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[2018] FWC 6853
Fair Work Commission
2018-12-03
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 3 December 2018.
The word "Draft" has been deleted from the preamble.
s.394 - Application for unfair dismissal remedy
Application for relief from unfair dismissal - serious misconduct - unauthorised modification to company vehicles - investigation process flawed - conflict of interest - dismissal unfair - remedy to be determined.
[1] Mr Kevin Emery was employed by the City of Stirling (the City) as a Beach Inspector. His employment was terminated on 3 March 2017 for gross misconduct. Mr Emery has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Emery seeks reinstatement.
[2] Mr Emery's application was initially heard in late 2017 with a decision and order issued on 9 February 2018. That decision was overturned on appeal[1]. The matter was remitted to me to re-hear and determine. In the course of re-hearing the application directions were issued which provided that all evidence and submissions and transcript of proceedings from the initial hearing would be taken into account. The parties were provided with an opportunity to file further evidence and submissions.
[3] In accordance with these directions witness statements were filed by Mr Kevin Emery, Mr Daryl Eaves and Mr Richard Green.
[4] At the hearing on 17 and 18 September 2018 I granted permission to both parties to be represented by a lawyer in accordance with the provisions of s.596(2) of the FW Act. I did so having concluded that the matter could be dealt with more efficiently given its complexity if permission was granted. Mr Emery was represented by Mr Mullally and the City was represented by Mr Caspersz of Counsel.
[5] Much of the background leading to the decision to dismiss Mr Emery from his employment is not disputed. I repeat some of the background.
[6] Mr Emery was employed by the City as a Beach Inspector on 1 September 2011. He was one of four Beach Inspectors who reported to Mr Arthur Snook, Team Leader Beach Services. Mr Snook was also responsible for casual life guards who supplemented the permanent Beach Inspectors during the summer period. Together they patrolled the relevant beaches and were responsible for public safety and well-being.
[7] The Beach Inspectors and lifeguards had available to them a variety of equipment including all-terrain vehicles, jet skis and three beach inspector vehicles (BIV) (only used by Beach Inspectors).
[8] In November 2016 the City replaced the existing BIVs with three new BT50 Mazda Utes.
[9] Sometime in early December 2016 Mr Emery modified the air conditioning units on two of the BIVs (BIV U481 and BIV U483) by inserting a bridging wire. This modification resulted in the air conditioning coming on whenever the engine was started and running until the engine was turned off.
[10] On 7 February 2017 Mr Adam Gugiatti, one of the Beach Inspectors, reported to Mr Snook a noise coming from the engine of BIV U481. Mr Snook directed Mr Gugiatti to take the vehicle to the City's Fleet Depot workshop (responsible for managing the vehicles owned and operated by the City of Stirling). From there he was directed to take the vehicle to the Mazda dealership (Mazda) from where it was purchased. The vehicle was inspected at the dealership and the modification to the wiring for the air-conditioning system was identified.
[11] The modification to the air conditioning was reported to Mr Norm Bryant, the Leading Hand at the City's fleet workshop who advised Mr David Carter, Co-ordinator of Fleet Services. Mr Carter then spoke to Mr Snook. Mr Carter also inspected the remaining two BIVs where he discovered a similar modification to the air conditioning on BIV U483. Mr Carter removed the wiring.
[12] On 8 February 2017 Mr Snook held a team meeting with the Beach Inspectors. Mr Emery was absent on personal leave. At the conclusion of the team meeting Mr Snook advised the team that one of the BIVs had been inspected by Mazda and was found to have had a bridging installed causing the air conditioning compressor to shut down. Mr John Hardbattle, another Beach Inspector, suggested Mr Snook speak to Mr Emery about the modification.
[13] On 9 February 2017 Mr Snook sought advice from the human resource (HR) department of the City and on 13 February 2017 met with Ms Tracy Watts, Co-ordinator Employee Relations and Resourcing (HR) and Ms Simone Pastor (who he reported to) to discuss how the matter should be investigated.
[14] On 23 February 2017 a letter was delivered to Mr Emery's home address instructing him to attend an investigation meeting to be held the following day. At Mr Emery's request the investigation meeting was rescheduled until 1 March 2017.
[15] On 1 March 2017 Mr Emery attended the investigation meeting with his support person Mr Hardbattle. Also at the meeting were Mr Snook and Ms Watts. Mr Emery provided Mr Snook and Ms Watts with a bundle of documents which Mr Emery said showed that the modifications he had made to the BIVs was not dissimilar to other tasks he had performed at the request of Mr Snook. This bundle of documents apparently included emails between Mr Snook and various Beach Inspectors regarding the repair and maintenance of equipment used by the Beach Inspectors.
[16] Following this meeting Mr Snook and Ms Watts had a discussion with Mr Trevor Holland, Director Community Development for the City. Beach Services was one of the units from which Mr Holland had management responsibility. During this discussion Mr Holland formed the view that Mr Emery's employment should be terminated.
[17] The following day Mr Snook was directed to attend a further meeting with Mr Snook and Ms Watts on 3 March 2017 (disciplinary meeting). Mr Emery attended with Mr Hardbattle again as his support person. Mr Emery was informed at this meeting that he had been summarily dismissed.
[18] Evidence in these proceedings was given by:
Mr Kevin Emery;
Mr Johnny Hardbattle, Beach Inspector;
Mr Trevor Holland, Director Community Development; and
Mr Arthur Snook, Team Leader Beach Services;
Ms Tracy Watts, Co-ordinator Employee Relations and Resourcing;
Mr David Carter, Co-ordinator Fleet Services;
Mr Andreas Kolm, Beach Inspector;
Mr Adam Gugiatti, Beach Inspector;
Mr Daryl Eaves, auto-electrician; and
Mr Richard Green, auto-electrician.
[19] Mr Emery gave evidence at the initial hearing and at the rehearing of his application.
[20] Mr Emery is a qualified auto-electrician and had worked as such until 2003. From about 2003 he worked for an internet provider. In 2011 he commenced employment with the City as a Beach Inspector. Mr Emery said that while he stopped working as an auto-electrician he still undertook such work in his own time and had maintained his skills.
[21] Mr Emery's evidence is that he made the modifications to the BIV U481 and BIV U483 following complaints from his co-workers that the air conditioning in each car was only blowing hot air. He said that he made the modification following three discussions with Mr Snook who agreed that he should undertake the modifications.
[22] The first meeting with Mr Snook was on or about 2 December 2016 in Mr Snook's office. Mr Emery said he discussed the problem with the air conditioning in the vehicles with Mr Snook and told him it would need to be fixed at the 1,000 km service. Mr Emery said Mr Snook agreed to have the repairs done at that time.
[23] The second meeting with Mr Snook occurred on or about 5 December 2016. Mr Emery said that Mr Snook advised him that the workshop had decided not to have the vehicles serviced until the 3,000 km mark and that the faulty air conditioners would have to wait until then. Mr Emery said he told Mr Snook this was not acceptable. Mr Emery suggested that he investigate if he could arrange a temporary fix. Mr Emery said Mr Snook "invited" him to do the research.[2]
[24] The third meeting with Mr Snook took place the following day when Mr Emery said he reported to Mr Snook on the outcome of his investigation. He told Mr Snook that he could put in a temporary bridge so that the air conditioning runs cold. Mr Emery said that Mr Snook agreed he should do this.
[25] Mr Emery variously gave evidence that Mr Snook "invited" him[3], "directed" him to repair the vehicles,[4] "wanted [him] to do the job"[5] of repairing the vehicles or "requested that [he] modify...the vehicles"[6].
[26] Following the second meeting with Mr Snook, Mr Emery said he undertook some research that led to him accessing a wiring diagram[7] via a "google" search online for "wiring diagram air conditioning systems HVAC BT-50 Mazda".[8] Mr Emery agreed that the diagram he had found in his research was the same wiring diagram contained in the Mazda BT-50 Training Manual with a copyright date of 2006[9] but said that this did not mean the wiring diagram in that manual had not been updated since 2006.
[27] Mr Emery said that he also checked the wiring diagram against the engine of one of the BIVs "to make sure the components listed here were physically in the vehicle. The diagram was as I expected, and then when I checked the vehicle the components were physically located correctly, and so I deemed that that would be the accurate diagram...".[10]
[28] Mr Emery subsequently inserted a bridging wire in BIV U481 and BIV U483. Mr Emery confirmed the placement of the bridging wire on a wiring diagram.[11] He agreed that the modifications he undertook to BIV U481 and BIV U483 were not approved by Mr Snook in writing.[12]
[29] Mr Emery gave evidence that a part of his performance management process required that he (and other Beach Inspectors) reduce maintenance costs. He provided a range of emails[13] that showed that Beach Inspectors regularly undertook maintenance on equipment and that this was approved by Mr Snook. He provided an email which he said demonstrated that Mr Snook regularly asked the Beach Inspectors to "do work on fleet vehicles and equipment contrary to policy."[14] He agreed that permission was sought and given for each job.[15]
[30] On 5 December 2016 Mr Emery was acting in Mr Snook's role as Mr Snook was absent. Mr Emery said he sent an email to Mr Carter in which he raised a number of issues with the new Beach Inspector vehicles. In that email he did not raise any issue with the air conditioning because "Snook was on the path to resolving it."[16] Mr Carter replied to the email from Mr Emery that the "auto sparky" would be down at the beach the next day to look at some of the issues raised. Of one of the matters raised by Mr Emery, Mr Carter replied that we "will have to go back" to Mazda for the repair and that "[t]hese vehicles have their first service at 3000km..."[17]
[31] By 11 December 2016 Mr Emery had carried out the modifications on BIV U481 and BIV U483. He denied that the modifications caused any damage to the vehicles as the bridge "simply turned the air conditioning unit on..." and that it was "not possible for this to have damaged the relay as it had been completely removed from the circuit and was not in operation."[18] Mr Emery did agree the bridging wire he inserted changed the circuit for the air conditioning which had the effect of taking out the thermostat such that the air conditioning either ran cold or there was no air. He agreed that if the circuit was not as he had found in his research but was as identified by Mr Green[19] the pressure switch would not respond to any changes in pressure which would have the effect of not turning the compressor off.[20] Mr Emery did not agree that this would cause any damage to the vehicle.
