Fair Work Act 2009

s.394 - Unfair dismissal

[1] Mr Paul Goodwin has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he seeks a remedy for unfair dismissal. Mr Goodwin was dismissed on 21 December 2022. At that time he was employed as a horticulturalist with Wyndham City Council (Council).

[2] Mr Goodwin's employment was terminated for serious misconduct. Mr Goodwin seeks reinstatement.

[3] Prior to the hearing of Mr Goodwin's application, Council sought permission to be represented by a lawyer or paid agent. Being satisfied that the matter could be dealt with more efficiently if permission was granted I exercised my discretion and granted permission.

[4] Each party has filed extensive material with the Commission. This material, along with the application of Mr Goodwin and response of Council, were collated into a court book for use in proceedings. A reference to material in proceedings is by reference to the court book page numbers.

[5] While Mr Goodwin did not, in his initial material, file a formal witness statement, I indicated to Council that I would accept Mr Goodwin's submissions as incorporating his evidence. Mr Goodwin was given an opportunity to file material in reply to that of Council. In doing so Mr Goodwin filed an affidavit along with attachments.

[6] Council filed submissions and relied on the evidence of Ms Antoinette Michail, Manager Open Space, Mr Adam Bell, Coordinator Parks Management and Ms Valentina Knezevic, People Business Partner.

[7] Each of the witnesses was required for cross examination.

[8] After hearing from the parties I determined that the matter should be dealt with by way of hearing.

[9] There was no dispute and I am satisfied that Mr Goodwin made his application within the time prescribed by the FW Act (s.396(a)), that he is protected from unfair dismissal (s.396(b)), that Council is not a small business such that the Small Business Fair Dismissal Code does not apply (s.396(c)) and Mr Goodwin's dismissal was not a redundancy (s.396(d)).

[10] Further, I am satisfied that Mr Goodwin has been dismissed from his employment (s.385(a) of the FW Act).

[11] In order to determine if Mr Goodwin was unfairly dismissed it is necessary that I consider if his dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act sets out those matters to which I am required to have regard in making such an assessment. Section 387 states:

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.

[12] Mr Goodwin's case is that his dismissal was unfair on a number of grounds.

• [13] Mr Goodwin was provided with a letter of allegations in relation to his conduct on 25 November 2022. Attached to this was a GPS report prepared by Council (the stop data). He says that this data contained 'information carefully selected by [Council] to completely distort the reality of the situation and was not a complete record of daily activities.' [1] He says of the GPS data that:

• it was selectively chosen to intentionally appear far more negative than the actual times recorded on the GPS. For example on 5 September 2022 Council says he only spent 3:41:46 on the worksite when, in reality, he spent over 7 hours performing authorised duties, not including mandatory breaks;
• the accuracy of the information is presented dishonestly and intentionally misleading. For example 63 Penrose Prominade is listed on 9 occasions - on 3 occasions it is listed as a worksite, on 4 as 'near' a worksite and on 2 occasions it is listed as a shopping centre;
• the data shows the Applicant being at shopping centres for periods as short as 7 or 21 seconds, 'clearly' periods of traffic turning or at traffic lights;
• there are no toilet facilities at most worksites so seeking out public toilets is necessary and his medical issues were exacerbated by his son's serious injury;
• in August and September it rained for 19 and 21 days respectively with a commensurate increased requirement to stop work in accordance with the wet weather policy.

[14] Mr Goodwin said that he was not provided with any examples that demonstrate he had engaged in any fraudulent activity, had falsified documents or deliberately concealed the non-performance of his duties. Further, he was not given any examples in relation to the allegations contained in the letter of allegations.

• [15] Mr Goodwin said he requested the complete GPS records (raw GPS data) for his work vehicle for the August/September 2022 period and was provided with 9 Excel spreadsheets 'that allegedly contained the raw data activity reports.'[2] Mr Goodwin said the documents provided indicated that they were created on 29 November 2022 and were last modified by Adam Bell that day. He said that no further GPS data has been provided to him. Mr Goodwin questioned the validity of the document Mr Bell attached to his witness statement which Mr Bell said is the 'raw data'.[3] Mr Goodwin said this is not, in fact, raw GPS data but rather had been manipulated by Council.

[16] Mr Goodwin said that the response of Council to his application for unfair dismissal was the first time details of the anonymous complaint (made by a community member in relation to him in September 2022) were provided to him despite that complaint being the catalyst for the entire investigation into his conduct. Mr Goodwin said that he had not been given an opportunity to respond to the anonymous complaint.

[17] Mr Goodwin questioned the integrity of the investigation and the authenticity of the complaint on the basis that it was made 2 business days after Mr Luke Colliver (his Manager) sent an email to Mr Matthew Parkinson ('allegedly of HR') laying out a range of issues in relation to Mr Goodwin's conduct and performance and asking if it was possible to check the GPS in Mr Goodwin's car. Coincidentally, the anonymous complaint, made two days after Mr Colliver's email, would allow management to access the vehicle GPS data under the terms of the Council GPS Policy (GPS policy).

• [18] Mr Goodwin suggested that, given that coincidence in timing, the complaint was fabricated.[4] Mr Goodwin opined that it is implausible that a member of the public would go to the effort of making a complaint about a council vehicle parked in a shopping centre car park for a total period of 1 hour and 45 minutes over two days that were six days apart.[5] Rather he suggested that someone from the Council was sent to check on him. He said that he noticed that Council vehicles were in the vicinity at the time the complaint said he was at the shopping centre.

• [19] Further to this coincidence, Mr Goodwin suggested that the similarity in language between the complaint and Mr Colliver's email two business days earlier provides further evidence that the complaint was fabricated. In particular, Mr Goodwin submitted that it is usual for the abbreviation of the word 'road' to be spelt with a capital 'r' - 'Rd', however, in both the complaint and Mr Colliver's email 'road is written with a small 'rd''.[6] Mr Goodwin also raised concerns that the picture taken of his vehicle and uploaded with the complaint had a black border around it. He said that this indicates that the photo was taken on another phone, then a screen shot was taken and the screen shot was uploaded in place of the original photo.[7]

• [20] Mr Goodwin does not dispute that he was at the shopping centre on 24 and 30 August 2022[8] as specified in the complaint. Mr Goodwin said that on 24 August 2022 he had a mishap related to his medical condition that required him to go home, shower and change.[9] He further said that it was raining on both days, evidenced by the wet ground in the photographs.

