2011 WAIRC 00116

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES SHARON SAMATA; SPYROS SAMATA; DANICA BUTLER; ANTHONY MOUNTFORD; DAVID JOHN SPRINGALL
APPLICANTS
-V-
MR S FRASER CHIEF EXECUTIVE OFFICER SHIRE OF GINGIN
RESPONDENT
CORAM COMMISSIONER J L HARRISON
HEARD WEDNESDAY, 14 JULY 2010, THURSDAY, 15 JULY 2010, FRIDAY 16 JULY 2010, WEDNESDAY, 21 JULY 2010, MONDAY, 23 AUGUST 2010, TUESDAY, 26 OCTOBER 2010
DELIVERED MONDAY 14 FEBRUARY 2011
FILE NO. U 4 OF 2009, U 5 OF 2009, U 7 OF 2009, U 8 OF 2009, U 9 OF 2009
CITATION NO. 2011 WAIRC 00116

Catchwords Termination of employment - Claims of harsh, oppressive or unfair dismissal - Summary dismissals - Principles applied - No misconduct justifying summary dismissal or dismissal on notice - Lack of procedural fairness - Applicants unfairly dismissed – Reinstatement ordered – Continuity of benefits ordered - Industrial Relations Act 1979 (WA) s 23A(5) and s 29(1)(b)(i)
Result Upheld and Orders issued
Representation
APPLICANT MR K TRAINER (AS AGENT)

RESPONDENT MR S KEMP (OF COUNSEL)


Reasons for Decision
1 On 13 January 2009 Sharon Samata, Spyros Samata, Danica Butler, Anthony Mountford and David John Springall (“the applicants”) lodged applications in the Commission pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) claiming that they were harshly, oppressively or unfairly terminated on 17 December 2008 by Mr S Fraser Chief Executive Officer Shire of Gingin (“the respondent”). The respondent disputes that it unfairly dismissed the applicants and maintains that it had good reason to summarily terminate each applicant.
2 Megan Cassidy also lodged an application in the Commission on 13 January 2009 claiming she had been harshly, oppressively or unfairly terminated by the respondent on 17 December 2008 however on 20 August 2010 she lodged a Notice of Withdrawal or Discontinuance in the Commission with respect to her application.
3 The hearing of the substantive issue in relation to these applications was delayed for a significant period. The issue of the Commission’s jurisdiction to deal with these applications was initially raised by the respondent but it was not until December 2009 that the respondent withdrew its objection to the Commission dealing with these applications. The necessity to re-allocate these applications to the Commission as currently constituted as well as the lack of availability of some witnesses also contributed to the delay in these applications being heard.
4 At the commencement of the hearing the applicants’ representative advised the Commission that Ms Butler had married since lodging her application and her surname had changed to Todd. In the circumstances leave was sought to amend the name of Danica Butler to Danica Todd. Given the respondent’s consent to this course of action and the Commission’s powers under s 27(1) of the Act, and having formed the view that it is appropriate in the circumstances that the applicant be correctly named I propose to issue an order that Danica Butler be deleted as the named applicant in application U 7 of 2009 and be substituted with Danica Todd (see Rai v Dogrin Pty Ltd [2000] 80 WAIG 1375 and Bridge Shipping Pty Ltd v Grand Shipping SA and Anor [1991] 173 CLR 231).
Background
5 The applicants were terminated after attending the respondent’s annual Christmas function on Saturday 13 December 2008 (“the Function”) at the Gravity Discovery Centre facility (“the Centre”).
6 The applications lodged by each applicant contain a number of similarities. The applicants gave the following background which they maintain is relevant to their terminations:
· the Shire of Gingin (“the Shire”) conducted its annual Christmas function on Saturday 13 December 2008 at the Centre;
· the applicants were one of a substantial number of staff, their partners and others including Shire Councillors who attended the Function;
· at the end of the Function some attendees including senior staff and Councillors were given alcohol or other drinks when they left including those who travelled on buses provided by the Shire;
· on previous occasions alcohol was removed at the end of functions;
· the applicants were part of a small group who remained at the Function after the buses had departed;
· prior to leaving the Function the applicants and others were expressly advised by staff working at the Function that remaining alcohol could be taken;
· the applicants sought confirmation from the staff that this advice was correct;
· as a direct result of this advice the applicants were given part of the remaining alcohol when leaving the Function;
· subsequently the applicants were required to attend meetings on 17 December 2008 with the Chief Executive Officer (“the CEO”) and another person, Mr Mike Fitz Gerald, ‘an independent investigator’;
· the applicants were not given any prior advice of the purpose of the meeting;
· the meetings were about the removal of the alcohol from the Function, an issue that was canvassed with Councillors by the management prior to the meeting in a way that conveyed concluded views about the events;
· the meeting was devoid of procedural fairness and the process was conducted in a fashion that was overtly aggressive towards the applicants;
· the applicants sought to explain the circumstances including the advice of staff working at the Function but this was not given any meaningful consideration;
· the applicants were stood down on pay at the end of the meeting and required to surrender the Shire’s keys;
· the subsequent decision making process was hasty and procedurally flawed;
· late that afternoon the applicants were contacted by the CEO by telephone and advised that their employment had been terminated with immediate effect;
· the applicants deny improperly removing alcohol from the Function; and
· their terminations were substantively and procedurally unfair.
7 The applicants are seeking reinstatement.
8 In its Notice of Answer and Counter-proposal to each application the respondent provided the following information:
The respondent denies that at the end of the Function attendees were given alcohol or other drinks to take with them when they left including those who travelled on buses provided by the Shire and that this had happened on previous occasions.
The respondent maintains the following:
· the respondent had arranged buses to transport members of staff home at the end of the Function;
· some members of staff including the applicants arranged their own transport to and from the Function and Mr Mountford took the bus to the Function and was picked up by his son;
· employees using the buses and those not driving were permitted, as they had been in prior years, to take one or two drinks for consumption during the drive home; and
· none of the employees using the buses were permitted to or did remove large quantities of alcohol.
The respondent denies that prior to leaving the Function the applicants and others were expressly advised by staff working at the Function that the remaining alcohol could be taken and the respondent denies that the applicants sought confirmation from the staff that this advice was correct and as a result of this advice the applicants were given part of the remaining alcohol when leaving the Function.
The respondent maintains the following:
· at the end of the Function a large quantity of alcohol was left at the Centre that had been purchased by and belonged to the respondent;
· the applicants were aware that the remaining alcohol belonged to the respondent;
· the applicants were aware that the staff working at the Centre were not employees of the respondent and accordingly could not grant permission to the applicants to take for his/her personal use the property of the respondent;
· the applicants and where relevant their spouse or son removed an amount of alcohol belonging to the respondent without authority for their own personal use. In the case of Mr Springall he observed Mr Mountford removing two crates of wine belonging to the respondent; and
· the respondent claims the applicants and where relevant their spouses returned the following alcohol belonging to the respondent after their interviews held on 17 December 2008:
Sharon and Spyros Samata
· two bottles of Pepperjack Cabernet Sauvignon;
· two bottles of Oyster Bay Sauvignon Blanc;
· one bottle of Yellowtail Cabernet Sauvignon;
· one stubby of Emu Bitter beer;
· one stubby of Hahn Premium Light beer; and
· one stubby of Carlton Cold Filtered beer.
Danica Todd
· admitted removing a “couple” of bottles of wine from the Centre but did not return any to the respondent.
Anthony Mountford
· nine bottles of Goundrey Unwooded Chardonnay;
· seven bottles of Oyster Bay Sauvignon Blanc;
· three bottles of Pepperjack Cabernet Sauvignon;
· one bottle of Jylland Chenin Blanc;
· 12 stubbies of Carlton Mod (sic) Strength beer;
· eight stubbies of Hahn Premium beer;
· eight stubbies of Emu Bitter beer;
· six stubbies of Toohey’s Old Black Ale;
· five stubbies of Strongbow Cider;
· two stubbies of Hahn Premium Light beer;
· one stubby of Toohey’s Extra Dry;
· one stubby of Carlton Cold beer;
· one stubby of Cascade Premium Light beer;
· four cans of Coke Zero; and
· two dark brown plastic ice containers.
David John Springall
· two bottles of red wine.
The respondent denies the removal of the alcohol from the Function was canvassed with Councillors prior to the applicants’ interviews in a way that conveyed concluded views about the applicants’ actions, it disputes that the interviews were devoid of procedural fairness and it maintains that the process was not conducted in a fashion that was overtly aggressive towards the applicants.
The respondent claims that:
· prior to the applicants’ interviews the CEO informed the Shire’s Councillors of the unauthorised removal of alcohol from the Centre and indicated that a full investigation would be held;
· at the commencement of each interview the applicants were informed that they could have a representative attend the interview and that they were not required to respond immediately to the allegations that were going to be put to them;
· the applicants were then informed of the allegation that they had removed alcohol belonging to the respondent without authorisation at the end of the Function;
· the applicants responded to the allegations;
· the applicants admitted removing alcohol and subsequently returned the removed alcohol;
· in the case of Mr Samata he suggested that his actions did not constitute stealing as none of the staff at the Centre had told him not to remove the alcohol; and
· in the case of Ms Samata, she suggested that her actions were acceptable as others had also taken alcohol and the staff at the Centre had said they could take alcohol.
The respondent denies that the subsequent decision making process after the meetings with the applicants was hasty and procedurally flawed.
The respondent maintains that:
· the CEO gave proper consideration to all the facts before him including statements made by the applicants in the course of the interviews;
· the CEO came to the conclusion that the applicants had knowingly taken alcohol belonging to the respondent for their own personal use in circumstances where they were aware that they had no authority to do so;
· the applicants had not attempted to stop other staff members from removing the respondent’s alcohol for their own purposes; and
· the CEO formed the view that the necessary trust and confidence between the respondent and the applicants had been irretrievably destroyed by the applicants’ conduct and this warranted their summary dismissals.
9 After the applicants were advised of their termination of employment by telephone on 17 December 2008 they were sent the following letters dated 22 December 2008, formal parts omitted:
Sharon Samata
“TERMINATION OF EMPLOYMENT
I refer to our Meeting in my Office on 17 December 2008, which was also attended by your Supervisor (Kaye Lowes) and Mr Mike Fitz Gerald of Fitz Gerald Strategies. For the purpose of the record, I confirm that:
1. At the commencement of the Meeting, Mr Fitz Gerald advised you that you were entitled to have a representative/support person with you at the Meeting and that after you had been advised of the details of the material that was to be discussed, you could decide whether you wished to have a representative/support person present before you responded to any questions or made any statements. Mr Fitz Gerald emphasised that you were not obliged to respond to any questions or make any statements if you did not wish to.
2. Notwithstanding this advice, you reluctantly responded to some questions and made some statements about the events which occurred at the conclusion of the Shire of Gingin Christmas Function held at the Gravity Discovery Centre (GDC) on 13 December 2008.
In the interview you admitted as follows:
1. That you took three or four bottles of wine home “as did a lot of other people”.
2. That although you didn’t see any others taking wine earlier, you were told that “some Councillors” put some in their bags and took several bottles.
3. That GDC Staff said you could take the wine as it was the Shires.
4. That you saw others taking large quantities of drinks but would not name them.
5. That you were aware that the drinks belonged to the Shire but you felt that you were entitled to take some as everyone else was doing so.
6. That you stated that Danica and her partner and Meagan and her husband went back to your place to continue the party.
7. That the wine was handed to you but you would not say by whom.
8. That you are not “a name dropper” and that you had nothing more to say.
9. That “a lot of staff and even a lot of Councillors” took wine although you acknowledged that you did not see this happening.
During the course of the interview you were evasive, defiant and unrepentant.
Further, I confirm that you and your spouse returned the following 8 bottles of alcoholic beverages to the Shire following the interview:
2 Bottles of Pepperjack Cabernet Sauvignon
2 Bottles of Oyster Bay Sauvignon Blanc
1 Bottle of Yellowtail Cabernet Sauvignon
1 Stubby of Emu Bitter Beer
1 Stubby of Hahn Premium Light Beer
1 Stubby of Carlton Cold Filtered Beer
As advised by telephone on 17 December 2008, I find that your actions amounted to a repudiation of your Contract of Employment with the Shire of Gingin in so far as they caused an irretrievable breakdown in the trust and confidence that forms the basis of your Contract of Employment. Accordingly, your employment with the Shire was summarily terminated effective at the close of business on 17 December 2008.”
(Exhibit R2 document 13)
Spyros Samata
“TERMINATION OF EMPLOYMENT
I refer to our Meeting in my Office on 17 December 2008, which was also attended by your Supervisor (Frank Vallentine) and Mr Mike Fitz Gerald of Fitz Gerald Strategies. For the purpose of the record, I confirm that:
1. At the commencement of the Meeting, Mr Fitz Gerald advised you that you were entitled to have a representative/support person with you at the Meeting and that after you had been advised of the details of the material that was to be discussed, you could decide whether you wished to have a representative/support person present before you responded to any questions or made any statements. Mr Fitz Gerald emphasised that you were not obliged to respond to any questions or make any statements if you did not wish to.
2. Notwithstanding this advice, you reluctantly responded to some questions and made some statements about the events which occurred at the conclusion of the Shire of Gingin Christmas Function held at the Gravity Discovery Centre on 13 December 2008.
In the interview you admitted as follows:
1. That you understood what had happened on the night so you did not need to see the video footage although you did confirm that what happened that night “did not, in any way, constitute stealing”.
2. That you probably took about four bottles of wine and six stubbies of beer.
3. That you took what you did because you saw Councillors grabbing cartons and filling them up and hopping onto the bus and, as such, you did not see a problem with doing the same thing.
4. That you only took a few drinks to carry on the party at your home and then you stated that you had absolutely nothing more to say.
5. That you were not affected by alcohol at the time of the incident and you were “clear-headed”.
6. That you saw a Councillor empty a carton of coke and fill it up with drinks at which point you said “Hey! What are you doing mate?” The Councillor, whom you refused to name, said “Sshhhh!”- don’t tell anyone”.
7. That your actions did not constitute stealing as no GDC Staff said “don’t do it” therefore you thought it was okay to take what you did.
8 That you thought “some people went overboard but it was not my position to say don’t do it”.
9. That you advised, given that Mr Fitz Gerald and I were both taking notes, that you had nothing more to say.
During the interview you were evasive and defiant and did not see my concerns as a “big deal” because you were carrying on the party at your place.
Further, I confirm that you and your spouse returned the following 8 bottles of alcoholic beverages to the Shire following the interview:
2 Bottles of Pepperjack Cabernet Sauvignon
2 Bottles of Oyster Bay Sauvignon Blanc
1 Bottle of Yellowtail Cabernet Sauvignon
1 Stubby of Emu Bitter Beer
1 Stubby of Hahn Premium Light Beer
1 Stubby of Carlton Cold Filtered Beer
As advised by telephone on 17 December 2008, I find that your actions amounted to a repudiation of your Contract of Employment with the Shire of Gingin in so far as they caused an irretrievable breakdown in the trust and confidence that forms the basis of your Contract of Employment. Accordingly, your employment with the Shire was summarily terminated effective at the close of business on 17 December 2008.”
(Exhibit R2 document 14)
Danica Todd
“TERMINATION OF EMPLOYMENT
I refer to our Meeting in my Office on 17 December 2008, which was also attended by your Supervisor (Lisa Edwards) and Mr Mike Fitz Gerald of Fitz Gerald Strategies. For the purpose of the record, I confirm that:
1. At the commencement of the Meeting, Mr Fitz Gerald advised you that you were entitled to have a representative/support person with you at the Meeting and that after you had been advised of the details of the material that was to be discussed, you could decide whether you wished to have, a representative/support person present before you responded to any questions or made any statements. Mr Fitz Gerald emphasised that you were not obliged to respond to any questions or make any statements if you did not wish to.
2. Notwithstanding this advice, you willingly responded to questions and made statements about the events which occurred at the conclusion of the Shire of Gingin Christmas Function held at the Gravity Discovery Centre (GDC) on 13 December 2008.
In the interview you admitted as follows:
1. That you were involved in removing alcohol from the premises but did so on the advice of the Staff at the GDC.
2. That you asked GDC Staff “How much can be taken?” with a Staff member advising “take it all”.
3. That the Staff from the GDC confirmed that the alcohol belonged to the Shire. You advised that Sharon and Spyros Samata, Meagan Cassidy and you took about four bottles of wine each.
4. That you remembered what happened that evening as you were not drunk.
5. That the young girl from the GDC said everyone was welcome to take them. You claimed she said that the drinks were the Shires, and Councillors had been taking them.
6. That you thought the drinks were for you given that the Shire had bought them for Staff.
7. That you only took a couple of bottles of wine each prior to leaving.
8. That you would not have taken them if you knew definitely that you weren’t allowed to.
9. That you saw Councillor Jarvis take three or four bottles of wine on the Lancelin bus.
10. That you were told that everyone was taking drinks.
11. That taking a couple of “roadies” did not justify armfuls of bottles of wine being taken by you and others.
12. That you did not realise the consequences of your actions and you would not jeopardise your job for a couple of bottles of wine.
13. That you were aware as to the amount of alcohol taken but at the time you “didn’t realise how much was there”.
14. That an outside guy carried a whole crate out and that you said “I am not sure you are allowed to take all of that”. He replied “Yes we are” so you thought you could take some as well.
15. That you didn’t think of the consequences of your actions.
16. That Spryos (sic) and Sharon Samata, Meagan Cassidy and you left with four bottles of wine each. You then changed your estimate to three bottles of wine each. You confirmed that some beers were taken for Spryos (sic) because he didn’t drink wine.
17. That some beers were taken for Spyros from a crate that other Staff believed was theirs and they were not very happy about it.
18. That you did not have any of the wine at your home.
As advised by telephone on 17 December 2008, I find that your actions amounted to a repudiation of your Contract of Employment with the Shire of Gingin in so far as they caused an irretrievable breakdown in the trust and confidence that forms the basis of your Contract of Employment. Accordingly, your employment with the Shire was summarily terminated effective at the close of business on 17 December 2008.”
(Exhibit R2 document 16)
Anthony Mountford
“TERMINATION OF EMPLOYMENT
I refer to our Meeting in my Office on 17 December 2008, which was also attended by your Supervisor (Frank Vallentine) and Mr Mike Fitz Gerald of Fitz Gerald Strategies. For the purpose of the record, I confirm that:
1. At the commencement of the Meeting, Mr Fitz Gerald advised you that you were entitled to have a representative/support person with you at the Meeting and that after you had been advised of the details of the material that was to be discussed, you could decide whether you wished to have a representative/support person present before you responded to any questions or made any statements. Mr Fitz Gerald emphasised that you were not obliged to respond to any questions or make any statements if you did not wish to.
2. Notwithstanding this advice, you willingly responded to questions and made statements about the events which occurred at the conclusion of the Shire of Gingin Christmas Function held at the Gravity Discovery Centre on 13 December 2008.
In the interview you admitted as follows:
1. That you were involved in taking the drinks as “you were told to”.
2. That Amy from the GDC was unloading the fridges and everyone thought it was acceptable to take roadies
3. That Amy said “all this has got to go” at which time you replied “if you put it in buckets I will take it to Frank’s do”.
4. That after the last bus left you saw everyone taking three or four bottles of wine because they were told to.
5. That the DJ apparently took three bottles of wine as it was offered to him by everyone who was there.
6. That all drinks were given to those involved by Amy.
7. That you told your wife, Fiona that “if we are taking this it can go back to Frank’s on Friday”.
8. That you did not alert Frank that you had the drinks at home.
9. That you told Amy “that the boys will drink it on Friday”.
10. That your wife, Fiona, was “going to donate the wine to the darts function”, a decision she justified by virtue of her putting something back into the community.
11. That it was your understanding that the drinks were leftovers and you took them away to help with the clean up.
12. That you did not see people taking bottles of wine onto the buses to go home.
13. That you only became involved at the very last minute when the fridges were being emptied and a large amount was being placed in your son’s car boot after he came to pick you up from the function.
14. That you “couldn’t understand the amount of wine that was going out of there”.
15. That you “thought it was unreasonable, but if it’s got to go we will take it to Frank’s Christmas function”.
16. That you made the decision to take the drinks to Frank’s party even though you did not have the authority.
17. That it was wrong for you to make the decision to take the drinks to Frank’s party.
18. That “you thought nothing of what was happening as you were under the weather”.
19. That, at the time, your combined actions were unreasonable.
20. That you said to your wife, Fiona, “Why did you grab so much - that’s being greedy!”
21. That you were sorry for what happened and that “it had blown out bigger than you expected”.
22. That you didn’t see your actions as stealing as everyone was still in a party mood.
Further, I confirm that you returned the following 68 containers of alcoholic and other beverages and various plastic containers to the Shire following the interview:
9 Bottles of Goundrey Unwooded Chardonnay
7 Bottles of Oyster Bay Sauvignon Blanc
3 Bottles of Pepperjack Cabernet Sauvignon
1 Bottle of Jylland Chenin Blanc
12 Stubbies of Carlton Mid Strength Beer
8 Stubbies of Hahn Premium Beer
8 Stubbies of Emu Bitter Beer
6 Stubbies of Toohey’s Old Black Ale
5 Stubbies of Strongbow Cider
2 Stubbies of Hahn Premium Light Beer
1 Stubby of Toohey’s Extra Dry
1 Stubby of Carlton Cold Beer
1 Stubby of Cascade Premium Light Beer
4 Cans of Coke a Cola Zero
2 Dark Brown Plastic Ice Containers
As advised by telephone on 17 December 2008, I find that your actions amounted to a repudiation of your Contract of Employment with the Shire of Gingin in so far as they caused an irretrievable breakdown in the trust and confidence that forms the basis of your Contract of Employment. Accordingly, your employment with the Shire was summarily terminated effective at the close of business on 17 December 2008.”
(Exhibit R2 document 17)
David Springall
“TERMINATION OF EMPLOYMENT
I refer to our Meeting in my Office on 17 December 2008, which was also attended by your Supervisor (Frank Vallentine) and Mr Mike Fitz Gerald of Fitz Gerald Strategies. For the purpose of the record, I confirm that:
1. At the commencement of the Meeting, Mr Fitz Gerald advised you that you were entitled to have a representative/support person with you at the Meeting and that after you had been advised of the details of the material that was to be discussed, you could decide whether you wished to have a representative/support person present before you responded to any questions or made any statements. Mr Fitz Gerald emphasised that you were not obliged to respond to any questions or make any statements if you did not wish to.
2. Notwithstanding this advice, you willingly responded to questions and made statements about the events which occurred at the conclusion of the Shire of Gingin Christmas Function held at the Gravity Discovery Centre on 13 December 2008.
In the interview you admitted as follows:
1. That you grabbed two bottles of wine for yourself with (sic) two crates of wine being placed in Tony Mountford’s car which you understood that Tony had the intention of selling.
2. That both Tony Mountford and his wife said that Staff were allowed to take the surplus drinks.
3. That Tony Mountford intended to sell what he took at a meeting at Woodridge.
4. That you were told by Spyros Samata that the leftover drinks would be going to the end of year “outside workers” barbecue to be held at Frank Vallentine’s place.
5. That you disagreed with the Staff taking all the wine as you did not think it was right. You acknowledged that “taking a couple of bottles should not be a problem but the taking of crates would be”.
6. That you did not say anything even though you knew what was happening was wrong, because “shit would have been put on you”.
7. That it was your intention to walk home after the function but you were offered a lift by Tony Mountford and it was for this reason that you are now implicated.
8. That you would like to do serious harm to all the people who have got you into this.
9. That you thought that “the amount of piss being taken was going a little too far”.
Further, I confirm that you returned two bottles of red wine to the Shire after the interview.
As advised by telephone on 17 December 2008, I find that your actions amounted to a repudiation of your Contract of Employment with the Shire of Gingin in so far as they caused an irretrievable breakdown in the trust and confidence that forms the basis of your Contract of Employment. Accordingly, your employment with the Shire was summarily terminated effective at the close of business on 17 December 2008.”
(Exhibit R2 document 18)
Respondent’s evidence
10 Mr Simon Fraser is currently the Acting CEO of the Shire of Toodyay and in December 2008 he was the Shire’s CEO. Mr Fraser went to the Function at the Centre on one of two buses provided by the Shire. Mr Fraser stated that the Function commenced around 6.00pm and finished around midnight. Mr Fraser stated that he returned on the Gingin bus and passengers on this bus did not take large quantities of alcohol from the Function. Mr Fraser stated that he took two UDLs on this trip which he regarded as a ‘roadie’.
11 Mr Fraser said before leaving the Function he removed drinks from ice boxes to stop them from freezing and he was therefore aware that significant volumes of wine, UDLs and beer were left over from the Function, valued at approximately $1,000. When asked by those at the Function if they could take a ‘roadie’ from the Centre to drink on the way home, he told them that this was okay as long as that person was not driving. Mr Fraser stated that his view of a ‘roadie’ was one or two drinks to consume on the way home, depending on how long the trip was.
12 Mr Fraser said he had authorised more than enough drinks to be provided for the Function and anything left over from the Function would be returned to the retailer from whom it was purchased and his personal assistant was to collect any left over alcohol on the Monday after the Function. Mr Fraser gave evidence that he discovered that alcohol was missing from the Centre when his administrative assistant went to the Centre to tidy up and collect the alcohol on Monday 15 December 2008.
13 Mr Fraser stated that the staff working at the Function were not employed by the Shire and they had no authority to give away the Shire’s alcohol. After Mr Fraser found out that the alcohol had been removed from the Centre he rang the Function’s organiser, Ms Dallas Hamilton to ascertain whether authority had been given by her for the alcohol to be removed and he was advised that this was not the case.
14 After Mr Fraser discovered that alcohol was missing from the Centre he conducted an investigation into the missing alcohol. Mr Fraser stated that when he reviewed security video recordings of events at the end of the Function on 16 December 2008 he was shocked at what he regarded as the systematic removal of alcohol by some of the Shire’s employees and he regarded this removal as being more than a ‘roadie’.
15 Mr Fraser said that a council meeting was held on the evening of 16 December 2008 and he showed footage of the Function to Councillors and advised them that the issue was serious and would be investigated and he told Councillors that he would engage the Shire’s industrial relations advocate Mr Fitz Gerald to undertake an investigation into the removal of the alcohol on behalf of the Shire.
16 Mr Fraser gave evidence that employees who were involved in removing alcohol from the Centre at the end of the Function were identified from the video and Mr Fitz Gerald advised the Shire that each of them needed to be interviewed. Mr Fraser gave evidence that Mr Fitz Gerald conducted each interview and each applicant was told by Mr Fitz Gerald of their rights and that they were entitled to be represented by another person if they wished. Mr Fraser then stated that each applicant was represented by their immediate supervisor in their interviews.
17 Mr Fraser gave evidence that both he and Mr Fitz Gerald asked questions at the interviews and took notes (see Exhibit R2 document 11). Mr Fraser stated that at the end of each interview each applicant was suspended on full pay whilst further investigations were conducted. Mr Fraser stated that during the interviews Mr Fitz Gerald asked each of the applicants if they had any alcohol left over from the Function and those who did were taken home by their respective supervisors and the alcohol was returned to the Shire.