[32] Mr Emery said that the air conditioning malfunction was a health and safety issue as the Beach Inspectors should not be expected to drive the vehicles with the heater jammed on in the middle of summer. He said that if he had not carried out the modifications they would only have had one of three vehicles operational during the summer peak season for patrols and rescues.[21] Mr Emery also gave evidence that, whilst it is preferable to have the vehicles, they are not necessary to enable the Beach Inspectors to do their jobs.[22]
[33] Mr Emery was absent from work with an injury from 24 December 2016 until 14 February 2017. On 23 February 2017 he received a letter delivered to his home address inviting him to attend a disciplinary meeting the following day. The date of the meeting was subsequently changed by agreement to 1 March 2017. Mr Emery attended the meeting with Mr Hardbattle as a support person. Also present at the meeting were Mr Snook and Ms Watts from the City (the investigation meeting).
[34] Mr Emery agreed that the minutes of the investigation meeting[23] were "reasonably accurate"[24] but said he had spoken of the three meetings he had with Mr Snook that were not mentioned in the minutes.[25] He agreed that the minutes indicated that he had said that Mr Snook had authorised work, that Mr Snook was aware of it and when he advised the Beach Inspectors of the modifications Mr Snook was busy and he had not wanted to bother him.
[35] Mr Emery agreed that Mr Snook did go through the sections of the Code of Conduct and Fleet Management Practice he was said to have breached.[26]
[36] Mr Emery was called to a further meeting on 3 March 2017. At that meeting Mr Emery was given a copy of the minutes of the meeting of 1 March 2017 which the minutes of 3 March 2017 indicated he said to be reasonably accurate. Mr Emery said he was summarily dismissed at this meeting.
[37] Mr Hardbattle gave evidence that he attended the investigation meeting of 1 March 2017 and the disciplinary meeting of 3 March 2017 with Mr Emery as his support person.
[38] Mr Hardbattle confirmed that Mr Emery "made it very clear in the investigation meeting"[27] that Mr Snook had approved the work done by Mr Emery on BIV U481 and BIV U483.
[39] Mr Hardbattle said that there were problems with two of the new BIVs with the air conditioning and they would blow hot air even when set to cold.
[40] Mr Hardbattle said he knew that Mr Emery had reported the fault to Mr Snook. He said that Mr Emery told him on "several occasions"[28] in late November or early December 2016 that he was going to see Mr Snook to "discuss the problems with the utes."[29] Mr Hardbattle said he witnessed Mr Emery leave the beach and remain absent "for a length of time"[30] on at least two occasions. The following week Mr Hardbattle said he noted that the air conditioning which had been faulty was working. Mr Hardbattle said that Mr Emery told him that he had installed a bridging wire as a temporary fix.
[41] Mr Hardbattle agreed that the BIVs are used in lifesaving matters and it is important for the Beach Inspectors to have the vehicles to be able to perform those and other ancillary duties they undertake.
[42] Mr Hardbattle agreed that the minutes of the investigation meeting of 1 March 2017 "provided a reasonable picture of what was discussed in the meeting"[31] and that the minutes of the disciplinary meeting of 3 March 2017[32] were a "fair representation of that meeting"[33] although he had not seen the minutes prior to appearing in the Commission.
[43] Mr Hardbattle recalled a team meeting held on 8 February 2017 attended by himself, Mr Andreas Kolm, Beach Inspector, Mr Gugiatti and casual lifeguards. He said Mr Snook called the Beach Inspectors aside and asked if they knew of any modifications made to the BIVs although did not allude to what those modifications were. Mr Hardbattle recalled that he "said 'Oh Kevin', and then...said you'll have to ask Kevin about that."[34]
[44] Mr Eaves is a qualified and licensed auto electrician and the proprietor of Forestfield Auto Electric. He is also licensed to inspect and undertake repairs on air conditioning equipment fitted to motor vehicles. Mr Eaves was asked to complete a report by Mr Emery's legal representative and give his expert opinion on certain matters. In doing so he was provided with a copy of a statement of Mr Richard Green dated 23 November 2017 and the wiring diagram for the Mazda BT-50 sourced by Mr Emery. He was asked to respond to specific questions.
[45] In his written report[35] Mr Eaves said that:
He did not believe that Mr Emery had done any damage to the air conditioning control systems in the vehicles by installing the bridging wire as the "circuit is fuse protected against short circuit and the air conditioning system is over/under pressure protected by the pressure switch".
• He did not believe the installation of the bridging wire would cause the compressor to overheat as "when the vehicle is in extreme heat the compressor stays on far longer...", nor did he consider it would cause the compressor to run out of oil or lead the drive belt to fail and snap.[36]
[46] Mr Eaves indicated that his view had not changed having seen the supplementary statement of Mr Green.[37]
[47] Mr Eaves agreed that the pressure switch[38] plays an important role in the system if there is a fault. He agreed that "if a pressure switch is not in the system the potential adverse consequences of over pressure or under pressure would not be picked up."[39] Mr Eaves explained that "over pressure" occurs when the compressor builds up pressure, mainly caused by a blocked condenser (radiator). Too much pressure can result in a blown hose. The pressure switch detects a build-up of pressure and prevents this occurring by turning the compressor off.[40] A blown hose could result in loss of refrigerant and loss of oil which then could lead to compressor failure.[41] The pressure switch operates to stop this happening.[42] "Under pressure" can occur with loss of refrigerant and oil causing the compressor to seize. The pressure switch also operates to stop this occurring.[43]
[48] Mr Eaves agreed that while the bridging wire inserted as per the wiring diagram provided by Mr Emery bypassed the fuse and the circuit going through to the PCM and thermostat, the pressure switch remained in the system.[44] The bridging wire would result in the compressor being engaged continuously.[45] He agreed that the system was not designed to do this but rather to cycle so that there are times when the compressor is not engaged.[46]
[49] Mr Eaves further agreed that if the pressure switch was no longer in the system because the bridging wire meant that it was by-passed, the adverse consequences of an over or under pressure situations would not be picked up.[47] Mr Eaves agreed that the "pressure switch plays a fairly important role in that system...[i]n the control of the system."[48]
[50] Mr Eaves agreed that the bridging wire would alter the operation of the air conditioning control system in a number of respects, by bypassing the battery fuse, bypassing the PCM and bypassing the thermostat with the potential for the evaporator to freeze.[49]
[51] Mr Eaves agreed that if the bridging wire had been inserted as he understood it would have impaired the system.[50] Mr Eaves distinguished this from damaging the system. He did agree that there was a possibility that the bridging wire inserted by Mr Emery (which resulted in the compressor running constantly) burned out the compressor clutch causing the compressor to cease working.[51]
[52] Mr Eaves generally agreed with the opinion expressed by Mr Green[52] except in relation to paragraph 16(b) of Mr Green's supplementary statement as he did not consider an eventual mechanical failure "likely" although did accept it was a possibility,[53] paragraph 19 which he said would only occur if the condenser was blocked or failed, paragraph 20(a) as he considers enough noise would be made such that the driver would be aware and paragraph 20(c) of the statement as he considered it would take excessive hours.
[53] Mr Snook is the Team Leader Beach Services for the City. Mr Emery reported to him in his role as Beach Inspector. Mr Snook reported to Ms Simone Pastor, Co-ordinator Planning and Projects, at the time in question.
[54] Mr Snook gave evidence that in February 2017 Mr Gugiatti told him of a noise coming from BIV U481. Mr Snook listened to the noise which he described as a high pitched whining sound. He contacted the depot and it was arranged that the vehicle would be taken to the depot. Following this the vehicle was taken to Mazda. Mr Snook subsequently received a call from Mr Carter who advised that Mazda discovered the installation of the bridging wire; the warranty would not cover the repairs as the vehicle had been tampered with and the other BIVs would need to be checked.
[55] Mr Snook advised the Beach Inspectors of this at the next team meeting and Mr Hardbattle indicated that "Kevin" [Emery] had something to do with the matter. Mr Snook then advised Ms Pastor of the incident.
[56] On 9 February 2017 Mr Snook emailed HR and asked for advice on dealing with the insertion of the bridging wire.[54] The following day Mr Gugiatti approached Mr Snook and advised him that Mr Emery had previously discussed with him the hot air coming from vents in the vehicles and that in December 2016 he had received a text from Mr Emery stating that he, Mr Emery, had placed a bridging wire in the engine of the BIV.
[57] Mr Snook subsequently met with Ms Pastor and Ms Watts to discuss the investigation process for the matter. Ms Watts asked Mr Snook if he had authorised the wiring in the vehicles. Mr Snook told her he had not.
[58] Mr Snook confirmed that he conducted the investigation meeting with Mr Emery on 1 March 2017. Ms Watts attended as minute taker. He said that the purpose of the meeting was to have Mr Emery "answer the claims that he had made unauthorised modifications to the BIV's which resulted in damage to the BIV's and the warranties being voided."[55]
[59] Mr Snook said that Mr Emery did not deny installing the bridging wire and when asked by Mr Snook who had given him permission to do so Mr Emery answered "you did". Mr Snook said he did not reply to this as he was "shocked and unprepared" and he did not want the meeting to descend into a "he said" argument. When he composed himself he told Mr Emery he had not "held any such discussions...let alone authorise him to conduct mechanical work..."[56]
[60] Mr Snook did not consider that he was put in a conflicted position by being the investigator and Mr Emery suggesting that he had authorised the work done on the BIVs. He expected if there was some conflict Ms Watts would have raised it as the HR professional.[57]
[61] Mr Snook said that he and Ms Watts reviewed the documents which Mr Emery said demonstrated that the bridging wire inserted into the BIVs constituted maintenance work but dismissed this claim.
[62] Mr Snook said he spoke to Ms Pastor, Ms Cath Holmes, former Senior Employee Relations Advisor for the City, and Mr Trevor Holland acting Director Corporate Services for the City after the meeting of 1 March 2017 but prior to meeting with Mr Emery on 3 March 2017. They discussed:
Mr Emery's admission that he had inserted the bridging wire;
that Mr Emery had no authority to do the work;
that Mr Emery had not raised the problem with the air conditioning with Mr Snook;
the potential impact of Mr Emery's actions;
Mr Snook's loss of trust and confidence in Mr Emery;
that Mr Emery had advised other team members of the bridging wire but not Mr Snook; and
that Mr Emery showed no remorse for his actions.
