Mark Moran v KDR Victoria Pty Ltd T/A Yarra Trams [2018] FWC 6144

Mark Moran v KDR Victoria Pty Ltd T/A Yarra Trams [2018] FWC 6144 | Case summary | Zoe

[8]

[4] As indicated earlier, the Applicant was employed by the Respondent and its predecessors from 1979 to 19 February 2018. The Applicant was advised of his dismissal on 19 February 2018 and the dismissal was confirmed by letter dated 22 February 2018 (Termination Letter).[5] The Termination Letter confirmed the Respondent's decision to terminate the Applicant's employment on the basis of serious misconduct. The serious misconduct was said to be constituted by conduct involving breaches of confidentiality and conduct throughout the investigation, and specifically his dishonesty.[6] The Respondent informed the Applicant that he was not entitled to notice of termination or any payment in lieu or payment in respect of unused long service leave but it would nonetheless make a payment to him in lieu of the long service leave.[7]

[5] The Respondent says that there are two valid reasons for the Applicant's dismissal.[8] The first relates to the conduct said to be misconduct identified in the Termination Letter in that it is contended that the Applicant deliberately and repeatedly breached a requirement that he keep the investigation confidential. Further, it is said that the Applicant lied to, or at least misled his supervisor about breaches of the requirement.[9] The second emerged during the course of the hearing of the application when it became apparent that the Applicant had recorded a number of meetings with various employees of the Respondent and some of his union colleagues.[10] It is said that this conduct, which was not known to the Respondent at the time of the dismissal or the time that these proceedings and the hearing commenced, constitutes a valid reason for the dismissal because the conduct goes to the heart of the employment relationship. The Applicant's position as Officer Production was a senior position which required the trust of both his supervisors and his colleagues.[11]

[6] On or about 27 or 28 September 2017, during a meeting with the Manager of Lines, Liz Reddy, the Applicant was informed that a complaint was lodged by an individual against him and as a consequence the Respondent would be conducting an investigation.[12] He was not advised what the complaint was about nor was he given any particulars. The Applicant was asked to sign a confidentiality agreement but did not do so as he had not been provided with any detail about the complaint.[13] Mr Noel Augustus, the Respondent's Team Manager Production was also present at the meeting.[14] Mr Augustus is no longer an employee of the Respondent and ceased to be so well before the hearing of this application commenced. On 18 October 2017, the Applicant was told by Ms Reddy that the investigation would be conducted by the Victorian Chamber of Commerce and Industry (VCCI).[15] The Applicant was again asked to sign a confidentiality agreement and again did not sign the confidentiality agreement provided to him at the meeting as he was not given any details about the nature of the complaint that was the subject of the investigation and his representative was on annual leave.[16]

[7] On 24 October 2017, the Applicant was informed that the investigator would be Amy Bell (the VCCI investigator) and that she would like to speak with the Applicant outside working hours.[17] On 26 October 2017, during a discussion with Mr Augustus about certain interactions with Mr Marius Ciocan, a Traffic Officer Driver, the Applicant was informed that the person who had lodged the formal complaint against him was Mr Ciocan.[18] He was not given any detail about the complaint. Ms Reddy gave evidence that it was on 18 October 2017 when the Applicant was informed that it was Mr Ciocan who had made the complaint.[19]As will become apparent later, nothing turns on this discrepancy in the evidence.

[23]

[11] On or about 17 or 18 November 2017, the Applicant says he spoke with co-workers Mr John Goates and Mr Mitch Chatelier in relation to whether they could recall the events particularised in allegations 4 and 6. The Applicant said that neither knew what he was talking about nor about the alleged incidents.[26] Mr Chatelier gave evidence that he recalls the Applicant asking him "Have you been called for the inquiry?" and he responded "no" as he was not aware at that stage that an investigation was being conducted.[27] Mr Chatelier denies that the Applicant asked him to recall an incident when the Applicant said "who the fuck is Marius".[28] I will return to this disputed account later. The conversation forms part of that which is said to constitute a valid reason relating to a breach of confidentiality.

[12] On 21 November 2017, the Applicant was approached by manager Mr Shaun Harper who told the Applicant that there had been "another breach" of the Respondent's EEO policy. On Mr Harper's account the Applicant was asked whether he had spoken to other employees about the investigation.[29] The Applicant says he was asked whether he had spoken to Mr Chatelier about the investigation.[30]The Applicant on his account says that he responded by stating that he could not recall but at the time was "caught completely off-guard" and did not consider that he had "breached any confidentiality requirements".[31] Mr Harper says that the Applicant said "no". Mr Harper said that during this meeting he reminded the Applicant of his obligation to keep the investigation confidential and not to discuss it with anyone, to which the Applicant nodded.[32] A more detailed consideration of the evidence about this discussion will be found later in these reasons.

[13] After this discussion, the Applicant spoke to Mr Milan Gambiroza in relation to whether he could recall the event particularised in allegation 6. The Applicant said that Mr Gambiroza could not remember and the matter was not discussed any further.[33] Mr Gambiroza agreed that the Applicant did ask him "who the fuck is Marius" but could not recall when it occurred and that he completed a special day report about the incident.[34] This discussion also forms part of the confidentiality breach allegation. A more detailed consideration of the evidence about this discussion will be found later in these reasons.

