the first three alleged breaches related to her employer's policy yet it was agreed by the employer that employees were not required as part of their employment to read the policies and the majority of those who gave evidence for the employer admitted they had not read all policies or had been required to do so as part of their position in Management or on the Committee. 121 Further it was admitted that both Mrs Berger and her husband were in breach of RTA rules and regulations in driving an unregistered motor vehicle but it was submitted that such a breach was not directly related to her employment in that she did not have to have a motor vehicle available to transport Association clients as part of her employment contract. The breach was subsequently reported to local Police after she was dismissed and they were both charged and faced a possible penalty before the Local Court. It should be noted that they had both admitted "unwittingly" driving the vehicle whilst it was unregistered and pleas of guilty had been referred to the Local Court purely to determine penalty. 122 It had been put by the Association that Mrs Berger could have used Mrs Gallaher's vehicle as it was at her home, but Mrs Gallaher did acknowledge that prior to her taking leave she may not have directly advised Mrs Berger of the availability of the vehicle although she thought she had done so. 123 It was submitted that it was clear that the system put in place to check whether or not volunteer cars met the requirements of the Association was inadequate. Mrs Southwell had admitted that since the incident a new policy had been put in place so that reminders were sent to owners of such vehicles to remind them of the need to re-register and also to prove such re-registration by providing copies of the documentation to the Association. 124 Was there could be little doubt that either Mr or Mrs Berger should have realised before the 26 July 2007 that their motor vehicle was unregistered and had been so more than three weeks, in lengthy cross-examination they consistently denied they had purposely avoided attending to re-registration and it was clear that within some 18 hours of becoming aware that the vehicle was unregistered, it was reregistered. Mr Hogan queried what there was to gain by Mrs Berger wilfully refusing or deferring the payment of registration fees and submitted that the Association, prior to her termination, had not turned its mind to what benefit accrued to her. It was contended that there was plainly no benefit to her of such action. 125 It was further submitted that although there were consequences in transporting clients in an unregistered motor vehicles the Association failed to determine just what those consequences might be and seemed totally unaware that passengers injured either in an unregistered car or some other motor vehicle involved in an accident would have been covered by insurance set up under the Nominal Defendant Scheme. While such an accident may have caused some problems to the Association (particularly since it was quite clear that its policy involving checks on registration was poor) nevertheless the "third parties" would have been protected. 126 Mr Hogan also referred to the minor incident with the Vice President's vehicle and submitted that the Association had never bothered to investigate that incident or taken away the Vice President's right to use his vehicle to transport Association clients or reported the matter to police. 127 Mr Hogan drew the Commission's attention to the decision of Sams DP in Staal & others v Western Sydney Area health Service [2004] NSWIRComm 27 not only for its relevance in relation to matters raised in this matter (with specific references at 416,417,421, 472 and 480), but also because of its citing of other important decisions such as: Bankstown City Council v Paris (1991) 93 IR 209 (at 212), Franklins v Webb (1996) 72 IR 257 (at 261), North v Television Incorporation Limited (1976) 11 ALR 599, Day v Lumley Life (1999) 90 IR 70, and John Lysaght (Australia) Limited and Federated Ironworkers' Association of NSW, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972) 128 Mr Hogan submitted that many of the findings in Staal, based in many instances on cases often cited in the Commission, were directly relevant to Mrs Berger's situation. 129 The Commission should find that her dismissal was harsh unjust and unreasonable for the following reasons: · The evidence provided by the employer failed to disclose a "wilful and deliberate intent by the employee" and failed to establish that her actions in neglecting to re-register her car constituted a repudiation of the contract of employment. · The employer failed to take into account her unblemished record while employed with the Association. · The employer failed to consider not only the pecuniary repercussions in a small country town with limited employment opportunities, but also the loss of self-esteem, confidence and social standing in such a small community. · The process leading up to her termination was procedurally unfair given the employer's failure to ensure Mrs Berger was aware of all policies relating to her employment. Notwithstanding that there were a number of policy manuals available, the reading of them was not encouraged or insisted upon at any time during her employment. Additionally she was not even advised until the termination letter as to which of the policies she was alleged to have breached and was not given any opportunity to respond to the alleged breaches. · Mrs Berger was terminated for neglecting to register her motor vehicle by the due date and transporting Association clients in that unregistered vehicles for several weeks yet it was never part of any employment contract that she was required to provide a motor vehicle to transport clients. If the Association had any reasonable action to take in the circumstances it should have been restricted to prohibiting Mrs Berger from ever again using her vehicle for the transporting of Association clients just as it had with Mr Berger. It should never have dismissed Mrs Berger from her employment. 130 Finally it was submitted that Mrs Berger had determined that it would be untenable for her to work at the Association although she loved the work and the interaction with the clients. She had only been able to obtain some casual employment in recent months after almost 9 months of unemployment. In the circumstances the Commission should make orders for the compensation claimed that is 12 weeks at $809 per week. Costs should also be ordered for the "petty minded decision" by the Association to report Mr and Mrs Berger to the police after her dismissal thus causing further "angst" and expense to a couple who are both unemployed through a considerable time in late 2007 and had few financial resources to pay the fines which will inevitably be imposed. Submissions on behalf of the Respondent