[63] Mr Snook said that Mr Holland advised that he should consider all of the evidence they had gathered and that termination of employment was an option. Other options discussed at the meeting included issuing a first and final warning.[58]
[64] Mr Snook said that he did not take statements from any other people involved in the matter but he did have emails including comments from "more knowledgeable people regarding vehicles"[59] and that he had abided by the City's policies in undertaking the investigation. Mr Snook agreed he had no written statements with respect to whether the bridging wire had been authorised, whether the wiring had damaged the vehicles and he did not gather a statement with respect to the effect of the bridging wire on the warranties from Mazda.[60]
[65] A disciplinary meeting was held with Mr Emery on 3 March 2017. The purpose of the meeting was to present the findings of the investigation to Mr Emery. Mr Emery was not otherwise advised of the findings before the meeting. Ms Watts again attended the meeting. Mr Emery was provided with a further opportunity to respond to the allegations. Mr Snook and Ms Watts had a break and discussed Mr Emery's response. On re-convening Mr Snook advised Mr Emery that his employment was terminated because:
He had no authority to tamper with the BIVs;
The warranties on the BIVs had been voided and the City had to meet the cost of repairs in excess of $2,000;
The bridging wire was not maintenance work;
He failed to understand the potential consequences or seriousness of his actions
[66] Mr Snook agreed that he met with Mr Emery on or about 2 December 2016. He said that the discussion was limited to when the BIVs would be serviced. He denied that Mr Emery spoke to him of the air conditioning problem.[61] Further, he denied that Mr Emery advised him that he had done the wiring. Mr Snook said that if he had authorised the work he would expect to be advised when it was completed and he was not.[62]
[67] Mr Snook said that he considered the incident a "dismissable" offence based on the "evidence that we received from our fleet manager, from the Mazda people."[63]
[68] Mr Trevor Holland reports to the Chief Executive Officer of the City. During the period in question he was acting Director Corporate Services in addition to his role of Director Community Development. In the later role Ms Pastor reported to him (Mr Snook reported to Ms Pastor).
[69] Mr Holland said he became aware of the bridging wire being inserted into the two BIVs in early February 2017 when Ms Pastor spoke to him about it. Ms Pastor indicated that the City's HR department was commencing an investigation into the incident.
[70] Following his discussion with Ms Pastor, Mr Holland telephoned Mr Carter. He said Mr Carter told him that the BIVs with the bridging wire had been inspected by Mazda and that the Mazda Service Manager told Mr Carter that the bridging wire had caused damage to the air conditioning compressor, because of the modification the warranties on the vehicles were voided and the installation of the bridging wire could have caused the vehicles to become inoperable.[64]
[71] Mr Holland said he met with Mr Snook and Ms Watts on 3 March 2017 where they reported to him that Mr Emery admitted installing the bridging wire but claimed Mr Snook had authorised him to do so. Mr Holland asked Mr Snook if this was the case and Mr Snook denied it. Ms Watts said that Mr Emery had provided no detail in the investigation meeting on 1 March 2017 of the manner in which Mr Snook authorised the bridging wire, that Mr Emery said he had not wanted to bother Mr Snook who was busy and that Mr Emery had shown no remorse.
[72] Mr Holland gave evidence that he received an oral report of the investigation into the incident in the discussion with Mr Snook and Ms Watts on 3 March 2017 but did not receive a written report. Mr Holland gave evidence that HR had headed up the investigation and he relied on the skills of Ms Watts. Mr Holland agreed that he had no documentary trail to support his view that HR had headed up the investigation into Mr Emery. When asked on what he basis he held this view he replied:
on the basis of [custom and] practice, the way that the HR department have operated: they have asked various questions, they took the notes, they involved the particular departments, and they offered professional advice all the way through the interview. So I believe that they're leading the way.[65]
[73] Mr Holland agreed that he did not know if witness statements had been taken from Mr Emery, Mr Snook, Mr Carter, the Mazda staff or any other Beach Inspectors. He agreed that he had received no written statements in relation to the investigation.[66]
[74] Mr Holland's evidence is that he "in substance said to Snook and Watts that it was my view Emery should be terminated."[67] Based on the information he had Mr Holland felt that termination was appropriate.[68] He reached this conclusion because of the advice from Mr Carter and because he considered Mr Emery's explanation implausible.[69] He said however that he did not direct that Mr Emery be dismissed.[70]
[75] Ms Watts advised Mr Holland that a disciplinary meeting was scheduled with Mr Emery for 3 March 2017. Mr Holland said that "shortly following" his meeting with Ms Watts and Mr Snook, Ms Watts advised him that Mr Emery's employment had been terminated.
[76] Following receipt of this advice from Ms Watts, Mr Holland again contacted Mr Carter and requested that he ask Mazda to put in writing the effects of the modifications made by Mr Emery to the two BIVs.
[77] Mr Holland first said that he was not the decision-maker in this matter and the person with ultimate authority to determine if a person's employment should be terminated is the Manager HR but at the time the HR Manager was acting in the role and it would not have been fair to place the decision with her.[71] Mr Holland then said that in this instance he was the decision-maker. He confirmed that Ms Watts was not the Manager HR.
[78] Ms Watts is employed as Coordinator Employee Relations and Resourcing by the City. She commenced on 16 January 2017. At the time she commenced employment with the City the position of Manager HR was substantively vacant and filled on a temporary basis for a six week period by Ms Kath Allen. That position was filled on an on-going basis in April 2017.
[79] Ms Watts said that on 9 February 2017 she was provided with an email Mr Snook had sent to a HR Advisor with respect to Mr Emery making unauthorised modifications to two of the BIVs. The email indicated that Mr Snook considered the matter serious and wanted an investigation undertaken. He was seeking guidance from HR as to the correct way of putting allegations to Mr Emery.
[80] Ms Watts said that the instruction was given by Ms Pastor to conduct an investigation.[72] The matter arose from the allegation of modifications to two Mazda four wheel drives (the BIVs) that had resulted in damage to the vehicles.[73]
[81] Ms Watts met with Mr Snook and Ms Pastor where they discussed the investigative process. Mr Emery would initially be called to a meeting and given an opportunity to respond to the allegations and, following this meeting his response would be considered, a disciplinary meeting held and a decision made as to any disciplinary outcome.[74]
[82] Ms Watts conducted the investigation in conjunction with Mr Snook.[75] Her evidence was that it is procedure within the City for the supervisor to do the talking and run the meeting.[76]
[83] Ms Watts was the author of the letter of 23 February 2017 inviting Mr Emery to attend the first investigation meeting. That letter relevantly said:
...Our specific concerns relate to an allegation of non-approved modification of two the [sic] City's vehicles resulting in substantial damage including the voiding of the warranty.
The alleged behaviour is in breach of the following policy:
Copies of the relevant reports and policies are attached.
You will be given the opportunity to respond to the allegations under investigation, and will be given the opportunity to ask questions...[77]
[84] The meeting date was re-scheduled and a further letter in the same terms as the first sent to Mr Emery.
[85] Ms Watts agreed in her evidence that there was no information in the letter which identified the vehicles being referred to or that identified the damage to the vehicles which she said was to be discussed at the meeting.[78] Her evidence was that the damage was the voiding of the warranties on the vehicles and she had been advised of this in the conversation with Ms Pastor and Mr Snook. She said that the City had been notified of this by Mazda following an inspection of the vehicles.[79]
[86] Ms Watts said she attended the investigation meeting with Mr Snook on 1 March 2017 "to provide him support as a representative of human resources and to take the minutes of the conversation."[80]
[87] Ms Watts said that at the meeting Mr Emery:
agreed he had inserted the bridging wire because of an air conditioning fault;
said the BIVs were not going to be serviced until 3,000km instead of 1,000km;
said what he had done was part of general maintenance of the vehicles;
said Mr Snook had given him permission to do the work;
on completing the modification advised other Beach Inspectors; and
said Mr Snook was busy and he didn't want to bother him.
[88] In subsequent evidence Ms Watts made clear that Mr Emery's comment of not wanting to bother Mr Snook was in relation to advice that the modifications had been completed.
[89] Mr Emery provided to Ms Watts and Mr Snook emails and performance management review documents to support his case that his modifications were general maintenance.
[90] Ms Watts said Mr Snook "looked taken aback and shocked" when Mr Emery said Mr Snook had given permission for the work on the BIVs. Mr Snook was "quite stern and direct" in telling Mr Emery he had not given such permission because they had never discussed it and such work would need to be approved by the City's depot.
[91] Mr Snook then clarified those parts of the Code of Conduct and Fleet Management Practice it was claimed Mr Emery had breached.
[92] Ms Watts prepared the minutes of the investigation meeting.[81]
[93] Ms Watts said that Mr Emery provided no evidence that Mr Snook had directed him to make the modifications to the vehicle and that it was "common for employees under investigation to make such claims against their managers and...for these reasons, it was [her] opinion that is was not necessary to remove Snook from the meeting."[82] She said that Mr Emery made no objection to Mr Snook conducting the investigation.
[94] The disciplinary meeting was held with Mr Emery on 3 March 2017. Mr Emery was again accompanied by Mr Hardbattle. Ms Watts and Mr Snook were also in attendance. At that meeting Mr Emery confirmed the minutes of the meeting of 1 March 2017 were accurate and was given a further opportunity to respond.
[95] Mr Emery said at the disciplinary meeting that the work was consistent with previous work he had done, he had been trying not to bug Mr Snook, he did not accept that the modifications endangered lives and he wanted to negotiate an outcome that would enable him to keep his job.
[96] Ms Watts said that she and Mr Snook had a break where they discussed Mr Emery's response. On reconvening the meeting Mr Emery was advised that his employment was terminated.
[97] Ms Watts said in her evidence said that the reasons for the termination were that:
Mr Emery admitted to the modifications but could not demonstrate authority to do so;
There was a distinction between minor repair work and tampering;
Mr Emery had not advised the depot of the modifications;
The result could have been catastrophic;
Mr Emery had not accepted responsibility or shown remorse; and
• Mr Emery's actions had resulted in the warranties being voided and the City incurred significant costs in repairs.[83]
[98] Ms Watts said that a letter of termination was sent to Mr Emery on 9 March 2017. The letter was re-sent to Mr Emery by mail on 11 April 2017 as she was under the (mistaken) belief that he may not have received the first letter.
[99] Ms Watts gave evidence that she was familiar with the Employee Discipline Management Practice[84] of the City and that the investigation had been carried out in accordance with this.[85] Whilst agreeing that it would be better to get statements in writing from those involved in the investigation, Ms Watts agreed that she did not get a written statement from Ms Pastor, Mr Snook or Mr Emery and she did not gather a statement from Mazda personally or cause one to be gathered.