[14] On 22 November 2017, the Applicant spoke with the VCCI investigator by telephone and provided his responses to the allegations and some background material for his statement. The following day the VCCI investigator sent her notes to the Applicant by email.[35]

[15] On 28 November 2017, the Applicant attended a meeting with Mr Harper and after discussing whether the Applicant had spoken to co-workers about the investigation, Mr Harper informed the Applicant that the Respondent had decided to stand him down until the completion of the investigation.[36] A more detailed consideration of the evidence about this discussion is to be found later in these reasons.

[16] On 1 December 2017, the Applicant had a further telephone interview with the VCCI investigator[37] during which he asked that a number of amendments be made to her notes, namely in relation to his discussions with co-workers and comments about Mr Ciocan. The Applicant says that it was during this discussion that the VCCI investigator informed him for the first time that there were new allegations in relation to his behaviour towards another driver, Mr Mark Papworth.[38] Mr Harper gave evidence that it was on or around 20 November 2017 when he told the Applicant that there was a second complaint made against him and that he would need to be interviewed about it.[39] For reasons that will become apparent it is not necessary for me to resolve this dispute in the evidence. After hearing the nature of the allegations, the Applicant told the VCCI investigator that he would require some time to recall the events and to provide a response.

[17] The new allegations were as follows:[40]

[98]

[42] As earlier noted, in late September 2017, the Applicant was advised by Ms Reddy that an investigation about a complaint made against him was to be undertaken.[71] The Applicant was not given any detail about or particulars of the complaint. As noted earlier, he was asked to sign a document styled as a "Confidentiality Agreement for Participants"[72] but declined to do so for the reasons earlier stated. The Applicant's evidence is that it was Mr Augustus who had asked him to sign the document.[73] The Applicant also made a note of the meeting which supports his version of events.[74] There is an issue whether the Applicant was bound by the confidentiality requirements set out in the documents notwithstanding that he had not signed them. Ms Reddy gave evidence that regardless of whether the Applicant signed the documents she had taken the Applicant through the confidentiality obligations and that her "verbal discussion with him was an instruction."[75]

[43] In her witness statement Ms Reddy says nothing about providing the Respondent's confidentiality document to the Applicant during the meeting that occurred on or around 27 September 2017. She says nothing about instructing the Applicant as to confidentiality at that meeting. During her oral evidence Ms Reddy suggested that at the meeting on or about 27 September 2017, not only did she give to the Applicant the Respondent's policy and confidentiality agreement[76], but she also gave him a copy of the VCCI confidentiality document[77] and she instructed the Applicant not to discuss the investigation.[78] I do not accept this evidence for several reasons. First, on her own evidence, Ms Reddy did not tell the Applicant that VCCI had been appointed to conduct the investigation until 18 October 2017. Secondly, none of this oral evidence appeared in her initial witness statement. Thirdly, it is inconsistent with her witness statement which she adopted in the witness box, in which she says that these documents were provided to the Applicant at a meeting on 18 October 2017.[79]

[44] It seems to me unlikely that the documents were given to the Applicant twice. In her oral evidence Ms Reddy said she was "fairly sure" that these documents were given to the Applicant on 27 September 2017.[80] Her oral evidence is inconsistent with the evidence given in her witness statement which she had earlier adopted as correct. On the whole her evidence as to the documents is unreliable.

[45] As I have already noted, it appears that Mr Augustus gave the Applicant a copy of the confidentiality document and asked him to sign it. The Applicant refused to sign it. There is no evidence that Mr Augustus gave any instruction to the Applicant and Mr Augustus was not called to give evidence. As I have already observed, the Applicant's contemporaneous note confirms his version of events. Given the state of the evidence, I conclude that at the meeting on or about 27 September 2017, the Applicant was given a copy of the Respondent's confidentiality document and complaints procedure document and asked to sign the confidentiality document which he refused to do. He was not given any instruction at that meeting as to confidentiality. He was not given a copy of the VCCI document.

[46] Ms Reddy said that she believed that by taking the Applicant through the confidentiality documents that the Applicant was in effect bound by a requirement to maintain confidentiality.[81] That may be her view but it is not what the documents on their face provide. Indeed the suggestion that there is an instruction given by taking the Applicant through the documents appears to me to be inconsistent with the express terms of the documents. At the very least, the inconsistency between the terms of the documents and Ms Reddy's understanding of the effect of taking the Applicant through the documents raises real questions as to whether the Applicant could be said to have understood that an explanation of the documents bound him to their terms notwithstanding that he was asked to sign and refused to do so.