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151 The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007} NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus in an unfair dismissal application and the standard to be applied to that onus. 152 In Prior, the Full Bench upheld the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 through an unbroken line of authorities to Budlong v NCR Australia [2006] NSWIRComm 288. 153 The Full Bench went on to re-affirm the long established dicta laid out in Briginshaw v Briginshaw (1938) 60 CLR 336, that the standard to be applied in such cases was the civil onus, on the balance of probabilities. 154 The Commission must then be satisfied that the requisite onus has been discharged and the misconduct alleged occurred, applying that standard to its consideration. 155 In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP identifies at para. 218 the four questions that arise for consideration in a case concerning summary dismissal for misconduct:- 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justified summary dismissal? 3. Did the conduct constitute a fundamental and wilful repudiation of the contract? 4. Were mitigating factors taken into account? 156 The issue of the consequences for an applicant of such a decision, the need for that to be considered by the Commission and for employers to be fully satisfied that misconduct has taken place is dealt with by the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 at p.261 and also by Sams DP in Hill v Department of Juvenile Justice [2000] NSWIRComm128 at para.62. 157 In this matter Mrs Berger has admitted that she knowingly allowed her husband to drive her unregistered vehicle to transport a client of the Association to Tamworth on 26 July 2007. Indeed she had organised the transportation for that day, and even if it is accepted that she did not realise until the evening of the 25 July that the vehicle registration was overdue, she nevertheless took no action to make any alternate arrangements so that an unregistered vehicle was not used on behalf of the Association. 158 I have to say that I agree with Mrs Gallaher that this was in fact serious misconduct, with enormous implications for the Association (and Mr Berger as the driver) if any accident had occurred. 159 The fact that no accident occurred on the two and a half to three hour trip does not diminish the seriousness of the incident. That was sheer good fortune. Nor am I particularly impressed with the suggestion put on Mrs Berger's behalf that well if anything had happened the Nominal Defendant Scheme would have essentially saved the day. That does not excuse the fact that Mrs Berger knowingly went ahead with the trip in an unregistered vehicle.