[100] Ms Watts said that following the investigation meeting with Mr Emery on 1 March 2017 she reported back to Ms Pastor and Ms Allen. They agreed to talk to Mr Holland and Ms Watts believes this discussion took place the following day. Her evidence is that there was a legal representative present at this meeting.
[101] Ms Watts said she also met with Mr Holland and Mr Snook on 3 March 2017 prior to meeting with Mr Emery. In respect to that meeting Ms Watts gave the following evidence:
Mr Mullally: You say you don't remember the detail of the meeting with Mr Holland prior to the disciplinary meeting; is that right?---I know that in terms of the outcome of - if the discipline meeting did not provide any further information to support Mr Emery's claim of being provided with permission, then we were to continue with a termination.
So your command of this investigation process at that point must have been taken away from you; is that right?---In terms of that, if there was any changes to what Mr Emery had provided in the next meeting, I was to call Mr Holland and discuss the matter further.[86]
[102] Ms Watts said that Mr Emery provided no further information at the disciplinary meeting on 3 March 2017 to support his claim so she and Mr Snook terminated his employment. Ms Watts said that she had the delegated authority from Ms Allen to effect the termination although Mr Holland was responsible for the decision.[87]
[103] Ms Watts said she did not consider there to be a conflict of interest in Mr Snook continuing to investigate the matter following Mr Emery's claim that Mr Snook authorised the bridging wire in the BIV and Mr Snook's denial of this.[88] Ms Watts based this on discussions she had with Mr Snook prior to the investigation meeting on 1 March 2017 when she asked if he had authorised the modification and he said he had not.[89]
[104] Mr Carter is the Co-ordinator, Fleet Services for the City. He is based at the City's depot in Balcatta. Mr Carter gave evidence that the depot has a workshop and that the fleet services mechanics assess and repair equipment but that vehicles under warranty will generally be returned to the dealership. Mr Carter said the mechanics determine priority of the work depending on the nature of the repair and the vehicle's use. His evidence is that the BIVs are given priority given the nature of their use.
[105] Mr Carter also gave evidence that, pursuant to the Fleet Management Practice, if an employee of the City experiences a fault or problem with a vehicle it is incumbent upon them to report it to their supervisor or the depot.
[106] Mr Carter said that in November 2016 the City purchased three Mazda BT-50 vehicles for the use of the Beach Inspectors. Mr Carter said the vehicles were due for a first service at 3,000km. Mr Carter provided, with his written statement, the maintenance history for BIV U481 and BIV U483. He said that prior to February 2017 no faults were reported with the vehicles.
[107] On 7 February 2017 Mr Carter was informed by Mr Norm Bryant (the leading hand) that he had received a call from Mr Snook in relation to an unusual noise coming from BIV U481 and that the vehicle was being brought to the depot by Mr Gugiatti, a Beach Inspector. The vehicle arrived soon thereafter. As the vehicle was under warranty it was taken to Mazda that day.
[108] Mr Bryant spoke to Mr Carter later that day and told him Mazda had called to advise they had found bridging wire installed in the vehicle which had caused the air conditioning compressor to shut down. Mazda said it could not be repaired under warranty as the vehicle had been interfered with.
[109] Mr Carter, along with Mr Bryant went to Mazda and spoke to Mr Seb Melis, the Service Manager who, Mr Carter said, stated that a bridge had been installed so that the air conditioning would run continuously, the air conditioning system was not designed to operate this way, the bridge had wires sticking out and the repairs would not be covered by warranty. Mr Carter then spoke to the mechanic who worked on the vehicle and inspected the vehicle himself. Mr Carter concluded that the bridging wire had not been bought from a supplier and that as the compressor had failed there was a possibility that the drive belts might fail and the alarm codes being sent to the computer could shut the vehicle down. The following day Mr Carter received an email from Mr Melis advising that the cost of repairs was $1,902.00.
[110] Mr Carter ordered that the two remaining BIVs be inspected. BIV U482 had no bridging wire installed but BIV U483 did have a bridging wire which Mr Carter removed. Mr Carter refitted the relay but a few days later the vehicle developed a fault and was taken to Mazda.
[111] On 8 February 2018 Mr Carter emailed Mr Snook to advise him of the fault in BIV U481 and that he suspected that the bridging may have been done by one of Mr Snook's staff. Mr Carter asked Mr Snook to inform his staff that no unauthorised repairs were to be done on the vehicles.[90]
[112] On 28 February 2017 Mr Carter received an email from Mr Melis[91] which stated:
Yes we found a makeshift wire bridging the relay so it would keep the compressor running at all times (when usually it is PCM controlled)-this has then in turn burnt out the compressor clutch causing the compressor to no longer work-therefore no aircon.
Once something like this has been interfered with it is not deemed as a manufacturing defect-therefore warranty is exempt.
[113] Mr Carter gave evidence that he deals with manufacturers on warranty issues "all the time" and he had no reason to doubt what was said in the email.[92]
[114] Mr Carter said the email arose from a telephone call he made to Mr Melis asking that he clarify why the compressor was replaced.[93] He could not recall if he made the telephone call in response to a request from Mr Holland. With respect to an unsigned and dated letter,[94] Mr Carter said Mr Melis sent this to him attached to another email sometime after he received the email of 28 February 2017,[95] "probably a month" later but "more than a few days" or it could have been a "few weeks".[96]
[115] Mr Carter said that auto electrical work on the City's fleet is subcontracted to RPG Auto Electrics.
[116] The fleet vehicle maintenance history[97] shows that BIV U481 had its 3,000km service on 21 December 2016 and BIV U483 had its 3,000km service on 12 January 2017. The bridging wire was not discovered at this time.[98]
[117] Mr Carter said that when he removed the bridging wire and refitted the relay wire in BIV U483 he was of the opinion that there would be problems with the air conditioning system as there had been in BIV U481. BIV U483 was returned to Mazda on 14 February 2017 when the air conditioning clutch failed. The fault was repaired under warranty.
[118] Mr Gugiatti is a Beach Inspector. His evidence is that the BIVs are life-saving vehicles equipped with material required to conduct rescues, treat individuals and prevent fatalities. He said that the BIV is his "office" and he spends the majority of his shift patrolling the beaches. He said that the BIV is essential and he could not do his job without such a vehicle.
[119] Mr Gugiatti said that in November 2016 the City purchased three new BIVs. He is permitted to perform general maintenance work on the BIVs which might include checking oil and coolant, topping up water, checking tyre pressure and checking lights and reversing beepers. He said he is not permitted to conduct any mechanical modifications to equipment or vehicles. He said that if there is a mechanical issue he refers the matter to Mr Snook who then contacts the depot.
[120] Mr Gugiatti said that in late 2016 he was driving BIV U481 and noticed heat coming out of the vents when he turned the engine on. Mr Gugiatti said this was the only vehicle he experienced it in, it seemed to happen in cold weather and the hot air blew for about 60 seconds.
[121] Mr Gugiatti said that on 11 December 2016 Mr Emery gave him a lift home and they discussed heating in the BIVs. He told Mr Emery of the hot air blowing in BIV U481. Later that day he received a text from Mr Emery that said:
(Mr Emery) Okay lights and air conditioning fixed and added a litre of oil. All good to go again
(Mr Emery) Wiring to switch not put back or fell off. Bridged air conditioning so it is on all the time. Put the mic clip back on and topped up oil but it still needs ¼ litre but I have run out at home now
[122] Mr Gugiatti said that while he knew what Mr Emery had done was wrong he did not report him to Mr Snook as he did not want to get him into trouble.
[123] Mr Gugiatti said that in early 2017 he noticed a noise coming from the engines of BIV U481 and BIV U483. He noticed this got worse in BIV U481 in February 2017 and reported it to Mr Snook. He demonstrated the problem to Mr Snook who, after a phone call, directed him to take the vehicle to the depot. Once there he was told the vehicle would need to go to Mazda and he delivered the vehicle there.
[124] Mr Gugiatti said he knew the BIV would be given top priority by the depot as it was a life-saving vehicle.
[125] Mr Gugiatti said he attended a weekly team meeting on 8 February 2018. Mr Snook, Mr Holm, Mr Hardbattle and casual lifeguards were present. Mr Emery was absent. Mr Snook advised the group of the bridging wire found in BIV U481 and asked if anyone knew how this had occurred. Mr Hardbattle responded with words to the effect of "oh Kevin" [Emery] and "you'll have to ask Kevin about that".[100]
[126] On 9 February 2017 Mr Gugiatti decided to tell Mr Snook of the text message he had received from Mr Emery on 11 December 2016. He provided Mr Snook with a copy of the text message.
[127] Mr Gugiatti agreed that the team of Beach Inspectors had divided up various responsibilities informally[101] but denied Mr Emery had taken responsibility for motor vehicles and electrical items. He agreed that, whilst Mr Snook had asked for his advice on how to make the boat trailer work easier, he took responsibility for the logistics but did not make changes to the trailer himself.
[128] Mr Kolm is a Beach Inspector. One of his responsibilities as a Beach Inspector is the general maintenance of beach services equipment and vehicles. With respect to the vehicles this includes checking water, coolant and oil levels, ensuring brake and parking lights are working, ensuring the emergency lights and sirens are functioning and checking tyre pressure. Mr Kolm said that he understands that he is not required to conduct repairs on vehicles.
[129] Mr Kolm said he considered the BIVs to be life saving vehicles.
[130] Mr Kolm said that in December 2016 he noticed the air conditioning not coming on in the BIVs although cannot recall if this was in more than one of the vehicles. He said that the problem was intermittent and he dealt with it by leaving the air conditioning off or opening the window. He does not recall speaking to Mr Snook or other Beach Inspectors about the matter.
[131] Mr Kolm said that around Christmas 2016 he noticed an unusual sound coming from the engine of one of the BIVs. He spoke to Mr Gugiatti and they agreed to monitor it and to report it if it got worse.
[132] Mr Kolm was present at the team meeting on 8 February 2017. He said that at the meeting Mr Snook said bridging wire had been installed in one of the BIVs and asked if anyone knew about it. Then, or shortly thereafter, Mr Snook asked Mr Kolm if he had problems with air conditioning in the BIVs. Mr Kolm advised that he had experienced some issues.
[133] Sometime later Mr Kolm was asked to take BIV U483 to the depot which he did. He said he watched Mr Carter remove the relay box cover and take some photographs.