[47] Ms Reddy gave evidence that she and Mr Augustus met with the Applicant on 18 October 2017, told him about the appointment of VCCI to conduct an investigation, provided the Applicant with the documents, to which reference has already been made and, according to Ms Reddy, she told the Applicant that both he and Mr Ciocan would remain at work during the investigation provided the Applicant kept the investigation confidential.[82] Her evidence was also that she said to the Applicant words to the effect: "do you understand that you can't talk to any other employees about the investigation?" and the Applicant replied: "yep".[83] The Applicant's evidence was that he was told about the VCCI investigation during a meeting with Ms Reddy and Mr Augustus on 18 October 2017.[84] He said that it was Mr Augustus who asked him whether he signed the confidentiality forms that he had been provided at the previous meeting.[85] He said he had not and reiterated the earlier given explanation.[86] His evidence was that he was not provided with the VCCI document at that meeting or at any other time. The Applicant made a contemporaneous note of the meeting on 18 October 2017.[87] The note is consistent with the evidence that the Applicant gave about that meeting. Mr Augustus was not called to give evidence. The Applicant's evidence was that he was not given a copy of the VCCI document at all.[88] I prefer the Applicant's evidence to that given by Ms Reddy. As I had already noted above, Ms Reddy's evidence about if and when she gave particular documents to the Applicant is inconsistent and unreliable. The Applicant's evidence is consistent and is supported by contemporaneous notes made by him. I also accept as a consequence that the Applicant was not given a copy of the VCCI document by anyone including the VCCI investigator. So much is clear from the note and recording of the VCCI investigator's interview with Mr Moran on 14 November 2017. Therein the VCCI investigator is recorded as saying to the Applicant words to the effect "let's do the broad admin stuff. I won't even bother to send you the protocols".[89] The VCCI investigator was not called to give evidence. I also accept his evidence that he was not given an instruction as to confidentiality at the meeting on 18 October 2017.

[48] If the confidentiality documents are intended to give effect to the Respondent's EOC procedure, and in particular that section which provides that "everyone involved in resolving a complaint will be required to maintain confidentiality",[90] they failed to do so because the documents do not on their face create an obligation until such time as the person to whom the document is directed signs it. By doing so that person, according to the section in the Respondent's document headed "Employee Agreement", is said to have read and understood it and importantly "I agree to observe the agreement as outlined".[91] The identical acknowledgement and agreement is set out in paragraph 16 of the VCCI document.[92]

[49] Given the Applicant's refusals to sign the agreement style confidentiality document, it is somewhat surprising that a direct and unequivocal direction was not given to the Applicant about confidentiality during the investigation and in particular about that which he was permitted to do and that which he was not.

[50] There can be little doubt that the Applicant was aware, at least in a general sense, of the Respondent's requirements about confidentiality in investigations.[93] Indeed it may be inferred that given he was asked by Mr Augustus to sign the confidentiality document that the Respondent wanted the Applicant to maintain confidentiality during the investigation and that the Applicant was aware that this is what the Respondent wanted. Certainly the Applicant was aware that the purposes of confidentiality requirements included protecting complainants from retaliation, upholding the integrity of investigations by preventing witnesses from colluding and protecting against witness intimidation or the feeling thereof.[94]

[51] However, as should be apparent from the above, I am not persuaded that the Applicant was given a clear instruction about the Respondent's confidentiality requirements. Certainly he did not agree to those set out in writing, and although he had a general understanding about the need for confidentiality in the investigation and its purpose, it is another matter altogether to conclude that he understood from all of this, that the Respondent intended that he was prevented from taking any step to speak to any person for the purposes of refreshing his memory about particular allegations that are made against him. It seems to me that a clear and unequivocal direction about confidentiality and an explanation as to that which the confidentiality requirement entailed should have been given to the Applicant and on the available evidence it simply was not.

[99]

[52] The Respondent maintains that the Applicant repeatedly failed to comply with the relevant confidentiality requirements.

[53] As noted earlier, the Applicant gave evidence that on 17 or 18 November 2017 he saw Mr Chatelier in the car park. He had a conversation with Mr Chatelier during which the Applicant asked whether Mr Chatelier could recall an incident wherein the Applicant said "who the fuck is Marius".[95] The Applicant's evidence was that Mr Chatelier replied with words to the effect that he did not know what the Applicant was talking about.[96] Mr Chatelier's recollection of the conversation is different to that of the Applicant. His evidence is inconsistent and a number of factors related to his evidence point to its unreliability. In his witness statement Mr Chatelier said that the Applicant "shouted out to me words to the effect: "Have you been called for the inquiry?""[97] His evidence was that Mr Harper "subsequently asked me whether Mr Moran had asked me about the investigation. I told Mr Harper that he had not. The reason I gave that response to Mr Harper was that I was not aware, when Mr Moran approached me in the carpark, that an investigation was being conducted and did not understand that he was asking me about the investigation."[98] He also said that the Applicant did not ask him "who the fuck is Marius".[99] I found Mr Chatelier's evidence on the whole to be unreliable. For the reasons which follow, I prefer the evidence of the Applicant about the conversation with Mr Chatelier.

[54] First, Mr Chatelier said that he had not discussed the approach of the Applicant to him with anybody until he was asked to prepare his witness statement which was in about May 2018.[100] This could not possibly be correct since in February 2018 an allegation about breaching confidentiality in connection with Mr Chatelier was put to the Applicant. If it is correct then it is difficult to see the factual basis upon which any allegation of breach of confidentiality could have properly been put to the Applicant in February 2018, particularly given that in November 2017, Mr Chatelier told Mr Harper that no discussion between he and the Applicant about the investigation had occurred.[101]

[55] Secondly, Mr Chatelier says that the Applicant asked him whether he has "been called for the inquiry" but Mr Chatelier's evidence was that he told Mr Harper that the Applicant had not asked him about the investigation because he did not know an investigation was being conducted. Whether or not Mr Chatelier knew that investigation was being conducted does not provide a satisfactory or particularly plausible explanation for telling Mr Harper that the Applicant had not asked him about the "investigation". His explanation for doing so is all the more implausible given that, on Mr Chatelier's version of the conversation with the Applicant, Mr Chatelier was asked by the Applicant whether he had been called to the "inquiry".