18 Mr Fraser said that after the interviews he sought advice from Mr Fitz Gerald and later that afternoon he decided to terminate the applicants. Mr Fraser stated that the combination of the video evidence of what had taken place at the end of the Function and given what the applicants had told him during their interviews he believed that the applicants had defrauded the Shire in that they were involved in the systematic removal of the Shire’s alcohol from the Function and the Shire had not given the applicants any authority to remove this alcohol. Mr Fraser’s trust and confidence in the applicants had therefore been breached and as a result the applicants were terminated. Mr Fraser said that prior to making this decision he had discussions with the applicants’ supervisors and he stated that they had also lost confidence in the applicants.
19 Mr Fraser denied that prior to the applicants’ interviews he had a pre-determined view that they should be terminated but he stated that he did have concerns about their behaviour at the end of the Function and it was for this reason that he engaged Mr Fitz Gerald to conduct an investigation into the removal of the alcohol to ensure that the investigation was properly conducted.
20 Mr Fraser said the decision to terminate the applicants was made after interviewing each applicant and considering all of the evidence and looking at all of the options as well as the impact on the Shire. Mr Fraser stated that after he advised the applicants by telephone on the evening of 17 December 2008 that they were terminated the respondent confirmed this in writing (see Exhibit R2 documents 13, 14, 16, 17 and 18).
21 Mr Fraser stated that admissions contained in the applicants’ letters of termination were based on notes taken during their interviews. Mr Fraser stated that Mr Mountford’s wife had no authority to donate any of the Shire’s wine to the darts club. Mr Fraser gave evidence that Ms Cassidy admitted during her interview that no one gave her specific authority to remove alcohol from the Centre and she stated that Ms Todd helped her put wine in a crate in the boot of her car and she stated that the alcohol was to be shared with others. Mr Fraser gave evidence that Ms Todd stated at her interview that staff at the Centre had authorised the removal of the alcohol from the Centre, she admitted she was told by a staff member that the alcohol belonged to the Shire and she admitted removing alcohol from the Centre. Mr Fraser gave evidence that Mr Springall stated during his interview that when he saw other employees removing alcohol from the Centre he knew it was wrong but did not feel he was in a position to say anything. Mr Fraser gave evidence that Mr Samata stated at his interview that alcohol was being removed because the Shire’s Councillors had done the same but he did not name the Councillors involved. Mr Samata also stated that he was not told that the alcohol could not be removed by staff at the Centre. Mr Fraser gave evidence that at Ms Samata’s interview she stated that staff at the Centre said they could remove alcohol and she admitted removing alcohol from the Centre.
22 Mr Fraser stated that he made the decision to terminate the applicants. Mr Fraser stated that none of the applicants asked him if they could remove alcohol from the Centre and when other employees approached him about this he told them that they could only take ‘roadies’. Mr Fraser stated that he did not authorise any of the Centre’s staff to give away the remaining alcohol and the only other person delegated to give this authority was the Deputy Chief Executive Officer.
23 Under cross-examination Mr Fraser stated that the notes he made of the interviews held with the applicants on 17 December 2008 were not verbatim notes but they recorded the general thrust of what was said at the interviews.
24 Mr Fraser stated that the applicants were terminated because of the unlawful removal of the Shire’s property from the Centre and when shown a letter sent to Ms Todd dated 19 December 2008 which refers to her being terminated on the basis of her involvement in the theft of alcohol from the Function Mr Fraser then conceded that he believed that their actions constituted theft.
25 Mr Fraser stated that after playing the video of the events at the end of the Function after the Council meeting held on the evening of 16 December 2008 he invited Councillors to comment and some said that the employees involved should be sacked. Mr Fraser stated that he did not tell the applicants during their interviews that Councillors said that they were ‘gutted’ because of their behaviour but he did say that he was ‘gutted’ in one or two of the interviews. When it was put to Mr Fraser that Mr Fitz Gerald wrote in his notes of Mr Springall’s interview of him saying “Council gutted” he did not recall saying this.
26 Mr Fraser conceded that he had a ‘prejudiced’ attitude towards the applicants’ actions prior to the interviews on 17 December 2008 given the details he had seen on the video.
27 Mr Fraser agreed that a number of the applicants stated in their interviews that they had been given permission by Ms Aimee Raecke to remove alcohol from the Centre and Mr Fraser stated that he did not contact Ms Raecke nor did he ask any other person to contact her after the applicants’ interviews. Mr Fraser stated that he was unaware that alcohol had been taken by the disc jockey (“the DJ”) at the end of the Function although as a result of what was said at the interviews he understood he had been given some alcohol.
28 Mr Fraser stated that taking two or three bottles of wine was more than a ‘roadie’.
29 Mr Fraser stated that at the end of the Function he told staff at the Centre that the remaining alcohol would be picked up on Monday.
30 Mr Fraser stated that he did not tell people at the end of the Function to take ‘a couple of roadies’ but he said that if they wanted to take some ‘roadies’ he did not have a problem with this. Mr Fraser agreed that the bar at the Function was an open bar and employees helped themselves to drinks and he confirmed that there were no constraints or limits on how much alcohol each person could consume. Mr Fraser said that he was observing people at the Function and in his view nothing occurred that required any checks on the amount of alcohol consumed to be put in place.
31 Mr Fraser gave evidence that he considered all options with respect to penalty when deciding to terminate the applicants. These options included suspension, termination on notice, ongoing employment with a reprimand and summary termination. Mr Fraser stated that he did not take into account the quantum of money the applicants would have received if they had been terminated on notice and he did not have any regard for their length of service and each applicant’s employment history when deciding that they should be terminated. Mr Fraser stated that he acted on Mr Fitz Gerald’s advice when deciding to terminate the applicants. Mr Fraser stated that each of the applicants was known to him and it was a difficult decision to terminate them however he had to make a decision in the respondent’s best interests.
32 Mr Fraser confirmed that Mr Mountford currently works as a contractor to the Shire but he believes that this does not present as an issue for the Shire as it was the employee/employer relationship between Mr Mountford and the Shire which had broken down. Mr Fraser stated that he was aware that Mr Mountford undertook some voluntary work in the local community for organisations connected to the Shire.
33 Mr Fraser said that he gave weight to the remorse shown by the applicants where relevant but as the video evidence showed that the applicants had acted in concert it was therefore appropriate to terminate all of the applicants. Mr Fraser said he also gave weight to the willingness of the applicants to return alcohol taken from the Centre.
34 Mr Fraser maintained that not all the applicants were forthcoming during their interviews. Mr Fraser believed that Mr and Ms Samata were defiant and Ms Todd made reluctant admissions. On the other hand Ms Cassidy, Mr Mountford and Mr Springall were forthcoming and whilst he gave them credit for their admissions he stated that they had the opportunity to come forward about the removal of the alcohol prior to their interviews but they did not do so and Mr Fraser stated that the failure of the applicants to volunteer information about the removal of the alcohol prior to the interviews in his view contributed to the breakdown of the relationship between the applicants and the respondent. Mr Fraser then confirmed that this proposition was not put to each of the applicants during their interviews.
35 Mr Fraser stated that the issue of the removal of alcohol from the Function was reported to local police but he could not recall if this was done before or after the Council meeting held on 16 December 2008. Mr Fraser stated that around this time he gave a copy of the video to police officers and preliminary advice from the police was that the removal of the alcohol from the Function was orchestrated. Mr Fraser agreed that he told Mr Samata at his interview that police had viewed the events at “the high end of the range” of theft and stated that he told him this by way of information and did not believe that this was putting additional pressure on Mr Samata and Mr Fraser denied that he was being intimidating at the time. Mr Fraser also stated that he may have said the same thing to Ms Todd.
36 Mr Fraser said that he viewed the video of the Function with Mr Fitz Gerald prior to the interviews with the applicants taking place and he asked him for advice on what to do given the circumstances. Mr Fraser stated that he believed it was appropriate to sit in on the interviews as he was the Shire’s CEO.
37 Mr Fraser stated that he was aware that the applicants would suffer losses as a result of being summarily terminated. Mr Fraser confirmed that none of the applicants had been subject to any previous disciplinary proceedings and Mr Fraser stated that even though this was the case and most were genuinely contrite this contrition was only shown after the issue of removal of the alcohol was raised with the applicants. Mr Fraser agreed that Ms Todd and Ms Cassidy visited him on the evening of 17 December 2008 to give him a letter indicating their remorse and regret (Exhibit A5).
38 Mr Fraser stated that he accepted that the applicants were being honest when they referred to Ms Raecke telling them they could remove alcohol but Mr Fraser said that when he spoke to the Centre’s coordinator Ms Hamilton on Monday 15 December 2008 she confirmed that no approval was given to anyone to remove alcohol from the Centre at the end of the Function. Mr Fraser stated that he did not make any further inquiries about this issue after the applicants’ interviews and before terminating the applicants.
39 Mr Fraser stated that the video of the events at the end of the Function was shown to the applicants in fast forward mode in parts to get to the relevant sections and he stated that each applicant was not asked to explain all of the events on the video and Mr Fraser stated that he believed that all of the applicants were acting in concert from the video footage. Mr Fraser stated that Mr Fitz Gerald had conduct of the investigation and he acted on his advice about the process and what was relevant. Mr Fraser stated that he did not follow up the removal of alcohol by the DJ but he then stated that he would have given him some wine as he did a good job.
40 Mr Fraser understood that Ms Samata was given wine outside of the Centre and it was on this basis that Mr Fraser believed that she was involved in removing alcohol from the Centre. Ms Samata also made admissions about removing alcohol from the Function during her interview. Mr Fraser did not believe that Ms Samata was being untruthful during her interview but he said it was a difficult interview as she was reluctant to name people and her body language and tone led to him forming an adverse view about the information she was giving him. Mr Fraser confirmed that he did not ask Ms Samata if she had stolen alcohol from the Function and he stated that Ms Samata made no admissions about stealing anything. Mr Fraser was aware from what was stated at the interviews that six people went back to Mr and Ms Samata’s house after the Function for a party and he agreed that it would have been okay to take a couple of bottles of wine with them but he was unaware that they were going to have another party subsequent to the Function until the interview. Mr Fraser then said it was okay to take a ‘roadie’ to drink on the way home compared to stockpiling alcohol to drink at a separate party afterwards.
41 Mr Fraser stated that Mr Samata was evasive during his interview and when Mr Fitz Gerald put it to Mr Samata that what he had done was stealing Mr Samata denied this was the case and said he just took a few drinks to ‘move on’.
42 Mr Fraser regarded the issue of alcohol being taken by Councillors as a separate issue and he said that he reviewed this issue after the applicants were terminated. Mr Fraser then said that there was no need to follow this issue up with Councillors as nothing untoward had happened with respect to their behaviour at the end of the Function.
43 Mr Fraser agreed that Ms Todd did not return any alcohol to the respondent and he stated that she was very remorseful. Mr Fraser agreed that Mr Mountford was truthful during his interview and that he has a history of working in the local community. Mr Fraser could not recall if he asked Mr Mountford if the alcohol at his house was to be on-sold as claimed by Mr Springall in his interview but he stated that Mr Mountford told him at his interview that the alcohol he had was to be taken to a work function at the deputy works supervisor Mr Frank Vallentine’s place later that week. Mr Fraser stated that this work function was authorised by him however this did not absolve Mr Mountford from stealing as he had no authority to remove the alcohol from the Centre. Mr Fraser agreed that Mr Springall was very nervous and remorseful during his interview and he was aware that he was grateful to be given the opportunity to work with the Shire. Mr Fraser stated that he did not take his personal circumstances into account when deciding to terminate Mr Springall but he focussed on the issues before him.
44 Mr Fraser denied that he took five ‘roadies’ with him when he left the Function and re-iterated that he only took two cans of UDL. Mr Fraser stated that there was some general monitoring of alcohol consumption at the Function and he stated that it was possible that people consumed considerable amounts of alcohol without him being aware that this was occurring.
45 Under re-examination Mr Fraser clarified what he meant when he said he went into the applicant’s interviews with a ‘prejudice’. Mr Fraser stated that he had the view that what the applicants had done was wrong however he had not made a decision to terminate any of the applicants prior to their interviews. Mr Fraser maintained that he did not have to speak to Ms Raecke prior to terminating the applicants to see if the removal of the alcohol from the Centre was authorised because she had no authority to give away the Shire’s alcohol.
46 Mr Fraser stated that the applicants were given the opportunity to put their point of view forward during their interviews and their evidence was then considered. Mr Fraser maintained that it was appropriate for him to be involved in the investigation because he had to decide if the applicants were to be terminated.
47 Mr Fraser stated that initially Mr Mountford tried to blame his wife for the removal of the alcohol and he stated that during his interview he did not mention anything about removing alcohol for a barbecue nor did he mention a discussion with Councillor Alderson.
48 Mr Ashley Maley is one of the Shire’s Councillors for the Lancelin area and Mr Maley went to and from the Function on the Lancelin bus. Mr Maley stated that when he left the Function he took approximately eight drinks for people on the bus including a soft drink for the bus driver and he put these drinks in a beer carton prior to leaving the Centre. Mr Maley stated that the drinks he took were a mixture of beer, UDLs and soft drinks and he stated that they were consumed on the bus on the way home. Mr Maley could not recall having a conversation with Mr Samata at the Function.
49 Under cross-examination Mr Maley stated that after the Council meeting held on 16 December 2008 he was shown a video of the end of the Function and Mr Maley recalled Mr Fraser saying that he was ‘gutted’ but that Councillors needed to view the video themselves. Mr Maley stated that after viewing the video he could not recall a number of Councillors saying that the employees involved should be sacked. Mr Maley stated that he did not seek permission from Mr Fraser to take ‘roadies’ from the Function and he stated that he took drinks for four people. Mr Maley could not recall anyone taking bottles of wine onto the bus.
50 Ms Raecke worked at the Centre on the night of the Function with her mother, Ms Hamilton who catered for the Function. Ms Raecke undertook waiting and cleaning duties at the Function. Ms Raecke stated that she did not speak to all of the applicants at the Function but she spoke to a number of employees during the Function. Ms Raecke stated that she did not give away any alcohol at the end of the Function because it was not hers to give away and she did not say to anyone that they could take or remove the alcohol. Ms Raecke stated that she was aware that the alcohol at the Function belonged to the Shire and Ms Raecke assumed that any left over alcohol would be picked up from the Centre at a later date. Ms Raecke stated that she recalled being asked who owned the alcohol and she replied that it was the Shire’s alcohol and she gave evidence that she did not tell anyone at the Function that if the alcohol was not removed she would take it.
51 Under cross-examination Ms Raecke said that she may have spoken to Mr Samata during the Function but she definitely recalled not speaking to him about the removal of alcohol from the Centre and she stated that nobody asked her if it was okay to remove alcohol. Ms Raecke denied saying that anything left over could be taken and she could only recall being asked who owned the remaining alcohol. Ms Raecke recalled speaking to Mr Mountford outside the Centre but she denied telling him that the alcohol had to go and could not remain at the Centre. Ms Raecke recalled speaking to some people at the Function after both buses had left the Function but she did not recall speaking to Mr Jason Cassidy. Ms Raecke also denied that she told anyone else that they could remove alcohol.
52 Ms Raecke stated the following about providing a crate:
“Now, you at one stage provided a crate, did you not, to … in the middle of the room, roughly, into which alcohol was being loaded?---Yes. I began the evening pack away (sic) the alcohol into the crates and from the conversations that went on around me, I then removed myself and started clearing tables because it became clear to me what was happening.
You didn't … well, let's go firstly to the question of what you did because you … you didn't immediately remove yourself, did you? You helped put the balloons on the crate?---I don't remember exactly what happened that night. It had been a long night.
Well - - -?---I remember, yes, getting two … there were two crates on the table, from memory. There was a big shelf of alcohol and I was clearing, packing away, which was my job to do, and then I removed myself and started emptying tables and … and clearing away rubbish and all the other jobs.”
(Transcript pp 174-175)
53 When it was put to Ms Raecke that she must have know what was being done in relation to the removal of the alcohol she stated that she spoke to her mother about this issue at the time but she did not know what was happening to the alcohol, the alcohol was not her responsibility and nor did she have the authority to tell the applicants to stop what they were doing. Ms Raecke stated the following:
“- - - it wasn't your alcohol?---I … I didn't say whether they could or they couldn't take it. I stated that the alcohol … what … I stated what I had … I knew at the time, that the alcohol belonged to the Shire of Gingin, that we did not provide the alcohol. We catered the food side and that the Gingin Shire provided the alcohol and I was under the assumption that they would be back to pick the rest up at a later date.
All right?---I didn't know what was happening to the alcohol afterwards.
All right. So, basically, your evidence is that all of these six people are wrong and you're right. That's the core of your evidence, isn't it?---I know that I didn't … I know (sic) that the alcohol wasn't my responsibility and therefore I did not tell them that they could take the alcohol.
So the answer is yes, that that's your evidence - - -?---Yes.
- - - you're right and six people are wrong?---Yep.
All right. Okay. I have no further questions, Commissioner.”
(Transcript pp 175-176)
54 Ms Raecke confirmed that she has known Mr Mountford and Ms McDonagh and their children for some years.
55 Mr Vallentine is the acting Principal Works Supervisor with the Shire and he went to and from the Function on the Gingin bus. Mr Vallentine stated that on the way home from the Function he did not see anyone on the bus with large quantities of alcohol and he only saw a few people getting onto the bus with an already open can of drink. Mr Vallentine did not see anyone removing large quantities of alcohol from the Function.
56 Mr Vallentine stated that he organised a barbecue to take place the Friday after the Function for staff working in his area and the Shire usually provides alcohol and he provides food. Mr Vallentine gave evidence that prior to attending Mr Mountford’s interview he was unaware that Mr Mountford was going to provide alcohol for the barbecue from what had been removed from the Function and he had not authorised this to occur.
57 Mr Vallentine gave evidence that he was directed by the CEO to go to the Centre the Monday following the Function to find out what had happened to the left over alcohol and he stated there was no alcohol left at the Centre. Mr Vallentine then viewed the video footage of the Function and after seeing what had occurred believed that the video footage should be shown to Mr Fraser.
58 Mr Vallentine attended three of the interviews which took place on 17 December 2008. Mr Vallentine stated that Mr Samata was adamant that he had not done anything wrong and that he had been given the alcohol to take away. Mr Springall was upset and remorseful and Mr Mountford was also remorseful but he tried to shift the blame for the removal of the alcohol onto his wife. Mr Vallentine confirmed that after the applicants were interviewed he collected alcohol taken from the Function from the houses of Mr Samata, Mr Springall and Mr Mountford. When asked about his views on these three employees being reinstated Mr Vallentine stated that he has to be able to trust the people he works with and what Mr Mountford, Mr Samata and Mr Springall had done was a breach of trust. Furthermore, there were no positions available with the Shire at present for them to undertake.
59 Under cross-examination Mr Vallentine stated that he was an impartial observer at the interviews he attended on 17 December 2008 and he stated that he played no part in the interviews. Mr Vallentine stated that he was invited to attend the interviews by Mr Fraser as he was the line supervisor of Mr Mountford, Mr Samata and Mr Springall.
60 Mr Vallentine stated that prior to the applicants being terminated on 17 December 2008 he was asked for his opinion about whether Mr Mountford, Mr Samata and Mr Springall had breached the respondent’s trust and Mr Vallentine said he saw their actions at the end of the Function as a breach of trust. Mr Vallentine said he was aware that Mr Mountford had made contributions to the community but this did not alter his decision. When it was put to Mr Vallentine that the removal of alcohol was an isolated event which would not reoccur he said that he was a black and white person and even though only one mistake had been made by Mr Mountford, Mr Samata and Mr Springall it was a blatant breach of trust as alcohol was unlawfully removed. Further, if the employees involved were unsure about removing the alcohol they should have volunteered information about the removal of alcohol from the Function prior to their interviews. Mr Vallentine could not recall if the video footage of the events of the Function was played at the interviews he attended however he stated that Mr Samata said he did not need to see any footage.
61 Mr Fitz Gerald is the Shire’s Industrial Relations and Human Resources consultant. Mr Fitz Gerald was asked by Mr Fraser to assist with the investigation into the removal of alcohol from the Function. Mr Fitz Gerald stated that when he was asked to assist with this investigation he was told that there was compelling evidence about the removal of the alcohol and Mr Fraser told him that a video from the Centre confirmed that when most people had left the Function alcohol had been removed by a number of staff and he had discovered this when employees went to pick up the remaining alcohol from the Centre the following Monday. Mr Fitz Gerald gave evidence that he told Mr Fraser to arrange a meeting with each employee concerned, tell them that the Shire had compelling video evidence about the removal of alcohol, to show them the video if they wanted to see it and advise them that they did not have to respond to what was on the video immediately and they could get advice or representation prior to making any comments about the issue. Mr Fitz Gerald stated that this was the procedure followed at each interview. Mr Fitz Gerald stated that the Shire ensured that each applicant’s supervisor was present at each interview and he stated that at the end of each interview each applicant was told that they were suspended from work pending further investigation.
62 Mr Fitz Gerald stated that after the applicants were interviewed meetings were held with their supervisors and they were asked for their views about whether or not the employment relationship was capable of continuing with each applicant in light of the events which had taken place at the Function. Mr Fitz Gerald also told each supervisor that the issue of diminished responsibility on the part of the applicants as a result of their alcohol intake should be considered. Each supervisor stated in turn that the conduct of the employees was serious and had led to an irretrievable break down in the relationship of trust and confidence between them and each employee and they would therefore not be comfortable with them back in the workplace as employees. Mr Fitz Gerald stated that Mr Fraser was struggling with what had occurred and wanted to speak to the Shire President about the incident and Mr Fitz Gerald understood that the Shire President told Mr Fraser that he saw the employees’ conduct as being serious and sufficient to warrant termination and he would support whatever decision Mr Fraser made. Mr Fitz Gerald said after speaking to the applicants’ supervisors and considering each applicant’s situation Mr Fraser decided to terminate the applicants. Mr Fitz Gerald stated that he told Mr Fraser that he was entitled to summarily terminate each applicant in light of their behaviour.
63 Mr Fitz Gerald stated that notes he made of the interviews reflected what was said at each applicant’s interview (Exhibit R2 document 12).
64 Mr Fitz Gerald stated that at his interview Mr Mountford said that he was surprised at the amount of alcohol his wife removed from the Function. Mr Fitz Gerald confirmed that Ms Todd was interviewed twice and on the second occasion she denied that she had an agreement with Ms Cassidy to share the wine they had removed from the Centre. Mr Fitz Gerald stated that Mr Springall was upset, open, frank and distraught during his interview. Mr Samata was defiant and he maintained that the alcohol taken from the Centre belonged to employees and they could do with it what they wanted. Mr Fitz Gerald described Ms Samata as being uncooperative, cavalier, unrepentant and evasive.
65 Under cross-examination Mr Fitz Gerald denied that he was appointed to investigate the removal of alcohol from the Function and he stated that he assisted Mr Fraser with his investigation. Mr Fitz Gerald stated that at each interview he asked questions of each applicant on behalf of the Shire and Mr Fitz Gerald stated that at the commencement of each interview he told each applicant that the Shire had video evidence of the events at the end of the Function which was compelling and he and Mr Fraser wanted each employee to look at it before deciding whether they wanted the interview to proceed and respond. The applicants were also asked whether they wanted to get advice before discussing the issues being raised with them. Mr Fitz Gerald stated that each applicant was then asked if they wanted to view the video and some agreed to look at the video and others did not. Mr Fitz Gerald stated that he did not tell the applicants that their employment was in jeopardy however he understood that this was conveyed to the applicants by Mr Fraser during the course of the interviews given the nature of the discussions at each interview. Mr Fitz Gerald confirmed that Mr Fraser told some of the applicants that he felt ‘gutted’ and that the Council was ‘gutted’. Mr Fitz Gerald stated that Mr Fraser did not say to him that he believed the applicants were guilty of theft and Mr Fitz Gerald denied that the applicants were not offered representation and were told their supervisors might fulfil this role and he denied that the applicants were not offered the opportunity to obtain advice. Mr Fitz Gerald stated that he did not explain to each applicant the significance of viewing the video footage and that it would be relied upon by the respondent however he did say to the applicants that this was the evidence that the Shire had in its possession relating to the incidents that took place at the end of the Function and it was compelling and this should have been clear to them.
66 Mr Fitz Gerald agreed that some of the applicants told him and Mr Fraser that Ms Raecke had given them authorisation to remove alcohol from the Function and he confirmed that this was not verified prior to terminating the applicants on the basis that the proposition that a staff member from the Centre had authorised the applicants to take the Shire’s property was too far fetched to contemplate. Mr Fitz Gerald stated that from what was stated at the interviews it was clear that most of the applicants had two interwoven stories, one which was true whereby all the applicants admitted to removing alcohol from the Function and one which was untrue whereby each applicant claimed that a young staff member from the Centre had given them authority to remove alcohol from the Function. Mr Fitz Gerald stated that he considered that the applicants had colluded about saying Ms Raecke had given them the authority to remove alcohol from the Function but he confirmed that this was not put to the applicants.
67 Mr Fitz Gerald stated that when Mr Fraser initially contacted him about the removal of the alcohol he told him that he had referred the applicants’ behaviour to the police. Mr Fitz Gerald stated that during at least one of the interviews Mr Fraser referred to police viewing the video footage and saying it was at the ‘higher end’ and Mr Fitz Gerald understood this to mean that there was a strong case for a conviction based on theft. Mr Fitz Gerald stated that Mr Fraser had not discussed this issue with him prior to the interviews taking place and it was his view that given the processes they went through at the interviews that Mr Fraser had not drawn any conclusions about terminating the applicants until around 5.00pm on 17 December 2008.
68 Mr Fitz Gerald stated that after the interviews were held on 17 December 2008 a number of options were discussed between Mr Fitz Gerald, Mr Fraser, Mr Vallentine, Ms Lisa Edwards and Ms Kaye Lowes, the Shire’s Acting Deputy Chief Executive Officer. Mr Fitz Gerald stated that he said to them that they needed to consider all options from a caution through to summary termination. Mr Fitz Gerald stated that they discussed whether or not it was appropriate to terminate the applicants on notice, the financial impact of a summary termination on the applicants, the timing of the terminations was considered being one week before Christmas, the effect of terminating two people from the one family, the length of service of each of the applicants, the quality of the service that they provided to the Shire, remorse and the volume of alcohol removed and returned. Mr Fitz Gerald stated that Mr Fraser made the decision to terminate the applicants on behalf of the Shire after discussing these issues with all the applicants’ supervisors.
69 Mr Fitz Gerald agreed that the amount of alcohol removed from the Centre by each applicant was a consideration but he maintained that the decision to terminate the applicants was not based on a nil tolerance policy. Mr Fitz Gerald claimed that the applicants had been subject to a fair process and he stated that he made sure that the decision to terminate the applicants took into account a range of factors and the seriousness of the actions of each individual was assessed rather than being viewed collectively.