[134] Mr Kolm agreed that responsibilities with respect to repairs and maintenance is "sort of divvied up" between the four Beach Inspectors. He agreed that he dealt with the jet skis and that if anything went wrong, depending on what it was, he would get approval from Mr Snook to carry out a repair. He also said he might go straight to the depot.
[135] Mr Kolm said he could recall Mr Gugiatti carrying out repairs to boats and trailers on occasion but could not recall him doing a big job on a trailer in 2016. Mr Kolm said that the repairs done by Mr Gugiatti were general maintenance.
[136] Mr Green is a qualified auto electrician. He owns and runs RPG Auto Electrics. Mr Green is licensed to undertake vehicle repairs and conduct inspection, maintenance and repairs to air conditioning in a motor vehicle.
[137] RPG Auto Electrics has a contract with the City in relation to auto-mechanical maintenance and repair work on the City's vehicle fleet.
[138] Mr Green said that when the City took delivery of the three BIVs in late 2016 he undertook work on them at the request of Mr Carter. This included installing flashing lights to the roof and re-fitting two-way radios from the old BIVs. Mr Green said that at the time of doing the work he noticed in one of the BIVs that when the air conditioning was turned on it blew hot air. He told Mr Carter that it should be seen to by Mazda.
[139] Sometime later Mr Green was called to do some maintenance work on the BIVs and asked two of the Beach Inspectors how the air conditioning was. Mr Gugiatti responding that Mr Emery had tweaked the computer and the situation had been resolved.
[140] Mr Green was requested by the City's representative to provide his opinion based on his expertise on the installation of the bridging wire by Mr Emery and the impact this might have on the operation of the BIVs based on his experience as an auto-electrician and his knowledge of the manner in which the BIVs operate. In so doing Mr Green was given the opportunity to inspect the bridging wire constructed and installed by Mr Emery and given a copy of a report received by Mr Carter from Mazda on 28 February 2017.[102]
[141] Mr Green provided two witness statements for the proceedings, one in November 2017 and another for the hearing before me in August 2018.[103] The November 2017 statement is attached as "Attachment A" to the August 2018 statement.
[142] In his November 2017 statement Mr Green said that, in his opinion, the installation of the bridging wire would have "caused the compressor to seize because of overuse and overheating" and that the compressor shutting down could have resulted in the drive belt snapping which would have rendered the BIV inoperable. Mr Green considered that the "impact of the modifications was exacerbated" as the BIVs were driven predominantly on the beach.[104]
[143] Mr Green reached his conclusion as to the effect of the insertion of the bridging wire because:
(a) the air-conditioning system in the BIVs is controlled by a thermostat;
(b) once the cabin of the vehicle has reached the desired temperature, the air-conditioning compressor shuts off...The contacts close on the thermostat and the compressor will then re-engage;
(c) the result of this is that the air-conditioning system is constantly cycling at the desired temperature without the compressor being constantly engaged;
(d) the modification bridged the relay out so that the compressor was running continuously...[105]
[144] Mr Green said that, in his opinion:
the compressor [in BIV U481] seized because it had run out of oil from operating continuously and overheated;
the seizure of the compressor could have resulted in the motor in the BIVs overheating;
the motor overheating could have impacted the drive belts by causing them to fail and snap;
the drive belts in the BIVs turn the water pump, power steering and compressor;
a drive belt failure may also result in a failure in the alternator belt if the two become tangled; and
• a drive belt failure would have rendered the car inoperable.[106]
[145] In response to the report of Mr Eaves, Mr Green said that, whilst agreeing that the electrical circuit in the air conditioning system was fuse protected, in installing the bridging wire Mr Emery had by-passed the battery fuse so any protection was eliminated. Further, Mr Green said that by installing the bridging wire the compressor was running all of the time and did not have an opportunity to cool down. This, he said, in conjunction with driving with few breaks on a hot day could contribute to a failure in the compressor.
[146] Mr Green said that if the pressure switch was functioning the system might still be able to work normally but with the pressure switch not in play he disagreed that "bridging out the relay would not cause the compressor to overheat."[107]
[147] Mr Green gave extensive evidence on the operation of the air conditioning system in the vehicles in question. After reading the report prepared by Mr Eaves, Mr Green said he googled "mazda BT-50 air conditioning compressor failure" and was directed to a link which contained the training manual for the 2006 model Mazda BT-50. Mr Green said the wiring diagram for the air conditioning system in this manual was the same as the wiring diagram attached to Mr Eaves' report. Mr Green then went to Mazda and spoke to the Service Department Manager. After identifying himself he said he was seeking a copy of the manufacturer's manual wiring diagram for air conditioning in the 2016 Mazda BT-50. The manager printed off a page which he said was from the Mazda manual.[108] Mr Green subsequently accessed a website containing Mazda manuals including the Mazda manufacturer's manual for the 2016 BT-50. That manual contained the same wiring diagram as Mr Green had been given at Mazda.
[148] Mr Green said that in his experience you cannot download current manufacturer's manuals from the internet but rather you have to go to the relevant vehicle dealer.[109]
[149] Mr Green said that, based on his qualifications and experience, he considered that the modification made by Mr Emery:
Could have caused damage to the compressor;
It was likely a mechanical failure would eventually have occurred. Timing of such a failure is unpredictable;
The removal of the relay and insertion of the bridging wire eliminated the usual protections in the unit because it by-passed the PCM (electrical control unit);
The removal of the relay and insertion of the bridging wire removed the high-pressure switch from the circuit meaning the system would no longer detect high head pressure and shut down the air conditioning system accordingly.
[150] Mr Green said that he understood the wiring diagram relied on by Mr Emery came from a 2006 Manual. He believed this as the year was on the second page of the Manual.[110] Mr Green based his opinion on the 2016 wiring diagram[111] he had accessed and not the wiring diagram relied on by Mr Emery.
[151] Mr Green said that, on the basis of the 2016 wiring diagram and a connected wiring diagram[112] the effect of the bridging wire inserted by Mr Emery was that "[t]he PCM didn't know what the aircon compressor was doing. It couldn't control the compressor."[113]
[152] Mr Green said that he inserted the bridging wire on one of the BIVs as Mr Emery had done and had the air conditioning compressor running. He pulled the pressure switch off to see if the compressor disengaged which it didn't. He concluded from this that the pressure switch "wasn't in play"[114] with Mr Emery's modification.
[153] The Employee Discipline Management Practice[115] (Discipline Practice) states, as its objective:
This management practice is designed to ensure the City Of Stirling (the City) provides a fair, consistent and systematic approach towards managing conduct and behaviour across the organisation. The purpose of this management practice is to protect both the employee and the City. It is intended to provide a positive approach to problem solving that is fair, consistent and impartial to all parties involved.
[154] Under the heading of "Investigation Meeting and Seeking Witness Statements" it states:
All allegations/disciplinary matters must be fully investigated. Whilst the details may vary from case to case, as a rule, the investigation will involve seeking statements from those involved and any others who may have relevant information...
Employees being investigated for misconduct will be formally invited to attend an investigation meeting. At the investigation meeting, the employee will be provided the opportunity to put forward their version of events relating to the alleged incident...
All information collected during the investigation process including the employee's response to the allegations, witness statements and other relevant information will be taken into consideration when deciding on the disciplinary action to be taken...
[155] With respect to "Disciplinary outcomes", under "Termination" the Discipline Practice states:
...No employee, whether permanent, temporary, contracted or casual may be terminated without seeking prior approval from Manager Human Resources. Business Unit Managers are responsible for leading disciplinary meetings that may result in a termination outcome and make the final disciplinary outcome.
[156] The City's Code of Conduct[116] states in its introduction that it is relevant to all employees of the City (amongst others). It says that "Consistent standards of ethical behaviour must be applied to meet interests and expectations".
[157] The Code of Conduct confirms that all allegations of misconduct and/or inappropriate behaviour will be investigated in a fair and timely manner in line with the Discipline Practice.
[158] The Code of Conduct confirms that a conflict of interest arises where a personal interest conflicts with the public interest. An employee is required to disclose an interest that could be in conflict with or perceived to be in conflict with the performance of their public duty.
[159] The Code of Conduct sets out those things that might form misconduct and provides guidelines on the use of the City's assets (e.g. mobile phones, vehicles etc.).
[160] The City's Fleet Management Practice[117] "guides the selection criteria and maintenance of City of Stirling Fleet vehicles."
[161] The Fleet Management Practice outlines the allocation and use of fleet vehicles for the City. It states, under "General Maintenance" that:
General maintenance is the responsibility of the employee to whom the fleet vehicle is assigned. This includes:
[162] The Fleet Management Practice says that the City is responsible for the fleet vehicles' "full service and maintenance...with the City covering all costs..."
[163] I have made the following findings on the basis of the evidence before me.
Did Mr Emery make modifications to the vehicles?
[164] I am satisfied that Mr Emery made changes to the air conditioning system on BIV U481 and BIV U483 in that he inserted a bridging wire into each of these vehicles that had the effect of bypassing the normal operation of air conditioning in the vehicles so that the air conditioning would blow cold at all times whilst the engine was running.
Was Mr Emery authorised to make the modifications?
[165] I am not satisfied that Mr Emery had permission from anyone at the City to make modifications to the vehicles.
[166] Mr Emery said that Mr Snook approved the work being carried out. Mr Snook denied this. In this case I prefer the evidence of Mr Snook to that of Mr Emery for the following reasons.
[167] I accept that Mr Emery may have met with Mr Snook on a number of occasions. This does not, however, support a finding that Mr Snook was aware of or approved the modifications.
[168] Mr Emery said that Mr Snook invited him to investigate if there was a temporary fix to the air conditioning problem. Mr Emery's recollection of what he said Mr Snook required varied from a "request to investigate" (presumably the possible remedies to the problem) to a "direction" that he fix the problem and much in between. A request to investigate is not a direction to make changes to the BIVs. It may well be part of a process in coming to some decision as to what should occur but it is a long way from a direction to alter the vehicles. In this respect Mr Emery displayed no sense of the substantial difference between the two extremes of what is, admittedly, a continuum. Mr Emery's attempt to explain away the differences in his recollection of what Mr Snook asked of him was convenient (he did not consider there to be a difference) but not convincing.
