Solicitors:
Maxwell, Berghouse & Ives (Applicant)
Henry Davis York (Respondent)
File Number(s): IRC 139 of 2015
[2]
Judgment
This is an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') brought by Mr Louis Slaveski in relation to his dismissal from employment by Marrickville Council ('the Council') on 3 March 2015.
Applications pursuant to s.84 brought by two other employees of the Council who were dismissed at essentially the same time as Mr Slaveski for essentially the same reason, and certainly arising out of the same substratum of fact, were heard by another member of the Commission, Deputy President Harrison, on dates overlapping the dates upon which this case was heard. How it occurred that these matters, which demonstrably ought all to have been brought before a single member of the Commission, were heard separately is not clear to me. It has certainly resulted in a duplication of costs and the use of resources, both those of the parties and those of the Commission. It is an unsatisfactory situation which should not be permitted to occur again.
Harrison DP has now handed down his decision in the matters before his Honour: Kristic, Zreika v Marrickville Council [2015] NSWIRComm 39; 3 December 2015.
This decision should be read together with the Deputy President's decision.
Harrison DP has undertaken an exhaustive review of the evidence in the matter before him. So far as that was evidence of the witnesses of the Respondent, it replicated, mutatis mutandis, the evidence in the proceedings before me. The evidence before me differed, of course, in one significant way; I had the benefit of the evidence of, and the evidence about the particular actions of, Mr Slaveski, the applicant in this case, to which I will return.
His Honour has summarised the findings of fact he drew from the evidence at paragraphs [10]-[35], [42]-[47], and [73-85] of his decision. I do not disagree with those findings of evidentiary fact; having identified them it serves no purpose to set them out again here.
The Deputy President has found that participation by employees in the scheme of work that can be characterised as work in accordance with 'Joe's rules,' that is, a system of work managed by a Mr Joe Borg, who supervised the applicants in both cases, was serious and wilful misconduct.
'Joe's rules' meant in practice job and finish, together with a number of subsidiary arrangements to do with the arrangement of work and work rosters, the working of and payment for overtime, and arrangements about time in lieu.
Mr Slaveski worked in accordance with 'Joe's rules'. He benefited from them in terms of the way he was able to arrange his work and leisure time. He argued that in fact the Council gained a benefit from the employees having followed 'Joe's rules', as the work was done quickly and efficiently, but the Deputy President has found that for employees to work in that manner was serious and wilful misconduct; I can hardly hold otherwise, and I do not.
It seems to me absolutely astonishing that no employee of Council above the level of Mr Borg knew that a practice of job and finish, both on overtime work and generally, was being actively carried out by this particular work crew for nearly two years after Council claimed it had brought job and finish to an end. It seems particularly astonishing that Mr Mathieson, Co-Ordinator Civil Works, who signed off on the timesheets submitted by the crew each week as having been checked by him personally and as being true and correct, did not know the true situation, and only slightly less astonishing that Mr Swilks, Manager Infrastructure and Works, who was above Mr Mathieson in the hierarchy, did not know of it.
One wonders how it could be that, given their specific responsibilities, they had not checked on this crew for two years, the more so as the Council insisted that its bringing an end to job and finish was an important matter, reinforced by a presentation it gave in 2012. One wonders the more when a glance at the timesheets signed off by the crew after 2012 would have suggested to anyone that the times there recorded could not have been the actual times that each member of the crew started and finished. That they had no knowledge of the work practices being carried out was, however, their evidence.
Working in accordance with 'Joe's rules' having been held to be serious and wilful misconduct by the Commission, the only question for determination is whether in the particular circumstances of Mr Slaveski's case, to which I must and do have regard pursuant to s.88 of the Act, his dismissal was harsh, unjust or unreasonable. I return to that below, but first turn to deal with an evidentiary issue.
That is the approach to be taken to the fact that Mr Borg was not called as a witness.
[3]
Failure to call Mr Borg as witness - Jones v Dunkel inference
Mr Borg was not called in the proceedings before Harrison DP nor in those before me. In both proceedings the submission was advanced by counsel for the applicants that an inference in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298 ought be drawn against the Council's case for its failure to call Mr Borg.
Harrison DP declined to draw the inference. I take a different view of that matter.
It must be noted that Council actively advanced as its theory of the case against Mr Slaveski (and similarly against the applicants in the proceedings before Harrison DP) that he was party to "an arrangement between various members of the crew and Mr Borg that they would turn a blind eye to the fact that Mr Borg came and went as he pleased and in return Mr Borg would sign off on things that were entirely inconsistent with any job and finish system." (transcript 28 Jul 2015 p 44).
Having advanced that characterisation of the misconduct it alleged, the Council had the onus to make it out on the evidence.
The rule in Jones v Dunkel applies to the failure to bring a witness where it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness: O'Donnell v Reichard [1975] VR 916 at 929) per Newton and Norris JJ; Payne v Parker [1976] 1 NSWLR 191 at 201 - 202 per Glass JA (in a dissenting judgment, but in a passage subsequently accepted as correctly stating the relevant principles).
The Council was clearly the party reasonably to be expected to call Mr Borg. That is because it had the evidentiary burden to make out the facts of the misconduct it asserted. I must respectfully disagree with Harrison DP that Mr Borg was 'more naturally' to be called by the applicant. Mr Slaveski gave his own evidence about the 'arrangement', when that was put to him in cross-examination: his evidence was that 'Borg was a boss', that he had no say in what Mr Borg did or did not do, and there was no 'arrangement' of the type asserted by the Council. For the Council to make out the misconduct in the way it characterised it to the Commission in its theory of the case, it was, obviously, necessary to prove the 'arrangement' it asserted. To do so Council had to call Mr Borg; his would have been the best evidence of the arrangement - in which he was said to be the principal participant - which Council asserted existed.