70 Mr Fitz Gerald confirmed that prior to Mr Fraser deciding to terminate the applicants he contacted the Shire President because he had a duty to liaise with the Shire President under local government legislation about serious issues affecting the Shire.
71 Mr Fitz Gerald understood that the deliberations about whether or not the applicants should be terminated took place over approximately two hours and he stated that no further investigations were undertaken during this period. Mr Fitz Gerald stated that Mr Vallentine was asked to consider whether or not the employment relationship with the employees he supervised had irretrievably broken down given what he had seen and heard about the events and he was told that he needed to look at the seriousness of the conduct of the individuals and assess whether there was trust and confidence left in the relationship. Mr Fitz Gerald stated that Mr Vallentine discussed each of the individuals concerned, he considered Mr Samata’s service and conduct as part of his considerations and he said that he could rely on Mr Samata doing what was asked of him however he was an abrasive employee. Mr Fitz Gerald denied that these issues should have been put to Mr Samata. Mr Fitz Gerald stated that consideration was given to apologies made by the applicants however consideration was also given to the fact that prior to their interviews the applicants had not volunteered that they had removed the alcohol from the Function, in particular Ms Cassidy and Ms Todd.
72 Mr Fitz Gerald understood that after considering a range of factors Mr Fraser concluded that as all of the applicants had stolen the alcohol their terminations were therefore appropriate.
73 Mr Fitz Gerald recalled that Mr Samata was defiant and abrasive during his interview and he was reluctant to name people but he did not believe that Mr Samata was lying and he confirmed that Mr Samata denied stealing the alcohol. Mr Fitz Gerald stated that Mr Samata did not mention that he had been told by staff at the Centre that he could remove the alcohol. Mr Fitz Gerald stated that even though Ms Cassidy, Ms Todd and their partners and Mr and Ms Samata planned to have a party after the Function as this was a private party it was inappropriate to consume the Shire’s alcohol at this party. Mr Fitz Gerald stated that even if Mr Mountford had stated during his interview that some of the wine he had was to be donated by his wife to the darts club this was irrelevant. Mr Fitz Gerald also stated that the applicants were not asked at their interviews what they intended to do with the alcohol they removed from the Centre as this was irrelevant to the issue that the applicants had stolen alcohol from the Shire. Mr Fitz Gerald did not recall putting to Mr Springall that the applicants “formed a group and ransacked all the alcohol” and Mr Fitz Gerald denied referring to Ms Todd as being stupid and/or dumb during her interviews.
74 Ms Lowes was the Acting Deputy CEO of the Shire in December 2008 and she is currently the Shire’s Manager of Financial Services. Ms Lowes left the Function at around 10.00 pm. Ms Lowes stated that she did not give Ms Raecke any authority to give away the Shire’s alcohol. Ms Lowes confirmed that after the Council meeting held on 16 December 2008 she saw video footage of the Function being shown to Councillors and Ms Lowes stated that she attended the interviews with Ms Samata and Ms Cassidy on 17 December 2008 in her role as their supervisor. Ms Lowes stated that she was there as a spectator/witness and had no other involvement in the interviews.
75 Ms Lowes stated that after Ms Cassidy’s interview she and another Shire officer went to her house to collect the alcohol she had removed from the Centre.
76 Ms Lowes confirmed that Ms Samata was upset when she left her interview and she said in a very loud voice after she left Mr Fraser’s office that “This is effing ridiculous. It was just a couple of bottles of wine.”. Ms Lowes attended a meeting along with Mr Fraser, Mr Fitz Gerald, Mr Vallentine and Ms Edwards after the applicants were interviewed and she was asked for her views about the applicants’ actions and whether she felt the employees could remain employed by the respondent given what had transpired. Ms Lowes stated that a series of factors were discussed including whether the applicants were remorseful, the amount of alcohol removed by each of the applicants and their length of service. Ms Lowes maintained that she could not see Ms Samata and Ms Cassidy returning to employment with the Shire as a result of their actions at the Function given they believed that it was right to take the alcohol because the Shire had paid for it. Ms Lowes gave evidence that it would be inappropriate to reinstate the applicants as no positions are currently available with the Shire and when taking into account the events which occurred at the Function and the reasons for the applicants’ terminations.
77 Under cross-examination Ms Lowes stated that she attended the interviews not as a representative of the two employees but as their supervisor and she confirmed that when she contacted Ms Cassidy and Ms Samata to say the CEO wanted to meet with them in his office she did not advise them of the purpose of the meeting.
78 Ms Lowes stated that Ms Samata was not shown video footage of the end of the Function and she did not recall Ms Samata being expressly told during her interview that her ongoing employment with the respondent may be in jeopardy. Ms Lowes stated that both Ms Cassidy and Ms Samata were initially advised that they did not have to answer any questions and they could leave and obtain representation but Ms Lowes could not recall if Ms Samata was told that the removal of the alcohol constituted theft.
79 Ms Lowes recalled that after the Council meeting held on 16 December 2008 Councillor Alderson stated that it was okay for Mr Mountford to remove alcohol as he was taking it to another “meeting”.
80 Ms Lowes stated that at the meeting held after the applicants’ interviews a number of options were canvassed including terminating the applicants on notice as well as summary termination. Ms Lowes stated that she was told by Mr Fitz Gerald that if an employee is summarily terminated they would not be paid notice and would lose their leave entitlements.
81 Ms Lowes said that she agonised over the decision to terminate Ms Samata and Ms Cassidy.
82 Ms Lowes maintained that the remorse shown by each of the applicants was considered as much as the quantity of alcohol removed as well as other factors. Ms Lowes stated that some of the applicants who were most remorseful took large quantities of alcohol and applicants who were not remorseful took small quantities however they were still involved in removing alcohol. Ms Lowes stated that Ms Samata was not remorseful and even if she was this would not have changed the outcome and Ms Lowes stated that Ms Samata did not acknowledge that the wine was not hers to take. Ms Lowes agreed that Ms Samata had given good service to the respondent and that Ms Samata had not been subject to any disciplinary processes and she had a reasonable length of employment with the Shire. Ms Lowes stated that as Ms Samata knowingly took the Shire’s property she could not return to work with the respondent and be exposed to other Shire property where she may feel she had the right to do exactly the same thing. Ms Lowes then agreed that Ms Samata was an honest person and that she had worked with her for a considerable period and she made her decision based on her actions at the Function.
83 When it was put to Ms Lowes that authority was given by Ms Raecke to remove alcohol from the Function she stated that this was not relevant as Ms Raecke was not an employee of the Shire and the applicants knew the alcohol was the Shire’s property and they could not help themselves to it without proper authority. As Ms Samata had been employed by the Shire for a number of years she was aware of what was right and wrong.
84 Ms Lowes stated that she could not trust Ms Samata in the future as the removal of the alcohol was a serious event, the alcohol was removed from the Centre without authority after no one in authority was left at the Function and she believed the removal of the alcohol constituted theft. Ms Lowes stated that the quantity of alcohol removed was irrelevant as all the applicants had been present and no one volunteered that they had removed the alcohol prior to being interviewed on 17 December 2008. Even if Ms Raecke had authorised the removal of the alcohol Ms Lowes believed that the actions of Ms Samata were wrong.
85 Ms Lowes stated that she did not believe it was relevant to contact Ms Raecke prior to deciding the applicants’ ongoing employment. Ms Lowes then recalled that after the interviews were finished and before a decision was made to terminate the applicants Mr Fraser telephoned Ms Hamilton and she told him that no one had given approval for the alcohol to be removed from the Centre.
Applicants’ evidence
86 Ms Todd gave evidence that when she was terminated by the respondent she was living in accommodation provided by the Shire and therefore only paying $75 per week rent and after she was terminated the Shire required her to move out of the house by 17 February 2009. Ms Todd is now paying $190 per week in rent (Exhibit A2).
87 Ms Todd gave evidence that prior to her termination no issues were raised by the respondent about her employment.
88 Ms Todd stated that when she attended the Shire’s Christmas function in 2005 Mr Fraser gave an employee’s husband a carton of beer “to go and enjoy to (sic) drink” and at another function in 2007 employees took garbage bags full of alcohol on the bus taking people home from this function and Mr Fraser was on this bus.
89 Ms Todd gave evidence that no limits were placed on the amount of alcohol consumed at the Function nor was there any monitoring of alcohol consumption. Ms Todd stated that she consumed four bottles of wine at the Function.
90 Ms Todd maintained that when people left on the buses towards the end of the Function she saw people “coming inside the building and taking alcohol; weren't taking quantities, but they were taking some alcohol out of the fridges” and she stated that she saw Councillor Anita Jarvis leaving the Centre with bottles of wine in her arms. Ms Todd also saw Councillor Maley leave with a carton however she did not see him filling up this carton. Ms Todd gave evidence that Mr Fraser issued no instructions to her at any time about any alcohol she could or could not take from the Function. Ms Todd stated that after the buses left the Centre no one was left in charge.
91 Ms Todd stated that as she was leaving the Function she took two bottles of wine with her but she dropped one of them.
92 Ms Todd said that Ms Raecke told her that the remaining alcohol was staying at the Centre so they could take it and crates were brought out by Ms Raecke to put the alcohol in and Ms Todd stated that Mr Cassidy asked Ms Raecke on more than one occasion if they were allowed to take the alcohol and in response she said yes.
93 Ms Todd said that after the crate of alcohol was put in the boot of Ms Cassidy’s vehicle she did not see this alcohol again.
94 Ms Todd stated that after the Function she went to Mr and Ms Samata’s house for a party along with Mr and Ms Cassidy and she gave evidence that none of the alcohol from the Function was removed from Ms Cassidy’s vehicle when they arrived at Mr and Ms Samata’s house. Ms Todd stated that after approximately 15 minutes Ms Cassidy was feeling unwell and she and her partner left and Ms Todd left an hour later.
95 Ms Todd maintained that she did not collude with others to remove alcohol from the Centre, she did not discuss who would be receiving what alcohol and she stated that they were only taking what they thought they were allowed to take. Ms Todd stated that when she returned home after the Function she did not have any alcohol in her possession.
96 Ms Todd stated that Ms Edwards escorted her to her interview on 17 December 2008 and she was unaware why this meeting was being held. Ms Todd gave evidence that she was not told at the commencement of the meeting that her job was in jeopardy or the purpose for being at the meeting but she was told she could have a representative but felt she did not need one. Ms Todd stated that Mr Fitz Gerald played the video of the events of the end of the Function and asked her to explain what had happened and she gave an honest account of what occurred. Ms Todd told Mr Fitz Gerald that Ms Raecke had told them they were allowed to remove the alcohol left at the Centre as this alcohol was staying at the Centre. Mr Fraser told her that police had been contacted about the incident and the respondent had advice that it was on the high level of theft. Ms Todd said that Mr Fitz Gerald asked most of the questions and at one stage he asked her if she was dumb and she stated that she found the way he questioned her was humiliating. Ms Todd believed that Mr Fraser and Mr Fitz Gerald were trying to manipulate her words by repeatedly asking her the same questions to try to get her to change her answers. Ms Todd stated that during her interview Mr Fitz Gerald told her that if she was convicted of theft by the police she would no longer be able to work in local or state government. Ms Todd stated that at the end of the interview she was told she was to be stood down.
97 Ms Todd was called back for a second interview later that afternoon and she was told that she had not mentioned using a crate and in response she stated that a crate was used to carry alcohol to Ms Cassidy’s vehicle and Ms Raecke had given her the crate. Later that afternoon Mr Fraser rang Ms Todd and told her that she was terminated and Ms Todd stated that at the time she was not given any opportunity to give feed back about the respondent’s decision to terminate her.
98 Ms Todd maintained that Ms Hamilton was aware that alcohol was being removed from the Centre in crates and she was present when this removal was taking place.
99 Ms Todd stated that several weeks after her termination she was contacted by police who asked her to make a statement about the removal of alcohol from the Function which she did and she was later told by police officers that they were not pursuing charges against her.
100 Ms Todd was stressed and unwell as a result of her termination and having to obtain alternative accommodation and employment in Gingin subsequent to her termination was also difficult. Ms Todd made several applications for employment subsequent to her termination. She applied for two positions with the Shire of Chittering, one at the Bendigo Bank, several at schools and one Catholic Agricultural College. Ms Todd eventually obtained casual work at the Muchea General Store between 12 January 2009 and September 2009 earning $20 per hour. Ms Todd obtained a full-time dental receptionist position in September 2009, earning $18 an hour. In October 2010 she commences employment as a relief teacher assistant working in Gingin and Two Rocks. Ms Todd wants to be reinstated to her former position.
101 Under cross-examination Ms Todd said that towards the end of the Function when she went outside with two bottles of wine and dropped one Ms Raecke approached her and asked what she was doing and Ms Todd replied that she was taking the wine outside to continue drinking. In response Ms Raecke told her what was left at the Function was going to stay there and that “we could take what was left there”. Ms Todd understood this meant that the alcohol had been paid for and they could take what they wanted and Ms Raecke then gave her a crate to remove alcohol. Ms Todd stated that Ms Raecke knew what they were doing with the alcohol and where they were taking it. When it was put to Ms Todd that Ms Raecke had said they could take alcohol outside to drink and that she had not said that Ms Todd could take the alcohol home Ms Todd agreed that Ms Raecke did not say they could take the alcohol home however she stated that “I had been told that what was there we could remove and when handed a crate that meant that we could put in that alcohol to take home”. Ms Todd then stated that even though she had been drinking all night at the Function and was intoxicated she remembered the events of the evening. Ms Todd recalled Ms Raecke telling Mr Cassidy on several occasions that they could remove alcohol and Ms Todd said that as Ms Raecke was the only remaining staff member she understood she was authorised to give away the Shire’s property. Ms Todd confirmed that she assisted carrying a crate of alcohol away from the Centre but she was unaware how many bottles were in the crate. Ms Todd stated that at no stage did she take any wine home, neither did she admit to doing so during the interviews on 17 December 2008. Ms Todd stated that she and Ms Cassidy had no intention of distributing the wine Ms Cassidy had in her car and that this was not spoken about and if Ms Cassidy said this during her interview she was lying. When asked why she took the alcohol Ms Todd said that she was drunk and it was possibly to drink later.
102 Ms Todd admitted in her interview that she took four bottles of wine to Ms Samata’s house and Ms Todd gave evidence that she was unaware who owned this wine but she assumed that it belonged to the Shire. Ms Todd stated that she took alcohol from the Centre because Ms Raecke told her the alcohol had to go, the Shire had paid for it and she offered to get Ms Todd a crate. Ms Todd said that Mr Cassidy and her husband also asked Ms Raecke if it was okay to remove the alcohol. Ms Todd stated that she also questioned Ms Raecke and asked if she was sure that they could take the alcohol and she said yes.
103 Ms Todd gave evidence that by the time she was interviewed about the alcohol she was aware that she could not take the wine but she said she had taken alcohol from other work parties previously and so she did not see it as being an issue until her interview took place.
104 Ms Todd claimed that the reference in Mr Fitz Gerald’s notes that she said that she was not drunk was incorrect as she did not say that. Ms Todd stated that even though she was drunk at the end of the Function this did not mean that she did not remember what had occurred. Ms Todd stated that she could not recall saying at her interview that she did not know definitely if they were allowed to take the alcohol. Ms Todd maintained that Mr Fraser’s and Mr Fitz Gerald’s notes of her interview did not reflect all that she said. For example she claims that Mr Fitz Gerald called her dumb and stupid and this was not recorded in his notes. Ms Todd stated that she was not aware of the purpose of her interview prior to it commencing and she stated that at her interview she was asked for an explanation of what was taking place in the video footage and she gave an honest account. Ms Todd then stated that she could not recall if she was advised that she could have a representative at the meeting.
105 Ms Todd stated that she did not know Ms Raecke but asked her if it was okay to take the alcohol and she did not think to ask her if she had the authority to give the alcohol away. Ms Todd was of the view that she was in authority at the Function as she was the only staff member present and no one from the Shire remained at the Function and Ms Todd later said that on reflection she did not believe Ms Raecke had authority to give away the alcohol. Ms Todd said she possibly said to Mr Mountford that she was not sure if he was allowed to take all of the alcohol contained in a crate he had.
106 Ms Todd conceded that she helped Ms Cassidy remove alcohol from the Centre but she maintained that there was no discussion between them about distributing this alcohol and she stated that she intended to consume some of the alcohol. Ms Todd stated that the letter of apology she and Ms Cassidy wrote to Mr Fraser subsequent to their terminations acknowledges that they both took alcohol from the Function. Ms Todd said that she was unaware of how many bottles were in the crate she and Ms Cassidy removed from the Centre. Ms Todd stated that wine was removed to consume at Ms Samata’s house and she was unaware how many people were going to be at that party. Ms Todd stated that even though she has retrained as a teacher’s assistant it is part-time relief work and she still wishes to return to her previous employment with the Shire.
107 Under re-examination Ms Todd said that even though she was drunk at the end of the Function she recalled speaking to Ms Raecke and she had a clear recollection of what Ms Raecke told her. Ms Todd understood that as Ms Raecke was a staff member at the Centre she therefore had authority to give away the alcohol.
108 Ms Samata stated that during her employment with the respondent she had not been subject to any disciplinary proceedings nor were any complaints made about her performance, she had only been praised.
109 Ms Samata stated that she attended the Shire’s Christmas function in 2007 and on that occasion the bar was controlled by staff and alcohol was taken home by participants from that function.
110 Ms Samata stated that she and Mr Samata arrived at the Function around 7.30pm and people helped themselves to drinks and she mingled with others guests. Ms Samata drank five to six cans of UDL at the Function. Mr Samata wanted to leave at 10.30pm but as she did not want to go they stayed and at approximately 11.15pm Mr Samata told her that he wanted to leave. Ms Samata asked him if it was alright for Ms Todd and Ms Cassidy to come back to their place and he agreed and Ms Samata stated that at this point both the Gingin and Lancelin buses had left the Function. Ms Samata said that at 11.30pm Mr Samata came out of the Centre carrying wine under his arm while she was outside having a cigarette. When she asked him what he was doing with the bottles of wine plus some beer he told her that staff at the Centre had told him it was okay to take it. Ms Samata stated that Mr Samata then went back into the Centre and when he came outside he gave her two bottles of wine which she carried along the footpath for approximately 15 metres and then put them down. Mr Samata then went to get the car and when he returned he loaded the alcohol into their vehicle and he asked where the others were. Ms Samata went inside the Centre and told Ms Todd and Ms Cassidy that they were leaving and after she returned to the car they waited for them. Mr Samata then told her that they would wait for them at the road junction which they did. Ms Samata stated that at approximately 12.30 am Ms Cassidy went to sleep on one of their beds as she was intoxicated and Mr Cassidy then wanted to leave. Ms Todd and her partner left at around 3.00am and Ms Samata stated that no alcohol was consumed once they returned home.
111 Ms Samata stated that on 17 December 2008 Ms Lowes told her that Mr Fraser wanted to speak to her and she was not given any indication as to the purpose of this meeting. Ms Samata gave evidence that at her interview Mr Fraser introduced Mr Fitz Gerald and he asked her if she knew why she was there and she said no. Mr Fraser then told her that the meeting was about the removal of alcohol from the Function and he told her that she could have a representative present but she did not think that was necessary. Mr Fraser then told Ms Samata that Ms Lowes was attending the meeting as a witness. Ms Samata stated that Mr Fraser told her that he was gutted and the Council was gutted about the removal of alcohol from the Function, that the removal of the alcohol was a premeditated rampage and after seeing the video footage of the Function police believed that it was on the high scale of theft. Ms Samata stated that even though she was told that the Shire had video footage of the events of the end of the Function she was not asked if she wanted to view the video. When Ms Samata was asked what her role in the removal of the alcohol was and who took what and what did she see she told them that “I don’t know who took what. I was outside having a smoke at the time” (T236). Ms Samata gave evidence that she stated at the interview that she did not see Ms Todd and Ms Cassidy putting a crate of alcohol into a car. Ms Samata then told Mr Fraser and Mr Fitz Gerald that she did not take any alcohol from the Function but she was given alcohol by Mr Samata. Ms Samata stated that Mr Samata took five bottles of wine and three stubbies of beer from the Centre and told them that Mr Samata does not drink. Ms Samata stated that she did not name anyone at the interview but she did not see anything in any event. Ms Samata stated that it was not put to her at her interview that she had stolen any alcohol nor did she admit to stealing alcohol and the only reference in this regard was to police referring to the removal of alcohol being on the high scale of theft. At the end of her interview Ms Samata was stood down on full pay and she was told that the matter would be resolved in approximately three days. Ms Samata stated that at the time she was very upset.
112 Ms Samata stated that approximately three hours later she received a phone call from Mr Fraser and he told her that after a full investigation he had lost trust in her and she was terminated. After she queried how he had arrived at the decision he told her that she had an opportunity to speak up about the removal of alcohol from the Function but did not do so.
113 Approximately six weeks later Ms Samata received a call from a police officer who asked her to attend an interview about the removal of the alcohol from the Centre and she told them that she had carried two bottles of wine along a footpath. After this interview she received a phone call from police who told her that no charges would be laid.
114 Ms Samata gave evidence that she was devastated by her termination. Ms Samata stated that Gingin is a small town and word spreads quickly and as result of her termination she felt that she could not go into town for four weeks. Ms Samata’s children were also asked about her termination and she stated that she and Mr Samata were being branded as thieves. Six weeks after her termination Ms Samata commenced employment at the Loose Leaf Lettuce Company on a part-time basis and she is now working there full-time and she remains in this position. Ms Samata wants to be reinstated to her former position. She maintains that she did not do anything wrong, she has a good work ethic, she would have no difficulty working with her former colleagues and she believes that her relationship with the Shire could be restored as employees know her and they know she has been accused of something she would not do.
115 Under cross-examination Ms Samata stated that when Mr Samata came outside of the Centre whilst she was outside having a cigarette he was carrying three bottles of wine and some stubbies of beer and she was unsure if Mr Samata returned to the Centre with the bottles or how many bottles he had in the car. Ms Samata stated that Mr Samata put the alcohol in the car after the Function, not her. Ms Samata stated that when she arrived home after the Function she noticed five bottles of wine as well as some stubbies on the kitchen bench.
116 Ms Samata stated that she told the truth during her interview. That is she did not take any alcohol home but she carried two bottles of wine along the footpath and she saw Mr Samata put them into their car. Ms Samata knew that the wine belonged to the Shire but she understood Mr Samata had been given permission to remove the alcohol. Ms Samata said she was concerned about Mr Samata’s actions because he did not drink however she understood that Mr Fraser said that they could take a ‘roadie’. When she questioned Mr Samata about the alcohol she understood that Mr Samata had taken it because she had asked people back to her house to carry on the party and she understood Mr Samata has asked the Centre staff if it was alright to remove alcohol.
117 It was put to Ms Samata that it was not recorded in either Mr Fraser’s or Mr Fitz Gerald’s notes of her interview that Mr Fraser stated that both he and the Council were gutted however Ms Samata reiterated that Mr Fraser had said this during her interview. Ms Samata stated that when Mr Fraser contacted her to terminate her he told her that the Shire had thoroughly investigated the matter and there had been a thorough police investigation.
118 Ms Samata stated that she saw a black crate being carried out of the Centre but she did not know what was in it and when asked why she did not question the people removing the crate she stated that she was not responsible for the actions of anyone else and it was a Christmas function and a lot of alcohol had been consumed. Ms Samata did not see the crate being loaded into the Cassidy’s car, nor did she take any wine from this crate. When it was put to her that Ms Cassidy stated at her interview that she had taken a couple of bottles of wine from this crate she denied that this occurred and reiterated that she did not remove any alcohol from the Centre. Ms Samata stated that she did not see Mr Mountford or Ms Fiona McDonagh loading any alcohol into a vehicle. Ms Samata reiterated that when Mr Samata came outside whilst she was having a cigarette he told her that staff at the Centre had told him that it was okay to remove alcohol and she was unaware of what was happening inside the Centre at the time. Ms Samata stated that at the time these events occurred staff were cleaning up the Centre.
119 Ms Samata clarified the contents of her application. Ms Samata stated that she did not have a conversation with staff at the Centre about removing alcohol and she had never been given any express authority to remove alcohol from the Centre. She did not take any alcohol home and it was Mr Samata who sought this confirmation and then removed alcohol.
120 Ms Samata stated that she was unaware that Ms Cassidy and Ms Todd were removing large amounts of alcohol from the Centre and Ms Samata then stated that she saw them carrying a crate as she followed them when walking out to her car however she did not know what was in the crate. Ms Samata stated that she carried two bottles of the wine removed by Mr Samata from the Centre as she understood they were ‘roadies’ and Ms Samata stated that she does not drink wine.
121 Ms Samata stated that she only became aware of what the interview held on 17 December 2008 was about after she arrived at Mr Fraser’s office and Ms Samata did not believe that the issue was serious at the time because she had not done anything wrong. Ms Samata did not admit to removing any wine or beer at the interview however she did say that she did not see Ms Cassidy or Ms Todd with a crate which was incorrect. Ms Samata said that she was taken aback by the events of the meeting and she did not want to get them into trouble because maybe they had done something wrong. Ms Samata stated that despite what she said at her interview she did not have any conversations with staff at the Centre and she did not recall saying at her interview that everyone else was taking alcohol. Ms Samata was aware that the alcohol at the Function was owned by the Shire.
122 Ms Samata stated that she did not refuse to say at her interview who had told her that Councillors had taken alcohol from the Function. Ms Samata stated that she was aware that only an authorised officer of the Shire could have permitted the removal of alcohol and that was why she questioned Mr Samata about removing alcohol from the Centre. Ms Samata was unaware if staff at the Centre had been authorised by the Shire to give permission to people to remove the alcohol.
123 Ms Samata said that she “was in such a mess” (T249) after her termination that she did not immediately apply for work. Ms Samata was then offered a position with the Loose Lettuce Leaf Company which she took up and in May 2010 she applied for a position at the Shire of Chittering but she was unsuccessful. Ms Samata stated that at one point during her employment with the Shire she supervised up to eight employees.
124 Mr Samata has not been given any warnings whilst employed by the Shire.
125 Mr Samata stated that he attended the Shire’s Christmas function in 2007 and a barperson served alcohol to patrons and he was aware that at the end of the evening employees removed substantial amounts of alcohol.