[21] Mr Goodwin explained in cross examination that, while he was provided with the stop data and the raw GPS data, he went through some of that data, but did not go through all of it even though he had access to the raw data for almost a month. He agreed that he had the opportunity to go through the data and it was his decision which data he did examine.

[22] Mr Goodwin agreed that the GPS data shows him stopped for significant periods of time at places not designated as worksites, but said that a number of places not designated as worksites were, in fact, worksites. In particular Mr Goodwin said that there were sites which were shown on the stop data as worksites in some instances and non-worksites in others.

• [23] Mr Goodwin said that Mr Bell's reliance on 'sheets' from August and September 2022 appears to be a reference to the daily safety sheets which he says could not be used to determine if a particular location was a daily worksite or not.[10] Rather, Mr Goodwin said the daily run sheets set out the work schedule for each crew and are therefore reliable indicators of what work was actually done on any day. Mr Goodwin said that he requested both the safety sheets and the daily run sheets through a Freedom of Information request but, at the time of filing his material, that request had not been processed.

[24] Mr Goodwin agreed that daily safety sheets are required to be filled out by him for each worksite he attended and where work is to be performed, but maintained that the daily run sheets are a proper indicator of work on any day. Mr Goodwin submitted that the daily safety sheets should not have been used to determine where he worked on any particular day.

• [25] Mr Goodwin said that, had he been given a real opportunity to sit down and discuss the matters raised by Council, it 'would have been obvious there was no fraud, deception or corruption as alleged.'[11]

[26] Mr Goodwin said that performance concerns had not been raised with him in the past and, if his conduct was such to suggest serious misconduct warranting summary dismissal, it was incumbent on the Respondent to act swiftly to end his employment or suspend him, 'otherwise it is treated as condonation of the repudiatory breach and a waiver of the employers right to dismiss the employee.'[12] While Mr Goodwin was stood down on 24 November 2022 'while the matter was investigated' he suggested that the investigation had finished well before this date and he was left in a 'work as usual' situation. He said that, in these circumstances, the Council 'went through the motions' to give an appearance of procedural fairness.

[27] Mr Goodwin said that Council had no regard to his personal circumstances. Further he was treated differently to another employee who was stood down in the same circumstances but whose employment was not terminated.

• [28] Mr Goodwin submitted that he suffers from a medical condition that requires him to use the toilet frequently and often with little warning. His medical condition is not disputed although knowledge of the condition had not been shared with his manager prior to December 2022. Mr Goodwin suggested that he may have raised the condition with a previous manager around 10-12 years ago after a related complaint, however provided no evidence of this matter.[13]

[29] Mr Goodwin said that he has been embarrassed by his medical condition and mortified to have to disclose such sensitive issues. He said his medical issues have not just come up but he has long documented history of treatment and specialist reports.

[30] Mr Goodwin agreed that he received a letter of allegations on 25 November 2022 and that he was provided with the GPS report compiled by Council. He responded to this on 28 November 2022 when he was provided with the raw GPS data. He agreed that he was invited to a meeting to respond to the allegations (held on 1 December 2022) and then given a further opportunity to respond to the allegations in writing.

• [31] Mr Goodwin was provided with a show cause letter on 8 December 2022[14] to which he provided a written response as to why his employment should not be terminated on 12 December 2022. Mr Goodwin agreed that, in responding to the show cause letter, he only took issue with the GPS data in relation to 19 August 2022 and that 'it would have taken so long to get all the data together'.[15] A meeting was also held with him on 21 December 2022. He agreed that he did not provide any information to Council about his medical conditions as he considered his dismissal to be 'predetermined'.

[32] Mr Goodwin also said that the Council has engaged in bullying conduct towards him in making threats to report his conduct to the Independent Broad-based Anti-corruption Commission and also made threats to involve the police with respect to unlawful use of petrol.

[33] Council said that Mr Goodwin, in his role as a horticulturalist, was responsible for:

1. Attending to designated worksites, according to a schedule set by his supervisors and managers;
2. Conducting maintenance of Council's allocated worksites; and
3. Completing the Daily Safety Sheets to demonstrate where maintenance had been undertaken.

[35] On 5 September 2022 Council received an anonymous complaint from a member of the community stating, in essence, that a council employee, along with a work issued vehicle, had been parked at the local shopping centre for 'substantial periods' of time. Photographs of the vehicle were included with the complaint. The photographs had been taken on 24 and 30 August 2022.

• [36] Upon receipt of the complaint Council undertook an internal investigation to determine the validity of the complaint. The vehicle was identified as that allocated to Mr Goodwin. On review of the GPS data for the vehicle over a five day period covering the complaint period, Council identified that Mr Goodwin was spending, on average, 2.02 hours per day on worksites when it is expected that he would be in attendance at worksites for 6 hours per day (the remaining time being travel time, time at the depot etc). The complaint was not provided to Mr Goodwin as, while it provided the impetus for the investigation, it did not form the basis of the allegations.[16]

[37] Council cross-referenced the GPS data for Mr Goodwin's vehicle with the daily safety sheets, which are required to be completed at each site where work is undertaken. This cross-referencing enabled Council to identify those sites where work was done by Mr Goodwin and sites where the vehicle was stationary but no such safety sheet was completed. This confirmed to Council that Mr Goodwin did not attend worksites for significant amounts of time. This information, in conjunction with the GPS data, indicated to Council that Mr Goodwin was regularly driving the vehicle although not attending to worksites and spent the majority of his working time away from Council worksites.