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160 The evidence of Mr and Mrs Berger was somewhat contradictory. On the one hand Mr Berger said there was unopened mail around the house that could apparently be there for some time (and that he was responsible for opening the mail while he was not working yet his and his wife together would usually open such mail) but on the other hand indicated that he agreed that they wouldn't let something like the electricity go unopened or they'd have no electricity. Mr Berger also did not confirm that he had been spoken to about the issue the week before and indeed his evidence would support that the only reason they went through the mail on the night of 25 July was that the other client had drawn the overdue registration label to Mr Berger's attention earlier that day. 161 I just do not accept Mrs Berger's evidence that she coincidently just happened to open the mail and find the registration etc that night rather than after her husband told her that the client had drawn the registration label to his attention. 162 I have extreme difficulty in regarding it as "an honest mistake" as Mrs Berger has sought to categorise the matter. 163 There was also conflicting evidence about just what was opened (original documents or reminder notices.) 164 The RTA do not send out reminder notices. My own vehicle was coincidently due to be registered on 22 April 2008. I received the registration papers in the mid March. The CTP Green Slip renewal from GIO I received even earlier. Both were in envelopes clearly marked as from being the RTA and GIO (Suncorp) respectively. I frankly cannot conceive of how anyone could leave such mail unopened for the period of time that must have occurred with the Bergers. The renewals would have been received in May. The envelopes themselves printed as they were with the logos of the RTA and NRMA would have been a prompt even if they were unopened. 165 I also cannot conceive how anyone would not know precisely what month their rego and Green Slip were due. This is a significant item of expenditure for the average family and would have been even more so for the Bergers given their circumstances at the time. Which leads me to seriously wonder if the reason the registration had not been attended to was that they could not afford to pay the amount. Whilst I would have every sympathy for them if this was indeed the real situation the fact remains that the appropriate course of action would have been to not drive the vehicle at all until such time as they were in a position to re-register the vehicle. I am well aware of workers who have been in just that position from the matters that have come before me over the years, and had to take just that course of action as a result. 166 It is not relevant to say that it was not a requirement of Mrs Berger's employment that she drive a registered vehicle. What was not required was that she participate as a Volunteer Driver. That was clearly her choice. However it was a requirement of her employment that in any action involved in administering such a program (whether she was a volunteer driver or not) that she ensure that no volunteer driver, to her knowledge, drive an unregistered vehicle, whether it was her vehicle or anyone else's. 167 I am also concerned that Mrs Berger did not even consider the consequences either for herself and her husband (not to mention the client involved and just because it was a relative does not diminish the seriousness) or for the Association. This in itself would in my view raise serious implications as to her reliability to carry her tasks responsibly and for her continued employment with the Association. I wonder if she would have taken the same action (allowing the driving of a client in an unregistered vehicle) if it had been another volunteer driver and client involved and she had become aware of that situation in Mrs Gallaher's absence. 168 She clearly had the option of re-organising scheduled trips for that day. I also note that on Mrs Berger's evidence her mother-in-law , Mrs Beryl Berger, was also a volunteer driver. One can only wonder why she was not explored as an option or swapped around with to enable another volunteer driver to be used. 169 RTA regulations provide (as indicated on the RTA website) that a vehicle can be driven unregistered for the purpose of obtaining registration provided that it is driven to the nearest RTA Motor Registry, in Mrs Berger's case that was Narrabri. It is also clear, from the both the registration renewal and CTP Green Slip renewal, that registration and renewal can be done electronically (including the pink slip). Mrs Berger confirmed that she had a computer at home, however I acknowledge that she was not questioned about the option of renewing electronically. 170 I consider that the driving of Mrs Berger's unregistered vehicle in the circumstances in which such driving occurred was indeed serious misconduct. It became misconduct when she went ahead with the trip even after having confirmation that that the vehicle was unregistered and had been so for over three weeks. Thus the first question posited by Sams DP in Natoli must be answered in the affirmative. 171 It could therefore also be said that her actions, undertaken as they were in full knowledge that the vehicle was unregistered, were wilful and deliberate as submitted on behalf of the respondent. 172 In my view it was misconduct of such seriousness as to justify summary dismissal. Thus the second question posited in Natoli is answered in the affirmative. 173 This also means that the respondent has discharged the requisite onus it bears in this matter. 174 The Association is a voluntary community based funded organisation. Given the obvious importance of its activities to the local community, an integral part of those activities being the volunteer driving scheme, having an employee such as Mrs Berger allow an unregistered vehicle to be used for transportation would quite clearly raise issues for the Association of trust, her reliability and her judgement. Her actions did in my view constitute a fundamental repudiation of her contract of employment. 175 Thus the third question posited in Natoli would also be answered in the affirmative.