126 Mr Samata said that because he was a non-drinker he drove to the Function and whilst there he mingled with colleagues. Mr Samata said that towards the end of the evening and prior to the buses leaving he saw Councillor Maley filling up a box with drinks and told him to take it easy as people were still left at the Function and Mr Maley responded by saying “Ssh, don’t tell anyone” and he then left on the bus returning to Lancelin. Mr Samata wanted to leave the Function but Ms Samata wanted to stay and later in the evening Ms Samata asked him if it was okay to invite people back to the house and he agreed. When they were ready to leave the Function Mr Samata approached Ms Todd and Ms McDonagh and asked them if they were ready to go and Ms Todd invited him to take some drinks. Mr Samata asked her if they were allowed to do this and she responded by telling him that staff at the Centre had said it was okay as it had been paid for and “it’s ours” (T255). Mr Samata then approached Ms Raecke and asked her about the alcohol and she told him that the remaining alcohol was able to be taken as it was left over so he could help himself and he gave evidence that he twice asked her this question and she gave the same response. Mr Samata stated that he then felt okay about going inside the Centre to collect some alcohol and he followed Ms Todd and Ms McDonagh inside the Centre along with Ms Raecke. Mr Samata stated that at the same time Mr Cassidy asked Ms Raecke whether it was okay to remove alcohol. Mr Samata then went inside the Centre to see what was left and it was mainly wine. Mr Samata then said he either grabbed some wine or ‘the girls put it in my hands’ and he also took a couple of bottles of beer and he then walked outside (T256). Mr Samata gave evidence that he took the alcohol as people were going to his house for a party and because he had been told he could remove the alcohol and he did not believe what he was doing was wrong. When Mr Samata went outside the Centre Ms Samata asked him what he was doing with the wine and he told her that Centre staff said it was okay to take. When he was outside Ms Todd asked him if he had some red wine, which he did not, so he went back inside to get some and as a result he asked Ms Samata to help him carry the wine he already had in his possession. Mr Samata then loaded the alcohol into their car and waited for the others at the crossroads and they then followed them home. Mr Samata stated that when he arrived home he put the alcohol in the kitchen and when the others arrived he offered them a drink. After Ms Cassidy fell asleep she and her partner left and Ms Todd and Ms Samata then left and returned in Ms Todd’s vehicle. Mr Samata said no alcohol was consumed by them or their guests after they arrived at the house. Ms Todd and her partner left a bit later.
127 Mr Samata said that he did not know why Mr Vallentine contacted him to attend a meeting with Mr Fraser on 17 December 2008. Mr Samata stated that when he entered Mr Fraser’s office Mr Fitz Gerald told him that they had a video for him to watch and Mr Samata stated that he was not advised prior to this that he could have representation at the meeting. After Mr Samata reviewed the video which showed him entering the Centre and grabbing some drinks and walking out Mr Fitz Gerald told him that he was entitled to representation. In response Mr Samata said that he had nothing to hide. Mr Fraser then asked him who had authorised him to take the Shire’s alcohol and he told him that Centre staff had done so and he told Mr Fraser what Ms Todd had told him and that he did not know that Ms Raecke did not have the authority to distribute the alcohol. Mr Fraser then told him that he was gutted and the Council was gutted and that police had viewed the video and they had thought it was on the high level of theft. When Mr Samata was asked who else was involved in removing alcohol he became annoyed and asked if he was being accused of stealing and if so he had witnessed a Councillor also removing alcohol. Mr Samata recalled the words ‘rampage’ and ‘premeditated’ being used by Mr Fraser and Mr Fitz Gerald in relation to what had occurred and Mr Samata was then asked to name people who were there, who took what and to state what he saw. Mr Samata said that he then became angry and said he was not interested in answering any more questions. Mr Samata stated that it was his impression the interview was not about finding out the truth but to implicate others. Mr Samata stated that he took alcohol from the Centre but he had questioned Ms Raecke about this and she had said it was okay to remove the alcohol. Mr Samata was a non drinker and he stated that as the alcohol had been purchased by the ratepayers for employees for the Function he did not feel “by moving that function a little bit down the road and taking a few bottles for that was a crime” (T261). Mr Fitz Gerald told him at the end of the interview that he would be stood aside on full pay pending an investigation. Approximately three hours later Mr Fraser contacted him and told him that he had conducted a thorough investigation, he had taken legal advice about terminating him and as he had lost trust in him he had no option but to terminate him.
128 Mr Samata said the period after his termination was stressful as he had financial commitments which were difficult to honour. Mr Samata obtained employment with a tiling contractor and then worked as a machine operator. More recently he commenced a fly in fly out position in Newman. Mr Samata wants to return to his previous position with the Shire and he believes he would not have a problem returning to work as the majority of his colleagues want him back. Mr Samata said that he had a few issues with Mr Vallentine in relation to work and he stated that he ‘was alright’ but he ‘needs to lighten up’ (T253).
129 Under cross-examination Mr Samata was questioned about his reference to some of his work colleagues saying Mr Vallentine was an idiot and it was put to Mr Samata that this was his view of Mr Vallentine also. Mr Samata stated that even though he believed this was the case and Mr Vallentine would be his manager if he returned to work at the Shire, he did not see this as an impediment to him returning to work with the Shire.
130 Mr Samata said he removed alcohol from the Function because he had been assured by staff at the Centre that it was okay to do so and he would not have done so if he had not been given this authority. Mr Samata stated that it was his view that Councillor Maley was taking the alcohol from the Function for himself and Mr Samata said he did not name Councillor Maley at his interview as the Councillor he saw taking alcohol because he was angry. Mr Samata felt intimidated when Mr Fraser accused him of being a “rampager” and a thief and when he stated that police had the video he told them he was not prepared to name anyone and anyway it could be seen on the video. Mr Samata said that he removed alcohol because Ms McDonagh and Ms Todd initially told him that he could take some drinks and as he was not prepared to take their word for it and as he should not be taking the alcohol if it did not belong to him he twice spoke to Ms Raecke and asked her if it was okay to take some of the alcohol. Ms Raecke assured him that it was okay as the alcohol was left over and paid for and she told him to take whatever he wanted. As a result he followed Ms Todd and Ms McDonagh in to the Centre and grabbed two or three bottles of wine and some beer. When Ms Todd asked him if he had some red wine he was unsure so she gave him some more wine to take. Mr Samata told Ms Samata to help him carry two bottles of wine.
131 Mr Samata was unaware of the quantity of alcohol taken by others from the Function. Mr Samata said he was sober during the Function when he asked Ms Raecke about the wine and he understood Ms Raecke was in charge. When asked why Mr Samata thought Ms Raecke had authority to give away the Shire’s alcohol Mr Samata stated that she was working at the Centre and she came across as the only person in authority at the Centre. He was aware that other staff were working at the Centre however she was the person who said it was okay to remove the alcohol.
132 Mr Samata confirmed that he commenced employment around 10 February 2009 and that he did not accept a job at Loose Leaf Lettuce Company when it was offered to him.
133 When shown photographs from the video footage Mr Samata stated that when he was standing in the doorway of the Centre and Mr Springall and Mr Mountford were picking up a crate at the time he could not recall this occurring.
134 Mr Samata did not see Ms Todd and Ms Cassidy taking a crate of drinks out to Ms Cassidy’s car and Mr Samata disagreed that the video showed all of the applicants sorting bottles. Mr Samata said even though no senior managers were left at the Function after the buses had left that would not have been an issue for him as he would have done the same if Mr Fraser was there. Mr Samata then stated that he does not steal other people’s alcohol. Mr Samata said that he was aware that Ms Todd and Ms Cassidy were taking alcohol from the Function but he was unaware of the amount but he stated that they were authorised to remove it so he would not have stopped them. Mr Samata said that he did not need to return the alcohol to the Shire prior to his interview because he did not steal it.
135 Mr Samata said that at his interview he only became aware of the purpose of the meeting after the video was played and he was happy to explain why he removed the alcohol but he stopped giving details when he was accused of theft. Mr Samata did not recall saying in the interview that some people had gone overboard as he was unaware of the amount taken by others. Mr Samata stated that he never denied removing wine or beer from the Function and he acknowledged that it belonged to the Shire. Mr Samata stated that if ransacking took place Centre staff did nothing about it and he stated that he did not refer to more than one Councillor removing alcohol from the Function during his interview.
136 Under re-examination Mr Samata said that he had the support of the supervisor in his area who gave him a reference for his current employment.
137 Mr Mountford currently works as a contractor and he has operated his own business for approximately 15 years. Mr Mountford is a local fire brigade volunteer, an ambulance volunteer and he is involved in fund raising in the community. Mr Mountford stated that when it became difficult obtaining contract work he obtained employment with the Shire in September 2008.
138 Mr Mountford gave evidence that prior to his termination he had not previously been issued with any warnings.
139 Mr Mountford stated that at the Function he consumed several UDLs and beer and as he was having a good time he stayed after the Lancelin bus had left as his son was collecting him and his partner Ms McDonagh. Mr Mountford stated that he briefly spoke to Mr Samata at the Function but he did not know Ms Todd and Ms Cassidy and he mixed a bit with Mr Springall at the end of the evening.
140 Mr Mountford said that towards the end of the evening he was talking to the DJ outside after the Gingin bus had left and others were inside. Mr Mountford stated that when he went inside to go to the toilet everyone was grabbing bottles and cleaning up and he then went back outside with the DJ. After Ms Raecke came outside cleaning up he took a stack of chairs inside the Centre and spoke to Ms McDonagh who told him that they could take some drinks and he stated that other people were taking drinks at the time. Mr Mountford recalled Ms McDonagh asking him to lift a tub however he could not recall if he did this or his son removed the tub. Mr Mountford spoke to Ms Raecke when she came outside and he asked her what was going on with the drinks as his partner had told him that they could take drinks and he stated that Ms Raecke said that it all had to go as it could not stay at the Centre. Mr Mountford then returned outside and assisted the DJ to pack up his equipment and he then left the Centre in his son’s car.
141 Mr Mountford stated that the only time he moved alcohol was when he vaguely recalled moving some alcohol when a bottle smashed and when his son asked him to carry the crate Mr Mountford responded that he was “not carrying nothing”. Mr Mountford said he saw the DJ take two bottles of wine from a crate which was near him. Mr Mountford stated that Mr Springall helped to clean up at the end of the Function and his son gave him a lift home. When Mr Springall was dropped off at home he asked if he could take a beer and Mr Mountford could not recall if his son or partner opened ‘up the back’ and Mr Springall then grabbed some alcohol but he was unaware how much he took as he was pretty intoxicated.
142 On Sunday 14 December 2008 Mr Mountford took the fire truck to the community hall for a Christmas party. When Councillor Alderson asked him how the evening went he told him he had been late home as he had helped clean up and he told him that Ms McDonagh had been given some wine the previous evening and he asked Councillor Alderson if it was appropriate to donate it to the social darts club which was a charity fund raising group. In response Councillor Alderson told him to ask Mr Fraser. Mr Mountford said he told Councillor Alderson that he was going to take the alcohol removed from the Function back to the Shire as it could be drunk at Mr Vallentine’s work function the following Friday.
143 Mr Mountford agreed that two black crates of alcohol were taken to his house after the Function.
144 Mr Mountford stated that when he was picked up by Mr Vallentine on 17 December 2008 and was told that Mr Fraser wanted to see him he thought this was an opportunity to discuss what to do with the alcohol. Mr Mountford said that when he walked into his interview Mr Fraser told him that there was video footage to view and he then showed it to Mr Mountford at a fast speed and he was asked for his views about the video footage. Mr Mountford told him that the way the video was running made it look like a “ram raid”. Mr Fraser then asked him what was occurring on the video and Mr Mountford responded by saying that people were cleaning up. When asked who authorised the cleaning up he said it was done as a matter of course and he was told that this was not his job. Mr Mountford stated that Mr Fraser then stopped the video on a frame showing Mr Samata and asked what he was holding and Mr Mountford replied "That's a bottle of wine in his hand". Mr Mountford then asked what Mr Fraser was insinuating and asked if he was being accused of stealing and if that was the case this was a matter for the police. Mr Fitz Gerald then advised him that he would be stood down on full pay until the matter was further investigated. Mr Mountford told Mr Fraser and Mr Fitz Gerald that the matter had been “blown out of proportion” given the way the video was shown to him and said that if they showed the video properly he would explain what people were doing. Mr Mountford stated that he did not have the opportunity to explain about donating the alcohol to the darts club for charity or taking it to Mr Vallentine’s function. Mr Mountford stated that he did not offer an explanation about what had occurred at the end of the Function as he did not know what was happening during the meeting.
145 Mr Mountford did not recall anything being said at the interview about him having a representative after he viewed the video and nothing was said to him about adjourning the interview. At approximately 3.00pm that afternoon Mr Fraser telephoned Mr Mountford and he told him that he had been sacked and no reason was given to him for his termination but he was told that he would receive further information in writing.
146 Mr Mountford said that since his termination he continues to access the fire service and ambulance facilities at the Shire in his role as a volunteer.
147 Mr Mountford stated that the termination has had a deleterious impact on him and his family and he has been financially affected. He felt disgraced within the community and he stated that there have been several family arguments and splits after his termination. Mr Mountford initially went on to social security benefits but he was then offered work with a contractor and he has been mainly undertaking contract work grading roads and carting sand as well as supervising house building. Mr Mountford stated that he wanted to be reinstated to his former position until he heard that he was not trustworthy but notwithstanding this he maintains that he wants to return to work with the Shire as it needs good people working for it and he has a lot of experience and he does not believe there would be any issue with working with people involved in this matter.
148 Mr Mountford was contacted by the police after his termination and he agreed to make a statement but this was not followed up. Approximately three weeks later he received a phone call telling him that no further action would be undertaken.
149 Under cross-examination Mr Mountford stated that he was not involved in removing any alcohol from the Function and he said he became aware that alcohol was in his son’s car and being taken to his house when he arrived at Mr Springall’s house. Mr Mountford stated that he was ‘under the weather’ at the time (T308). Mr Mountford stated that he was not aware that alcohol was in the boot of the car when he left the Centre and even though he saw his son pushing alcohol on a trolley he did not know that it was going to end up in the boot. Mr Mountford said he did not have a clue what his son was doing with the alcohol however he assumed he was putting it in the boot on the basis that “Well, everybody what was … had alcohol, what was walking out of there were taking it for a reason. They were told to take it, because I said to Aimee [Ms Raecke], "What's going on?" so they're … they're only what (sic) they're told.” (T309). Mr Mountford maintained that he did not know if it was right or wrong to remove the alcohol or whether they had authority to do so. Mr Mountford said he told Mr Alderson about the alcohol taken from the Function because he was in a position of authority and he wanted him to know where it was and that he had nothing to hide.
150 Mr Mountford said that during his discussion with Ms Raecke, which took place when people were loading up crates, he asked her what was going on and she told him ‘it cannot stay here, it has to go’. Mr Mountford stated that he saw Ms McDonagh putting bottles into crates inside the Centre and he then stated that he did not see this and that he did ‘not take much notice of that’ but he said he saw crates being carried out. Mr Mountford said he was unaware who removed alcohol from the Centre as he was drunk at the time, it had nothing to do with him and he was outside and did not take notice of what was going on inside. Mr Mountford was unaware who gave his son authority to remove the alcohol or whether he had permission to do so. Mr Mountford stated that when Ms McDonagh came outside whilst he was speaking to the DJ he asked her ‘What are you doing?’ and she responded by saying that she was grabbing some alcohol as she had been told they were allowed to take it. When he saw the amount of alcohol she had he asked her why she was taking so much as he thought she was being a bit greedy. Mr Mountford stated that he did not know what Ms McDonagh was doing with the alcohol she removed from the Function or that the alcohol was going to end up in his son’s car. Mr Mountford said to Ms McDonagh that if she took any alcohol it would go back to the Shire as they could use it at Mr Vallentine’s function. Mr Mountford then said that as soon as he was aware that they had the alcohol he made the decision that it was going back to the Shire and he told his family “Whatever … whatever left there … my family knows. Whatever … whatever would have left there … and it's not ours, it … it goes back.” (sic). Mr Mountford stated that when Ms Raecke said to people they could take the alcohol he understood this to mean they could do with it what they wanted.
151 Mr Mountford gave evidence that during his discussion with Councillor Alderson on 14 December 2008 he mentioned that Ms McDonagh had been given some alcohol the previous evening and asked him what he should do with it and if the wine could be donated to the darts club. In response Councillor Alderson said he was not aware if this could be done and he should ask Mr Fraser. Mr Mountford then told him that the beer and wine was going back to the Shire and that the Shire may use it at Mr Vallentine’s function. Mr Mountford stated that he intended to return the alcohol to the Shire when he had time and he denied that he told Councillor Alderson that he had taken the alcohol home to take to Mr Vallentine’s function. Mr Mountford agreed that he did not contact Mr Fraser about the alcohol or return it to the Shire before his interview on 17 December 2008.
152 Mr Mountford confirmed that photo stills from the video footage show him with his hands on a trolley and/or standing next to the trolley and Mr Springall bending over a crate but he could not recall what if anything was being discussed. When Mr Mountford was asked when he became aware that Ms McDonagh was removing alcohol from the Function he said that he became aware that this was the case when Ms Raecke came outside and he asked her what was going on. Mr Mountford stated that he saw Mr Samata with a bottle of wine in his hand inside the Centre and he saw Ms Cassidy and Ms Todd with crates but he did not see were they took these crates. Mr Mountford stated that he did not know who the alcohol belonged to at the time and he stated that despite this he intended to return the alcohol to the Shire as it would know where the alcohol came from. Mr Mountford maintained that it was possible that the alcohol belonged to the Centre but he had an obligation to return the alcohol removed from the Function to the Shire regardless of whether or not it belonged to it.
153 When it was put to Mr Mountford that parts of his application were inconsistent with his evidence as his application refers to him being given some of the remaining alcohol when leaving the Function he reiterated that he did not remove any alcohol from the Centre. Mr Mountford stated that even though Ms Raecke authorised the removal of alcohol he did not take any.
154 Mr Mountford maintained that he was unaware of the purpose of the meeting with Mr Fraser on 17 December 2008 until after the start of the meeting and he initially thought it was to discuss the events of the Function and he only became aware that he was being accused of theft during the meeting and Mr Mountford confirmed that he told Mr Fraser at his interview that Ms McDonagh and his son had removed a lot of alcohol from the Function and that he had asked Councillor Alderson if Ms McDonagh could donate the wine to the darts club subject to the Shire’s permission. Mr Mountford was unaware of how much alcohol others who attended the Function took onto the two buses.
155 Mr Mountford denied that he allowed Mr Springall to remove alcohol from the crate when he was dropped home after the Function and he denied that he told Mr Springall that the alcohol would be sold at “the Woodridge meeting”.
156 Mr Mountford gave evidence that he sought out permanent employment instead of working as a contractor on sites where he had been working.
157 Under re-examination Mr Mountford reiterated that he only became aware that alcohol was in the boot of his son’s car after the Function when they stopped at Mr Springall’s house. Mr Mountford agreed that he assisted another person called “Dave” to carry a crate of alcohol and placed it outside the door of the Centre and he stated that he did this as someone asked him to move the crate so the floor could be mopped after a bottle broke. Mr Mountford stated that he did not recall whether he had any further involvement in moving this crate.
158 Ms McDonagh is Mr Mountford’s partner and she works as a fruit picker/packer. Ms McDonagh stated that during the Function she met Mr Samata and she stated that she had previously met Ms Samata when she attended the Shire on business. Ms McDonagh stated that she did not know Ms Cassidy or Ms Todd before the Function. Ms McDonagh stated that towards the end of the evening she contacted her son to organise a lift home and she also assisted the packing up of the Centre.
159 Ms McDonagh stated that she had known Ms Raecke for approximately 15 years as her sons went to school with her and she also knew her through the netball club and her mother Ms Hamilton. As they were cleaning up Ms Raecke came up to her and told her that she could take some alcohol home with her and that it all had to go and when she asked her if she was sure she said yes. Ms McDonagh stated that she trusted Ms Raecke as she had known her for a very long time and said that her word was good enough. Ms McDonagh then took two bottles of wine and went outside. Mr Mountford asked her what she was doing and she told him that Ms Raecke said “that we could take the alcohol home and it all has to go” (T328). Ms McDonagh stated that a black crate containing drinks had been put outside the Centre and at one point Ms Raecke said that this also had to go and Ms McDonagh stated that she did not know how this crate got there.
160 Ms McDonagh stated that Ms Raecke again came up to her and said “Is that all you’re taking?” and in reply she told her that she did not drink wine however Ms McDonagh said to Mr Mountford that she would go back and get some more alcohol as the darts club could use the alcohol for a raffle to raise funds for the Ronald McDonald house. When she went inside Ms Raecke gave her a crate and Ms McDonagh put 10 to 12 bottles of wine into the crate. Ms Raecke also gave a crate to Ms Todd and Ms Cassidy into which alcohol was placed. Earlier in the evening Ms McDonagh asked Ms Raecke if she could take some of the balloons from the Function and soon after she put the wine in the crate Ms Raecke came over and tied the balloons to the crate. Ms McDonagh gave evidence that she carried the crate outside and her son put it on a trolley along with the crate that had been sitting outside the door of the Centre. Ms McDonagh’s son took the two crates to the car and put them in the car; one in the boot and one on the back seat but Ms McDonagh did not see him do this. Ms McDonagh stated that when they left the Function Mr Mountford was ‘plastered’ and quite drunk and he could barely stand. Ms McDonagh stated that at Mr Springall’s house everyone got out of the car and when he was asked if he wanted a ‘roadie’ he said yes. Ms McDonagh was unsure what he took but it could have been a couple of bottles of wine. Ms McDonagh stated that Mr Mountford did not say anything about Mr Springall taking alcohol and she stated that he probably would not have remembered this given the state he was in.
161 Ms McDonagh said that at the end of the Function she had a discussion with Mr Cassidy about which was a better bottle of wine as she did not drink wine.
162 Ms McDonagh said when they arrived home Mr Mountford was cross with her about the amount of alcohol she had taken and she said he told her it should be taken back straight away. In response Ms McDonagh said no as they were told they could take it and they then discussed some of the alcohol going to Mr Vallentine’s work party. Ms McDonagh then told him she was going to take the wine to two women at the darts club as they undertook fundraising for Ronald McDonald. Ms McDonagh stated that on the Tuesday after the Function she spoke to the women from the darts club about the wine being used for a raffle.
163 Ms McDonagh said that after Mr Mountford’s termination they separated for a while but they are now back together. Ms McDonagh confirmed that Mr Mountford had undertaken some labouring as well as contract work subsequent to his termination.
164 Under cross-examination Ms McDonagh confirmed that photographs of the video footage shows her looking at wine and she stated that Mr Cassidy was telling her which was the better bottle of wine to take. Ms McDonagh said that she was only going to take a couple of bottles of wine with her until Ms Raecke brought her the crate. Ms Mountford stated that she asked Mr Springall to hold the crate for her and she then said that he “grabbed it and put it on the table” for her. Ms McDonagh stated that the video also shows Ms Cassidy and Ms Todd asking which wines could be taken and Ms McDonagh pointed to ones that could be taken.
165 Ms McDonagh agreed that she spent some time inside the Centre sorting out which wine to take and she denied that Mr Mountford was aware that she was removing wine from the Centre.
166 Ms McDonagh initially stated that she removed no more than 12 bottles of wine from the Function and when it was put to her that Mr Vallentine collected 20 bottles of wine from her house she accepted that this could have been the number of bottles she took from the Function. When it was put to Ms McDonagh that she was taking as much as possible she stated that it was just a crate full of wine and Ms McDonagh maintained that she did not take the wine, it was given to her. Ms McDonagh said that Ms Raecke told her that all the alcohol needs to go, it cannot stay here and she could take what she wanted. Ms McDonagh said that she spoke to Ms Raecke about taking the alcohol after ringing her son to be picked up and she said she phoned her son before the Lancelin bus had left to make sure she had a lift home. Ms McDonagh stated that Ms Raecke told her that the crate of beer and soft drink that had been placed outside had to be taken and Ms McDonagh stated that she was unaware who took the crate outside. Ms McDonagh said she does not drink wine but she initially took two bottles for her two sons’ girlfriends then thought of the women at the darts club who undertake fundraising.
167 When Ms McDonagh was asked if Ms Raecke told her to remove alcohol or whether she asked if she could take it she stated that when she was outside with Ms Raecke she told her that all the alcohol had to go and could not stay here and Ms Raecke said that all the alcohol had to leave the premises that night. Ms McDonagh said that Mr Mountford was drunk and she had to put him in the front seat of the car when they left the Function. It was put to Ms McDonagh that Mr Mountford said Mr Springall asked if he could take some of the alcohol Ms McDonagh stated that she asked Mr Springall if he wanted to take some of it.
168 Under re-examination Ms McDonagh said that when Ms Raecke attached the balloons to the crate for her wine was in the crate.
169 Mr Alderson is a Shire Councillor for the Woodridge ward and he has held this position since 1997. Mr Alderson knows Mr Mountford as a member of the local community and through the fire brigade and the voluntary ambulance service and he sees him regularly at community events. Mr Alderson attended the Function. On the morning of 14 December 2008 he spoke to Mr Mountford at a Christmas party that had been organised for children when Mr Mountford attended with the fire truck and Mr Mountford told him that he had arrived home from the Function at approximately 2.00am and he helped the DJ pack up his equipment and clean up the venue. Mr Mountford also told him that staff at the Centre said “while they were taking out the bottles of spirit and beer that one of the staff there said, "Take it all away because it's all paid for and we don't want it here"” (T343). Mr Alderson stated that Mr Mountford told him that alcohol had been put into his son’s car and he told Mr Alderson that he did not want the alcohol as he did not drink wine and he said that he would take it to Mr Vallentine’s work function on the following Friday. Mr Alderson could not remember who Mr Mountford said had told him to remove the alcohol.
170 Mr Alderson gave evidence that after the Council meeting on 16 December 2008 Mr Fraser raised the issue of the amount of alcohol removed from the Function and video footage of the room being cleared of alcohol was shown to Councillors. Mr Fraser asked Councillor’s what he should do and he was told that he needed to deal with it. Mr Alderson was aware that police had been contacted about the removal of the alcohol and he understood that the police had said they would be happy if the Shire dealt with it in-house otherwise they would deal with it. Mr Alderson understood that a further report was made to the Shire’s Councillors after the applicants were terminated.
171 Under cross-examination Mr Alderson stated that he told Mr Fraser on 16 December 2008 what Mr Mountford had told him about the alcohol going to Mr Vallentine’s place and Mr Fraser told him that he would ask him about this. Mr Alderson stated that he made a statement on 1 January 2009 for Mr Mountford and he maintained that this statement contained the main issues discussed on 14 December 2008. Mr Alderson could not recall if Mr Mountford mentioned giving the alcohol to the darts club but he said that Mr Mountford did not say that he took drinks from the Centre but he said alcohol was in his car. Mr Alderson said if he was aware of the amount of the alcohol that was taken to Mr Mountford’s house from the Function he would have been concerned.
172 Mr Springall was on probation when he was terminated by the respondent. Mr Springall said he was keen to gain employment with the Shire given his lack of qualifications and his previous poor treatment by employers.