• [38] Council then determined to investigate a longer period of Mr Goodwin's activity in case the shorter period was an aberration. It therefore undertook an analysis of GPS data in relation to Mr Goodwin for August and September 2022. A review of that data set confirmed a similar pattern of non-work-related activity. Across this longer period two other workers were identified as operators of the vehicle in conjunction with Mr Goodwin for limited periods of time. Ultimately disciplinary action was taken against one of these employees while the other employee identified resigned employment prior to any disciplinary matters being finalised.[17]

[39] On receipt of the raw GPS data for August and September 2022 Council reviewed the data which involved:

1. Analysing every movement made by the vehicle (i.e. stop and starts, directional change, speed increases etc.);
2. Going back to the fleet management process and requesting information only relating to stops of the vehicle;
3. Analysing all stops and identifying where the vehicle was stopped and for what periods of time;
4. Reviewing Mr Goodwin's daily safety sheets, to compare and contrast the sites where Mr Goodwin's vehicle was stopped to see if they were daily worksites, as per the daily safety sheets.
5. Looking at every individual stop site to determine whether it was or was not a worksite;
6. Reviewing the time the vehicle spent stopped at a worksite; and

• g. Reviewing the time until the next vehicle stoppage to ascertain travel time and reviewing the route of travel taken by Mr Goodwin.[18]

• [40] Council then sorted and formatted the data to make it readable (this became the stop data**)**[19]. This shows the time the vehicle was stationary at a particular location, the period for which the vehicle was stationary and the address at which the vehicle was stopped.[20] A 'comment' was then put next to each entry which designated the locations as:

• • Worksite: this included the depot, a worksite, RDF (the 'tip') and potential worksites[21]
• • Near worksite but not identified on worksheet: this was determined by comparing the GPS data with Mr Goodwin's daily safety sheets. This designation was used if the GPS data showed Mr Goodwin at a worksite that did not have a completed daily safety sheet. While Mr Goodwin was 'near a worksite' there was no apparent reason for Mr Goodwin to be at the location[22]
• • Petrol station[23]
• • Shopping centre[24]
• • Home address[25]

[41] In determining the time spent by Mr Goodwin on a worksite, only that designated as a Worksite by the above criteria in the stop data was counted.

• [42] Council concluded that the review of the GPS data indicated that Mr Goodwin was driving around for substantial periods of time on separate days over the 2-month review period, and that Mr Goodwin's vehicle was stationed away from his allocated work zones on many days for substantial periods of time.[26] Council said that the data shows that Mr Goodwin's vehicle was stationary at non-work related sites for significant periods of time during the August-September review period.[27]

[43] Council commenced a disciplinary process on 25 November 2022 when Mr Goodwin was provided with a letter of allegations (dated 24 November 2022 but not provided until the following day) and suspended with pay from 25 November 2022. Mr Goodwin was given an opportunity to respond to allegations both in writing and in person, his response considered and further investigations undertaken following that response. Ultimately Council provided Mr Goodwin with a 'show cause' letter. Mr Goodwin was given an opportunity to respond to the show cause letter prior to a decision being made with respect to his employment.

[44] Council acknowledged that, during the disciplinary process, Mr Goodwin identified a medical condition which he said required him to take extended and/or frequent toilet breaks, but do not consider this explained the pattern of use of the vehicle. Mr Goodwin had not previously provided any medical information to Council in relation to the medical condition.

• [45] Council also acknowledged that Mr Goodwin indicated that his lack of productivity related to his son's serious injury in February 2022. As a result of this Council accessed GPS data for December 2021 and January 2022 - prior to Mr Goodwin's son's accident. An analysis of this data indicated a similar pattern of limited attendance at worksites with little productive work undertaken by Mr Goodwin.[28]

[46] Council submitted that it is expected that employees in Mr Goodwin's position will undertake productive work for 6 hours per day. They are rostered to work for 8 hours and 10 minutes per day (excluding a 30 minute lunch break and 20 minute tea break) such that 2 hours and 10 minutes is not required to be accounted for and is used in travel between worksites and to and from the depot.

[47] Council also submitted that the daily safety sheets are important both for assessing conditions on site and for identifying where work is performed on any day.

[48] Council submitted that it does not have a wet weather policy as claimed by Mr Goodwin. Rather an employee is expected to assess if it is safe to continue working. Employees are also provided with wet weather gear but, if they consider it not safe to continue working, it is expected they will contact their direct supervisor to determine if there are alternative duties.

[49] Council said that horticultural staff are allocated to work in designated zones or areas and there would be no reason for them to move out of that area.

[50] Council submitted that it is not unusual for Council to receive complaints from the community with respect to employees. Such complaints are normally investigated in the first instance using available data to corroborate or 'more frequently' to dismiss the complaint. Where a complaint is dismissed on the initial investigation an employee may never be aware of the complaint. It is therefore not unusual for an employee to not be apprised of a complaint when first made.

[51] On 19 May 2023, over 6 weeks after the respective cases were closed and I had reserved my decision, Mr Goodwin wrote to my chambers and requested that he be permitted to adduce fresh evidence that he says was 'not available at the time the matter was heard'. Mr Goodwin said the evidence he wishes to provide to the Commission consists of:

• i. correspondence he received from the Victorian Information Commissioner in relation to an FOI request he made to Council on 10 March 2023,[29] receipt for payment of the FOI fee and a related email chain between himself and Council (the first FOI application)
• ii. a copy of a second FOI application dated 6 April 2023 in which he seeks copies of any response by Matthew Parkinson to the email of Luke Colliver[30] (the second FOI application)

[52] Mr Goodwin did not request that the Commission wait for the production of the actual material subject to his FOI requests.

[53] Mr Goodwin said that the evidence he now seeks to have admitted 'is relevant to the lack of transparency in the...Council's investigation process and their lack of compliance with its own policies, procedures and statutory obligations'. Mr Goodwin suggested that 'inferences...could be drawn as to the improper way this investigation was conducted' from that material. Mr Goodwin also said that it is in the public interest to allow the fresh evidence as it goes to transparency of the Council's process and whether the Council's ability to conduct a workplace investigation was compromised.

[54] Council, in reply, objects to the request of Mr Goodwin, on the grounds primarily of relevance.