The rule in Jones v Dunkel is of course that the unexplained failure by a party to call a witness may lead to the inference being drawn. Any 'explanation', such as the unavailability of a witness, cannot simply be assumed but must be established by evidence: West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; Rowell v Larter (1986) 6 NSWLR 21 (at 24 - 25) per Young J; RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 per McColl JA.
Mr Borg's whereabouts was known to Council; it is a matter of public record that it had been recently conducting court proceedings against him in another place. Mr Borg was compellable by Council. The Council's representatives may have assumed that Mr Borg would not have given evidence freely, but assumption is not sufficient, and the Council did not trouble even to bring evidence about that matter, let alone as to why Mr Borg would not have been compellable by summons. And of course s 38 of the Evidence Act 1995 could have been called in aid if Mr Borg had become an adverse witness once called: Westpac Banking Corporation v Velingos [2011] NSWSC 607 per Schmidt J.
His absence was entirely unexplained in circumstances where it was natural for Council to call him on a point on which it bore the onus of proof. Accordingly, I am unable to avoid drawing the inference that Mr Borg's evidence would not have assisted the Council's case, and I do so.
That inference however is not sufficient to displace the finding of serious and wilful misconduct in relation to Mr Slaveski's participation in this work scheme.
[4]
Mr Slaveski's conduct
Turning to the facts of this case where they differ from the cases determined by Harrison DP, I accept that Mr Slaveski was a more junior employee than Mr Krstic, at least, so that it might be said that he had a diminished responsibility in respect of the job and finish practice that Harrison DP has held to be serious and wilful misconduct. I am not certain that there are degrees of serious and wilful misconduct, but I am prepared to accept that proposition for the purposes of argument.
However, it is also clear that Mr Slaveski knowingly participated in what was a contrivance in relation to the arrangement of work for his personal benefit, most apparently in relation to the arrangements made by Mr Slaveski to allow him to proceed to the South Coast - on pay, but without having to seek leave for some of the days in question - on days surrounding a number of holiday weekends. The details of what occurred were set out in the evidence of Mr Strickland, who was one witness in these proceedings whom I was prepared to regard as a witness of truth. Mr Slaveski defended his conduct in his evidence under cross-examination but I did not find that evidence convincing, in particular (although not restricted only to) his evidence that having driven down to Ulladulla on the afternoon of 1 October 2014, intending to drive back very early the next morning in time to return to work, he happened to fall ill and was obliged to stay on the South Coast for two days which just happened to lead into the Labour Day long weekend.
I am satisfied firstly that there was a manipulation of work by Mr Slaveski to allow him to do this, and secondly that he was not candid with his employer about his absences on that and other occasions.
Lack of candour with an employer about absences and the payment for them is a serious matter. The ordinary relationship of employer and employee is one importing implied duties of honesty and trust: Concut Pty Ltd v Worrell (2000) 103 IR 160. Put bluntly, it is just not open to employees to rort the employer's systems to gain a benefit: Electricity Commission of NSW t/a Pacific Power v Nieass & ors (1985) 81 IR 46.
So far as that conduct by Mr Slaveski in its detail was not advanced in the first instance as the basis for the termination, that does not prevent the Council now calling it in aid of the decision it took to dismiss Mr Slaveski: Byrne v Australian Airlines Pty Ltd (1995) 185 CLR 410 at 430.
Mr Slaveski has committed misconduct in that respect, as well as in relation to the work practices characterised by Harrison DP as serious and wilful misconduct, even if his involvement in the job and finish scheme was as a junior and subordinate employee. The question only arises, in my view, whether the punishment of dismissal properly matches the misconduct.
[5]
Matters in mitigation
Mr Slaveski was, with respect to him, a junior employee in the hierarchy. So far as he participated in a job and finish scheme generally, he has the excuse that he was entitled to accept what Mr Borg told him to do.
Mr Slaveski's personal circumstances are also to be considered. His evidence, which I accept, was that he has an "extremely low level of functional literacy". He is 58 years of age. He has given the Council 37 years of his working life, essentially his whole working life, and has, apart from the matters here considered, a good employment record. That length of employment alone is a weighty matter in the balance of matters that the Commission must consider. So is the fact that, given his age and, with respect to him, his level of skills and education, losing employment is a doubly difficult blow.
I am sympathetic to Mr Slaveski's circumstances but it cannot outweigh the fact that he has committed misconduct in relation to the job and finish system and that he has, most significantly, contrived affairs to gain a benefit from the employer, in the course of which he was not honest with his employer. Shortly put, that cannot be condoned.
Mr Moore argued vigorously that Mr Slaveski should be treated no differently to a Mr Evans, who received only a final warning for his participation in the job and finish scheme. If all that was in issue was the job and finish arrangements, that submission might have attraction. However, the contrivance surrounding the holiday-related absences sets Mr Slaveski apart from Mr Evans and means that an equivalent punishment is not appropriate in this case. Disciplinary sanctions can properly differ in circumstances where the conduct of one employee can be distinguished from the conduct of another: Capral Aluminium v Sae (1997) 75 IR 65 at 68.
In all of the circumstances I am unable to find, applying the tripartite test, that the decision to dismiss was either harsh, unreasonable or unjust. I decline to intervene in the decision to dismiss Mr Slaveski.
The application is dismissed.
[6]
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Decision last updated: 11 December 2015