173 Mr Springall attended the Function after being dropped of by his father and he socialised with others at the Function. Mr Springall knew Mr Mountford, he worked with Mr Samata and he had met Ms Samata when he had visited his home and he had met Ms Cassidy on one occasion in the Shire’s office. Mr Springall did not meet Ms Todd until the Function. Mr Springall stated that he intended to walk home after the Function but Mr Mountford and Ms McDonagh offered him a lift. Mr Springall said he hung about at the Function “to keep the party going” and because Ms Raecke seemed interested in him. Mr Springall stated that during the Function he drank about a carton of cans of Rum and Coke. Mr Springall stated that at the end of the evening after the buses had left he was sitting outside and Mr Mountford and his son were helping the DJ pack up. After the DJ put his equipment in his vehicle Mr Mountford and Ms McDonagh gave the DJ a couple of bottles of wine and he then left. Mr Springall said that prior to this he saw Mr Samata with a couple of bottles of wine. Mr Springall said at the end of the Function he loaded a crate with alcohol and he and Mr Mountford put the crate outside and they sat around continuing to drink. When Mr Mountford told Mr Springall to help Ms Raecke he took a table inside.
174 Mr Springall said that Mr Fraser said at the start and end of the Function that people could take ‘roadies’.
175 Mr Springall gave evidence that when he left the Function in Mr Mountford’s son’s car he got in the back and on the seat next to him was a crate of wine with balloons on it and during the drive to his home he recalled a discussion being held about the alcohol being distributed at a Woodridge meeting. Mr Springall stated then when the car arrived at his home he was given a bottle each of red wine and white wine which he returned after his interview on 17 December 2008.
176 Mr Springall said that when he attended his interview he was told at the start of the meeting that it was an inquiry into the Function and he stated that video footage was played. Mr Springall stated that he did not see the whole of the video footage as it was turned off halfway through. Mr Springall gave evidence that nothing was mentioned to him about representation or whether or not he could seek advice. Mr Springall said that Mr Fitz Gerald told him that “we'd all got together and planned a rampage to ransack the joint and get out of there” (T356). Mr Springall said that Mr Fraser told him that what had occurred was “the high ranking (sic) of theft” and Mr Springall took this to mean that he was calling him a thief, Mr Fraser said he was gutted and the Council was gutted. Mr Springall gave evidence that he discussed taking wine from the Function, which he regarded as roadies, with a colleague named Haydon on 16 December 2008. Mr Springall stated that in response he was distraught and speechless and therefore did not respond when accused of theft. Mr Springall stated that he did not admit to taking two bottles of wine at the interview but told Mr Fraser and Mr Fitz Gerald that he had been given the two bottles of wine. At the end of the interview he was told he was stood down with pay until the matter was resolved or until further notice. Mr Springall said that Mr Fraser contacted him later that day and he was told that due to a serious lack of trust, loyalty and dishonesty he was terminated and Mr Fraser told him that he could seek legal advice and he then said he had no rights because he had been on probation when he was terminated.
177 Mr Springall stated that he wants to be reinstated to his former position, he wants to clear his name and to have the opportunity to prove he is not a liar or a thief. Mr Springall said that the impact of his termination was severe on him and he nearly ended up in hospital and he had difficulties with Centrelink. Mr Springall stated that it took nearly three months to obtain alternative employment and he is currently employed on a casual basis at Brookrise Fresh Produce cutting lettuces, spinach and broccoli. Mr Springall stated that he was not allowed to apply for jobs in the hospitality industry or any government organisations as he was under investigation for theft of alcohol from a government organisation. After Mr Springall’s termination police contacted him and he attended an interview however he has heard nothing further from the police about the matter.
178 Under cross-examination Mr Springall maintained that he did not remove any alcohol from the Centre although he did take a crate of beer and soft drink outside of the Centre to the barbecue area “to carry the party on” and he denied that this crate was placed just outside the door of the Centre as claimed by Ms McDonagh (T361). Mr Springall agreed that the video footage did not show him staggering or affected by alcohol and he said that even though he had drunk a carton of Rum and Coke and it did affect him he can handle his alcohol and he knew what he was doing and he could still see and walk straight. Mr Springall stated that the crate of alcohol which he removed from the Centre contained mostly frozen alcohol. Mr Springall stated that after the DJ left he went to the toilet and when he returned outside the crate had disappeared, everyone was outside and Mr Mountford told him to get in the car. He stated that Mr Mountford had consumed quite a few drinks and was heavily “under the influence” (T364).
179 Mr Springall said that on the way home to his parents house Ms McDonagh did most of the talking and she talked to Mr Mountford about distributing the leftover alcohol at a Woodridge function and there was then a discussion about the darts club.
180 Mr Springall agreed that at the Function he assisted Ms McDonagh to put alcohol in a crate when he placed a bottle of wine in the crate but he was unaware at the time she was taking the alcohol home. Even though Mr Springall’s application refers to Ms Raecke saying that he was authorised to remove alcohol he stated that this is incorrect as Ms Raecke did not say this to him. Mr Springall did not see Ms Cassidy or Ms Todd carrying a crate of wine to their car. Mr Springall stated that he was aware that the alcohol removed from the Centre belonged to the Shire.
181 Mr Springall said that he did not say at his interview that Ms McDonagh and Mr Mountford discussed selling the alcohol at the Woodridge meeting. Mr Springall understood that Mr Mountford was aware that alcohol was in the car during the trip home from the Centre.
182 Mr Springall said that he had concerns that the interview on 17 December 2008 may be about the alcohol removed from the Function and he had a bad feeling because he knew that the removal of the alcohol was wrong and he thought he might be terminated. Mr Springall denied that he was given an opportunity at the interview to seek representation and not to answer questions put to him.
183 Mr Springall stated that some employees did not want him to return to his employment.
184 Mr Springall is currently working less hours than when he was employed by the respondent.
185 Mr Springall said that he did not do anything to stop Ms McDonagh and Mr Mountford removing alcohol from the Centre because it was already in the car. Mr Springall agreed that he said at his interview that Mr Mountford said they could take alcohol as recorded in Mr Fitz Gerald’s notes and he then stated that Ms McDonagh told him that they were allowed to remove the alcohol not Mr Mountford and the notes were wrong.
186 Mr Springall said that he did not report the removal of the alcohol to his manager or Mr Fraser prior to his interview because no one was around and when he saw Mr Vallentine on the morning of 17 December 2008 he was told that he could not talk to him.
187 Under re-examination Mr Springall said that he understood that the crate he helped to carry outside was being taken outside at the end of the Function to continue the party.
Respondent’s submissions
188 The respondent denies that the applicants’ terminations were harsh, oppressive or unfair and submits that the applicants’ applications should be dismissed.
189 During an investigation into the removal of alcohol from the Centre at the end of the Function each applicant admitted removing alcohol from the Centre and the respondent argues that it therefore had a valid reason for terminating the applicants as theft by an employee regardless of its value is a valid reason for summarily terminating an employee’s employment.
190 Section 371 of the Criminal Code provides that “a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property” and that a person is deemed to act fraudulently if, among others, the person has an intent:
(a) “to permanently deprive the owner of the thing or property of it or any part of it”; or
(b) “deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion”.
191 Whether the applicants believed that Ms Raecke gave them the authority to remove the respondent’s alcohol is not relevant to the question of whether the applicants stole alcohol from the Centre. Furthermore, if she did not have that authority the applicants did not have proper authority to remove the alcohol. The respondent maintains that in any event Ms Raecke did not have authority to give away the respondent’s property. The evidence confirms that the applicants all participated in the removal of alcohol from the Centre when they knew it belonged to the respondent and that they had no lawful basis for removing the alcohol. Furthermore, the alcohol was removed for the purpose of their own consumption and but for the investigation conducted by the respondent the alcohol would never have been returned to the respondent. In the circumstances the applicants’ behaviour constituted theft. In addition, each of the applicants had a common law duty of fidelity and was obliged to protect the respondent’s interests and each employee knew of the wholesale removal of alcohol from the Centre but did nothing to stop it or report it to the respondent. By failing to act in this regard each applicant committed a material breach of his or her contract of employment justifying dismissal.
192 The respondent relies on Avon Products Pty Ltd v Reilly [1969] IR 153 (“the Avon decision”), where the applicant was dismissed from his employment when he allegedly took from company premises a tin of Avon Fresh Klean Air, which had the retail price of about $1.50. Justice McKenon held if an employee was “unlawfully and without an excuse removing an article from the company’s possession, he was guilty of such misconduct that justified his dismissal”. The respondent submits that the misconduct that justifies summary dismissal does not necessarily follow the criminal definition of theft, it is sufficient that there is a removal that is unlawful and without excuse and taking property belonging to another is unlawful.
193 The respondent submits that in Latta & San Holdings Pty Ltd [2002] NSWIRComm 1054, the applicant’s employment was terminated for the alleged theft of a small sum of money ($4.05). Commissioner Connor cited the Avon decision and stated (at page 6):
“To my mind it is not significant in that respect that only the sum of $4.50 is involved: theft is theft, whatever the amount. For Instance, in Re Avon Products Pty Limited and Riley .... the theft of a pressure pack tin of air freshener with a retail value of $1.50 was accepted by McKenon J of the former State Industrial Commission as a legitimate ground for summary dismissal.” [Our emphasis]
194 In John Fairfax & Sons Ltd Stereo [1980] IR 34, Justice McClelland stated:
“It is beyond question that any employer has a right summarily to dismiss an employee for fighting on the job. Indeed, along with drinking intoxicating liquor at work and stealing an employer’s property, it constitutes the classic justification for the severest penalty”. [Our emphasis]
195 In Panayioto v Eureka Operations Pty Limited trading as Coles Express [2006] NSWIRCom 1089 Commissioner Conner found the dismissal of an employee who had taken $12.00 worth of petrol without paying for it was not harsh, unjust or unreasonable. In his decision, the Commissioner commented at paragraph 18:
“There may be no fixed rule of law to conclusively define the degree of misconduct which would justify summary dismissal. The issue is determined by identifying whether there is an action by the employee which is of such nature as to strike at a fundamental element of the contract of employment...But it is trite that theft by an employee of property of his employer is grounds for summary dismissal”. [Our emphasis]
196 In D.A Whiting v Greenbank RSL Services Club [2008] AIRC 1062 Commissioner Bacon was satisfied that the respondent in this matter had sufficient material to be satisfied on the balance of probabilities that the applicant stole $24.00 and, accordingly, the respondent had a valid reason to terminate the applicant’s employment. At paragraph 35 Commissioner Bacon said:
“I am satisfied that the misconduct of the applicant in this case strikes at the very core of the employment relationship. Termination of employment would not usually be a disproportionate response to misconduct which involves stealing from an employer. The trust that is at the core of the employment relationship has been shattered by the actions of the applicant. In the circumstances of this case it was open to the respondent to conclude that the employment relationship had been shattered to such a degree that it was necessary to end that relationship.” [Our emphasis]
197 The online Macquarie Dictionary defines “Stealing” as “to take or take away dishonestly or wrongfully, especially secretly” and the respondent argues that there is no warrant for the Commission to determine that theft might be excused by regard to the amount taken or by regard to the consequences of a dismissal on the employee. This would imply that an employee might obtain a warrant to steal from his or her employer in certain circumstances which is contrary to relevant case law.
198 The respondent argues that the applicants’ out of hours conduct was sufficiently connected to their employment to warrant termination. In Rose v Telstra Corporation Limited (U No.20564 of 1998) (“Rose v Telstra”) Ross VP set out the situations in which an employee’s employment can be terminated for conduct that occurs outside of working hours.
199 In Graincorp Operations Limited v Markham (C2002/3380) PR924103, the Full Bench of the Australian Industrial Relations Commission held that dismissing an employee for sexually harassing a colleague outside working hours was not unfair. In this case, the employee had sexually harassed his colleague after dinner and drinks which had been partly funded by the employer during a work related training conference. On appeal, their Honours rejected the argument that there was no relevant connection between the conduct of the employee and his employment.
200 In Greg Fox v Allianz Australia Services Pty Limited (U2004/6968) PR971014 an employee was terminated following an investigation into the sexual harassment of another employee at an Allianz sponsored Trivia Night held at the Bowlers Club of NSW. Allianz submitted that the incident occurred during the course of a workplace event (the Trivia Night) because the sole reason why employees were at the Club was because the Trivia Night had been arranged by Allianz. The movement of Allianz employees between different parts of the Club did not mean that it was no longer a workplace function after the Trivia Night concluded around 8.30pm. At paragraph 59 to 61 Commissioner Roberts cited Vice President Ross’ comments in Rose v Telstra and accepted Allianz’s submissions.
201 In Gounder v Coles Myer Limited (Bi-Lo Pty Ltd) [2007] SAWCT 44 an employee of Bi-Lo who was receiving workers’ compensation payments was apprehended for shoplifting at a K-mart store. The employee had tampered with the price tag of a car battery changing it from $64.00 to $36.00. At the time, both Bi-Lo and K-mart were owned by Coles Myer Limited. A Bi-Lo Manager conducted an inquiry into the incident and concluded that it could not trust the employee and terminated his employment. The employer then discontinued the employee’s workers compensation payments. The employee challenged his dismissal and the discontinuance of his weekly payment. At first instance the actions of the employee were found to be in connection with his employment and the dismissal was not unfair. On appeal, the employee argued that the criminal conduct occurred away from his place of work, was committed outside his hours of duties and did not touch the requirements of his employment with his employer. Their Honours disagreed and held that what occurred was a serious transgression and was clearly premeditated and it was of the type connected to the employer’s business. Its damage to the relationship was evident. At paragraph 5 of the decision, Deputy President McCusker cited the decision of Rose v Telstra and confirmed that:
“the authorities confirm the need for a clear connection between an employee’s out of hours conduct and the employment. That is the conduct is of a nature incompatible with the employee’s duties as an employee with the given employer or is likely to cause serious damage to that relationship.”
202 In Osborne v Woolworths (SA) Ltd [1992] SAIRComm 85 the appellant, who was a baker’s assistant on annual leave, met three other employees at a café outside his employer’s premises. A shopping bag had been left by a customer of the employer at the café. After about an hour or so the customer had not returned to claim the goods and the appellant and one other employee decided to keep the cigarettes and divide them. As the appellant left the shopping area he was given five packets of cigarettes and subsequently smoked them. The employer conducted an investigation into the matter. When the employee was interviewed during the investigation his initial attitude at the interview was that he had done nothing wrong in taking the goods in question. The Full Bench held that an employer had to possess trust in his employees and here was entitled to hold the view that such trust was wanting. The Commission stated:
“The employer was also entitled to have regard to the fact that, when initially questioned, the appellant adhered to the notion that he had done no wrong and was entitled to have kept the goods. That notion was persisted with in evidence at first instance. In all these circumstances, the employer was, in our view entitled to hold the view that the trust which must repose in its employees was wanting.”
203 The respondent argues that the applicants’ conduct clearly falls within the circumstances set out in Rose v Telstra. The applicants were at the annual Christmas function organised and paid for by the respondent and the only reason they were at the Function was because they were employed by the respondent. The applicants removed alcohol they knew belonged to the respondent for their own consumption and the respondent maintains that their actions w likely to and did cause serious damage to the relationship between each applicant and the respondent and was incompatible with each applicant’s duty as an employee. Even though the applicants maintained they did nothing wrong their conduct is closely related to their employment and justifies dismissal despite the fact that their conduct occurred outside of their usual working hours.
204 The respondent submits that even if the applicants had a mistaken belief that they were authorised to remove the alcohol this does not excuse the act of theft. Furthermore, the facts have not established that the applicants had a mistaken belief that they had authority to remove the alcohol as Ms Raecke has made it clear that she did not give authority to remove any alcohol.
205 The respondent argues that after the majority of participants had left the Function, including managers, the six remaining employees, in conjunction with others who were there with them, set about the systematic removal of the left over alcohol from the Centre (see Exhibits R3, R2 documents 11, 12, 19 and 20). Whilst the applicants denied being friends suggesting that they had not acted in concert it is clear that Ms Todd went back to the house of Mr and Ms Samata after the Function, Mr Springall was given a lift home in a car driven by Mr Mountford’s son with Mr Mountford in the car. Furthermore, each applicant was aware of the amount of alcohol being removed by others. In addition, the applicants have chosen to defend themselves as a group and in this regard, their particulars of claim are substantially the same and they have each relied on the same main excuse — that the removal of alcohol was authorised by Ms Raecke.
206 The respondent argues that the evidence given by its witnesses should be preferred to the evidence given by the applicants’ witnesses and the respondent argues that the evidence given by the applicants should only be accepted if it was verified by independent sources. None of the respondent’s witnesses were troubled by cross examination and each gave evidence clearly and in a forthright manner and the evidence given by Mr Fraser and Mr Fitz Gerald was supported by notes made by them during interviews they conducted with the applicants and Mr Fitz Gerald’s evidence together with his own notes of the interviews also corroborates the evidence of Mr Fraser.
207 Mr Fraser, who was the respondent’s CEO at the time of the Function, gave evidence that prior to leaving the Function he packed a substantial amount of alcohol away to collect on the Monday after the Function and this alcohol had been purchased by the respondent on a sale or return basis and was the respondent’s property. Mr Fraser authorised people to take ‘roadies’ to drink on the way home but had not given permission or authorised any other person to give permission for anyone to remove substantial quantities of alcohol. After Mr Fraser was informed on Monday 15 December 2008 that no alcohol was left at the Centre he inspected video footage of the Function on Tuesday 16 December 2008 and he observed each of the applicants removing alcohol from the Centre. Mr Fraser then showed this video footage to Councillors after the Council meeting that night and he was told that it was for him to decide what action to take. Mr Fraser was not instructed by Councillors to dismiss the applicants and he went into the interviews the next day with an open mind. Mr Fraser and Mr Fitz Gerald conducted interviews with each of the applicants on Wednesday 17 December 2008 and after informing each of them that they were entitled to have a representative each of the applicants admitted taking some alcohol. After considering the available evidence, Mr Fraser dismissed each of the applicants on the basis that their actions at the end of the Function had destroyed the necessary trust and confidence between the respondent and each applicant.
208 The applicants’ claim that they were given permission by Ms Raecke who was employed by the Centre to take the alcohol should be rejected as a concoction. Ms Raecke gave clear and unchallenged evidence that she never told anyone they could take alcohol, Ms Raecke had no reason to attend the Commission and lie, she has never been employed by the respondent and Ms Raecke was a young woman who was clearly not in charge of the Centre. Even if statements made by Ms Raecke were misunderstood by some of the applicants they all knew she was not employed by the respondent. Furthermore, no reasonable person would have assumed that Ms Raecke had the authority to give away the respondent’s alcohol. Ms Raecke was not in charge of the venue, she stated that she did not have authority to give away alcohol belonging to the respondent and she emphatically denied any proposal to the contrary put to her by the applicants’ representative. Ms Raecke was a waitress and cleaned up after the event and it was not her responsibility to tell the applicants not to remove the alcohol.
209 One of the Shire’s Councillors, Mr Maley explained that the alcohol he had removed from the Function in the box were ‘roadies’ for a few people on the bus and his evidence directly contradicts the suggestion by Mr Samata that he removed a substantial amount of alcohol. Mr Maley also denied Mr Samata’s evidence that he had spoken to Mr Maley and asked him not to take alcohol and he denied responding to the effect of “don’t tell anyone” and his evidence was also not materially challenged in cross-examination.
210 The respondent’s Principle Works Supervisor Mr Vallentine confirmed that he attended some of the interviews on 17 December 2008 and his evidence supports the evidence of Mr Fraser and Mr Fitz Gerald. Mr Vallentine says that he left on the Gingin bus and he did not see anyone get on that bus with large amounts of alcohol. He also concluded that given the conduct of the Mr Samata, Mr Mountford and Mr Springall the necessary trust and confidence between himself and them had broken down.
211 The respondent’s Acting Deputy CEO at the time of the Function, Ms Lowes gave evidence confirming the procedure that was followed at the interviews she attended. Ms Lowes explained that at a meeting held prior to the decision being made to dismiss the applicants a full discussion took place of the possible disciplinary alternatives and at the end those present concurred that the applicants should be dismissed. Ms Lowes also gave evidence that the applicants’ reinstatement is not practicable as it has been a long time since the dismissals, the applicants’ positions have been and are currently filled and in light of their conduct the respondent does not want the applicants to return to work with the Shire.
212 The respondent maintains that the evidence given by each applicant was self serving and contrived to try to justify their actions at the Function and the applicants have shown that their credibility is questionable. Their evidence should therefore be rejected except insofar as it is consistent with the evidence of the respondent’s witnesses and the notes made by Mr Fraser and Mr Fitz Gerald during the investigation.
213 The respondent argues that the evidence given by the applicants’ witnesses in cross examination was vague. Several relied on intoxication as an excuse for their conduct and memory lapses and their evidence showed signs of being rehearsed, particularly in relation to the alleged authority given by Ms Raecke, with several emphasising how many times they heard her giving this authority to them or the others. The applicants made few concessions even in relation to matters that were not in dispute, for example the respondent’s ownership of the alcohol, their evidence often conflicted with the evidence given by the applicants’ other witnesses and each applicant was generally evasive and argumentative. The applicants therefore did not come across as truthful witnesses but rather as witnesses willing to say anything that might help their case.
214 The respondent argues that Ms Samata was evasive about her role in removing the alcohol and was very careful to suggest she did not take alcohol out of the building and she gave a rehearsed answer about her removal of the alcohol along the footpath. Ms Samata also suggests she regarded the wine she and her husband took as a “roadie”, she admitted knowing that the alcohol belonged to the respondent and she did nothing to stop the others removing alcohol because she was not responsible for their actions. The respondent argues that Ms Samata’s evidence that she did not know what was in the crate carried by Ms Todd and Ms Cassidy is improbable and should not be believed as Ms Samata knew that they had not brought crates to the Function and Ms Samata saw them carrying a crate. Ms Cassidy also stated that Ms Samata saw them load alcohol into the car at her interview and took some alcohol from the crate. Ms Samata admitted lying at her interview about having seen Ms Todd and Ms Cassidy removing the crate as they might get into trouble and she admitted making a false statement at the interview about Centre staff giving permission to remove alcohol.
215 The respondent maintains that Mr Samata was evasive about the amounts shown as earnings on his tax return, he knew that it was wrong to take the alcohol without permission and he was concerned about doing so and he knew the alcohol belonged to the respondent and that others were taking alcohol. Mr Samata’s evidence about Ms Raecke giving permission should be viewed cautiously as he believed Ms Raecke was in charge of the Function when clearly that was not the case. He twice asked Ms Raecke about removing alcohol even though he was given an answer on the first occasion and when questioned about Ms Raecke’s authority he suggested that it was implied as none of the Centre’s staff tried to stop the removal of alcohol. The respondent argues that Mr Samata’s evidence about going back for the bottles of red wine and his responses to questions about photographs showing his involvement was evasive. The respondent argues that Mr Samata knew the purpose of the meeting held on 17 December 2008. Mr Samata also gave evidence that he thought his supervisor Mr Vallentine was an idiot which is contrary to his proposition that he would be able to return to his position and again work alongside Mr Vallentine.
216 The respondent claims that Ms Todd admitted taking alcohol in her interview but played down her role in the removal of the crate of alcohol along with Ms Cassidy and she was evasive when answering questions. Any suggestion that she was not acting in concert with Ms Cassidy should be rejected given that she referred to “our crate” on two occasions and she admitted carrying the crate to the car. Contrary to Mr Samata’s evidence, Ms Todd acknowledges that others were not taking large quantities of alcohol onto the buses and Ms Todd initially did not think that Ms Raecke could authorise the removal of the alcohol but she contradicted this in re-examination. In addition, the letter she and Ms Cassidy delivered to Mr Fraser is contrary to her contention that she had done nothing wrong because she had authority to remove the alcohol. Ms Todd was also evasive when she admitted that the alcohol belonged to the respondent and Ms Todd says she was very drunk at the Function yet at the interview said she was not drunk.
217 The respondent argues that Mr Mountford’s evidence was jumbled, inconsistent and evasive. On the one hand he stated that he was too drunk to carry the two crates of alcohol to the car, but not too drunk to help the DJ. Mr Mountford’s evidence was evasive at times with respect to him being on probation, the respondent’s ownership of the alcohol, when answering questions about statements made in his particulars of claim, when challenged about his suggestion that Mr Fraser had no right to take alcohol on the bus, the purpose of the meeting on 17 December 2008, his discussion with Mr Alderson and seeing Ms McDonagh and others loading alcohol into crates. His evidence about the names of people who were present when he spoke to Mr Alderson was contradicted and Mr Alderson gave evidence there was no mention of a darts function during their discussion. Mr Mountford maintained he was unaware of alcohol being in the car before reaching Mr Springall’s house which was contrary to Mr Springall’s evidence, he thought the removal of alcohol was authorised yet he questioned Ms McDonagh as to why she was taking so much and said he was not aware that alcohol was being removed but then said the alcohol would be returned to the respondent. Mr Mountford acknowledges seeing his son removing a tub of alcohol and that two black crates were removed from the Centre and that Mr Springall took some of the alcohol. Mr Mountford stated that Mr Alderson told him to ask Mr Fraser for permission to take the alcohol to Mr Vallentine’s function, yet he made no effort to do so and his evidence that he was going to report the removal of alcohol to Mr Fraser when he was told of the meeting on 17 December 2008 is improbable and should not be believed and Mr Mountford’s protestations that he was removing the alcohol for another of the respondent’s functions should be ignored. Mr Mountford gave several reasons for removing the alcohol, including donating it to a darts function which was unrelated to the respondent’s interests and he had no authority to remove alcohol for any other function run by the respondent. Mr Mountford’s evidence demonstrates that he regarded the alcohol he removed as his to do with it as he pleased and that he had no intention of returning it to its rightful owner.
218 The respondent maintains that Ms McDonagh gave evidence that Ms Raecke came up to her and offered her alcohol yet this was not put to Ms Raecke in cross-examination. Ms McDonagh also confirmed that Mr Springall took some alcohol and Ms McDonagh gave evidence that when they arrived home, Mr Mountford wanted to take the alcohol back “there and then” which is inconsistent with Mr Mountford’s evidence that they had permission to take the alcohol. Ms McDonagh was evasive as to when Mr Mountford was aware of the alcohol being removed despite one crate being on the back seat of the car and Mr Springall’s evidence that Ms McDonagh and Mr Mountford discussed the alcohol in the car on the way back to his parent’s house.
219 The respondent maintains that the evidence given by Mr Alderson contradicts evidence given by Mr Mountford. Mr Alderson gave evidence that there was no mention of darts during his discussion with Mr Mountford on 14 December 2008 and his explanation that both he and his wife asked Mr Mountford precisely the same question is unbelievable. As Mr Alderson was trying to assist Mr Mountford by making a written statement about his interactions with Mr Mountford his evidence should be discounted for that reason.
220 The respondent maintains that Mr Springall admits assisting Ms McDonagh to load wine into a crate, he was aware of the amount of alcohol being removed by Mr Mountford and Ms McDonagh and he was sitting next to one of the crates of alcohol in the car. Mr Springall admits that he took two bottles of wine which he knew belonged to the respondent, that Ms Raecke never spoke to him or gave him permission to remove alcohol contrary to the statements made in his application and he knew he was in trouble over the removal of alcohol on the day of his interview and he knew the purpose of the interview. He therefore knew the removal of the alcohol was wrong. Mr Springall also stated that fellow workers would not want him to return to his job. As Mr Springall returned two bottles of wine he therefore had stolen alcohol in his possession and as Mr Springall took this wine home his claim that these were roadies is incorrect.