• [55] Whether I should allow Mr Goodwin to re-open his case is a discretionary decision. The relevant consideration is whether there would be a denial of procedural fairness to not grant Mr Goodwin's application. In considering his request I have taken into account the statement of relevant principles as set out by the Full Bench of the Commission in Galloway v Molina.[31] In summary the Full Bench said:

[51] As is apparent from the principles recited earlier, the Deputy President was bound to act in a judicial manner, was bound to avoid a practical injustice, needed to ensure that Mr Galloway had been given a reasonable opportunity to prepare and present his case, and had considerable latitude in the exercise of her discretion.

[56] I appreciate that Mr Goodwin has very strong views as to the GPS data relied on by Council in its investigation and the integrity of that data. However:

• I do not consider the further evidence Mr Goodwin seeks to provide to be relevant to, or assist in, the determination of the issues before me. At best the documents would require me to draw inferences that, on its face, could not possibly be drawn. The first FOI application (in relation to the daily run sheets) is in evidence and correspondence with the Victorian Information Commissioner or with Council in relation to it will not provide evidence of what is in the daily run sheets. The documents he seeks to provide will do no more than indicate possible issues in dealing with this FOI application by Council. The application itself will tell me nothing about the investigation process. Further, the second FOI application was made after the cases of both parties were closed and my decision reserved. Again, the second FOI application is not evidence of what is in documents he seeks from the FOI application. For this reason it is of limited value to the matter I need to determine.

• • Mr Goodwin has already cross examined witnesses as to his concerns with respect to the daily run sheets, the daily safety sheets, processes and emails (see, for example, his cross examination of Mr Bell on alleged manipulation of the GPS data[32] and of Mr Bell in relation to the Colliver emails[33]).

• The evidence Mr Goodwin seeks to put before the Commission does not advance his case and does not bear on the administration of justice. In relation to item (ii) in the evidence he wishes to provide, Mr Goodwin has sought this after the closure of his case. If his evidence is admitted what is to stop Council seeking more evidence to support its case and then Mr Goodwin even more? There must be finality in proceedings.

• There is no prejudice to Mr Goodwin in refusing his request given the limited apparent probative value of the evidence.

• There is no denial of procedural fairness in dismissing this request, again because of the limited probative value of the information.

[57] For these reasons I have determined not to allow Mr Goodwin to re-open his case and admit further evidence.

Should the daily run sheet or daily safety sheet be used to determine worksites?

• [58] Mr Goodwin submitted that the daily run sheets should be used to determine where he worked on any particular day. Council says that the daily run sheet shows where work is to be performed that day or week (ie, in the future) while the daily safety sheets - which are required to be completed[34] for each worksite where work is conducted on any day - show where work was done. That is, one is in relation to the planned work and the other, the actual work done. Mr Bell gave evidence that the daily run sheet is 'fundamentally a schedule to follow up, like check the list, check off as they go through allocated worksites'[35] whereas 'a daily [safety] sheet is fundamentally a JSA, so when they get to the site, to assess the site, make sure it's safe for them and safe for the community to use'.[36]

[59] Mr Bell's evidence is that the daily safety sheets were used as the reference point for work performed as they are completed each day on site while the daily run sheets could change. Mr Bell gave evidence that the daily run sheets were not provided by Council in its evidence to the Commission as Council did not rely on them.

• [60] I do not accept Mr Goodwin's claim that the determination of worksites should be taken from the daily run sheets and not the daily safety sheets. Mr Goodwin conceded that he was required to complete a daily safety sheet for each worksite he visited. He has not claimed he did not do so such that it might explain his time away from worksites. He did not provide an adequate explanation as to why the daily run sheet was a better indicator of where he worked on any particular day. My review of the daily run sheet is that it has a run down of various worksites[37] that Mr Goodwin was required to cover off over a week but it does not show what work was actually done on any particular day. It is therefore not a reliable indicator of where he was working at any particular time.

• [61] Mr Goodwin agreed that it is 'reasonable for his manager to look at those daily safety sheets and establish where [he] performed work for that day' and that they would correlate to the GPS data.[38]

[62] I accept the evidence that the daily safety sheets were required to be completed for each worksite visited on any day. In this respect I am satisfied that they are a record of the work actually undertaken on a day. I further accept that the daily run sheet as provided by Mr Goodwin was the planned work for the day ahead but not an indication of the work actually done. To the extent that Mr Goodwin suggests he may have forgotten to complete daily safety sheets I am not convinced that this explains the data before the Commission that indicate substantial periods of time away from worksites.

[63] The Respondent relied on the GPS data (as evidenced in particular in the stop data provided to Mr Goodwin at the time the allegations were put to him) to support its decision to dismiss Mr Goodwin and in proceedings before the Commission. Mr Goodwin questioned the reliability of the data suggesting that the raw GPS data supplied to him by Council at his request has been 'manipulated' by the Respondent. Further, he claimed that the stop data (the report attached to the letter of allegations) was inconsistent as to how it treated worksites.

• [64] Mr Goodwin did not produce any evidence that the raw GPS data had been manipulated by the Respondent. Mr Bell's evidence is that the raw GPS data given to Mr Goodwin was in the form it was received by him from the provider. Further, to the extent that the raw GPS data may have looked different on the reports, Mr Goodwin did not indicate how, if a column (which was headed 'extra info') appeared on one of the 9 sheets provided but not on others or that this column did not appear on the raw GPS data provided to him but is present on the evidence of Mr Bell,[39] this might have prevented him from any analysis of his movements or an ability to respond to the allegations. Beyond a column not appearing in some of the raw GPS data, no suggestion was made that other parts of the data had been manipulated by any Council employee. I therefore do not accept that the raw GPS data has been manipulated such as to suggest it is not reliable. I accept the evidence of Mr Bell that he passed the report on as it was provided to him.

• [65] The Respondent agreed that it 'cleaned up' the GPS data - by removing information in relation to acceleration, deceleration, turns etc seen in the raw data[40] - in order to develop the stop data that it provided to Mr Goodwin. Mr Goodwin was also provided with the raw GPS data but failed to demonstrate any errors in the stop data from his review of the raw GPS data.

[66] Mr Goodwin's claim that the raw GPS data or the stop data was manipulated suggests he believes that it was improperly altered by Council employees such that it is not a true reflection of where he was and at what times. While Mr Goodwin submitted that having his car stopped 'near a worksite' may well mean he was at a worksite, this is not evidence of manipulation of the raw GPS data. Further, Mr Goodwin could not point to any evidence that he was somewhere else and not where the GPS data or stop data said he was.