[56] Thirdly, Mr Chatelier wears a hearing aid and gave evidence that "[W]hen I finish work the first thing I do is I take it off because I wear it the whole day and it can be uncomfortable. So when I am going home I usually take it off. So it could have been off at that time. I mean, I may have taken it off."[102] Given that this was Mr Chatelier's usual practice and that the conversation between he and the Applicant occurred at a time when Mr Chatelier had finished work, it seems to me likely that he did the very thing that he describes in his evidence. In those circumstances, his evidence that the Applicant did not ask him whether he can recall an incident wherein the Applicant had said "who the fuck is Marius" needs to be treated with caution.

[57] Fourthly, the Applicant's evidence about the conversation is consistent with the record of interview with the VCCI investigator which records that the Applicant asked Mr Chatelier about the allegation concerning "who the fuck is Marius" and that Mr Chatelier said that he did not know what the Applicant was talking about.[103] Despite this being disclosed by the Applicant, the proposition does not appear to have been discussed with Mr Chatelier when he was subsequently interviewed by the VCCI investigator.[104]

[58] Fifthly, the Applicant's evidence is also consistent with a contemporaneous note made by him of his conversation with Mr Chatelier.[105]

[59] The Applicant gave evidence that on 21 November 2017 Mr Harper attended the Applicant's office and asked him to step into the conference room at which point Mr Harper said to the Applicant words to the effect that there has been "another breach" of the Respondent's EEO policy and he asked the Applicant whether the Applicant had spoken to Mr Chatelier about the investigation.[106] The Applicant's evidence was that he told Mr Harper that he could not recall and that it did not enter his "head at that moment that he was talking about me asking Chatelier about whether I had said "who the fuck is Marius"".[107] Mr Harper's evidence is at odds with the Applicant about their conversation on 21 November 2017. Mr Harper's evidence was that he asked the Applicant whether the Applicant had spoken to any other employees about being investigated.[108] Mr Harper said that the Applicant told him that he had not and that thereafter Mr Harper reminded the Applicant to keep the investigation confidential and not to discuss the investigation with anyone.[109] He says that the Applicant nodded his head.[110]

[60] Apart from recording a series of conversations to which I will later return, the Applicant also kept notes of various conversations.[111] I have referred to some of these already. Amongst the notes kept by the Applicant is a note of a conversation with Mr Harper on 21 November 2017. Without repeating that which appears in the note, it is consistent with the evidence given by the Applicant about the conversation with Mr Harper. The Applicant said that the notes were prepared by him after each incident set out in the notes and then he would make the notes at home.[112] He said that he did not prepare the notes at some later stage in preparation for the hearing of this application.[113] I accept the Applicant's evidence as to the manner and circumstances in which he prepared the notes. He also said that Mr Harper did not remind him of any obligation to keep the investigation confidential, he did not tell the Applicant not to discuss the investigation with anyone and that the Applicant did not nod his head as suggested by Mr Harper.[114]

[61] On the whole I prefer the evidence given by the Applicant as to the content of the conversation between the Applicant and Mr Harper on 21 November 2017. The Applicant's version of the conversation is supported by notes made relatively contemporaneously. Mr Harper's recollection of events was on his own evidence imprecise. Mr Harper had in mind Mr Chatelier during his discussion with the Applicant.[115] Mr Harper's oral evidence was that "I don't believe I would have used Mr Chatelier's name . . . I do not believe I used his name as far as I can recall".[116]

[62] In his witness statement about a conversation with the Applicant on 28 November 2017 concerning Mr Gambiroza,[117] Mr Harper does not take issue with the evidence given by the Applicant that during that discussion the Applicant had said to Mr Harper amongst other things that Mr Harper had "asked me about Chatelier previously" and that the Applicant told him that he "had approached Mr Chatelier, but not to spread rumours or gossip about" the investigation" and that he had "asked Mr Chatelier a question in order to refresh" his memory.[118] During his oral evidence, Mr Harper agreed that the Applicant may have said that Mr Harper had asked about Chatelier earlier[119], that he may have used Chatelier in the conversation but he could not recall the context and also agreed that the Applicant had said that he had spoken to Mr Chatelier to ask a question to refresh his memory.[120]

[63] The evidence about the conversation between Mr Harper and the Applicant on 28 November 2017 tends to corroborate the Applicant's version of the conversation with Mr Harper on 21 November 2017.

[64] In any event, even if Mr Harper's version of the conversation on 21 November 2017 were to be accepted, it is clear on his evidence that he gave no particulars about what he meant by discussing the investigation with employees, the absence of which makes it difficult to accept that the Applicant's response could be said (save in on respect which I will shortly discuss) to be lying about discussing the investigation. This is all the more the case given the circumstances in which the conversation occurred, commencing in the Applicant's office at a time where on his evidence, as disclosed from the notes, which is not disputed, the Applicant was busy and likely distracted.[121]