221 The respondent submits that there is no dispute that the alcohol removed from the Centre was the respondent’s lawful property. Furthermore, the applicants waited until the end of the evening after the last bus had left and after the CEO, other managers and the Councillors had left the Centre to remove the remaining alcohol. Video footage and the photographs of the Function shows each applicant taking alcohol at the conclusion of the Function and the respondent argues that this evidence justifies a finding that each applicant knowingly removed alcohol belonging to the respondent. Additionally, the respondent relies on the following admissions in support of concluding that the applicants stole the alcohol:
· Ms Samata admitted in her interview to taking four bottles and she was aware of the amount of alcohol Mr Samata and Ms Cassidy and Ms Todd were removing.
· Mr Samata admitted he took wine from the Centre and he was aware of the amounts Ms McDonagh, Ms Cassidy and Ms Todd were removing.
· Ms Todd referred to “our” crate, she admitted helping Ms Cassidy carry the crate to Ms Cassidy’s car and appears to acknowledge the wine would be shared with her, although she insists the final arrangements had not been discussed.
· Mr Mountford was aware of the amount of alcohol removed by Ms McDonagh, he was aware of its removal to his house and he knew he should return it to the respondent but did not do so.
· Mr Springall admitted taking two bottles and assisting Ms McDonagh to load wine into crates.
222 The respondent argues that this was not a case where the applicants were drunk and did not realise what they were doing and then sought to remedy their mistake as soon as possible. The respondent argues that even though the Function occurred on Saturday evening none of the applicants came forward before the following Wednesday morning to inform the respondent they had taken the alcohol or made any attempt to return the alcohol. It was not until each applicant was called into a meeting by Mr Fraser on Wednesday 17 December 2008 that they admitted to taking some of the alcohol and only after that alcohol was returned.
223 The respondent maintains that the applicants showed no remorse about the removal of the alcohol. At the hearing they were all still alleging that they had permission to remove alcohol and despite being aware of the actions of at least some of the others in removing large amounts of alcohol none of the applicants reported this to the respondent which was their duty under their contracts of employment.
224 The respondent rejects the proposition that the applicants had three excuses for the removal of the alcohol. These were that others had taken ‘roadies’ and the alcohol they removed were ‘roadies’, Mr Maley had taken a large quantity of alcohol which was denied by Mr Maley and the applicants were given express permission by Ms Raecke which was incorrect. The respondent argues that the applicants committed serious misconduct when they removed the respondent’s alcohol from the Centre and observed others removing large amounts of the respondent’s alcohol and failed to report this to the respondent. Regardless of the quantities of alcohol that each applicant removed all knew the amount of alcohol that was being removed by the others and when they did nothing to stop that removal or to report the removal they thereby became a party to the removal of a substantial amount of alcohol in concert with the other applicants and the Commission should not countenance theft by an employee by setting an arbitrary lower limit of how much an employee could steal before risking dismissal. In the interviews held on 17 December 2008 each of the applicants admitted taking some wine and the respondent therefore had reasonable grounds for believing that they had committed serious misconduct. It was thus open to the respondent to conclude that the necessary trust and confidence needed to sustain an employment relationship had been broken to such a degree that it was necessary to end that relationship and the summary dismissal of each applicant was justified.
225 The respondent also argues that each of the applicants was afforded procedural fairness during the process of their termination.
226 Procedural fairness will be afforded if the employer conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct and gave the employee every reasonable opportunity and sufficient time to answer allegations (Bi-Lo Pty Ltd v Hooper (1992) 53 IR 229 [“Bi-Lo Pty Ltd v Hooper”]). In “C” v Quality Pacific Management Pty Ltd 73 WAIG at pages 988-998 (“Quality Pacific Management”) the Full Bench stated at page 997:
“As the Commission appears to have accepted, and in my view correctly accepted, in dealing with matters of this nature it is not necessary to establish, on balance, that the employee actually stole the money in question. Rather ... it is sufficient that there be a reasonable and genuine belief by the employer in the guilt if the employee ... The question in such cases is that stated by Arnold J in British Home Stores Ltd v Burchell IRLR 379 at 380 as follows:
What the Tribunal has to decide every time is broadly expressed whether the employer who has charged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at that time.”
227 The Full Bench in Quality Pacific Management also cited the decision in Bi-Lo Pty Ltd v Hooper in which the Full Commission in that decision stated:
“In a case such as the present one where the employee is dismissed for misconduct in respect of dishonest dealing with the employer’s property we do not believe it is a correct test to state as did the learned trial judge that the employer must prove, on the balance of probabilities, on the evidence submitted to the Commission, that the employee actually stole the goods, before it will escape a finding that a dismissal based upon such an alleged theft is to be treated as harsh, unjust or unreasonable....
Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto, and that having done those things the employer honestly and genuinely believed that and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that; taking into account any mitigating circumstances either associated with the misconduct or the employees work record, such misconduct justified dismissal.”
228 The Full Bench in Quality Pacific Management then stated at page 7:
“...the Commission as presently constituted respectfully accepted and adopts, for the reasons given in Fielding C, that a reasonable belief of theft by an employer after a proper consideration of all the circumstances by the employer, constitutes sufficient ground for dismissal of the employee…” [Our emphasis]
229 Stephen McDonald v Kwik Express (Timemaster Pty Ltd) (2006) 86 WAIG 345 (“McDonald”) confirms that the procedure outlined in Quality Pacific Management, citing the decision of Bi-Lo Pty Ltd v Hooper is still to be adopted and applied by the Commission.
230 The respondent submits that the dismissal of an employee can still be fair and reasonable despite being procedurally flawed. In McDonald Commission Kenner stated at paragraph 13:
“In particular, if it is established that despite there being flaws in the procedure adopted giving effect to a particular dismissal, the employee could have been justifiably dismissed in any event, then no justice or unfairness will necessarily result: Shire of Esperance v Mouritz (1991) 71 WAIG 891 at 899.”
231 On 17 December 2008 Mr Fraser and Mr Fitz Gerald interviewed the applicants and the applicants’ supervisors attended the interviews. The respondent maintains that the applicants were not denied procedural fairness as each applicant was given relevant information at their interviews and at the outset of the interviews each of the applicants knew the purpose of the meetings. Each applicant was offered the opportunity to have a representative but they declined and none of the applicants suggested that they were prejudiced by not having representation and each applicant was advised of their wrongdoing and given an opportunity to explain. At the commencement of each interview Mr Fitz Gerald advised each applicant that they were entitled to have a support person attend the meeting and after each applicant had been advised of the material that was to be discussed, the applicant could then decide whether they wanted to have a representative or support person present before responding to any questions. Mr Fitz Gerald also advised each applicant that they were not obliged to respond to any question or make any statements and they were advised of and given an opportunity to view the video footage of the night of the Function.
232 The respondent maintains that during the interviews each applicant admitted to taking the following quantities of alcohol from the Function and none provided any reasonable explanation as to why they had taken the alcohol and after the interviews, most of the applicants returned the alcohol they had taken the night of the Function.
· Ms Samata admitted to taking three or four bottles of wine home;
· Mr Samata admitted to taking four bottles of wine and six stubbies of beer;
· Ms Todd admitted to taking four bottles of wine;
· Mr Mountford admitted to taking drinks; and
· Mr Springall admitted to taking two bottles of wine.
233 The respondent submits that after considering the applicants’ responses, Mr Fraser decided to terminate each of the applicant’s employment and each applicant was telephoned on 17 December 2008 and notified of this decision and each applicant was then sent a letter of termination dated 22 December 2008.
234 The respondent argues that the applicants’ claim that by not monitoring alcohol consumed at the Function this effectively was a licence to remove the alcohol is untenable. No instruction was necessary to be given to the respondent’s employees at the Function by Mr Fraser when he departed, as claimed by the applicants, about the alcohol remaining at the Centre as the alcohol belonged to the Shire and this would be reminding them that they could not steal the alcohol which he did not need to do. All employees knew that the alcohol belonged to the respondent and the respondent had not given them any authority to remove it.
235 The respondent argues that it was not inappropriate to show Councillors the video footage of the events of the Function prior to raising this issue with the applicants and the respondent maintains that the views of the Councillors did not influence Mr Fraser’s decision to terminate the applicants.
236 The respondent maintains that the only issue of prejudice raised on behalf of the applicants is that Mr Fraser should have spoken to Ms Raecke to determine whether there was any veracity in claims she had given the applicants permission to remove the alcohol. However Mr Fraser did not need to speak to Ms Raecke as he knew she did not have authority to give away the respondent’s property and she was no more than a young waitress engaged by the Centre to help out at the Function. In any event, it is clear from the evidence of Ms Raecke that the outcome would have been no different had Mr Fraser spoken to her and no prejudice was therefore suffered by the applicants.
237 The respondent submits that the issue of the applicants being terminated at Christmas is irrelevant when taking into the account the actions of the applicants and the respondent argues that the consequences of the applicants’ terminations was brought on themselves by their own actions.
238 In summary the respondent argues that it conducted a thorough investigation into the applicants’ misconduct and provided each applicant with an opportunity to respond to the allegations against them. Before making the decision to terminate the applicants’ employment, the respondent’s CEO gave consideration to video footage which showed the applicants removing the alcohol, the applicants did not approach the respondent to provide a explanation as to why they removed the alcohol, in the interviews each applicant was informed they were allowed to have a support person in the meeting, they were told of the allegation against them, they were not required to answer any questions immediately, they were allowed to view the video footage of the night of the Function and when questioned about removing the alcohol each applicant admitted to removing alcohol. After giving proper consideration to all the facts, the respondent concluded that the applicants had knowingly taken the alcohol belonging to the respondent for their own personal use in circumstances where the applicants were aware they had no authority to do so. The respondent also argues that even if there was a flaw in the procedure adopted by the respondent, which is denied, the serious misconduct of the applicants justified their dismissal.
239 The respondent argues that the applicants’ applications should be dismissed on the basis that:
· The applicants were filmed removing alcohol belonging to the respondent at the conclusion of the Function.
· The applicants did not approach the respondent and provide any explanation as to why they removed alcohol belonging to the respondent.
· The respondent thoroughly investigated the matter, which included an individual meeting with each applicant in which they were given a reasonable opportunity to respond to the allegation against them.
· After a thorough investigation and consideration of all the facts, the respondent concluded that it had lost the necessary trust and confidence in each applicant.
· The applicants were afforded both substantive and procedural fairness and therefore their applications pursuant to s 29(1)(b) of the Act should be dismissed.
240 If the Commission finds the dismissal of the applicants was harsh, unfair or oppressive the respondent maintains that it is not practicable to reinstate the applicants and relies on Jaggard v Tranbury Pty Ltd (1996) 76 WAIG 4720. The respondent argues that this is because the applicants were terminated over 20 months ago and their previous positions with the respondent are no longer available. Furthermore, Mr Samata has suggested that his supervisor Mr Vallentine is an idiot, which cannot be reconciled with his suggestion he can return to work and Mr Springall has acknowledged that other employees would not want him back. Furthermore the respondent has lost all trust and confidence in each applicant. The respondent also argues that the applicants have not put sufficient evidence before the Commission to properly assess the losses they have suffered and have accordingly failed to make a case for an award of compensation. Additionally, compensation in lieu of reinstatement should not be awarded to Mr Mountford as he did not look for alternative employment and he only undertook contract work.
Applicants’ submissions
241 The applicants argue that they had a genuine belief that they could remove alcohol from the Centre and if the Commission finds this to be the case there has been no theft of the alcohol and the basis for their terminations falls away.
242 The applicant maintains that the basic facts with respect to this matter are not in dispute:
· The Shire organised a fully catered Christmas Party at the Centre.
· Written invitations were issued to Staff and councillors and their partners.
· There were three means of transport to the Function; by private transport; on the bus that travelled through the Lancelin and nearby regions of the Shire (the Lancelin bus); and the Gingin bus that provided transport for those travelling to the Function from the vicinity of Gingin (the Gingin bus).
· The Function commenced with drinks which were followed by a meal and then the Function continued into the evening.
· Entertainment was provided by a DJ engaged by the Shire and who was set up in the outside barbeque area at the Centre.
· Both alcoholic and non alcoholic drinks were provided by the Shire at no cost and they were available without restriction, individuals being able to take what they wanted from the crates and fridge in which the drinks were kept for the evening.
· The Shire did not monitor or in any way seek to exercise any controls over what alcohol was consumed or the amount that was consumed.
· The Lancelin bus was the first to leave the Function at around 10.00pm or a little later.
· Some half an hour or so later, the Gingin bus departed.
· Prior to the departure of the buses, the CEO made it known that attendees were free to take a “couple of roadies”.
· The CEO departed on the Gingin bus.
· Those who remained used alternative means of transport.
· The DJ who provided the entertainment for the evening was still in attendance at the time the buses departed.
· At the time of the bus departures, there were still a considerable number of drinks remaining. Those who were still at the Function were able to access those in the same fashion as earlier in the evening.
· The DJ continued to provide music in the outside barbeque area.
· When the CEO departed he did not issue any instructions in relation to the alcohol remaining to any of those who remained at the Function.
· The CEO was aware that at the time of his departure not all of the invitees had left the Function.
· Aside from the staff employed by the Centre to conduct the Function, those remaining at the Centre after the buses had left were:
Mr and Ms Samata
Mr Mountford and Ms McDonagh
Ms Todd and Mr Todd
Mr and Ms Cassidy
Mr Springall
· At the very end of the evening Mr Mountford’s son arrived to take his parents home.
243 The applicants submit that the evidentiary onus with respect to summary termination lies with the respondent and if this evidentiary onus is discharged it then falls to the applicants to demonstrate that the termination of the applicants’ employment was unfair (see Printing and Kindred Industries Union, Western Australian Branch, Industrial Union of Workers v Western Australian Newspapers (1990) 70 WAIG 4182 and Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677). The applicants argue that for the respondent to discharge its evidentiary onus it must demonstrate that alcohol was actually removed from the Centre by the each of the applicants and that the applicants stole the alcohol that is that the applicants acted without the permission of the Shire or in the alternative they did not have a genuine belief that they were able to remove the alcohol.
244 The applicants admit that the aggregate amount of alcohol shown as being returned was with the exception of the bottle of wine consumed by Ms Cassidy the amount that was removed from the Centre at the end of the Function but Ms Samata, Mr Mountford and Mr Springall do not admit that they removed any alcohol from the Centre and the applicants agree that two other bottles of wine were given to the DJ at the end of the Function when the DJ was packing up.
245 Advice was given to each of the applicants in their letter of termination that their employment was terminated because of a lack of trust and confidence as a result of the respondent forming the view that the applicants had stolen the respondent’s property and the applicants maintain that the respondent cannot rely on the applicants being terminated for not stopping others from taking alcohol as the reason for their terminations was stealing alcohol. The applicants argue that they had no intention of stealing alcohol nor was the alcohol which was removed given away for personal advantage and the applicants contend that their terminations were substantively unfair as they were based on the premise that they had stolen the alcohol from the respondent which is denied.
246 The applicants argue that the respondent has not distinguished between the actions of each applicant with respect to the removal of the alcohol and that the respondent adopted a nil tolerance policy about the amount of alcohol removed by each of the applicants, which varied from the two bottles of wine given to Mr Springall which he described as ‘roadies’ to a significant amount of alcohol returned by Ms Cassidy and Mr Mountford. The evidence shows that notwithstanding the fact that various factors such as length of service were allegedly taken into account in reality each applicant was terminated for the same reason - the alleged breakdown of trust and confidence based on the conclusion that each of the applicants had stolen the alcohol which they returned.
247 The applicants argue that there was no need to report removing the alcohol from the Function to the respondent because they did not believe they had done anything wrong when they removed the alcohol. Furthermore, the removal of the alcohol was not a secret and it was done at a public event. The applicants maintain that no instructions were given by the respondent with respect to the remaining alcohol at the end of the Function and there was no express permission given by the CEO or his delegate that the removal of the alcohol could not be regarded as ‘roadies’. The applicants maintain that Ms Raecke held out that she had authority that the alcohol could be removed and the applicants contend that they had approval from Ms Raecke for the alcohol to be removed and they held a genuine belief that their actions were consistent with this approval. Whether in retrospect this belief proved not to be the case does not affect its character.
248 The applicants reject Mr Fraser’s claim that they colluded to steal the alcohol and the applicants contend that they did not do anything either before or after the departure of the buses that could reasonably be construed as conspiring to steal from the respondent. Even though the applicants were aware of each other’s actions the removal of the alcohol was not an active concerted action on the part of the applicants. Furthermore, Ms Raecke assisted in the removal of the alcohol by the provision of a crate. The applicants maintain that they had not come to the Function as a group and did not associate closely together in the course of the evening. Some who remained assisted in cleaning up the Centre whilst others continued to “party” and the applicants maintain that it was simply a matter of coincidence as to who remained. Mr Samata, Ms Cassidy and Ms Todd conceded that they removed alcohol from the Function and that Ms Todd and Ms Cassidy loaded wine into a crate provided by the Centre and this wine was placed in Ms Cassidy’s car. Ms McDonagh also placed alcohol into a crate which was subsequently removed from the Centre to a car driven by her son and all remaining participants left the Centre at about the same time. Whilst all of this was taking place, Centre staff were cleaning up and were consistently within the area where the applicants were located and could see what was taking place as confirmed in the video footage. Ms and Mr Todd and Mr and Ms Cassidy made arrangements to continue on to Mr and Ms Samata’s home afterwards and they left together and Mr Mountford, Ms McDonagh and Mr Springall left to travel home and Mr Springall was dropped off on the way. Nothing in this demonstrates the collusion asserted by the respondent.
249 The applicants argue that the process used by the respondent to determine that the applicants should be terminated was fundamentally flawed.
250 The applicants argue that their terminations were harsh given that they took place within a week of Christmas when the prospect of finding any other form of employment was at a minimum and as all proportionate annual leave and the payment of notice was withheld from the applicants this had an additional impact given that it was the Christmas period and in the case of Mr and Ms Samata both family sources of income were removed simultaneously. The respondent added to the impact of the terminations by reporting the matter to police in advance of putting the matters to the applicants and the respondent relied on the alleged “police assessment” in the applicants’ interviews in an improper way when there was no evidence that police had expressed such an opinion prior to the interviews. The applicants were left to endure the uncertainties associated with a police investigation over the Christmas period and in the case of Mr Mountford to engage Counsel when he was without an income. Ultimately police did not prefer any charges and this rendered Mr Fraser’s comments about the police view of the applicants’ actions manifestly inappropriate and prejudicial to the applicants’ interests. Even had the police said anything at the time it was reported, Mr Fraser acknowledged the view was preliminary and yet he relied on it in the interviews saying that the actions of the applicants was at the higher end of the range of theft.
251 The applicants submit that the removal of the alcohol was raised improperly with Shire Councillors prior to the applicants being given an opportunity to admit, deny and/or provide an explanation and it is the responsibility of the CEO under local government legislation to deal with staff matters to the exclusion of council. The applicants argue that the manner in which the removal of the alcohol was introduced to the Councillors by Mr Fraser created a strong impression of wrong doing and the negative reaction of Councillors was subsequently relied upon by Mr Fraser during the interviews with the applicants and was used to put improper pressure on the applicants. The applicants argue that Mr Fraser was influenced by the Councillors’ views and they had no right to express an opinion especially when at the time the matters had not been put to the applicants. Councillors were shown a copy of the video footage retrieved from the Centre and they saw this video footage on the day before the applicants were notified that they were to be interviewed about the Function. Councillors were invited to comment on the material shown to them and some did so and some expressed opinions that the applicants should be terminated.
252 The applicants argue that the way in which they were brought to the interview, the concealment of the purpose of the interview and the reference to the views of police and Councillors during the interviews was intimidatory and unfair. There was a disadvantage to the applicants as the video footage was played faster than ordinary time in some instances this gave a distorted picture of what was occurring, the applicants’ union was not alerted at any time about the interviews and there was no clear identification of the allegation the applicants were required to answer at the outset of the interview although the applicants were ultimately able to distil the purpose of the meeting from the questions that were put to them. The applicants were also without representation at the time of the interviews and were deprived of any real opportunity to have representation. The applicants contend that it was procedurally unfair to have the applicants’ supervisors in a representative/witness role at the interviews and then to invite them to participate in the decision making process with respect to whether or not the applicants should be terminated and the applicants were not told at the outset that the supervisors would have an active role in the determination of their fate. Furthermore, Mr Fraser gave evidence that they were the applicants’ representatives at the interviews which was not the case. The applicants did not choose their supervisors as their representatives and there is no evidence that the supervisors sought to assist or to put a case for the applicants. Ms Lowes agreed that she was not in attendance at Ms Samata’s interview as her representative and Mr Vallentine asked a question during an interview which was investigative in character.
253 Mr Fraser claimed that he had a preliminary view about the applicants’ actions but the meeting with the Councillors, the reporting of the matter to the police and the comments in Mr Springall’s interview that he was “gutted” make it plain that his view was settled. Procedural deficiencies arose when Mr Fraser conveyed the purported views of the Councillors to the applicants however Councillors did not at any time express a common view and were not invited to do so. The use of the Councillors discussions in the interviews was devoid of any objectivity, was prejudicial to the interests of the applicants and conveyed a substantial misrepresentation by Mr Fraser who was allegedly investigating the allegations and who was to make the final decision.
254 There was conflict between the description of the role of Mr Fitz Gerald given by Mr Fraser who contended that he was there to conduct an investigation which was contrary to Mr Fitz Gerald’s contentions that his role was that of an advisor. However, the notes of interviews demonstrate that he had carriage of the investigation. Mr Fitz Gerald maintains that all applicants were told that they could adjourn the interview after viewing the video footage and then take advice and seek representation however all applicants gave evidence that they were not told this and their evidence was not shaken in that regard and ought to be accepted by the Commission.
255 The applicants argue that it is open for the Commission to conclude that from the commencements of the interviews until the advice of their terminations that scant regard was given to the applicants’ views. The applicants made it clear during their interviews that they believed they had been given permission by Ms Raecke to remove the alcohol and the applicants were denied procedural fairness when the respondent reached its conclusions about the removal of the alcohol without making any attempt to discuss their claims with Ms Raecke. The applicants were entitled to have their explanations objectively assessed but this did not happen. Furthermore, Mr Fitz Gerald was dismissive of this explanation describing it as implausible and he did not make any attempt to check the extent to which these claims were factual. A further element of unfairness was that in making his decision, Mr Fraser sought the views of the Shire President who maintained that the applicants should be terminated and Mr Fraser acknowledged that the view of the President was taken into account in the decision making process. The Shire President did not have the advantage of hearing the applicants’ explanations in reaching his decision and he reached his conclusion and expressed his opinion based on Mr Fraser’s version of what took place at the interviews.
256 The applicants contend that they had Ms Raecke’s approval to remove the alcohol and this issue was raised with her on more than one occasion and the applicants maintain that Ms Raecke held herself out to have authority by her advice to them and her actions were consistent with that advice. Mr Samata verified a second time with Ms Raecke that the alcohol could be removed and Ms Samata gave evidence that Mr Samata told her that the alcohol could be removed and when she pressed the issue a second time Mr Samata was adamant that the removal of the alcohol was permitted. These factors taken together suggest that Mr Samata’s version of events ought to be accepted. The evidence of Ms Todd is similar to that of Mr Samata. She was twice given approval to remove the alcohol by Ms Raecke and her evidence was that not only had she been told that the alcohol could be removed but Mr Cassidy had similarly asked this question on more than one occasion in her presence and had been told the same thing. The letter to the respondent from Ms Todd after her termination clarified her belief that she had authority to remove the alcohol as it was left over from the Function and she therefore had no intention of stealing the alcohol. Ms McDonagh gave evidence to the same effect as Ms Todd and Mr Samata and Ms McDonagh gave evidence that Ms Raecke had commented to her “was that all she was taking?”. Ms McDonagh had a friendship with Ms Raecke for 15 years and trusted her and it would be reasonable in those circumstances for Ms McDonagh to believe the veracity of Ms Raecke’s comments. Ms Raecke’s provision of the crate to Ms McDonagh into which she saw the alcohol being placed for removal, her close proximity as the alcohol was being put into a crate and her personal association with Ms McDonagh led Ms McDonagh to conclude that her advice the alcohol could be removed was soundly based. If Ms Raecke considered the removal of the alcohol to be wrong as a staff member responsible for the conduct of the Function, she could have been expected to act as the alcohol was in the custody of the Centre staff at the end of the Function. The evidence that Ms McDonagh asked for the balloons is uncontested and Ms Raecke readily provided them.
257 It is acknowledged that Ms Raecke’s evidence contradicts that given by the applicants however Ms Raecke was not asked about her version of events in December 2008 or anytime soon thereafter. The video footage is evidence that she was in the vicinity when alcohol was being removed, she spoke to the applicants and was well aware of what was being removed and it is unlikely that she would have simply stood by and watched the removal of the alcohol if it was being stolen.
258 The applicants maintain that their explanation is consistent and ought be accepted as it was given in close proximity to the events and consequently, their recollection was fresh. The applicants did not discuss the matters amongst themselves prior to the interviews taking place as the respondent took steps to ensure that there was no discussion between the applicants prior to the interviews. In the circumstances, the applicants argue that it is improbable that they would have similar explanations. Furthermore, the applicants gave statements to police even though they had no obligation to do so.
259 An employer who provides alcohol at a function has a responsibility to those attending and in this case the respondent elected not to exercise its duties to superintend the Function and its property and the applicants submit that Ms Todd gave evidence that there had been similar practices at earlier Christmas functions. The applicants argue that the respondent had a responsibility to establish parameters for the conduct of the Function however Mr Fraser and the Deputy CEO left prior to its conclusion allowing it to continue unsupervised by the respondent and the applicants contend that it was known or ought to have been known to the respondent that a considerable amount of alcohol would have been consumed in the course of the night by those in attendance particularly as it had an open bar and that it was probable some participants would be affected by their level of alcohol consumption. The respondent also ought to have known and addressed the probability that persons who had consumed substantial amounts of alcohol would act differently to their ordinary behaviour in these circumstances.
260 The applicants submit that weight should be given to the applicants’ willingness to return the alcohol removed from the Function and all of it was returned with the exception of the bottle of wine consumed by Ms Cassidy and the two bottles of wine given to the DJ. Consequently, any loss suffered by the respondent was minimal.
261 Prior to the respondent determining that the applicants should be terminated the respondent canvassed options available to it however the applicants were not given the opportunity to comment on those options, nor were they given the opportunity to put their case as to why an outcome other than termination should be applied.