[67] I therefore reject the submissions that the data had been manipulated.

[68] I accept that the stop data may have categorised a location as a worksite on one day but not another but find nothing untoward in this. There were days when Mr Goodwin was required to attend a particular site for work but that does not make that location a worksite every work day - it can only be a worksite when he was required to work there. The Council relied on the daily safety sheets for this determination. I accept that if a daily safety sheet was not completed for a worksite it cannot be known if Mr Goodwin attended work at that site. There is no claim that Mr Goodwin did complete daily safety sheets for worksites that are then not reflected as worksites in the stop data.

[69] Mr Goodwin has both the raw and stop data. He has had adequate time to review both and identify where it may have been manipulated but has failed to do so. General claims of manipulation of data or that it passed through someone's hands to get to Mr Goodwin is not evidence of manipulation. I am therefore satisfied that the stop data is a reliable indicator of where Mr Goodwin's work vehicle was stopped at any time. I also accept the categorisation of where stops occurred.

[70] Ultimately this matter comes down to a determination of what conclusions can be drawn from the raw GPS and/or stop data.

[71] I note, in his affidavit, that Mr Goodwin relied on the accuracy of the GPS data in relation to how long he remained at the shopping centre on 24 August 2022 and 30 August 2022 (the complaint days). If the data is accurate for these days, and absent evidence before me to the contrary, I am satisfied I can rely on the totality of the GPS data. I am therefore satisfied that the raw GPS data is an accurate record of Mr Goodwin's movements.

[72] I am also satisfied that the summary data provided by Council to Mr Goodwin with the allegations in relation to his conduct (the stop data) can be relied on. I accept Mr Bell's evidence of the process undertaken to develop the stop data. I also accept that the purpose in producing the stop data report was to provide the data in an accessible manner to Mr Goodwin. The willingness of Council to hand over the raw GPS data supports my finding as to the reliability of the data.

[73] No adverse finding can be made from the decision of Council to present the GPS data in a usable form, providing Mr Goodwin an opportunity to engage with the issues subject to the letter of allegations. In any event Mr Goodwin did receive, at his request, the raw GPS data.

[74] Mr Goodwin may take issue with the categorisation of some of the stop data including whether locations identified as 'near a worksite' should have been categorised as 'worksite' locations but, ultimately, without evidence of the daily safety sheet for a site it is difficult to assess such a claim and Mr Goodwin did not suggest that any daily safety sheets were missing. Further, the weakness in this approach by Mr Goodwin is that the stop data shows him regularly at the service station, supermarket, shopping centre or strip or home when he should be at work.

[75] I acknowledge that some of the time spent away from the worksite by Mr Goodwin was for the purpose of Mr Goodwin using toilet facilities. This, however, does not explain all of his absences from worksites on any one day.

• [76] Mr Goodwin agreed that the GPS data shows that, at times, he was stopped 'for significant periods of time' at non-worksites.[41] Mr Goodwin has had ample opportunity to identify errors in the stop data or the raw GPS data. He has not done so, choosing instead to make unsubstantiated claims about manipulation of the data.

[77] With respect to the stop data for 12 August 2022 Mr Goodwin said:

• The service station at 1/47 Tom Roberts Parade is not a worksite but is next to a worksite;
• After moving to another worksite he returned to the service station;
• The shopping centre in Cheetham Street he visited for 16 minutes is 'actually' a worksite;
• He visited another worksite and then another shopping centre to use the toilets;
• The Werribee shopping centre he visited is not within his work area;
• He was in the Werribee main street for over an hour as it was 'around lunch time and with toilet issues';
• He then went to the RFD (tip) which is what is normally done although acknowledged that rubbish could be left at the depot;
• He returned to the depot at 2.47pm, about 45 minutes before knock off time.

[78] Mr Goodwin agreed that he did not provide any of the explanations given in cross examination in his response to the allegations letter. Rather he says that he offered medical records (to explain his need to go to the toilet frequently) but Council did not want them or was not interested in them. Mr Goodwin agreed that there was nothing stopping him seeking his medical records when he received the letter of allegations.

• [79] In relation to his movements on 5 August 2022 Mr Goodwin agreed that the stop data showed he attended the service station, some worksites, shopping centres, worksites and, at 1.57pm attended the RDF and that he did not attend a worksite again but returned to the depot at 2.48pm. Mr Goodwin agreed that he could have dumped his rubbish at the depot, just a short drive from where he was working,[42] although said there was no ability at the depot at the time to do so.[43]

[80] With respect to the specific data for 5 and 12 August 2022 I note that the daily safety sheets show Mr Goodwin visited three worksites and two worksites respectively. These align with the stop data and Mr Goodwin does not offer any contrary evidence as to attendance at worksites not recorded on the daily safety sheets. The explanations of Mr Goodwin do not explain his limited attendance at worksites on these days.

• [81] Mr Goodwin was also taken to stop data for 5 January 2022 - before his son's injury which he claims had an effect on his work. Mr Goodwin agreed that the data shows he spent a total of 1 hour, 13 minutes on worksites[44] and that on 7 January 2022 he spent 1 hour and 17 minutes on worksites.[45] This pattern of attendance is similar in nature to that in the period of August/September 2022.

• [82] Mr Goodwin agreed that his working hours are 6.30 am-3.30 pm Monday to Thursday and 6.30 am-3.00 pm Friday. He is entitled to a 30 minute lunch break and a 20 minute morning or afternoon tea break. The 9 hour span therefore provides for 8 hours 10 minutes of work time. Mr Goodwin agrees that the stop data shows that he has not performed more than 5 hours work in a day[46] but agrees that the Council expects 6 hours of work in a day[47] allowing 2 hours and 10 minutes travelling time between worksites or the depot and worksites which it does not seek to be acquitted.[48]

[83] I have carefully reviewed the stop data provided by Council to Mr Goodwin and the evidence of Mr Goodwin in relation to the stop data.