[169] Mr Emery agreed that there was nothing in writing from Mr Snook as evidence of any direction. It is evident from the emails attached to Mr Emery's witness statement that issues in relation to vehicles and other equipment repair or replacement were raised by the Beach Inspectors by email, research proposed or undertaken and possible solutions put forward. The existence of the emails does not support Mr Emery's claim that the arrangement for him to fix the air conditioning was agreed. Rather they support a conclusion that maintenance matters were routinely put in writing by the Beach Inspectors to Mr Snook.
[170] To the extent that the emails might indicate that each of the Beach Inspectors took some responsibility for different equipment this does not demonstrate that work was undertaken without the appropriate authorisation or that any such work was carried out without some paper trail to support it. In relying on previous conduct to suggest that the work Mr Emery did was authorised does no more than highlight that, in this case, that norm was not followed. There is, otherwise, no evidence to support that work would be verbally authorised. The existence of the emails also belies Mr Emery's claim that Beach Inspectors had little access to email.
[171] Whilst I accept that the Beach Inspectors did have, as part of their performance management, the requirement to reduce maintenance costs, the evidence does not support a conclusion that this implied a need to do work of the nature undertaken by Mr Emery. Rather, the evidence indicates that reduced maintenance costs were to be achieved by the development and implementation of an "improved comprehensive maintenance schedule for all gear and equipment."[118] There is nothing in this to suggest that Mr Emery was expected or required to undertake the modifications to the BIVs that he did. I accept that regularly checking tyres or oil or water in vehicles or using vehicles and other equipment appropriately is a means by which maintenance costs are contained.
[172] My conclusion is further supported by the evidence that Mr Emery did not advise Mr Snook that he had completed the work on the air conditioning in the vehicles. If it was the case that Mr Snook had requested or directed Mr Emery to undertake the work it is inexplicable that Mr Emery did not advise Mr Snook that the work had been completed or that he did not do so as he did not want to bother Mr Snook. Why it would "bother" Mr Snook to be advised of the completion of a task is not clear. Mr Emery advised the Beach Inspectors. Given the claimed importance of the task his reason for not advising Mr Snook is not credible.
[173] I find it curious that Mr Emery emailed Mr Carter about electrical matters in the vehicles on 5 December 2016 (when he was acting in Mr Snook's role) at the time he was in the midst of three meetings with Mr Snook where Mr Emery says the status of the air conditioning in the vehicles was the topic of conversation yet did not mention this health and safety issue to Mr Carter. The subject line of the emails was "Issues as discussed with the new Beach Inspector vehicles". Whilst the issues raised in the email were no doubt important none appear, on its face, to be as critical as the air conditioning not working or presented a health and safety issue to the vehicle users. Mr Carter responded that the "auto sparky" would be at the beach the following day and would look at a couple of the matters. The swift turn around on these matters does not support Mr Emery's claim that the BIVs were not given any priority such that he needed to do the work on the air conditioning himself.
[174] The weight of evidence does not support Mr Emery's claim that the modifications were approved by Mr Snook (or anyone else).
[175] For these reasons I am not satisfied that Mr Emery had approval to carry out modifications on the air conditioning of the BIVs.
Was the conduct in breach of Code of Conduct or Fleet Management Practice?
[176] The breaches of the Fleet Management Practice relied on by the City are that Mr Emery acted in a manner deemed inappropriate by the Director or Chief Executive Officer (CEO); that Mr Emery did not understand his responsibilities with respect to insurance cover of the vehicle and that Mr Emery added additional features to the vehicles.
[177] I am satisfied that Mr Emery did, in making the modifications to the BIVs, act in a way deemed inappropriate by the Director or CEO. I am not satisfied that Mr Emery showed appropriate regard for or was aware of his responsibilities with respect to insurance cover insofar as this encapsulates the warranty on the vehicles. Had he had proper regard to this matter the evidence does not support a finding that Mr Emery would have taken a cavalier approach to doing anything to the BIVs that would affect the warranties on them. Whilst Mr Emery did not add additional "features" to the vehicles he did add a bridging wire which was not an authorised addition.
[178] The breaches of the Code of Conduct relied on by the City are that Mr Emery endangered his own and the safety of others, misused property/assets and that he failed to be aware of and understand the Fleet Management Practice.
[179] I am satisfied that, in modifying the air conditioning in the BIVs, Mr Emery may have endangered himself or others. I would stress that there is no indication that this was the intent of Mr Emery. I am, in this respect, satisfied that Mr Emery believed that he was seeking to resolve what he considered to be a health and safety issue with the vehicles. However, having thought he was doing the right thing is not an overriding consideration.
[180] I am also satisfied that Mr Emery did misuse the assets of the City. He took action in relation to the BIVs that he was not authorised to do.
[181] I am therefore satisfied that Mr Emery did breach the Fleet Management Practice and the Code of Conduct.
Did the modifications by Mr Emery cause damage to the vehicles?
[182] The modifications made by Mr Emery to the air conditioning on BIV U481 caused costs to be incurred by the City that would not otherwise have been incurred. This was caused by the voiding of the warranty in relation to that component of the vehicle. As Mr Melis from Mazda explained in his email of 28 February 2017 to Mr Carter, and which I find no reason to doubt, the problem with the air conditioning was not a manufacturer defect therefore its repair was exempt from the warranty.
[183] The evidence before me does not support a conclusion that the warranty on BIV U481 was voided beyond the air conditioning component. I accept that the estimated cost of repairing BIV U481 was $1,902. Whether that was the final invoiced amount I do not know. Regardless of the invoiced amount however, the assessment from Mazda was that the modification of the air conditioning had caused the compressor clutch to burn out causing the compressor to stop working and hence shutting down the air conditioning.
[184] Mr Melis' brief email to Mr Carter is supported by the evidence of Mr Green that the modifications of the type carried out by Mr Emery could have caused damage to the compressor. In this case I am satisfied that it did. No other explanation for the damage to BIV U481 has been given.
[185] The evidence does not support a conclusion that the modifications made to the air conditioning in BIV U483 resulted in any voiding of the warranty on that vehicle. Mr Carter removed the wiring inserted by Mr Emery and refitted the relay. A subsequent fault in that vehicle was apparently repaired with no warranty issue raised.
[186] I am satisfied that, in carrying out the modifications to the BIVs, Mr Emery used the incorrect wiring diagrams and that those he used were from a 2006 Manual. Mr Emery claimed that car manufacturers update car manuals regularly but there was nothing in his evidence to suggest that the wiring diagram he relied on had been updated since 2006 when the manual from which it came was copyrighted.
[187] I am satisfied on the evidence before me that the wiring diagrams relevant to the BIVs are those produced in the evidence of Mr Green. It would appear from the 2016 diagram that the wiring had changed since the 2006 wiring diagram relied on by Mr Emery. Mr Emery "googeld" a query and took the information provided by that means as correct. While I accept that he looked under the bonnet to ensure all the components were there, the evidence does not support a finding that this was sufficient. There is an inherent danger in accepting what google produces as being the most current advice on a matter.
[188] Evidence was given by Mr Emery, Mr Eaves and Mr Green, all auto electricians, on the basis that their opinions were reliable as they were "experts" in the field of auto electrics.
[189] I have not accepted the opinions (or expert evidence) of Mr Emery as being evidence on which much weight should be placed. Mr Emery has not worked consistently in the field of auto electrics since 2001. Whilst I accept that his qualifications remain valid and whilst it may be that he does such work from time to time, it is not the field in which he practices or works or concentrates. Further, Mr Emery was giving evidence in his own defence which might be seen to colour the evidence given. Mr Emery was argumentative in his opinions and demonstrated a stubbornness in his evidence which does not support acceptance of his opinions as reliable evidence. Mr Emery was not prepared to accept any alternative to his view even in the face of evidence clearly to the contrary. This was demonstrated in his unwillingness to accept that he had not filed the wiring diagram on which he relied and which formed his "research" following his discussion with Mr Snook with his first witness statement despite a concession by his lawyer of this.
[190] I accept that both Mr Eaves and Mr Green have the qualifications and experience to provide their opinions to the Commission as to the damage that may have been done to the vehicles by the modifications of Mr Emery.
[191] I do not accept that Mr Eaves' evidence is tainted because he had previously worked for Mr Emery's sister. His evidence was that they parted acrimoniously. In addition I am not aware of the content of the conversation between Mr Eaves and Mr Emery to evaluate how that may have impacted on Mr Eaves' evidence. However, Mr Eaves' evidence is limited in that he based it on the 2006 wiring diagram relied on by Mr Emery. Mr Eaves did not look at the evidence of Mr Green as to the 2016 wiring diagram.
[192] Mr Eaves generally agreed with the assessment made by Mr Green of the impact of the modifications made by Mr Emery and, to the extent he disagreed, it was more in emphasis than fact.
[193] I accept that Mr Green is an auto electrical contractor for the City. I do not accept that this would have an adverse consequence on any opinion he may put to the Commission.
[194] There is no doubt that Mr Green carried out the more thorough investigation and had access to more information in relation to the wiring as inserted by Mr Emery and in relation to accessing the appropriate wiring diagram for the vehicles in question.
[195] I do note that Mr Emery conceded that, if the wiring was as considered by Mr Green, the pressure switch would not respond to changes in pressure which would have the effect of not turning the compressor off if this was required.
[196] I am satisfied, on the basis of the opinions expressed by both Mr Eaves and Mr Green, that the modifications made by Mr Emery could have caused damage to the vehicles.
[197] I accept, on the basis of the opinion of Mr Green and Mr Eaves and the evidence of Mr Carter, that the modification made to BIV U481 by Mr Emery did cause damage to that vehicle. That the extent of the damage was quoted to cost only $1,902 to repair and that no reported damage was done to BIV U483 is not the relevant consideration. The actions of Mr Emery could and did cause damage to at least one of the vehicles.
[198] There are a number of procedural fairness issues that arise for consideration as a result of the process of investigation and discipline of Mr Emery's actions undertaken by the City.
[199] I am satisfied that on 23 February 2017 the City wrote to Mr Emery and invited him to a meeting where he could respond to the allegations.
[200] The allegations in the letter were in relation to the "non-approved modification of two of the City's vehicles resulting in substantial damage including the voiding of the warranty".
[201] Whilst it was not clearly specified in the letter of allegations I am satisfied that Mr Emery was aware of the vehicles in question and the modifications carried out. Mr Emery came to the investigation meeting on 1 March 2017 with documents he said supported his claim that the modifications he made were "general repair work" suggesting he had a reasonable understanding of the purpose of the meeting.