262 The applicants say that there are sufficient inconsistencies in Mr Fraser’s evidence to cause the Commission to have reservations about the quality of his evidence and his evidence should therefore be read down. Mr Fraser was reluctant to concede that the basis of the terminations was theft and it was not until he was confronted with the letter to Ms Todd that he acknowledged the point and Mr Fraser’s evidence in relation to Mr Fitz Gerald’s role was also inconsistent and Mr Fraser’s evidence on the process following the interviews was incomplete. The applicants contend that Mr Fraser determined that all the applicants were to be terminated regardless of these supposed criteria for determining the issue and the applicants suggest that in reality there was no prospect that any of them would be retained.
263 The applicants argue that there were weaknesses in the evidence given by Mr Fitz Gerald. He was clearly the inquirer yet he sought to play down that role, he maintained there was an opportunity for the applicants to get advice after viewing the video footage however there is no evidence of this in the notes. The applicants all gave evidence to the contrary and in particular Ms Samata was not shown the video footage as maintained by Mr Fitz Gerald. Mr Fitz Gerald claims that a range of factors were taken into account when assessing whether the applicants should be terminated including the loss of notice and proportionate entitlements due to summary termination however no figures were produced and the time of year was not expressly considered. Remorse was said to be taken into account, each applicants’ length of service was also claimed to be a factor however there was no evidence that this occurred as Ms Todd and Ms Cassidy would warrant retention if these were applied.
264 Reinstatement is the primary remedy in a matter where it has been found that an applicant has been unfairly terminated and this principle applies in this instance notwithstanding the substantial period that has elapsed since the terminations. The applicants have sought to progress their cases throughout this period and the delays have been caused by factors not within their control. The applicants rely on Max Winkless Pty Ltd v Graham Lindsay Bell and Another (1986) 66 WAIG 847 and say that there was no evidence in that matter that the applicant had intended to undermine the employer’s business or there was, otherwise, any disloyalty on the part of the applicant and the applicants submit that this is the case with respect to these applications.
265 Reinstatement is to be assessed at the time that the Commission hears and determines the matter and not assessed at the time of the termination (see Neville Max Woodberry v Koolan Island Club Inc [1992] 72 WAIG 1751).
266 The applicants submit that when an employer opposes reinstatement it must demonstrate at the time of the hearing that reinstatement would not be practicable. The applicants maintain that there is no barrier for them to be reinstated even though the timeframe has been lengthy between their terminations and the hearing as this timeframe has been extended not because of any delay on the part of the applicants. Furthermore the respondent has been on notice since these applications were lodged that reinstatement was being sought. The applicants rely on the following cases where there were considerable delays in finalising the applications however this did not impede reinstatement: The Federated Miscellaneous Workers’ Union of Australia, WA Branch v Boronia Day Care Centre Management Committee (1991) 71 WAIG 2493; Neville Max Woodberry and Koolan Island Club Inc (op cit) and Marcus John Holly v Barminco Pty Ltd (ACN 009 411 349) (2003) 83 WAIG 4093.
267 The only evidence given by the respondent with respect to reinstatement was from Ms Lowes who said that prior to giving her evidence she had a brief conversation with the respondent’s new CEO who opposed the applicants being reinstated and her evidence is hearsay in any event. Ms Lowes’ own views were that because the allegation of theft had been made out there was a risk of a repeat event and the applicants argue that Ms Lowes’ views can only be valid if the allegation is correct as a matter of fact. The findings from police and the evidence from the hearing show that the basis of her view is not sound. The other supervisors also appear to have approached the matter from the same basis as Ms Lowes. The applicants consequently argue that the evidence from Ms Lowes does not provide any evidentiary basis to refuse the applicants’ reinstatements. In comparison, each of the applicants gave evidence on reinstatement and were cross-examined on their claim. The respondent’s contention is also at odds with Mr Mountford’s roles in the Ambulance and the Fire Service which involve Mr Mountford having keys to buildings and equipment used to discharge the Shire’s regional fire and ambulance obligations. Each of the applicants also had no previous warnings on any matter arising from the employment which is in the applicants’ favour with respect to reinstatement.
268 Should the Commission regard the period since the termination prevents reinstatement then the Commission may consider ordering re-employment from a date later than the date of termination.
269 The applicants argue that only if the Commission is completely satisfied that neither reinstatement nor re-employment ought to be ordered should it consider compensation. The evidence shows that each applicant sought to mitigate their loss and each succeeded in securing employment and it is therefore contended that they have mitigated their loss. In the case of those of the applicants on probation compensation may be limited to the balance of the period plus notice and annual leave withheld.
270 Ms Samata’s evidence is that she did not take any of the alcohol but was outside when Mr Samata came out with three bottles of wine and at that time she specifically questioned Mr Samata on the propriety of taking the wine and was assured by Mr Samata on two separate occasions that it was alright to do so as Ms Raecke had said so. Ms Samata’s evidence was that she did not enter the Centre beyond the doorway and this is confirmed by the video evidence whereby she is not in the vicinity of the stored alcohol at any time. Ms Samata maintains that she did not take any alcohol from the Function and her role was limited to caretaking three bottles provided to her by Mr Samata at the time of the conversation about the approval for removing the alcohol and then placing the alcohol in the vehicle. Mr Fraser conceded that her explanation was possible and he further agreed that she was not directly asked if she had stolen any alcohol. Given this evidence, Ms Samata’s involvement was minor and did not involve removal of alcohol from the Centre. It was also reasonable for Ms Samata to rely upon the advice of her husband especially as she had expressly questioned whether the alcohol could be removed on two occasions. Ms Samata was personally and financially significantly impacted by the termination. She took on employment with the Loose Leaf Lettuce Company in February 2009 and she has sought other employment in a similar role at Chittering without success. Ms Samata seeks reinstatement and maintains that it is practicable. Should the Commission decide that compensation is to be awarded to her, the relevant factors are:
Shire rate of pay per week
$552.52 (24 hours per week x $23.022 per hour)
Period without income
18 December 2008 to 19 February 2009
9 weeks = $4,972.68
Loss from 20 February 2009 onwards
($23.0022 - $17.99 x 24 hours per week) = $120.29 per week (ongoing)
Annual Shire income = $28,706.67
Compensation claimed = $14,353.34
271 Mr Samata’s evidence was given with conviction and his evidence was credible. Mr Samata asked Ms Raecke on two separate occasions to confirm that alcohol could be removed and his intention was to make the alcohol available to those who returned to his new home to “continue the party”. In the event none of this alcohol was consumed. Mr Fraser sought to distinguish between ‘roadies’ and the alcohol taken to Mr Samata’s home to continue the Function on the basis that the latter was not part of the Function and did not fall within what he considered to be a “roadie” and the applicants argue this is a view formed after the event . Mr Fraser did not put any conditions on ‘roadies’ at the time of announcing the practice to be acceptable and there was no express requirement that they be consumed during the trip home. Mr Samata seeks reinstatement and says that he could readily work with his colleagues again. If compensation is to be awarded to Mr Samata, the following is relevant:
Shire income at termination
$807.83 per week ($21.2589 per hour)
$ 34.11 (allowances)
Total = $841.94 per week (see Exhibit A12)
Income foregone to 10 February 2009
8 weeks x $ 841.94 = $6,899.52
Income foregone from 11 February 2009 to 20 October 2009 (sic)
$ (sic)
Income foregone to 20 October 2009 (sic)
33 weeks x $841.94 = $27,784.02
Less earnings of $18,977.00 = $8,807.02
Annual Shire income = $43,780.88
Compensation claim = $15,706.54
272 Ms Todd conceded that she consumed a considerable amount of alcohol through the night and Ms Todd had arrived with Mr Todd and Mr and Ms Cassidy and she was in their company on and off throughout the night and they left together. Ms Todd does not dispute that between her and Ms Cassidy they removed the alcohol listed however there was no arrangement between them for the division of the alcohol and she had not had any further involvement with the alcohol until the time that the interviews took place. Ms Todd gave evidence that on two occasions Mr Fitz Gerald referred to her as stupid which is both inappropriate and intimidating in the interview process and Ms Todd’s core evidence on the approval for the removal of the alcohol was not shaken. Along with Ms Cassidy, Ms Todd was very remorseful about the events in which she had been involved as she and Ms Cassidy delivered a letter to Mr Fraser expressing this remorse. At the time Ms Todd occupied a Shire house at a very favourable rental and she was evicted from the house on notice based on the events at the Function and Ms Todd also sought medical assistance following the termination. Ms Todd commenced with the respondent in 2005 and was promoted in the course of the employment and she seeks reinstatement. If the Commission is not persuaded to reinstate Ms Todd, the following details form the basis for the calculation of compensation:
Shire income
$43,703.38
Income lost to 9 January 2009
3 weeks and 3 days = $3,146.67
Income lost from 12 January 2009 to 1 September 2009
36 weeks = $6,264.00
[$23.00 (shire rate) - $20.00 (per hour at Muchea Store) = $3.00 per hour x 35 hours =$105.00. Add three hours to total 38 hours per week = $69.00 = $174.00 per week]
Income lost from 1 September 2009 to end of the employment
36 weeks = $6840.00
[Shire rate $23.00 - Dental Assistant rate $18.00 = Difference $5.00. Weekly difference = $190.00]
Compensation claim = $16,250.67
273 Mr Mountford did not have any involvement in the removal of alcohol from the Centre. Two bottles of wine given to the DJ came from a crate in the barbecue area and this is consistent with Mr Springall’s evidence. Mr Mountford expressly denies assisting in the loading of a crate into the boot of his son’s car and this is supported by his partner Ms McDonagh. Ms McDonagh’s evidence was that she was the one who had loaded the crate and had a conversation with Ms Raecke about the alcohol and the video evidence clearly shows her role in that regard. Mr Mountford gave evidence about a conversation he had with Ms McDonagh about Ms Raecke giving approval to remove the alcohol and Mr Mountford said that he had assisted in cleaning up after the Function and had taken chairs inside. Mr Mountford enjoys the trust and confidence of the community and his roles involve an association with the respondent which supports a claim that reinstatement is practicable. Mr Mountford maintained that when he became aware of the volume of alcohol that Ms McDonagh had removed he became very concerned and Mr Mountford and Ms McDonagh showed an intention to use the alcohol in a manner that involved charity or other means inconsistent with an intention to retain possession of the alcohol. Mr Mountford told Councillor Alderson the day after the Function that alcohol had been removed at the end of the Function, an admission that he was most unlikely to make if he had any thought at all that he had stolen the alcohol. The evidence shows that Mr Mountford has taken on employment after his termination. Should the Commission consider that compensation should be awarded to Mr Mountford rather than reinstatement the following details are relevant:
Shire income
$835.31
[$21.2580 per hour x 38 = $807.80. Add allowances $28.51 = $835.31 per week]
Income foregone to 30 June 2009
28 Weeks = $23,388.66. Less earnings for the period of $21,294.12. Difference = $2,094.54
Income foregone from 1 July 2009 on
Shire Income to 31 December = $21,718.60. Less earnings for the period of $4,633.43 [Exhibit A9 scaled to six months]. Difference = $17,805.16
Claim = $14,990.62
274 Mr Springall was extremely remorseful about his involvement in events at the end of the Function. Mr Springall stayed on at the Function after the buses left and assisted Ms Raecke to clean up. Mr Springall consumed a substantial amount of alcohol in the course of the evening and he was offered and accepted a lift from the Mountfords. Mr Springall gave evidence that he assisted in placing alcohol into a crate and had placed it outside in the barbecue area and he had no role in the placement of any alcohol in the Mountford’s vehicle or any other vehicle. Mr Springall’s evidence was that he travelled in the rear of the Mountford’s car where there was a crate of alcohol and balloons and it was when he arrived at his home that Mr Springall was given two bottles of wine and Mr Springall maintained that he considered the two bottles of wine to be consistent with ‘roadies’ approved by Mr Fraser. Mr Springall therefore did not remove any of the alcohol from the Centre.
275 Mr Springall is seeking reinstatement and contends that it would be practicable. Mr Springall’s termination has had a substantial impact on him financially and in terms of his health. Mr Springall was initially unable to find work notwithstanding his attempts to mitigate his loss. In the alternative Mr Springall is seeking compensation. His losses are as follows:
Shire income at termination
$846.43 (sic) per week (see Exhibit A12)
[$780. 38 per week ($20.5363 per hour) + $46.05 (allowances)]
Income foregone to 30 March 2009
41 weeks and 3 days = $12,065.86
Income forgone from 31 March 2009 onwards
$104.42 per week
[Shire rate of pay $21.748 (weekly pay divided by 38) and deduct hourly rate for Brookrise (Exhibit A11) $19.00 = $104.42 per week ( $2.1748 x 38)]
Annual Shire income = $44,0143.36
Compensation claim = $22,0072 68
Findings and conclusions
Credibility
276 I listened carefully to the evidence given by each of the witnesses and closely observed each witness.
277 Even though the timeframe between the applicants’ terminations and the hearing was lengthy I find that each applicant gave their evidence honestly and in a considered manner and I find that their evidence was plausible. I also have confidence in the veracity of the evidence given by Ms McDonagh.
278 In my view Ms Samata gave her evidence in a direct and forthright manner and I find that she had a clear recollection about details of the events which took place at the Function. I find that inconsistencies in the evidence she gave at the hearing were minor and in my view did not undermine the veracity of her evidence. In the circumstances I accept the evidence given by Ms Samata. I also accept Ms Samata’s evidence and I find that she stated in her interview that she moved two bottles of wine along the path outside of the Centre at the end of the Function and she did not admit to Mr Fraser and Mr Fitz Gerald that she removed alcohol from the Centre.
279 Even though there were some minor inconsistencies in his evidence I find that Mr Samata gave his evidence to the best of his recollection. Furthermore when describing his views about his supervisor, Mr Valentine, Mr Samata gave evidence against his own interests which in my view confirms that Mr Samata’s evidence was given honestly. I therefore accept his evidence.
280 I find that Ms Todd gave her evidence in a forthright and authoritative manner and despite some minor inconsistencies in her evidence I find that her evidence was in the main consistent and detailed. I also find that Ms Todd’s evidence was not broken down during extensive and vigorous cross-examination. I therefore accept the evidence given by Ms Todd.
281 Even though Mr Mountford gave inconsistent evidence at times about his actions at the end of the Function I find that he gave his evidence about the events of the Function to the best of his recollection and I therefore accept his evidence. In reaching this view I take into account that Mr Mountford had consumed a considerable amount of alcohol by the end of the Function and in my view this would have affected his recollection about the events which occurred at the end of the Function and on his journey home. It is also the case that Mr Mountford gave in the main consistent evidence about his actions with respect to the removal of alcohol from the Centre as he told Mr Fraser and Mr Fitz Gerald during his interview that he did not load alcohol into a crate, he was not involved in putting crates into his son’s car and he was only aware that crates were in the car on the journey home which was in accord with the evidence he gave at the hearing.
282 I find that Mr Springall gave his evidence in a considered manner and I am of the view that the evidence he gave was in the main consistent. Some of his evidence was contrary to evidence given by Ms McDonagh and Mr Mountford however in my view nothing turns on this. Even though Mr Springall did not state that he was drunk at the end of the Function during his interview with Mr Fraser and Mr Fitz Gerald he consumed a considerable amount of alcohol during the Function and Mr Springall gave evidence at the hearing that he was inebriated by the end of the Function. In the circumstances I find that this may have affected his recollection about the events which took place at the end of the Function. I therefore accept the evidence given by Mr Springall.
283 I find that Ms McDonagh gave her evidence in an authoritative and clear manner and her evidence was in general not broken down during extensive cross examination. I therefore accept her evidence. Whilst Ms McDonagh gave varying evidence about how the alcohol she removed from the Centre was put into crates at the end of the Function in my view nothing turns on this.
284 I find that Mr Alderson gave his evidence to the best of his recollection and I therefore accept his evidence.
285 I find that Mr Fraser gave his evidence in a considered and clear manner. Even though his recollection was confused about when the removal of the alcohol from the Function was reported to the police and some of his other evidence differed from evidence given by Mr Fitz Gerald I accept that these inconsistencies arose due to the lengthy timeframe between the events of the Function and the hearing. I am also of the view that these inconsistencies were minor and were not material to the issues in dispute. In the circumstances I accept the evidence given by Mr Fraser.
286 I find that Mr Fitz Gerald was forthright, clear and consistent when giving his evidence. Mr Fitz Gerald denied calling Ms Todd “stupid” during her interview however I find on the balance of probabilities that he may have said this to Ms Todd as I have found Ms Todd to be a convincing witness and Mr Fitz Gerald’s evidence that he regarded the evidence given by Ms Todd and the other applicants about Ms Raecke giving them permission to remove alcohol from the Centre as being fanciful.
287 Ms Lowes had a clear recollection of what transpired during the interviews she attended and the nature of the discussions which occurred subsequent to each applicant’s interview and in my view she gave her evidence in a considered and forthright manner. I therefore accept her evidence. In my view Mr Vallentine gave evidence to the best of his recollection and I have no reason to doubt the veracity of his evidence. I find that Mr Maley was not as forthcoming as he could have been about his interactions with Mr Samata at the end of the Function and his evidence in this regard was at odds with both the evidence of Mr Samata, which I accept, and video footage of the Function which shows him near Mr Samata at one point at the end of the Function around the time he was removing several drinks in a carton to take on the Lancelin bus. Even though I have doubts about Mr Maley’s evidence in this regard, in my view nothing turns on this.
288 In my view Ms Raecke was not a convincing witness and I find that Ms Raecke was not as candid as she could have been when recalling the events which took place at the end of the Function and what she told the applicants and where relevant their partners about the removal of alcohol from the Centre.
289 Ms Raecke claimed that she removed herself from the area where some of the applicants and their partners were putting alcohol into crates however the video of events at the end of the Function shows Ms Raecke alongside Ms McDonagh when this was occurring and it also shows Ms Raecke providing a crate to Ms McDonagh for her to remove alcohol to which she later added balloons. The video footage also shows Ms Raecke interacting with some of the applicants and their partners at the end of the Function which would have been an opportunity for the exchanges which some of the applicants and their partners claimed took place with Ms Raecke about permission to remove alcohol which Ms Raecke denied occurred.
290 As I have confidence in the veracity of the evidence given by the applicants in these proceedings I find that the evidence they gave about what Ms Raecke told some of them with respect to removing alcohol from the Function should be preferred to the evidence given by Ms Raecke. I also find that the weight of evidence is against Ms Raecke with respect to whether or not she told some of the applicants and their partners, where relevant, that the remaining alcohol could not stay at the Centre and had to be removed. In particular I take into account the following information about the applicants being given permission to remove alcohol by Ms Raecke and/or Centre staff which was given to Mr Fraser and Mr Fitz Gerald by the applicants during their interviews which were held soon after the Function:
Mr Springall
Exhibit R2 document 11
“Tony’s wife and Tony said allowed to take it.”
“Amy knew what was going on.”
“Tony turned around and said it was OK.”
Exhibit R2 document 12
“Tony’s wife said they were allowed to take it …”
“I suppose you could say Amy knew what was going on.”
Mr Samata
Exhibit R2 document 11
“People said you could take some.”
Exhibit R2 document 12
“A number of people said you can take some with you.”
“A number of people there who said “it’s our drinks” if you want to, take a couple home with you.”
Ms Todd
Exhibit R2 document 11
“GDC Staff said it was OKI (sic) to take the wine. Blonde lady in black outfit said it was OK to take (blonde lady was from the Centre).”
“GDC lady said “take it all” when DB asked how much could be taken.”
“Danica knew they were the Shire’s drinks and everyone was free to take.”
“Amy (?) acknowledged that they weren’t GDCs drinks and, as such, staff were free to take.”
Exhibit R2 document 12
“Yeah! The staff said to us – the bottles are going to stay here and those that do we will take it.”
“If we knew that it was not going to be taken by them we would have left it.”
“We said “How many can we take?” She said “Take them all”. She said it was the Shire’s.”
“The young girl said everyone is welcome to take them. She said the (sic) they weren’t the G-Centre’s drinks and Councillors had been taking them.”
“I wouldn’t have taken it if I knew it was not for us to take.”
“I just thought – we’d been told we could just take them – otherwise they would drink them.”
“She was just saying that it was left there.”
“It didn’t occur to us that someone would be coming back to collect it.”
“I wouldn’t have taken them if I knew that we definitely weren’t allowed to.”
“We knew – we were told that everyone was taking drinks so we took some.”
“We were told we were allowed to take them.”
Ms Samata
Exhibit R2 document 11
“No. Observatory staff said it was OK to do so.”
Exhibit R2 document 12
“Centre staff said we could take some home.”
“She said it was the Shire’s.”
“Well the staff at the GDS said to take a couple so that’s what we did – I knew it belonged to the Shire but everyone else was taking it.”
Mr Mountford
Exhibit R2 document 11
“Amy was offloading fridges etc and asked whether tasking (sic) “roadies”.”
“Amy: All this has to go.”
Exhibit R2 document 12
“Amy was offloading the fridges and said are you taking drinks. Everyone taking 6 packs for roadies.”
“When we finished they said “All this has got to go” so I said if you put it in a bucket I will take it to Frank’s do.”
“Amy gave it to Fiona, my wife.”
“Amy loaded the box up.”
“They were all given to them by Amy.”
291 There was no dispute and I find that on the day the applicants were terminated they were required to leave their employment that day and they were not given any payment in lieu of notice. As this dismissal was summary in nature the onus is on the applicants to demonstrate that the dismissal was unfair on the balance of probabilities. However, there is an evidential onus upon the employer to prove that summary dismissal is justified (see Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers [op cit] at 679). The question of whether a person is guilty of misconduct justifying summary dismissal is essentially a question of fact and degree (Robe River Iron Associates v Construction, Mining Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch & Ors [1995] 75 WAIG 813 at 819). In most cases the employee should be given an opportunity to defend allegations made against them. In Bi-Lo Pty Ltd v Hooper at page 229 the Full Bench of the South Australian Commission observed:
“Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”
292 The test for determining whether a dismissal is unfair or not is well settled. The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant as outlined by the Industrial Appeal Court in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385. The onus is on the applicants to establish that the dismissal was, in all the circumstances, unfair. Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicants as to amount to an abuse of the right needs to be determined. A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair. However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair (see Shire of Esperance v Mouritz [1991] 71 WAIG 891 and Byrne v Australian Airlines (1995) 61 IR 32). In Shire of Esperance v Mouritz (op cit), Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.
293 The applicants conceded, correctly in my view, that their attendance and conduct at the Function was sufficiently connected to their employment to be subject to disciplinary proceedings by the respondent if their conduct at the Function was inappropriate. The test in relation to whether or not the applicants’ out of hours conduct was sufficiently connected to their work to warrant termination was outlined in Rose v Telstra. In this decision the situations when an employee’s employment can be terminated for conduct that occurs outside of working hours is clarified. Ross VP stated the following:
“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,: (sic)
·the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
·the conduct damages the employer's interests; or
·the conduct is incompatible with the employee's duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”
294 Given the circumstances of this case and the tests to be applied in cases of this nature I find that the conduct of each of the applicants at the Function was sufficiently connected to their employment to warrant termination if their conduct constituted a repudiation of their contracts of employment with the respondent.
295 On the facts as I find them I am satisfied, at least on balance, that the respondent has not demonstrated that the applicants were guilty of gross misconduct justifying summary dismissal or indeed that the applicants conducted themselves in a manner warranting dismissal on notice. Furthermore, I am satisfied that the applicants were treated unfairly and harshly because they were not given a sufficient opportunity to defend themselves against the allegations relied upon to effect their terminations. I also find that the respondent did not conduct a full and appropriate investigation into the incident which eventuated in the applicants’ terminations and I find that the applicants were denied procedural fairness given the manner of their terminations.
296 The respondent contends that the applicants colluded when stealing the alcohol remaining at the end of the Function, they stole the alcohol for their own consumption and they did so knowing that the alcohol belonged to the respondent and when they did not have permission to remove this alcohol. The respondent also argues that even if Ms Raecke had given permission to the applicants to remove the alcohol, which it denies, the applicants should not have removed any alcohol as it was the respondent’s property and the applicants should have known that Ms Raecke did not have the authority to give away the remaining alcohol to the applicants. The respondent maintains that when the applicants became aware that other employees were removing the respondent’s alcohol from the Function they had a duty to prevent others from removing the respondent’s alcohol from the Centre and/or to report this to the respondent and if the applicants did not steal the respondent’s alcohol from the Centre there was an onus on each of them to return the alcohol removed by them at the first opportunity after the Function and they did not do so.
297 Paragraph 242 contains the applicants’ summary of relevant facts and background of events which took place on the evening of the Function. Except for the reference to Mr Fraser telling all participants at the Function that they were free to take a ‘couple of roadies’ as this was not strictly in accord with Mr Fraser’s evidence, I accept that this is an accurate summary of relevant events and there is therefore no need to repeat this summary.
298 There was no dispute and I find that on the Monday after the Function Mr Fraser became aware that alcohol left over from the Function was missing and after viewing video footage of the events which took place at the end of the Function he initiated an investigation into the removal of the alcohol with the assistance of Mr Fitz Gerald. As part of this investigation the applicants and Ms Cassidy were interviewed on 17 December 2008 about their involvement in the removal of the alcohol. In attendance at the interviews were each applicant, their supervisor and Mr Fraser and Mr Fitzgerald.
299 The alcohol and other drinks removed from the Centre which was returned to the Shire, except for one bottle of wine consumed by Ms Cassidy, are contained in the letters of termination of Mr Mountford, Mr Springall and Mr Samata (see paragraph 9) and in the case of Ms Cassidy 31 bottles of wine were returned to the Shire on 17 December 2008.
300 There was no dispute and I find that Mr Springall, Mr and Ms Samata, Mr Mountford and his partner Ms McDonagh and Ms Todd and Ms Cassidy and their partners were at the Centre at the end of the Function as well as Ms Raecke and her mother Ms Hamilton who were cleaning the Centre at the conclusion of the Function. The DJ was also packing up his equipment at the end of the Function. I find that a substantial amount of alcohol belonging to the respondent remained at the Centre at the end of the Function after the Gingin and Lancelin buses departed and I find that the respondent through its CEO or other senior manager in attendance at the Function did not give permission to anyone authorising the removal of this alcohol from the Centre. In particular I accept Mr Fraser’s evidence and I find that the respondent did not give Ms Raecke or Ms Hamilton permission to give away the respondent’s alcohol which remained at the Centre at the end of the Function. I find that towards the end of the Function Mr Fraser told a number of participants that they could take ‘roadies’ when leaving the Function which according to Mr Fraser was for consumption on the way home and it was not in dispute and I find that a number of persons who left on the Lancelin and Gingin buses took alcohol and other drinks with them. I find that this ranged from persons such as Mr Maley taking a number of drinks to share with others on the bus to some participants possibly removing bottles of wine, on the evidence of Ms Todd.