[84] While Mr Goodwin provides a reason for most the stops that show he was not at a designated worksite (he was stopped next to a worksite, he required a toilet break, he was on a lunch break, it was raining etc) none of this either explains the pattern of absence from worksites, his claimed attendance at worksites for which no daily safety sheet is completed or the length of his absences from worksites. If it is, for example, that Mr Goodwin attended a shopping centre for his lunch break, the stop data shows such breaks extended regularly for 50 minutes, well beyond the 30 minute scheduled break.

[85] I am satisfied on the basis of the evidence before me that Mr Goodwin has a pattern of absences from worksites for which he does not have a satisfactory explanation.

[86] I would observe however that the stop data does not suggest that at all other times not shown in the report that Mr Goodwin was not properly travelling between worksites (although this does not explain the totality of time he was not working).

• [87] Mr Goodwin argued that, given the similarities in language and the coincidence of timing, it is readily apparent that the community complaint was fabricated by Mr Colliver who had, shortly before the date of the complaint, provided a report to Mr Parkinson in which he raised issues with Mr Goodwin's attendance to his job.[49] In this respect I understand Mr Goodwin's issue to be that, if the initial complaint was fabricated for an improper purpose - that is to have him dismissed from employment - what follows from the complaint cannot be relied on by Council.

[88] The emails sent by Mr Colliver to Mr Parkinson were sent on 19 August 2022 and 1 September 2022. There is no evidence that Mr Bell was copied into these emails at the time they were sent to Mr Parkinson.

[89] The complaint was made on 5 September 2022. The documentary trail (which was not disputed) shows that it was accessed by Jennifer Haines on 7 September 2022 who forwarded it to 'Luke' with a note that indicated it could not be assigned to him as he was not on the 'assigned list'. On 8 September 2022 the complaint was forwarded to Council employees Richard Maugueret and Luke Hunt indicating it had been assigned to Richard as Luke Hunt's name was not on the 'assigned to' list.

[90] Richard Maugueret then sent the complaint to Mr Bell and copied that email to Ms Michail and Luke Hunt on 12 September 2022.

[91] There is no evidence to suggest that Mr Colliver is the 'Luke' referred to in Ms Haines' forwarding email to Mr Maugueret or in Mr Maugueret's to Mr Bell.

• [92] Mr Bell's evidence is that he saw the complaints from Mr Colliver to Mr Parkinson on 18 October 2022,[50] well after the investigation into Mr Goodwin's conduct had commenced.

[93] I accept the evidence of Mr Bell that he became aware of Mr Colliver's emails during the investigation into Mr Goodwin's conduct. The evidence does not establish that he was aware of the emails before the investigation commenced. In any event, the point in time at which Mr Bell became aware of Mr Colliver's emails does not resolve Mr Goodwin's claim as to fabrication of the complaint.

[94] I have reviewed the emails between Mr Colliver and Mr Parkinson and the complaint made by a member of the community. On the fairest reading of Mr Goodwin's claim, the only similarity between them is that both use 'rd' (with no capitalisation) as an abbreviation for 'road'.

[95] The reference to the use of GPS data in the email of 1 September 2022 and 'tracking' in the complaint does not assist in resolving the claim of fabrication.

[96] Mr Goodwin cross examined Mr Bell and Ms Michail on the use of the term 'work ute' in the complaint but, ultimately, Mr Goodwin's view as to whether a community member would use such a term does not assist in resolving his claim of fabrication.

[97] Mr Goodwin also submitted that he thought he had seen Council vehicles in the vicinity of the shopping centre on one or both of the days mentioned in the complaint and, further, that the photographs attached to the complaint were apparently screen shots from a mobile phone. This does not evidence that the complaint was fabricated.

[98] On the basis of the limited evidence before me I cannot conclude that Mr Colliver fabricated the complaint. I am therefore satisfied that the investigation arising from the complaint was validly undertaken.

Does Mr Goodwin's medical condition explain his non-worksite stops?

[99] I do not dispute the medical conditions from which Mr Goodwin suffers and I accept that they may place additional demands in relation to him accessing appropriate toilet facilities.

[100] While Mr Goodwin has provided evidence of his medical condition that evidence does not assist in the determination of the effect of that condition on his ability to carry out his job, nor does it explain the work patterns shown in the stop data.

[101] To the extent that Mr Goodwin's medical condition is severe and does require him to leave worksites for periods of time and on various occasions during the day, the evidence does not support that he raised this with management at any level of Council. I acknowledge that Mr Goodwin was embarrassed by his condition but that does not give him license to leave work as he may need and expect no repercussion when his absences are identified.

[102] Based on the evidence before me, I am satisfied that only some of Mr Goodwin's stops

away from worksites could be explained by his medical needs. Unfortunately Mr Goodwin did not attempt to particularise the extent of these demands in any way. I am therefore not convinced that his medical condition explains the substantial portion, let alone the totality, of his time away from worksites.

[103] In February 2022 Mr Goodwin's adult son was involved in a workplace accident which ultimately resulted in the loss of his hand. I understand Mr Goodwin's son to live at home with Mr Goodwin. As a result of this Mr Goodwin spent time with his son providing some care but also ferrying him to multiple medical appointments.

• [104] While I acknowledge the stress the injury to his son would have on Mr Goodwin, I am not convinced this explains his time away from worksites. Mr Goodwin had access to leave to assist his son although apparently chose not to use his annual leave for this purpose.[51]

• [105] Mr Goodwin provided evidence of handwritten notes from his work diary for Wednesday 24 August 2022 and Tuesday 30 August 2022 (the two days specified in the complaint) in which he had recorded that there was 'rain all afternoon' on 24 August 2022[52] and that it 'started raining again' and was 'still drizzling' on 30 August 2022.[53] Mr Goodwin's evidence is that the wet weather policy of Council states that they are not required to work in the rain although also said that the union had said they were not to work in the rain.[54] Mr Goodwin did not provide a copy of the wet weather policy.