[202] The notification of allegations however did not specify the damage done to the vehicles even though Ms Watts said she considered the damage to be the voiding of warranties. Nor did the letter of allegations provide any specificity as to those parts of the Fleet Management Practice or Code of Conduct Mr Emery was said to have breached or how he had breached those parts. For this reason it is not clear that Mr Emery had foreknowledge of the totality of the allegations against him such that he could reasonably respond to those allegations at the meeting on 1 March 2017.
[203] During the investigation meeting Mr Snook outlined those sections of the Fleet Management Practice and Code of Conduct that Mr Emery was said to have breached. This was the first time these were articulated. The minutes do not indicate that Mr Emery was advised of how his actions had specifically breached the provisions of the Practice or Code.
[204] It is not apparent, on the basis of the evidence, what "investigation" was actually undertaken by the City before or after the investigation meeting of 1 March 2017 and before the termination of Mr Emery's employment on 3 March 2017.
[205] The evidence does not support a finding that any employees of the City were interviewed by Ms Watts or Mr Snook such that they could have been aware of any issues with the air conditioning discussed amongst the Beach Inspectors or if there had been such discussions how the problem might be dealt with. Further, the evidence does not support a finding that either Ms Watts or Mr Snook spoke to or otherwise sought information from Mr Carter or Mr Bryant or Mazda employees to ascertain the extent of the damage to the vehicles and the extent of the voiding of the warranty on the vehicle which had been returned for repairs. I do accept however that Mr Snook did have a report from Mr Carter dated 8 February 2017 which outlined the extent of what he said the advice from Mazda had been. This information of the conclusion in relation to the email was not put to Mr Emery.
[206] Whilst the email of 8 February 2017 is not direct evidence from Mazda, I do not consider that Mr Carter would have any motivation for raising those matters with Mr Snook other than to alert him to the cost of unauthorised modifications (both in dollar and risk terms).
[207] Beyond talking to Mr Holland and Ms Pastor (neither of whom were involved in the incident itself) it is not evident that that any investigation was undertaken by the City or what documents Ms Watts and Mr Snook had regard to prior to meeting again with Mr Emery on 3 March 2017. Mr Emery claimed that what he had done was "general maintenance" but no investigation was undertaken as to his understanding or that of his colleagues as to what constitutes general maintenance.
[208] It does appear from the evidence that the investigations or attempt to gain statements that did take place was instigated by Mr Holland who sought further information from Mazda after the decision had been taken to dismiss Mr Emery.
[209] I am not satisfied that I can conclude, on the basis of the evidence before me, that a sound and proper investigation took place into the allegations put to Mr Emery.
[210] As indicated above I am not satisfied that the City carried out any investigation into the allegations against Mr Emery other than to put those allegations to him and seek a response at the 1 March 2017 meeting.
[211] Two days later at the disciplinary meeting no actual "findings" or outcomes of the investigation were put to Mr Emery. He was shown the minutes of the investigation meeting, asked if he would like to add anything else and then, following a short break, was advised that his employment would be terminated.
[212] The minutes of the disciplinary meeting indicate that the City had decided to terminate Mr Emery's employment on the basis of the "information obtained as part of the City's investigation..." Mr Emery was not advised at any time of this "information" or given an opportunity to respond to it. The minutes do not indicate that Ms Watts or Mr Snook advised Mr Emery of the penalty it was considering imposing or seek any response from him on that.
[213] Given the failure to carry out an investigation I am satisfied that the disciplinary meeting denied Mr Emery a fair opportunity to put his case in that he was never aware of any "findings" to which he could respond. Nor was he advised that the proposed disciplinary action being considered was termination of his employment (although it was not discounted as a possibility in the letter of allegation) such that he might seek to influence that decision.
[214] During the investigation meeting on 1 March 2017 Mr Emery, in response to a question of Mr Snook, indicated that Mr Snook had given permission for the modification to be made.
[215] Ms Watts said in her evidence that it is "common" for employees to make claims against their managers during an investigation and, for that reason, she did not consider it necessary for Mr Snook to be removed from the meeting or the investigation.
[216] I accept that both Ms Watts and Mr Holland asked, and Mr Snook advised, that he did not give approval for the modifications but that is not to the point. A reasonable person may form the view that Mr Snook would not fully investigate the claims of Mr Emery lest it be shown that Mr Snook had given approval for the work or had previously given approval for similar things to occur.
[217] It is incumbent on the City, in undertaking any investigation into misconduct (or poor performance) to protect itself against claims of a lack of procedural fairness. In this case I am not satisfied that it has done so, particularly in circumstances where the investigator is said to have given approval for the conduct subject to the investigation. Further, it is not reasonable to dismiss the claims of Mr Emery on the grounds that it is "common" for employees under investigation to make such a claim. There is no evidence before the Commission to support this statement and it could not be considered notorious. Any person said to have engaged in misconduct is entitled to have their case investigated and decided on its merits and not on the basis on what other employees may or may not have done or perceptions of what is "common".
[218] Given the claim of Mr Emery that Mr Snook approved the modifications he made to the vehicles the prudent course of action would have been to remove Mr Snook from the investigation process. To leave him there means that the perception may linger that the investigation was not fair or was compromised.
[219] Mr Snook should have realised he was in a conflicted position and if he did not Ms Watts should have recognised it. Stepping away from an investigation is not an admission of wrong doing. That Mr Snook did not step away resulted in the investigation (such as it was) being tainted.
[220] I am satisfied that the continued involvement of Mr Snook in the investigation and disciplinary meeting resulted in a denial of procedural fairness to Mr Emery.
[221] Prior to the meeting with Mr Emery on 3 March 2017, Ms Watts and Mr Snook had a discussion with Mr Holland who indicated that it was his view that Mr Emery should have his employment terminated although he did not give this direction to Mr Snook or Ms Watts.
[222] It is unfortunate that Mr Holland should express such a strong view to Ms Watts and Mr Snook prior to them obtaining any further information from Mr Emery. Whilst I accept that he issued no direction to Ms Watts or Mr Snook he made his views very clearly known. Such a course is procedurally fraught and would be more so if the decision as to discipline was finely balanced. It suggests a level of pre-determination and could be viewed as an attempt to influence the decision of Ms Watts and Mr Snook.
[223] It is also clear from the comments of Mr Holland that he, as the decision-maker, had made up his mind as to the fate of Mr Emery prior to hearing any pleadings from Mr Emery as to the disciplinary action that might be warranted or any mitigation that he might offer for his actions. It might, form this, be concluded (although I make no finding alone) that Mr Holland denied Mr Emery an opportunity to influence any final decision as to his on-going employment.
[224] I am satisfied that Mr Emery made his application to the Commission within 21 days of the date of dismissal. Further, I am satisfied that that the Small Business Fair Dismissal Code does not apply (the City being a large employer) and that it is not claimed the dismissal was a redundancy.
[225] I am also satisfied that Mr Emery is protected from unfair dismissal in that he has completed the minimum employment period with his employer and an enterprise agreement applies to his employment with the City.[119]
[226] I am satisfied that Mr Emery has been dismissed.
[227] In order to determine if Mr Emery was unfairly dismissed it is necessary to determine if his dismissal was harsh, unjust or unreasonable. The criteria to be considered in making such a decision are set out in s.387 of the FW Act:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant."
Section 387(a) - valid reason for dismissal related to capacity or conduct
[228] At the disciplinary meeting on 3 March 2017 Mr Emery was advised that in modifying the BIVs he had "clearly breached the Code of Conduct and Fleet Management Practice" and that the modifications "had the potential to affect the ability of the City to perform life-saving services and has cost the City substantial money..."
[229] I am satisfied, as set out above, that Mr Emery did perform the modifications on the BIVs, he did not have authority to do so and, in performing the modifications he did breach the Fleet Management Policy and the Code of Conduct.
[230] I am satisfied, on the basis of the evidence before me, that the modifications had the potential to affect that ability of the City to perform life-saving services. The extent of such an effect would be dependent on the extent of the damage done to a vehicle caused by the modifications. The evidence from Mr Green suggests that damage may occur. Mr Eaves agreed with this assessment although did not agree on its likelihood or how soon such damage might occur. As it was, damage did occur to one of the vehicles and it appeared that it would be off the road for about one week.
[231] I accept that the BIVs are an important tool of trade for the Beach Inspectors in performing their work although the extent to which they are necessary was contested. Mr Emery suggested the BIVs were not strictly necessary to enable Beach Inspectors to do their job but Mr Gugiatti and Mr Kolm suggested the vehicles were, in effect, their office.
[232] If Mr Emery is correct and the vehicles are not absolutely necessary for the Beach Inspectors to do their jobs it is difficult to understand why he felt he needed to modify the air conditioning and not have the vehicles sent to the depot to have them seen to in circumstances where, as he claimed although disputed by Mr Carter, the BIVs were not given any priority. In such circumstances Mr Emery's actions were absolutely unwarranted. If Mr Emery is wrong, and the other Beach Inspectors' views of the importance of the vehicles is correct, the potential effect of damage arising from the modifications is much greater with a greater chance of affecting the City's capacity to deliver life-saving services.
[233] Mr Emery gave evidence that if he had not made the modifications the Beach Inspectors would only have had one vehicle in operation for the peak summer period. This is no reason for having done the modifications. I do not accept that if the BIVs had been sent to Mazda it would have taken through until the end of January or February to have the fault repaired. The evidence before me does not support such a finding.
[234] The evidence before me also does not support a conclusion that the modifications cost the City a substantial amount of money. The evidence supports an estimated cost of $1,902 to repair one of the BIVs but does not support a finding that this amount was paid or that, in the context of the City, it is a "substantial" amount.
[235] For a reason to be valid it must be "sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason..."[120]
[236] In circumstances where Mr Emery did not have approval to modify the vehicles and that the modification did cause damage to at least one vehicle I am satisfied that the decision to terminate his employment was sound, defensible and well-founded such that there was, therefore, a valid reason for his dismissal.
[237] I would note that while Mr Emery was dismissed for gross misconduct it is not necessary that I determine if his conduct did amount to gross misconduct. It is enough that I determine if the conduct (however it might be characterised) provided a valid reason for dismissal.
Section 387(b) and (c) - whether the person was notified of the reason for dismissal and given an opportunity to respond
[238] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport[121] the Full Bench of the Commission said:
[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.