[65] I am troubled however, with the Applicant's response that he did not recall. The conversation with Mr Chatelier occurred only a few days before the conversation with Mr Harper. The Chatelier conversation was about a material allegation, about which the Applicant sought to have his memory refreshed. The Applicant made a note of the conversation. It seemed important enough to him to warrant a note. The making of the note is likely to have reinforced rather than to diminish a memory of the conversation. On the Applicant's evidence which I have accepted, Mr Harper said words to the effect that "there has been another breach of the EEO Policy" and asked whether the Applicant "had spoken to Mitch Chatelier about the investigation".[122] I do not accept that the Applicant did not recall or that it did not occur to him that Mr Harper was referring to the Chatelier conversation. The statements of Mr Harper clearly link the "breach" to a question of a discussion between the Applicant and Mr Chatelier. In these circumstances, the Applicant's response that he did not recall does not ring true. It seems to me much more likely that a truthful response by a person maintaining that he was not discussing the investigation with employees would have been "no" rather than "I can't recall". An "I can't recall" response in the circumstances bears the hallmarks of a person seeking time to think, rather than truthfully responding. Therefore, to that extent I am satisfied that his response was not truthful. But for the reasons which follow, I do not consider that the Applicant was, by his response, seeking to hide the truth or to adversely affect the course of the VCCI investigation.

[66] First, the Applicant disclosed the fact of his conversation with, inter alia, Mr Chatelier to the VCCI investigator. Secondly, only a few days later, on 28 November 2017, the Applicant told Mr Harper that he had a conversation with Mr Chatelier to ask Mr Chatelier to assist him in refreshing his memory and that nobody had told him that he "couldn't approach people".[123]He maintained that he did not consider this to be discussing the "case".[124] As already noted, Mr Harper accepted that the Applicant may have told him on 28 November 2017 that he had spoken to Mr Chatelier to ask him a question in order to refresh his memory.[125]The notes taken from the recording of the conversation between the Applicant and Mr Harper on 28 November 2017 also support the fact that the Applicant told Mr Harper that he had spoken with Mr Chatelier for the purpose of refreshing his memory.[126]

[67] All of this shows that the response given to Mr Harper by the Applicant on 21 November 2017 was consistent with delay or buying time rather than a dishonest intent in the sense that the answer was intended to cover up the fact that the Applicant had a relevant discussion with Mr Chatelier. The conversations that the Applicant held with Mr Chatelier, and with others, formed part of his response to the allegations the subject of the VCCI investigation.

[68] Mr Harper's evidence about the confidentiality reminder to the Applicant on 21 November 2017 also needs to be viewed in the context of the circumstances in which the conversation occurred. The Applicant denies that Mr Harper uttered any confidentiality reminder[127] and Mr Harper's oral evidence was less than certain about what it is that he had said to the Applicant. His oral evidence included:

• that the conversation was "along the lines of that - asking him if he was aware that the investigation was confidential";[128]

• that "this (the confidentiality reminder) was the main reason why [Mr Harper] had to meet with" the Applicant;[129] and to remind the Applicant of the "VECCI protocols";[130]

• he could not remember using the word "protocol" but could remember using the words "investigation" and "confidential"[131]

• he later said that he believed that he did mention "the VECCI protocol" and "the obligation to keep the investigation confidential";[132]

• he agreed that he did not say "you must not discuss anything about the facts to do with the investigation with anyone" but said that he assumed the terminology that he did use saying "that the investigation's (sic) to be confidential" the Applicant understood what he was talking about;[133] and

• he said that he "did remind him after inquiring about the (sic) Chatelier on the 21st, that there were protocols of the investigation, that he knew it was confidential,"[134] even though Mr Harper had earlier given evidence that he did not mention "Chatelier" during the meeting with the Applicant on 21 November 2017.

[69] I prefer the evidence of the Applicant in respect to whether Mr Harper gave such a reminder, and conclude that no reminder was given by Mr Harper during the meeting on 21 November 2017. But even on Mr Harper's own evidence, the so-called reminder was at best an oblique reference to not discussing "the investigation with anyone" given in circumstances where the Applicant was busy and distracted having already been asked, on Mr Harper's version, whether the Applicant had spoken to any other employees about the matters being investigated. The Applicant's contemporaneous note of the 21 November 2017 meeting, does not record any such reminder. Moreover, in notes made from a recording during the Applicant's meeting with Mr Harper on 28 November 2017, the Applicant is recorded as saying on two occasions to Mr Harper words to the effect "nobody said that I could not approach anybody". There is no indication that Mr Harper reminded the Applicant that he had reinforced the confidentiality obligations attaching to the investigation during their meeting on 21 November 2017. The recording and the notes[135] of the meeting between Mr Harper and the Applicant on 28 November 2017 do not support Mr Harper's evidence that during that meeting he "reminded Mr Moran that he had been told that he was required to keep investigation confidential and was not to discuss it with anyone".[136]

[70] The Applicant gave evidence that on 18 November 2017 he spoke to Mr Goates in the Applicant's office. The Applicant's evidence is that during the discussion the Applicant asked Mr Goates whether Mr Goates could recall the Applicant telling Mr Ciocan to shut up and "saying that sanding E - Class trams is stupid".[137] The Applicant's evidence was that Mr Goates said that he did not know what the Applicant was talking about.[138] Mr Goates was not called to give evidence and the Applicant made a contemporaneous note of the conversation[139] which is consistent with the evidence that he gave. I accept the Applicant's evidence. His evidence is also consistent with the Applicant's record of interview with the VCCI investigator wherein the Applicant is recorded as saying "I checked with Driver Goates if I had used the words and he could not remember and all he remembers is that I told him where to berth the trams as Marius was not answering his calls."[140] Despite this being disclosed by the Applicant, the proposition does not appear to have been discussed with Mr Goates when he was subsequently interviewed by the VCCI investigator.[141]