• [106] To the extent Mr Goodwin claimed August and September 2022 to be particularly wet months this fails to explain his absence from worksites or apparent failures to communicate with his managers that it was too wet for him to work. I do not accept Mr Goodwin's claim that, when it is raining, they are told to 'just keep driving around, inspecting sites.'[55]

[107] On this issue, I prefer the evidence of Mr Bell in relation to the (non) existence of a wet weather policy (although would observe the development of one may assist workers and management) and the provision of wet weather gear. Mr Goodwin has been employed by Council for 15 years, the majority of which appears to have been spent in the outdoors team. I find it difficult to accept that such a long standing employee who works outdoors has never approached his managers in respect of the provision of wet weather gear.

[108] I do not consider the rain on 24 and 30 August 2022 or the wet weather gear or wet weather policy to have any bearing on the matters I am to decide.

WAS MR GOODWIN'S DISMISSAL HARSH, UNJUST OR UNREASONABLE?

[109] In order to determine if Mr Goodwin's dismissal was harsh, unjust or unreasonable it is necessary to consider each of the factors set out in s.387 of the FW Act set out above.

(a) whether there was a valid reason for dismissal related to the person's conduct or performance

• [110] For a reason for dismissal to form a valid reason it must be 'sound, defensible and well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.'[56]

[111] Mr Goodwin's employment was terminated on 21 December 2022 for 'wilful and deliberate behaviour amounting to serious breaches of the terms and condition of [his] employment specifically relating to fraud, corruption and dishonesty' specifically by:

• Engaging in unauthorised personal activity during Council time by way of failing to attend [his] allocated works sites and thus failing to perform to the expected extent and/or standard of your duties.

• Misusing Council resources (Council vehicle and fuel) for private use causing financial loss to Council.

• • Bringing Council into disrepute by repeatedly acting in a manner that implies Council does not direct its resources and expenditure in the best interests of the community.[57]

• [112] It should be noted that, while Council put an allegation to Mr Goodwin in relation to falsifying Job Safety Analysis reports and submitting these to his manager despite not attending or inspecting those sites[58], upon investigation it found that this could not be sustained so that it does not rely on that allegation as a reason for dismissal.

[113] I have found above that Mr Goodwin could not adequately explain his regular and frequent absences from designated worksites. I am satisfied that, by these absences, he failed to perform work expected of him. This misconduct by Mr Goodwin is egregious. It is not a few isolated incidents but rather a pattern of behaviour that disregards his obligations as an employee.

[114] To the extent that Mr Goodwin did use his council vehicle to travel to locations during the working day that were not related to work I am satisfied that he did misuse his Council vehicle.

[115] I am satisfied that these two reasons provide a sound, defensible and well founded reason for the dismissal of Mr Goodwin. I am not satisfied that there was any fabrication of the community complaint that started the investigation or any improper manipulation of the GPS data relied on by Council in its investigation. The reason for dismissal is therefore not spiteful or prejudiced or capricious or fanciful.

[116] The evidence before me however, does not demonstrate that Mr Goodwin brought the Council into disrepute. The evidence does not establish any view amongst the community at large that the Council is not using its resources in the best interest of the community. It is not possible to establish, on the basis of the evidence, if anyone (beyond the initial member of the community who made the anonymous complaint) was aware of Mr Goodwin's activities during working hours.

[117] Despite my finding that Mr Goodwin's actions did not bring the Council into disrepute, I am satisfied that the remaining two reasons provide a valid reason for Mr Goodwin's dismissal.

[118] In making this finding I make it clear that Mr Goodwin's dismissal was not because of the complaint made by a member of the community or for engaging in premeditated action designed to conceal the non-performance of his duties.

(b) whether the person was advised of this reason

[119] Mr Goodwin was advised of the allegations in relation to his conduct. These were further set out in the 'show cause' letter provided to him on 8 December 2022 and the reasons for dismissal set out in the letter terminating his employment.

[120] I am therefore satisfied that Mr Goodwin was advised of the valid reason.

(c) whether the person was given an opportunity to respond to any reason related to capacity or conduct

[121] I am satisfied that Mr Goodwin was given multiple opportunities to respond - firstly to the letter of allegations both in writing on 28 November 2022 and 2 December 2022 and in person on 1 December 2022. Mr Goodwin was also given the opportunity to respond to the show cause letter in writing on 12 December 2022. Arising from this response Council undertook a further investigation of his conduct prior to his son's accident.

[122] Mr Goodwin afforded himself of these opportunities.

[123] I am therefore satisfied that Mr Goodwin was given multiple opportunities to respond to the reason for his dismissal.

(d) any unreasonable refusal to allow the person have a support person present

[124] I am satisfied that Mr Goodwin had the support of his union during meetings with Council.

(e) whether the person was warned of unsatisfactory performance

[125] This is not a relevant consideration as Mr Goodwin's employment was not terminated for poor performance, but rather misconduct.

(f) & (g) the size of the employer's business and any absence of access to dedicated human resources specialist and the impact on effecting the dismissal

[126] Council is a large employer with a sophisticated and dedicated human resources team. These are not relevant considerations in the matter before me.

[127] Mr Goodwin raised a number of issues he considers the Commission should take into account.

[128] Mr Goodwin says that his conduct did not amount to serious misconduct. Further, he says if it did, the Council condoned the conduct by allowing his to remain at work during the investigation into his conduct.

[129] I do not accept the argument of Mr Goodwin with respect to condonation. Mr Goodwin remained at work during the period the Respondent was gathering information in order to determine if there had been any misconduct. There was, prior to the letter of allegation, no basis to suspend Mr Goodwin from work except for the complaint from a member of the community.

[130] The Council says that the conduct of Mr Goodwin amounted to serious misconduct because it was wilful and deliberate conduct, inconsistent with the continuation of the contract of employment. Ms Knezevic gave evidence that she considered Mr Goodwin's non-attendance at worksites for extended periods to be deliberate behaviour on his part.

[131] Serious misconduct is defined in the Fair Work Regulations 2009:

• (1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business.

[132] The Council said that Mr Goodwin works predominantly by himself. It said this puts him in a position of trust and confidence. It is not clear from the evidence if this has been the case for a few years or for most of the time Mr Goodwin has worked for Council. However long it may have been, it seems that Mr Goodwin's pattern of non-attendance at sites had been occurring over almost a year.