[239] I have found deficiencies in relation to the procedures adopted by the City with respect to the letter of allegations and the lack of detail therein, the apparent failure by the City to seek information from anyone besides Mr Emery (although Mr Snook did have the email from Mr Carter which commenced the process and which did contain some detail of the supposed damage done to one of the BIVs) as part of any investigation and the continued involvement of Mr Snook in the investigation process when there may have been a conflict of interest.
[240] I am satisfied that Mr Emery was notified of part of what was the valid reason for his dismissal prior to the decision to terminate his employment. That part of the reason was notified to him in the letter of allegations received by him in February 2017 that led to the investigative meeting of 1 March 2017. Mr Emery came prepared to the meeting with a bundle of documents he believed supported his claim that the work he carried out on the BIVs was routine maintenance work.
[241] Mr Emery was given an opportunity to respond in relation to the allegation in general except that the extent of the claimed substantial damage (or the substantial cost as it was put on 3 March 2017) was not put to him.
[242] I am not satisfied however that any real or substantial investigation took place. Mr Emery was advised that his employment was terminated because of information obtained as part of the City's "investigation." That information was not put to Mr Emery such that he could respond to the totality of the reasons for his dismissal prior to the decision to dismiss being taken.
[243] Mr Holland said he was the decision-maker in this case. It appears that he made a decision that Mr Emery's employment should be terminated in circumstances where he did not have an investigative report and before the totality of the reasons for dismissal was squarely put to Mr Emery for his response. I do note however Ms Watts' evidence, which I accept, that she was to notify Mr Holland should anything fresh arise from the 3 March 2017 meeting with Mr Emery. Given nothing new was put by Mr Emery at this meeting it is not surprising that nothing new arose from the meeting.
[244] The deficiency in Mr Emery being apprised of the detail or totality of the reasons for his dismissal (in relation to substantial damage or substantial cost) suggests that he was not given a real opportunity to respond to clearly what the City considered an extremely serious matter (such that it warranted summary dismissal). Without knowledge of the "substantial damage" or the "substantial cost" to the City Mr Emery could not respond to the allegations and the reason for dismissal prior to the decision being taken to dismiss him. Even if it is that the reason for dismissal was the voiding of the warranties (which Ms Watts said was the damage) the evidence does not support a finding that this was specifically put to Mr Emery.
[245] For these reasons I am not satisfied that Mr Emery was notified of the totality of the reason for his dismissal, nor was he given an opportunity to respond.
[246] I deal with Mr Snook's conflict of interest below.
Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person to assist at any discussions relating to dismissal
[247] I am satisfied that Mr Emery was given every opportunity to have a support person present during the meetings he had with Ms Watts and Mr Snook and that he exercised that right without hindrance.
[248] Mr Emery's dismissal did not relate to performance. This is not a matter I therefore need to consider.
Section 387(f) and (g) - the size of the employer's business and absence of dedicated human resource management specialists or expertise
[249] The City is a large employer. It has a dedicated HR group and, at least in one meeting between Mr Holland and Ms Watts, a lawyer was present.
[250] The City also has well developed and long standing policies in relation to its Code of Conduct and Discipline Practice.
[251] Given its in-house HR expertise and its well-developed policies, the deficiencies in the process adopted by the City are difficult to comprehend. While I accept the uncontested evidence of Ms Watts that she had recently taken up her role at the City, and of the high level of turnover in the HR area at the time, Ms Watts is an experienced HR professional. She had come from another HR role to work for the City. Given her recent arrival in the role it might be expected that she would be guided by the policies and procedures of the City. Further, Mr Holland was frequently consulted by Ms Watts, Mr Snook and Ms Pastor. Mr Holland has some background in HR and, at the time of the investigation, was Acting Director Corporate Services. In such a senior role it can be reasonably anticipated he would be alert to the need to ensure policies and procedures for conducting an investigation are adhered to.
[252] It is reasonable to expect that the City would have adhered to its policies and procedures in undertaking the investigation and decision in relation to Mr Emery. In some respects the evidence suggests it did not and there is no reasonable excuse for this.
[253] I am satisfied on the evidence before me that Mr Snook should have stood down from the investigation. Whilst I can appreciate the desire of the City to have the line manager involved in an investigation this can only be a sound decision when the line manager is not involved in relation to the conduct complained of. In this case Mr Snook is said to have approved the work.
[254] I accept the evidence of Mr Emery that he put in the investigation meeting that Mr Snook approved the work. This was supported by the evidence of Mr Hardbattle. I do not accept Ms Watts' evidence that it is "common" for an employee to make such a claim in circumstances such as those confronting Mr Emery.
[255] That Mr Snook denied he had approved the work to Ms Watts and Mr Holland cannot be the end of the matter. Mr Snook was, in Mr Emery's claim, squarely caught up in the investigation. He could not be investigator and respond to such a claim at the same time. He was in a conflicted situation that could not be resolved by his denial. To have not stood aside further taints the investigation process (such as it was). This is not to suggest that Mr Snook misled Mr Holland, Ms Watts or the Commission. Whether it was an actual conflict or had the appearance of a conflict it affected the objective fairness of the investigation.
[256] There is just no circumstance where Mr Snook could, in an unbiased manner, objectively be seen to determine whether he gave approval to Mr Emery or not.
[257] I have taken into account that the damage actually done to BIV U481 was minimal and the vehicle was off the road being repaired for a limited period of time. I have also taken into account the limited damage to BIV U483 (although there is no evidence of the connection of this to the bridging wire), that Mr Carter removed the bridging wire in that vehicle and was content to have any repairs done to it under warranty. Mr Carter was aware of the damage the bridging wire could do, he had reported on the matter with respect to BIV U481 to Mr Snook after that vehicle was returned to Mazda.
[258] I do not accept the submissions of the City that Mr Emery showed no remorse for his actions. The minutes of the investigation meeting indicate that Mr Emery was shocked by the allegations and that he had been attempting to reduce maintenance costs. At the disciplinary meeting Mr Emery again said he did not understand that what he did was consistent with that previously done by him but he was prepared to give an undertaking that he would not do any work on the vehicles in the future. This point however has had no bearing on my decision.
[259] I do accept however that, whilst showing remorse, Mr Emery did not acknowledge the error of what he had done.
[260] In Byrne and Another v Australian Airlines Limited [122] the High Court said:
...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.
[261] On balance I have decided that the dismissal was unreasonable.
[262] I have reached this conclusion because of the substantial deficiencies in the investigation process carried out by the City into the allegations and the failure of Mr Snook to step aside from the investigation once it became clear Mr Emery claimed he had approved the modifications to the BIVs. I am not satisfied that the procedure adopted by the City in investigating the conduct was sound, rigorous and without fault. Further, I am satisfied that these deficiencies had a substantive effect on the capacity of Mr Emery to respond to the reasons for his dismissal such that he might have some influence on the decision
[263] While it is true that procedural defects will not necessarily render a dismissal unfair, in this case I am satisfied that the lack of an appropriate investigation and the involvement of Mr Snook in the investigation means little confidence can be had in the investigation process (as it was). This casts substantial doubt over the outcome of that process.
[264] In such circumstances and where I have a real concern at the extent of the investigation undertaken and the apparent conflict of interest in Mr Snook's involvement, I am not convinced that the outcome would not have been different had a thorough and proper investigation been undertaken, had Mr Emery been provided with the detail relevant to the consideration of the City, and if Mr Snook had stepped down and was replaced by another manager as investigator.
[265] I have balanced these findings against the finding that there was a valid reason for dismissal but find that the procedural issues outweigh the finding of a valid reason in circumstances where the damage to BIV U481 was in the order of $1,902.00, the damage to BIV U483 was not attributed to the bridging wire and where the evidence does not suggest that Mr Emery had any intent to damage the vehicles (which does not excuse his conduct).
[266] In these circumstances I am satisfied that Mr Emery's dismissal was unreasonable.
[267] For these reasons I am satisfied that Mr Emery was unfairly dismissed.
[268] The matter will be listed seperately for mention by telephone to determine directions with respect to dealing with the question of remedy.
[8] Transcript 17 September 2018 PN1337.
[10] Transcript 17 September 2018 PN1509.
[12] Transcript 29 November 2017, PN479.
[14] Transcript 29 November 2017 PN508. See exhibit A1 attachment 6.
[20] Transcript 17 September 2018 PN1514.
[22] Transcript 29 November 2017 PN377 and PN386.
[24] Transcript 29 November 2017 PN927.
[31] Transcript 30 November 2017 PN1407.
[33] Transcript 30 November 2017 PN1419.
[37] Transcript 17 September 2018 PN698.
[38] Exhibit A8, attachment KE1, box (3).
[39] Transcript 17 September 2018 PN867.
[45] As there would be no interaction between the PCM and thermostat and the air conditioning relay such that the compressor could be disengaged.
[46] Transcript, 17 September 2018 PN966-PN968.
[52] As per exhibit R14, paragraphs 5 to 20.
[53] Transcript 17 September 2018 PN1094-PN1097.
[57] Transcript 30 November 2017 PN2633.
[65] Transcript 30 November 2017 PN1556.
[68] Transcript 30 November 2017 PN1570.
[70] Transcript 30 November 2017 PN1569.
[72] Transcript 30 November 2017 PN2122-PN2123.
[78] Transcript 30 November 2017 PN2148-PN2149.
[84] Transcript 30 November 2017 PN2175-PN2176.
[86] Transcript 30 November 2017 PN2276-PN2278.
[92] Transcript 13 December 2017 PN74 and PN76.
[93] Transcript 13 December 2017 PN146.
[94] Exhibit R9 attachment DAC7, page 2.
[95] Transcript 13 December 2017 PN170.
[96] Transcript 13 December 2017 PN216-PN219.
[101] Transcript 13 December 2017 PN520.
[104] Exhibit R14, attachment A, paragraph 38(c).
[105] Exhibit R14, attachment A, paragraph 40(a)-(d).
[106] Exhibit R14, attachment A, paragraph 40(e).
[109] Transcript 17 September 2018 PN1764-PN1765.
[110] Exhibit R14 attachment B, second page (© 2006).
[111] Transcript 17 September 2018 PN1620-PN1621.
[113] Transcript 17 September 2018 PN1614.
[114] Transcript 17 September 2018 PN 1625-PN1626.
[119] Section 396 of Fair Work Act 2009.
[120] Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373.
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# Kevin Emery
City of Stirling \[2018\] FWC 6853
(1995) 62 IR 371
(2000) 98 IR 137
(1995) 185 CLR 410