[71] Following the conversation with Mr Harper on 21 November 2017, the Applicant had a conversation with Mr Gambiroza. The Applicant gave evidence that during the conversation he said to Mr Gambiroza words to the effect of "can you help me recall whether I have ever said the words: 'who the fuck is Marius'"[142] and that Mr Gambiroza said that he could not remember.[143] The Applicant made a contemporaneous note of his conversation with Mr Gambiroza which is to the same effect.[144] Mr Gambiroza's evidence was that he could recall the question about which the Applicant gave evidence but did not recall when that conversation had occurred.[145]

[72] Mr Gambiroza also gave evidence that during a conversation on 21 November 2017, the Applicant had said to him words to the effect "I'm in trouble" and "I'm in trouble this time. Are you going to say anything if they ask you?"[146]

[73] Ms Reddy gave evidence that Mr Gambiroza spoke with her on 21 November 2017 about the discussion with the Applicant.[147] Her evidence was that Mr Gambiroza had told her that the Applicant had asked him about the investigation and whether he intended to say anything to the investigator.[148] She said that Mr Gambiroza was upset because he had been bullied by the Applicant previously and he did not want the Applicant to get away with bullying and intimidating people.[149] She asked Mr Gambiroza to complete a special day report in relation to his interaction with the Applicant.[150] On or about 29 November 2017, Mr Gambiroza completed a special day report and gave it to Ms Reddy.[151] The special day report contains the following:

[101]

[74] Mr Gambiroza's oral evidence was, to say the least, confused. Although the evidence given by him in his witness statement suggests that he could not remember the Applicant had asked him for help remembering whether he had said "who the fuck is Marius", his oral evidence would indicate that the conversation occurred on 21 November 2017 and that he did not include that comment in the special day report because "it's just rude".[153] Mr Gambiroza also could not adequately explain why it is that the words attributed to the Applicant appearing in his witness statement "I'm in trouble" and "I'm in trouble this time" did not appear in the special day report and suggested that he felt that it was rude to write that down on a piece of paper.[154]

[75] I prefer the evidence of the Applicant to that of Mr Gambiroza about the conversation. The Applicant's version is supported by a contemporaneous note. The matters about which Mr Gambiroza gave evidence in his witness statement were not in the special day report prepared at or approximating the time at which the conversation occurred. Ms Reddy did not give evidence that Mr Gambiroza told her that the Applicant had said to him words to the effect "I'm in trouble" and "I'm in trouble this time". Mr Gambiroza's explanation for the omission of these words together with the words that appear to be agreed as spoken by the Applicant from the special day report is unsatisfactory. There is also an inconsistency between Mr Gambiroza's evidence in his witness statement that he could not recall when the Applicant had asked him whether he could recall the Applicant saying "who the fuck is Marius"[155] yet during his oral evidence Mr Gambiroza said that the Applicant's question to him about whether he would "say anything if asked" was about the Applicant "saying about Marius, "Who the fuck is Marius"".[156] Furthermore, the Applicant's evidence is consistent with his record of interview prepared with the VCCI investigator in which the Applicant is recorded as telling the investigator that he had asked Mr Gambiroza if he could recall the incident and help him recall it to which Mr Gambiroza said that he could not remember.[157] Once again, despite this being disclosed by the Applicant, the proposition was not discussed with Mr Gambiroza when he was subsequently interviewed by the VCCI investigator.[158]

[76] For the reasons earlier stated, I do not consider that there was a binding obligation on the Applicant to maintain confidentiality of the investigation either by stated directive or by reason of any agreement to the terms of the confidentiality documents which he did not sign. I also do not consider in the circumstances of this case that the Applicant could reasonably be said to have understood that any confidentiality requirements of the Respondent prevented him from seeking to refresh his memory about any allegations by speaking to employees who might have assisted him in that regard.

[77] But even if there was such an obligation, all that may be said about the breaches was that the Applicant was endeavouring to ascertain whether other employees could recall certain statements made by him. I do not consider in the circumstances of this case that such breaches, if they be breaches, were of a particularly serious nature. They amounted to no more than the Applicant making enquiries to enable him to prepare and properly respond to allegations the subject of the complaint. There is no substantiated allegation of any attempt at victimisation[159] or any reliable evidence that the Applicant sought to dissuade an employee from participating in the investigation. Moreover, even on the confidentiality documents on which the Respondent relies, the Applicant was permitted to discuss the investigation with other employees provided he gained permission from the Respondent to do so. Presumably, had the Applicant sought permission to speak to the three employees discussed above in order to ascertain whether they could assist him in framing his response, such permission would not have been denied. The seriousness with which the breach, if it be a breach, is to be assessed must be viewed in this context. If the conversations may be said to be breaches, the breaches are not of such moment as to found a valid reason for dismissal.