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176 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court Judgment in Byrne & Anor v Australian Airlines (at p.72). 177 In relation to procedural fairness that decision has also been relied on in numerous decisions of this Commission including cases concerning termination for misconduct such as Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antanakopoulos v State Bank (1999) 91 IR 385. 178 Mr Hogan submitted that there was no benefit to Mrs Berger arising from her actions whilst Mr Booby submitted that the mileage allowance payable was the motivation. Based on Exhibit 8 - A2 the record of trips whilst the vehicle was unregistered the trip to Tamworth resulted in payment of $277.50 with the total for all such trips ( the 8 acknowledged by Mrs Berger) resulting in a total payment of $1,305.10. This is a not inconsiderable amount. Even if it was accepted that the Mrs Berger had genuinely forgotten or overlooked the registration prior to the 26 July, the payment to be received for that last trip cannot be discounted as an incentive to proceed with the trip. 179 It is not necessary however that a motive or benefit be established in misconduct cases. Of course where there is clearly such a motive or benefit then that assists overall consideration of a termination for misconduct or may indeed assist in establishing the likelihood of the misconduct alleged having taken place. 180 The other possibility that must be considered is that Mrs Berger sought to withhold knowledge of her vehicle's non-registration from her employer given that it had been used for such trips for almost a month. Re-organising the trip to someone else or using another vehicle may have brought that to the attention of her employer. I accept that that proposition was not put squarely to Mrs Berger. 181 Procedural issues have been also raised in relation to the termination of Mrs Berger. 182 I have no doubt that Mrs Berger was well aware of the Volunteer policy and its inherent requirements that drivers be licensed and vehicles registered and insured both as a volunteer and as an employee of the Association required from time to time to be involved with the administration of the volunteer driving program. 183 As with most small community organisations (and indeed small businesses) given the physical size of the organisation it would not be unusual to not be given an individual copy of relevant policies. I have no doubt whatsoever that Mrs Berger was fully aware that the Association did have various policies and it was as much incumbent on her as it was on the Association to make herself familiar with them. I do not accept that the evidence was that the Association did not require that its policies be read. It simply did not police such reading. In any event it would be basic commonsense that vehicles used in the volunteer program must be registered and the drivers appropriately licensed and insured at all times. 184 It may well be necessary for the Association in the future to have a checklist that a new employee sign off on to indicate that they have read the policies kept in the office. However it has been my experience in unfair dismissal matters that even organisations that do this can never really guarantee that the employee has indeed read them (unless of course they stand over them whilst they do so) or indeed has understood or remembered the policies in any event (unless they are tested on them which is clearly impracticable).

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185 The Association's procedures in relation to checking such matters have been upgraded. As Mrs Verway pointed out it had been a matter of trust in the past and I have no doubt that this would not be a situation that would normally occur in such a community organisation. However improving procedures that may have been wanting does not excuse the misconduct alleged or remove the onus from Mrs Berger to accept responsibility for her actions and poor judgement. 186 There was no hasty decision made by the Association. They met with Mrs Berger and she was able to explain what had happened. They sought appropriate advice. Mrs Berger was offered right at the start the option of resigning. She was afforded two weeks stress leave (not taken out of her sick leave). 187 Unfortunately what had occurred was too serious to simply be responded to with a warning (even a first and final warning). 188 Based on the evidence I do not consider that there was any firm offer of a three months' trial under supervision. It was merely an option floated at the beginning of the disciplinary process and it is significant that neither Mrs Berger or the Association raise this in any way at the meeting of the 10 August. Mrs Berger could have been in no doubt (and indeed asked the question) that dismissal was being considered. 189 However in misconduct cases, even if it is established that such misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise the Commission must also consider whether the termination was harsh or unjust or unreasonable per s.88 of the Act. Here however, the onus moves back to an applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 190 In Natoli, Sams DP also considers the issue of harshness of penalty citing the various relevant authorities which I have also considered viz. Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 (at p.302); Little v Commissioner of Police (No 2) (2002) 112 IR 212; Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106.

At a glance

Court

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Before

Source

Judgment (48 paragraphs)

Parties

Cases Cited (27)