[133] While Mr Goodwin's non-attendance has likely been exacerbated by both his medical condition (which seems to have been in existence for some time), and his son's injury this provides no acceptable reason or excuse for such a limited attendance to work as shown in the data.

• [134] In Jonathan Thien v Melbourne Health T/A The Royal Melbourne Hospital[59] Commissioner Wilson considered that 'persistent, repeated and lengthy' periods of unavailability for work during shifts constituted serious misconduct[60] and in Karl Mckeown v The Smith's Snackfood Company Pty Ltd[61] Deputy President Lake found that 'the frequency and duration of the time theft' constituted serious misconduct[62] (in circumstances where the Applicant took excessive time for breaks).

[135] In this case I need to weigh some factors which may militate against a finding of serious misconduct. This a finely balanced judgement to make.

[136] Given the circumstances of his employment and the position of trust that Mr Goodwin occupied, I am satisfied that his conduct did amount to serious misconduct. I have reached this conclusion because Mr Goodwin's conduct was not intermittent. Had his absences from the workplace been the two incidents raised on the complaint and maybe a few more, an argument could be mounted that, in conjunction with all of the other matters Mr Goodwin was dealing with, his conduct was not deliberate or wilful. But it seems to me that Mr Goodwin treated work as a convenience to allow him to do whatever else he was doing in those times he was not at a worksite or other authorised location. There are just too many occasions when Mr Goodwin was not at a worksite to excuse.

[137] Mr Goodwin claimed that he was treated differently to another employee who was stood down at the same time as Mr Goodwin but whose employment was not terminated. Mr Goodwin did not elaborate on this matter. However, I note in the uncontested evidence of Ms Knezevic and Ms Michail that the circumstances in relation to this particular employee are markedly different to those of Mr Goodwin, including that the employee in question accepted the wrongdoing, demonstrated remorse and gave a commitment to improve his conduct in future. Further the employee in question also demonstrated remarkably better productivity when not working directly with Mr Goodwin. That employee was subject to disciplinary action.

[138] I do not consider that the circumstances of this employee to whom Mr Goodwin refers are the same as Mr Goodwin's - the magnitude and period over which Mr Goodwin's misconduct occurred are not comparable. I therefore cannot conclude that Mr Goodwin has been treated differently to another employee in the same situation.

[139] Mr Goodwin says that he has worked for Council for 15 years. During that period he has had no issues in relation to his work performance. Further, he says that, at the age of 61, he will have difficulty in finding alternative work.

[140] In addition, Mr Goodwin is the primary care giver to his injured son, taking him to medical and associated appointments.

[141] Mr Goodwin is also dealing with his own medical conditions which will make finding alternative work difficult.

[142] Mr Goodwin submits that these circumstances make his dismissal harsh, particularly as he is the sole breadwinner for his family.

[143] I acknowledge Mr Goodwin's personal circumstances and have considered these carefully in reaching my decision. These however must be weighed in conjunction with my other findings.

[144] I have carefully weighed all of the matters before me including the valid reason for dismissal, that this conduct amount to serious misconduct and Mr Goodwin's personal circumstances. Having done so I do find that the dismissal was not harsh, unjust or unreasonable.

[145] For this reason Mr Goodwin has not been unfairly dismissed and his application is therefore dismissed.

[1] Amended submissions of Paul Goodwin, paragraph 26, Court Book (CB) page 42

[2] Amended submissions of Paul Goodwin, paragraph [33], CB page 43

[3] Witness statement of Adam Bell, attachment AB-6, CB page 614

[4] Mr Goodwin's reply affidavit, paragraph 65, CB page 325 also paragraph 50, CB page 322

[5] Amended submissions of Paul Goodwin, paragraph 75, CB page 52

[8] Affidavit of Paul Goodwin, paragraphs 14 - 16, CB page 315

[9] Affidavit of Paul Goodwin, paragraph 42, CB page 320

[10] Affidavit of Paul Goodwin, paragraph 26, CB page 318

[11] Affidavit of Mr Goodwin, paragraph 51, CB page 322

[12] Rankin v Marine Power International Pty Ltd [2001] VSC 150; Wong v Taitung Australia Pty Ltd [2016] FWC 7982; Hemmingson v Note Printing Australia Ltd [2017] FWC 3063.

[13] Transcript PN103, 141, 407 and 441

[17] Witness statement of Antionette Michail, paragraphs 67-73, CB pages 429-430 and attachment AM-9, CB pages 500-507

[18] Witness statement of Adam Bell, paragraph 17, CB page 522

[20] See witness statement of Adam Bell, attachment AB-5, CB page 606 - 613

[21] Witness statement of Adam Bell, paragraph 21, CB page 522

[22] Witness statement of Adam Bell, paragraph 43(c), CB page 526

[23] Witness statement of Adam Bell, paragraph 22, CB page 523

[26] Witness statement of Velentina Knezevic, paragraph 19, CB page 786

[27] Witness statement of Adam Bell, paragraph 30, CB page 524

[28] Witness statement of Adam Bell, paragraph 39, CB page 525

[29] Affidavit of Paul Goodwin, Annexure PG-015, CB page 361

[30] See witness statement of Adam Bell attachment AB-3 CB pages 600-603

[31] [2021] FWCFB 5419; (2021) 310 IR 151 at 157 [22]-28

[34] Transcript PN 577 (evidence of Andrew Bell), PN607 (evidence of Antoinette Michail)

[37] See affidavit of Paul Goodwin, annexure PG-009, CB page 349

[39] See attachment to revised submissions of Paul Goodwin CB page 153 and witness statement of Andrew Bell, attachment AB-6 CB page 642 in relation to the report for 23 August 2022

[40] The raw data can be found in the witness statement of Andrew Bell, attachment AB-6, CB pages 614-765

[48] Transcript PN331-337, 339-341, 345

[50] Witness statement of Andrew Bell, CB pages 600 and 602, Transcript PN676

[51] Witness statement of Valentina Knezevic, paragraph 28, CB page 788

[56] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373

[57] Witness statement of Antoinette Michail, attachment AM11, CB page 517

[59] [2020] FWC 3628

[61] [2023] FWC 91

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