[103]

[79] At the hearing, it became evident that the Applicant had made a series of notes about various interactions, meetings he attended and discussions he had with co-workers. Some of these were made from audio recordings made by the Applicant without the knowledge or consent of other participants in the meeting or the discussion.[160]

[80] The Respondent contends that the recordings disclose a number of matters that are relevant including:

• the Applicant was warned by his union representative, Alice Dunn, that covert recordings of discussions is inappropriate and a "sackable offence"[161] however the Applicant subsequently recorded the 14 February 2018 and the 19 February 2018 meeting;

• the Applicant had discussed with his representatives how he could respond to the allegation that he lied to Mr Harper on 21 November 2017 and then proceeded to give evidence that what he told Mr Harper was the truth;[162] and

• after the meeting on 14 February 2018, the Applicant during a discussion with his representatives acknowledged that he should not have approached another participant in the investigation and he should not have told Mr Harper that he could not recall it happening.[163]

[81] The Respondent notes that it has not had the opportunity of cross-examining the Applicant about the recordings given his failure to disclose the recordings at the appropriate time but nonetheless the recordings further support the Respondent's contention that his conduct in covertly recording meetings and discussions jeopardises the prospect of the Respondent having trust and confidence in the Applicant.[164]

[82] The Applicant relies upon the Surveillance Devices Act 1999 (Vic) to contend that the Applicant covertly recorded meetings and discussions to protect his own interests.[165] The Applicant also contends that the reason why a recording is made and its use is relevant, and therefore the Applicant recording a conversation with his employer to protect what he perceived to be his legitimate interest is reasonable, particularly in instances where allegations are made against the Applicant and he believed his job was in jeopardy.[166]

[83] There is no dispute that the Applicant made the recordings and did so without the knowledge or consent of the other participants in the meetings and conversations which were recorded. The recording, at least in Victoria, of the relevant meetings and conversations is not unlawful. I also do not accept that the recording by itself will always provide, or that in this case that it provides, a valid reason as suggested by the Respondent for dismissal. True it is that conduct which is not known to the employer at the time of the dismissal may nonetheless provide a valid reason for dismissal, for example a discovery after a dismissal that the former employee engaged in theft or fraud during employment. But here the Respondent seeks to suggest that the valid reason is based upon the impact that the surreptitious recording has had on the relationship of trust between the Applicant and his employer.

[84] In the case of most misconduct justifying dismissal which is afterwards discovered, that conduct will usually provide a valid reason by reason of the nature of the conduct. Separately, it may have a particular impact on the relationship between the former employee and the employer. Dismissal is for a valid reason because the conduct, though unknown at the time of the dismissal, was misconduct. But dismissal will usually not be justified if the conduct is not misconduct or wrongful conduct, if it is permitted by law and not prohibited by the employer. If there is to be a relevant relationship impact at the time of the dismissal sufficient to found a valid reason it seems to me that the conduct (which is not unlawful or otherwise misconduct or wrongful) would need to have been known. It can hardly be said that the Applicant's surreptitious recording had a particular effect on the employment relationship thus providing a valid reason in circumstances where the conduct which was not misconduct, wrongful or unlawful was not known and the damage to the relationship could not have occurred at the time of dismissal. It might very well impact upon the relationship or more properly its re-establishment now, but it could not have had the requisite deleterious effect at the time of dismissal. Thus, the act of surreptitious recording in and of itself, whatever else might be said about it, does not provide a valid reason for the dismissal in the circumstances of this case.

[136]

[96] There must have been a valid reason for the dismissal relating to the Applicant's capacity or conduct, although it need not be the reason given or relied upon by the Respondent at the time of the dismissal.[174]The reason should be "sound, defensible or well-founded"[175]and should not be "capricious, fanciful, spiteful or prejudiced".[176]

[97] In the circumstances of this case, the dismissal of the Applicant occurred because the Respondent believed the Applicant had engaged in serious misconduct in that he had breached his confidentiality obligations vis-a-vis the investigation and that he had not been honest with, or misled, his supervisor when asked whether he discussed the investigation with others. The question posed by the consideration in s.387(a) of the Act is not whether the employer had a valid reason for the dismissal, rather the issue that must be taken into account is whether there was a valid reason for the dismissal related to the Applicant's capacity or conduct. The reason for the Applicant's dismissal related to his conduct. There is no suggestion that the reason for dismissal related to the Applicant's capacity, which will usually be associated with unsatisfactory performance.

[98] Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged occurred. A mere suspicion of conduct does not amount to a valid reason.[177]

[99] For the reasons earlier given, I am not persuaded that the Applicant breached any confidentiality requirement, principally because I am not persuaded that the confidentiality documents were binding on him nor am I persuaded that the Applicant was instructed that he could not speak to any employee for the purposes of enabling him to respond to the allegations. In any event, as I have also concluded, even if such an obligation existed, I am not persuaded that the conduct in which the Applicant engaged in by approaching employees for the purposes of refreshing his memory in respect of a particular comment which was attributed to him in the allegations was sufficiently serious to provide a sound, defensible or well-founded reason for dismissal.

[100] I am therefore not persuaded that the conversations that the Applicant freely admits he had with three employees of the Respondent concerning statements attributed to him provide foundation for a conclusion that there was a valid reason for dismissal.

[101] I have also concluded that the Applicant was not dishonest, nor did he mislead, Mr Harper in the manner alleged. I have also concluded that the Applicant's response to Mr Harper was not likely to be true to the extent that the Applicant said he could not recall whether he discussed the investigation with Mr Chatelier. It is uncontroversial that dishonesty in the context of an employer investigation into allegations can itself provide a valid reason for dismissal. But this need not be the result in every case. Ultimately, it is a question of circumstances and degree. There is little doubt in my mind that the Applicant should have honestly answered the question. However, I do not consider for the reasons earlier stated that the Applicant's response provides a foundation for concluding that there was a valid reason. To briefly recap, it is not the case that the Applicant sought to cover up or hide the fact that he had spoken to Mr Chatelier. After all, it was he that told the VCCI investigator that he had done so. He also told Mr Harper that he had done so. He also disclosed that he had spoken to others. The circumstances of his disclosure also support his version of events that the only reason he had the conversation was for the purposes of refreshing his memory. The Applicant believed that he was entitled to speak to other employees for the purposes of refreshing his memory. Given the way in which the Respondent went about seeking to deal with the issue of the confidentiality documents, this view was not without merit, particularly given that the Applicant had been asked to sign but refused to sign the documents. The VCCI investigator did not give him the documents contrary to the Respondent's belief that she had done so. The VCCI investigator does not appear to have said anything to him when he disclosed the fact that he had done so. Nor did Mr Harper take any step to further pursue the alleged breach when the Applicant had disclosed to him on 28 November 2017 that he had spoken to Mr Chatelier.

[102] The Respondent appears to attach the dishonest conduct with the breach it says occurred of the confidentiality requirement. The breach has not been established nor has the dishonesty as alleged by the Respondent been made out. Thus the Applicant's response that he could not recall whether he had discussed the investigation with Mr Chatelier needs to be judged in that context. Implicit in the question from Mr Harper was that there was some wrongdoing on the part of the Applicant in discussions that he had with Mr Chatelier. I have concluded, and I think consistently with Mr Lacy's conclusion during the disciplinary appeals hearing[178] canvassing the same allegations, that the Applicant's conversation with Mr Chatelier did not involve wrongdoing. Foolish as his response was, I am not persuaded in the circumstances that it provides a valid reason for dismissal.

[103] I have also earlier concluded that the surreptitious recordings did not provide a valid reason.

[104] It follows from the above that there was not a valid reason for dismissal relating to the Applicant's capacity or conduct. The absence of a valid reason weighs in favour of a conclusion that the dismissal was unfair.

[151]

[116] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant.

[117] I consider the following matters to be relevant and have also taken these into account:

First, the Applicant has a good disciplinary record;

Secondly, the Applicant has a substantial period of employment;

Thirdly, at the time of his dismissal the Applicant was 59 years of age and given his particular experience obtained during nearly four decades of service it must be said it will be a difficult prospect for the Applicant to obtain alternative employment; and

Fourthly, the Applicant's response to Mr Harper though not providing a valid reason was nonetheless not true.

[118] The first three of these matters identified above are relevant and weigh in favour of a conclusion that the dismissal of the Applicant was unfair. The fourth matter goes the other way.

[119] As noted earlier, the Applicant produced during the course of proceedings various recordings[185] he had made of conversations both with employees of the Respondent and with various of his union colleagues. The recordings were produced at the time after the parties had closed their evidentiary cases. Neither party sought to recall any witness but I allowed both parties to make submissions on the content and accuracy of the tape recordings, and in particular, in comparison to the notes of conversations produced by the Applicant. One of the recordings discloses a conversation on 14 February 2018, between the Applicant, Mr Anderson and Ms Dunn in which they discussed responding to an allegation that he had lied to Mr Harper during the Applicant's meeting with Mr Harper on 21 November 2017. Without reproducing the transcription of the conversation, it seems to me that the recording tends to confirm my view that the Applicant's response to Mr Harper was not true. I have not however had regard to the recording of the conversation in order to come to my conclusion because the content of the recording was not able to be put to the Applicant in order to enable him to respond.

[120] As to the other aspects of the recordings highlighted by the Respondent in its submissions about the recordings, and in particular the contention that I should draw the inference that the conduct revealed in the recordings could only further jeopardise the prospect of the Respondent being able to have trust and confidence in the Applicant, and that reinstatement is not appropriate in the circumstances of this case, these are matters that can be addressed during the remedy phase of this proceeding.

[121] Taking all of these matters into account, the considerations in s.387 (a) and (c) and the preponderance of matters in (h) weigh in favour of a conclusion that the dismissal was unfair. The considerations in s.387 (b), (e), (f) and (g) weigh neutrally while only (d) and one matter in (h) weigh the other way. I therefore consider for the reasons given in this decision, the Applicant's dismissal was harsh and unjust. It is unjust because the conduct alleged was not shown to have occurred or to have the consequence alleged and so was not misconduct. It was also harsh because the response (dismissal) was disproportionate to the conduct. Ultimately, the underpinning concern was the integrity of the investigation. The Applicant had disclosed the fact of the conversations. It was not the Respondent which discovered these facts. The Applicant had so disclosed months earlier to Mr Harper and to the VCCI investigator. The Applicant did not hide these facts. Thus even if it believed the Applicant to have breached confidentiality, the breach viewed objectively was a minor breach. Moreover, the Respondent does not appear (that is, there is no evidence) to have taken into account by way of mitigation, the fact of the Applicant's disclosure, or that the disclosure was consistent with his belief that he had not breached confidentiality.

At a glance

Court

Decision date

Source

Judgment (212 paragraphs)

Mark Moran v KDR Victoria Pty Ltd T/A Yarra Trams [2018] FWC 6144 (20 November 2018)

Parties

Legislation Cited (3)

Cases Cited (12)