301 After giving careful consideration to the evidence given by the applicants and Ms McDonagh about what transpired at the end of the Function and what the applicants stated at their interviews and after having viewed the video of these events as well as reviewing the interview notes prepared by Mr Fraser and Mr Fitz Gerald I find that it was not open for the respondent to conclude that any of the applicants stole the respondent’s alcohol which was removed from the Centre at the end of the Function. I have reached this conclusion on the basis that I find that the applicants who removed alcohol from the Centre did so on the basis that they had a genuine belief that they were given permission by Ms Raecke either directly or indirectly to remove the remaining alcohol which belonged to the respondent from the Centre. I find that Mr Springall did not remove any alcohol from the Centre but took possession of two bottles of wine on the way home on the basis that he understood he had permission to do so and I find that Mr Mountford did not remove any alcohol from the Centre but when he discovered that Ms McDonagh had removed a considerable amount of alcohol from the Centre he was told that she had been given permission to do so. I also find that Ms Samata did not remove any alcohol from the Centre.
302 I find that Ms Raecke took it upon herself to expressly tell some of the applicants and their partners that the remaining alcohol had to be removed when the Centre was being cleaned up at the end of the Function on the basis that the remaining alcohol could not stay at the Centre. I find that the applicants had a genuine belief that Ms Raecke had the authority to facilitate the removal of the remaining alcohol and accordingly gave them permission to remove the remaining alcohol as she appeared to be the person in charge of cleaning up the Centre. I also note that when Ms Raecke gave permission for some of the applicants to remove the alcohol it was in the context of other participants who had already left the Function taking alcohol and other drinks with them when they left.
303 I find that after the Gingin and Lancelin buses left and when Centre staff were cleaning up the premises Ms Raecke expressly told Ms McDonagh, Mr Samata, Ms Todd and the partners of Ms Todd and Ms Cassidy and in some instances on more than one occasion that they could remove the remaining alcohol as the Centre had to be cleaned up that evening and all of the remaining alcohol was to be removed because it could not stay at the Centre. I find that Ms Raecke did so as she understood that the remaining alcohol, which she knew belonged to the respondent, could not remain at the Centre after the Function and could therefore be taken by the remaining participants at the Function. I accept that the respondent did not give Ms Raecke permission to allow anyone to remove alcohol from the Function and whilst each applicant knew or should have known that the alcohol remaining at the Centre at the end of the Function belonged to the respondent I find that Mr Samata, Ms McDonagh and Ms Todd and Ms Cassidy and their partners removed alcohol from the Centre after Ms Raecke told them that the remaining alcohol could be removed as it all had to be taken from the Centre. I also find that Mr Samata, Ms McDonagh, Ms Todd and Ms Cassidy and the partners of Ms Todd and Ms Cassidy had no reason to doubt that Ms Raecke had the authority to give them permission to remove the alcohol and no one at the Centre gave the applicants any instruction to the contrary. In the circumstances I find that when Mr Samata, Ms McDonagh and Ms Todd removed alcohol from the Centre at the end of the Function they were not stealing the alcohol as they had a genuine belief that they had been given permission to remove the alcohol belonging to the respondent by Ms Raecke.
304 As I accept Ms Todd’s evidence I find that Ms Raecke told her on more than one occasion that alcohol could be removed and she observed Ms Raecke confirming this with Mr Cassidy and Mr Todd. I find that it was on this basis that Ms Todd believed she had been given permission to remove alcohol from the Centre in conjunction with Ms Cassidy and their partners. It is also the case that during Ms Todd’s interview she told Mr Fraser and Mr Fitz Gerald that she removed alcohol on the basis that she had been given permission to do so by Ms Raecke. Even though Ms Cassidy did not give evidence in these proceedings I note that in the letter Ms Cassidy and Ms Todd gave to Mr Fraser dated 17 December 2008 they maintained that they had permission to remove the alcohol they did after having discussions with Ms Raecke. I find that the removal of substantial quantities of alcohol by Ms Todd and Ms Cassidy constituted poor judgement on their part however I take into account their excessive alcohol consumption by the end of the Function which I find compromised their ability to make appropriate decisions with respect to the quantity of alcohol they and their partners removed.
305 I find that Ms McDonagh removed a substantial amount of alcohol from the Centre at the end of the Function after Ms Raecke told her she could do so and after Ms Raecke provided her with a crate to assist in the removal of this alcohol. It is also the case and I find that Ms McDonagh has known Ms Raecke for approximately 15 years, she trusted Ms Raecke when she told her that the remaining alcohol was to be removed and she had no reason to doubt what Ms Raecke was telling her.
306 I find that Mr Samata regarded the alcohol he removed, which consisted of five bottles of wine and two bottles of beer, to be roadies and I find that when Mr Samata took wine and beer from the Centre he had a genuine belief that the drinks could be taken after having twice checked with Ms Raecke that he had permission to do so. I find that Mr Samata took the alcohol to consume at a party at his place after the Function which Ms Todd and Ms Cassidy and their partners were attending and I find that Mr Samata told Mr Fraser and Mr Fitz Gerald that he regarded the five bottles of wine and three beers he had in his possession after the Function to be essentially roadies to be consumed after the Function. I find that the quantity of alcohol removed by Mr Samata to consume after the Function was not inconsistent with Mr Fraser sanctioning participants at the end of the Function to take alcohol from the Function to consume afterwards and I find that the amount of alcohol removed by Mr Samata was reasonable in the circumstances given that roadies in varying quantities were taken by a range of persons onto the Lancelin and Gingin buses, including Mr Fraser. Furthermore, Mr Maley removed alcohol for himself and others at the end of the Function and apart from the evidence of Mr Maley no evidence was given during the proceedings that all attendees at the Function who took ‘roadies’ consumed them on the way home. In the event none of the alcohol was consumed at Mr Samata’s house by Mr and Ms Samata or Ms Todd and Ms Cassidy and their partners. I also note that Mr Samata does not drink alcohol or does so rarely and Ms Samata gave evidence that she does not drink wine which in my view adds weight to my finding that the alcohol Mr Samata removed from the Centre was to be consumed by others at his house after the Function.
307 I find that Ms Samata and Mr Mountford did not remove any of the respondent’s alcohol from the Centre.
308 I accept Mr Mountford’s evidence and I find that at the end of the Function he did not put any alcohol into crates to take to his house, I find that Mr Mountford did not load any alcohol into his son’s car at the end of the Function and I find that he only became aware that alcohol had been removed from the Centre by Ms McDonagh during the car journey home after the Function. In reaching this conclusion I note that Mr Mountford’s evidence about not being involved in the removal of alcohol from the Centre is in the main consistent with what he told Mr Fraser and Mr Fitz Gerald in his interview on 17 December 2008 notwithstanding that he also referred to Ms Raecke giving him alcohol to consume at a later date during this interview. In any event this inconsistency about what Mr Mountford stated at his interview about removing alcohol from the Function was not followed up by Mr Fraser and Mr Fitz Gerald nor does it appear that Mr Fraser or Mr Fitz Gerald verified or clarified this inconsistency. Mr Springall gave evidence about Mr Mountford possibly distributing the alcohol at “Woodbridge” however I find that this discussion occurred after Mr Mountford became aware that Ms McDonagh had removed a substantial amount of alcohol from the Centre on the journey home from the Centre and after Ms McDonagh told Mr Mountford that she had been given permission to remove the remaining alcohol. Mr Mountford’s discussion about the alcohol removed from the Function by Ms McDonagh with a Shire Councillor, Mr Alderson soon after the Function and prior to his interview on 17 December 2008 in my view reinforces my conclusion that this alcohol was not stolen. I also note that Mr Mountford gave evidence, which I accept, that when he was asked to attend the interview with Mr Fraser he saw this as an opportunity to talk to him about the disposal of the alcohol removed by Ms McDonagh from the Function. Even though inconsistent information was given by Mr Mountford about the removal of a crate of beer and soft drink outside of the Centre I find that nothing turns on this.
309 The respondent claimed that Mr Mountford was not authorised to give two bottles of wine to the DJ and in doing so he misconducted himself. This was not put to Mr Mountford during his interview nor was this given as a reason for Mr Mountford’s termination in his letter of termination and in any event Mr Mountford denied giving any wine to the DJ. I also note that Mr Fraser gave evidence that he would have given the DJ two bottles of wine at the end of the Function if he was there at the time. In the circumstances I find that the removal of two bottles of wine by the DJ or him being given two bottles of wine at the end of the Function cannot be relied upon by the respondent in support of Mr Mountford’s termination or the termination of any of the other applicants.
310 I find that Ms Samata did not remove any alcohol from the Centre. Even though Ms Samata conveyed two bottles of wine given to her by Mr Samata along the footpath to put into their car to take home to a party being held after the Function I find that she did so after Mr Samata reassured her that he had been given permission to remove alcohol and she acted on this assurance. In doing so I find that Ms Samata was not stealing this alcohol or removing it from the Centre, rather she was assisting Mr Samata with the carriage of alcohol to be taken back to her home for a party after the Function. I also accept Ms Samata’s evidence and I find that she admitted in her interview to carrying alcohol along the footpath but she did not admit to removing alcohol from the Function as specified in the interview notes prepared by Mr Fraser and Mr Fitz Gerald. I find that if the respondent conducted a full investigation of the events at the end of the Function and properly reviewed the video footage of what occurred it would have been clear that Ms Samata did not remove alcohol from the Centre and she was only assisting Mr Samata to convey alcohol to their car after Mr Samata had twice checked with Ms Raecke that this alcohol could be removed from the Centre.
311 There was no dispute and I find that Mr Springall took possession of two bottles of the respondent’s wine after he arrived home after the Function in a car driven by Mr Mountford’s son. I find that Mr Springall’s possession of these bottles of wine arose due to him being given this wine by Ms McDonagh or him taking it from the car boot when he was dropped off at home and I accept Mr Springall’s evidence and I find that when he took possession of the two bottles of wine he regarded them to be ‘roadies’. In my view it was appropriate in the circumstances for Mr Springall to regard the two bottles of wine as roadies given that Mr Fraser had sanctioned participants at the Function taking ‘roadies’ and other participants were observed leaving the Function with more than a couple of drinks. Furthermore, I accept Mr Springall’s evidence that either Mr Mountford or Ms McDonagh told him that they had been given permission to remove alcohol from the Centre.
312 Even though the video of the events at the end of the Function shows all the applicants except Ms Samata interacting during the removal of the alcohol from the Centre I find that this was not part of a co-ordinated effort by all of the applicants to remove alcohol and I find that the applicants were not acting in concert or colluding with each other to steal the respondent’s alcohol when the remaining alcohol was removed from the Centre. I find that the only thing in common the applicants had at the end of the Function was that they remained at the Function after both buses had left and that they were acquaintances or colleagues who were socialising at the end of a work function. I find that the applicants and their partners interacted both directly and indirectly with each other at times when the remaining alcohol was being removed from the Centre however I find that the actions of the applicants and their partners in this regard was not a deliberate act of a group of persons who colluded in the removal of the remaining alcohol from the Centre. I accept that Ms Todd and Ms Cassidy along with their partners, filled a crate with alcohol which was then taken to Ms Cassidy’s partner’s car but they were the only employees who acted together with respect to the removal of alcohol from the Centre. Mr Mountford and Mr Springall were not involved in the removal of any alcohol away from the Centre apart from placing a crate of drinks outside the Centre and I find that Mr Springall only assisted Ms McDonagh to load a crate with alcohol after she asked him to do so. I find that Ms Samata assisted Mr Samata to carry two bottles of wine along the footpath because he could not carry all of the wine and beer being taken for the party after the Function at their house and I find that when Mr and Ms Samata arranged to continue celebrating with Ms Todd and Ms Cassidy and their partners after the Function this occurred as a result of a last minute arrangement. I also find that the lift given to Mr Springall by Mr Mountford’s son arose because apart from walking home Mr Springall had no other means of transport home.
313 As I have found that none of the applicants stole the alcohol removed from the Centre at the end of the Function which was the basis for the respondent forming the view that it lacked trust and confidence in each applicant such that their employment with the respondent could not continue, I find that the respondent did not have good reason to terminate the applicants.
314 In my view the respondent did not conduct an adequate investigation into the removal of the alcohol from the Function and I find that the process used by the respondent when deciding that the applicants should be terminated was flawed.
315 I find that the applicants’ interviews were conducted on the basis that Mr Fraser had formed the view prior to each interview that all of the applicants had colluded in the removal of the alcohol and that they had stolen the respondent’s alcohol. In my view comments made by Mr Fraser in some of the interviews that he was ‘gutted’ and that police regarded the applicants’ actions “at the high end of the range” reflects this attitude (Transcript p 137). The applicants were not given any notice about the serious nature of what was to be discussed at their interviews, they were not informed prior to the commencement of the interview about the reason for the interview nor were they informed that the information they may provide to Mr Fraser and Mr Fitz Gerald in response to the questions to be asked of them could lead to their terminations. In my view these were serious omissions which contributed to the applicants’ interview process being unfair. I accept that the applicants became aware of the reason for the interview after it commenced given the nature of the questions asked of them however I find that the applicants were denied procedural fairness when they were not informed prior to their interviews commencing of the reason for their interview and about Mr Fraser’s preliminary view that the alcohol which had been removed was stolen and that the applicants had acted in concert when removing the alcohol.
316 I find that none of the applicants were given a proper opportunity to have a support person in attendance at their interviews and as a result the applicants were denied procedural fairness. Even though it appears that each applicant was informed of the right to have a support person after each interview commenced I find that this opportunity should have been afforded to each applicant prior to the interview commencing given the serious nature of what was being discussed and the possible outcome for each applicant. The evidence was also clear that the attendance of the applicants’ supervisors at the interviews was not done on the basis that they were support persons for each of the applicants. Furthermore, the applicants’ supervisors were involved in deciding whether the applicants should be terminated and the applicants were not told that this would be the case.
317 Except for Ms Samata’s interview where the video was not played, it appears that on the evidence given by each applicant that when each interview commenced the video of the end of the Function was played in a fast forward mode except at Mr Springall’s interview. In my view this resulted in the applicants not being given a fair and reasonable opportunity to comment on and give feedback about the events which took place at the end of the Function.
318 I find that the tone of some of the interviews of the applicants was conducted in an intimidatory manner at times and where relevant these applicants were not given a proper opportunity to give their version of the events at the end of the Function. For example, Mr Fitz Gerald warned Ms Todd during her interview when she raised the actions of Councillors at the Function and Ms Todd gave evidence that she was repeatedly asked the same question and that Mr Fitz Gerald belittled her. I find that when Mr Fraser mentioned in at least three interviews that the applicants’ actions constituted theft and that police regarded it “at the high end” in my view this was designed to put pressure on these applicants to concede that they had stolen alcohol from the Centre.
319 The respondent relied on information it claimed was given to it by the applicants during their interviews held on 17 December 2009 as well as video evidence of the end of the Function when forming the view that it had good reason to terminate the applicants. After carefully reading the interview notes made by Mr Fraser and Mr Fitz Gerald and when taking into account the manner the interviews were conducted and the evidence given by the applicants at the hearing I find that the applicants’ interviews did not canvass all relevant issues with respect to what took place at the end of the Function and I find that the notes taken by Mr Fraser and Mr Fitz Gerald do not accurately reflect what was stated by the applicants at their interviews. For example, I have already found that Ms Samata did not state at her interview that she took alcohol from the Centre and as I accept Mr Springall’s evidence I find that Mr Springall did not state that Mr Mountford was going to sell the alcohol removed by Ms McDonagh at Woodbridge. Additionally, information given by the applicants in some instances was incomplete or inconsistent and these matters were not explored further by Mr Fraser and Mr Fitz Gerald either during or after the interviews. I also find that the notes of the interviews taken by Mr Fraser and Mr Fitz Gerald are at times inconsistent with each other and they did not cover all matters discussed at the interviews. For example information about what each applicant was told about the attendance of their supervisor was not included in the notes.
320 I find that the respondent did not properly consider important and relevant information given by the applicants during their interviews prior to forming the view that the applicants be terminated and as a result this contributed to the applicants being unfairly terminated. Mr Samata, Ms Samata and Ms Todd told Mr Fraser and Mr Fitz Gerald during their interviews that Ms Raecke or staff at the Centre had expressly authorised the removal of the alcohol from the Function on the basis that it could not remain at the Centre and Ms Raecke had therefore given them permission to remove the alcohol. Mr Mountford also mentioned that staff at the Centre had told him they were allowed to take the alcohol and Mr Springall told Mr Fraser and Mr Fitz Gerald that he was told by Mr Mountford and/or Ms McDonagh that they were allowed to take the alcohol. Notwithstanding this information being given to Mr Fraser and Mr Fitz Gerald by all applicants this proposition was not checked or clarified with Ms Raecke by Mr Fraser or Mr Fitz Gerald prior to the respondent forming the view that the applicants should be terminated. Mr Fitz Gerald gave evidence that the applicants’ claims in this regard were fanciful and it was on this basis that this issue was not followed up. It appears that Ms Hamilton was contacted after the interviews and prior to the applicants’ terminations however I find that when the respondent did not speak directly to Ms Raecke about this issue this was a serious omission given that she had been identified by a number of the applicants as the person who had given them permission for the alcohol to be removed. The weight of evidence given by the applicants about having permission to remove alcohol should have also left the respondent in some doubt that the alcohol removed at the end of the Function had been stolen by the applicants. The respondent was aware the applicants did not have any opportunity to speak to each other prior to the interviews to collude about what to say at their interviews except for Ms Samata and Ms Todd having a brief discussion about the possible purpose of the interviews and Ms Raecke is also seen interacting with Ms McDonagh and some of the applicants on the video of events at the end of the Function when alcohol was being removed. I also note that Ms Raecke gave evidence that she only assumed that the alcohol left over at the end of the Function was to be picked up by the respondent after the Function which indicates that she was not given any instruction by Ms Hamilton to ensure that the alcohol remaining at the end of the Function be secured to be picked up the following Monday. It also appears that Ms Hamilton, or any other staff working at the Centre, did not act on Mr Fraser’s instructions that any alcohol remaining at the Centre was to be collected by the respondent on the Monday after the Function.
321 I find that once the respondent formed the view that each applicant was to be terminated each applicant should have been given an opportunity to respond to the reasons relied on by the respondent to reach this conclusion and each applicant should have been given the opportunity to put submissions to the respondent as to why they should not be terminated prior to the respondent giving effect to its decision to terminate the applicants. I find that the respondent’s failure to give the applicants these opportunities resulted in them being denied procedural fairness and in my view contributed to their terminations being unfair.
322 I find that the respondent did not properly canvass and take into account a range of mitigating factors when deciding to summarily terminate the applicants. I have already found that serious consideration was not given to the applicants’ contention that they had been given permission to remove the alcohol and there was no evidence that the proposition that Mr Springall and Mr and Ms Samata regarded what they took as roadies or was acceptable to remove given others at the Function had removed alcohol was canvassed and taken into account by way of mitigation. I also find that the respondent did not have sufficient regard to the fact that apart from one bottle of wine which was consumed by Ms Cassidy all of the respondent’s alcohol removed from the Centre was returned to the respondent and I find that insufficient weight was given to the devastating impact that the applicants’ summary terminations would have on each applicant and their future employment prospects in a small community.
323 I find that when deciding to terminate the applicants the respondent did not give sufficient weight to the fact that some of the applicants in particular Ms Todd, Mr Mountford and Mr Springall had consumed excessive amounts of alcohol during the Function which in my view would have impaired their judgement by the end of the Function and I find that the respondent must take some responsibility for this situation occurring as participants at the Function had unlimited access to alcohol throughout the evening. Furthermore, the respondent was aware that this was the case for Ms Cassidy and Ms Todd as they told the respondent that their judgement was impaired on the night of the Function in their letter of remorse given to Mr Fraser on 17 December 2008. This letter is as follows, formal parts omitted:
“After our discussions this morning, we wish to express our sincere apologies to yourself, the Coucillors (sic) and the Shire for our actions after the Staff function on Saturday. At the time, and after speaking to the catering staff there, we genuinely believed the wine we took was ‘leftovers’ from the function and what was left was going to be taken by them anyway. This was their stated intentions to us when we asked what was going to be done with the left over alcohol and that it had all been paid for anyhow. It is now obvious to us that to have taken that much was stupid and the wrong thing to have done.
Even though our judgment was impaired at the time and we thought we were going to kick on and drink most of it that night. All has been returned from the 30 something bottles that we had taken between us (apart from only one) as once we got home nobody felt like drinking anymore.
We feel extremely guilty, sorry and gullible for what has happened and that this has marred what was an extremely enjoyable and generous Christmas function put on for us by the Shire. We would also like to state that this was in no way, shape or form an intentional or malicious act on anyone’s behalf that took part.
After talking to you this morning, we felt very upset by our actions and that we have let your faith in us down. We felt the need to personally put something in writing to you, the Coucillors (sic) and the Shire to express our sorrow over what has happened.”
(Exhibit A5)
324 I find that the respondent indirectly contributed to the events occurring with respect to the removal of alcohol from the Function. As the Function was a work function I find that the respondent had a responsibility to ensure that the health and safety of their employees was not compromised and I find that the respondent had a responsibility to ensure that employees and their partners did not have unlimited access to alcohol which could lead to negative events occurring particularly towards the end of a function and I find that the respondent neglected its obligations in this regard. The respondent did not have a senior employee at the Centre once the buses left for Gingin and Lancelin even though employees and some of their partners remained at the Function. As a result no one from the respondent was in charge at the conclusion of the Function when the remaining alcohol was removed from the Centre and if a senior person remained in charge until the conclusion of the Function I find that it is highly likely that the events would not have transpired as they did. It was also not in dispute and I find that the Function did not have a designated finish time and the respondent did not place any restrictions on the consumption of alcohol by individuals throughout the Function even though it organised the Function and the bar was not closed when senior managers and most employees and their partners left the Function on the Gingin and Lancelin buses and as a result remaining employees and their partners continued to consume alcohol. Furthermore, the respondent did not take any steps to secure the remaining alcohol prior to most of the participants and the buses leaving the Centre.
325 I reject the respondent’s claim that even if Ms Raecke had given permission to the applicants for the alcohol to be removed none of the applicants should have removed it as she had no authority from the respondent to do so and the applicants should have been aware that this was the case. This assumption is based on Mr Samata, Ms Todd and Ms McDonagh not having a genuine belief that the remaining alcohol could be removed because of what Ms Raecke told them which I have already found to be the case. Ms McDonagh also gave evidence that she and her family had known Ms Raecke for some years so she had no reason to doubt the veracity of what she was told about having permission to remove the alcohol. Furthermore, Mr Springall and Mr Samata regarded the alcohol in their possession to be ‘roadies’. The respondent also maintains that if the applicants did not intend to steal the remaining alcohol they should have returned it prior to their interviews being held on 17 December 2008 however this does not take into account that the applicants had a genuine belief from what Ms Raecke and/or Centre staff had told them that they had permission to remove the remaining alcohol from the Function or that some of the alcohol which was removed was regarded as ‘roadies’ and it was on this basis that the alcohol they removed from the Centre did not have to be returned to the respondent. The respondent also argued that the applicants should have stopped each other from removing the respondent’s alcohol at the time the alcohol was being removed from the Centre however I have already found that the applicants who removed alcohol from the Function had a genuine belief they could so which negates this argument.
326 In the circumstances I find that the respondent did not have good reason to summarily terminate the applicants and the applicants were denied procedural fairness given the manner of their terminations. I therefore find that the applicants were unfairly dismissed.
Reinstatement
327 The applicants have a duty to mitigate their loss however the onus of proof of failure to mitigate loss is on the respondent. In a recent Full bench decision John Palermo v Charles Rosenthal (2010 WAIRC 00445 unreported issued 2 February 2011) Smith AP and Beech CC stated the following at paragraph 148 with respect to mitigating loss:
“Whether an employee has mitigated his or her loss usually turns on whether he or she has taken reasonable steps to find alternative employment after their dismissal. The reasonableness of the conduct depends upon an assessment of the facts and circumstances in each case: BHP Billiton Iron Ore Pty Ltd v The Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (2006) 86 WAIG 642 [101] – [103]. However, it is for the employer to establish that an employee has failed to take reasonable steps to mitigate. If the employee obtains alternative employment, the employee’s entitlement to compensation is reduced by the amount received from the alternative work. If the employee fails to mitigate, the loss is reduced by the amount they could have earned if they had done so: Merredin Customer Service Pty Ltd [72].”
328 I find on the evidence that the applicants have met the requirement on them to mitigate their loss as it is my view that they all made genuine efforts to obtain alternative employment and did so soon after their terminations. In my view the evidence given by each applicant about obtaining alternative employment after their termination demonstrates that notwithstanding some applicants being unwell and traumatised by their terminations each applicant sought and gained suitable alternative employment subsequent to their termination and each applicant apart from Mr Mountford has obtained ongoing and long term employment. Even though Mr Mountford has not obtained ongoing employment as an employee I find that he has mitigated his loss by obtaining contract work in the area within which he has relevant qualifications and has worked for many years.
329 The applicants are seeking reinstatement and the respondent opposes this course of action.
330 The onus is on the respondent to establish that reinstatement or re-employment is impracticable (Quality Bakers of Australia Ltd v Goulding and Another [1995] 60 IR 327; Gilmore v Cecil Bros and Others [1996] 76 WAIG 4434 and [1998] 78 WAIG 1099). Reinstatement is the primary remedy under the Act where an employee has been found to be unfairly terminated. In Neville Max Woodberry v Koolan Island Club Inc. (op cit) his Honour the President stated the following at 1752:
“(4) The principles by which the question of reinstatement is to be dealt with are those set out in Max Winkless Pty Ltd v. Bell (1986) 66 WAIG 847 at 848 as explained and amplified in FCU v. George Moss Ltd 71 WAIG 318 and Portius Pty Ltd v. TWU 71 WAIG 19. Curiously, the Commission at first instance made no reference to those authorities. I refer to them further hereunder. In FCU v. George Moss (op cit) the Commission observed at page 321:–
"The only substantial remedies readily available in such a case if the dismissal is unfair are reinstatement, "compensation" concomitant to reinstatement, and a declaration concomitant to that. Perhaps another remedy might be a declaration of unfair dismissal with an order that a reference be provided in terms approved by the Commission.
There may be other remedies available. However, without compensation in lieu of reinstatement as a remedy available there is a restriction upon the ability of the Commission to provide every remedy which equity, good conscience and substantial merit might otherwise require.
In the circumstances, and in the absence of such a remedy as compensation at large, then, as a matter of equity, good conscience and the substantial merits of the case, it seems to us that some of the impediments to reinstatement, expressed in Max Winkless Pty Ltd v. Bell (op. cit.), must now be regarded as less important conditions in the exercise of discretion in the absence of any substantial remedy other than reinstatement in successful claims of unfair dismissal."
(And see the general discussion of reinstatement at page 321).
In Portius Pty Ltd v. TWU (op cit) at page 22 there was reference also to this view.”
331 In Max Winkless Pty Ltd v Graham Lindsay Bell and Another (op cit) at 848 the Full Bench stated:
“Nothing said by the Commission at first instance, nor anything said on the occasion of these appeals leads us to believe that the Commission's discretion has miscarried. The Industrial Relations Act 1979 in providing for reinstatement provides a remedy which is not available at common law and which would not otherwise be available. Indeed we are of the opinion that the prime objective of section 29 (b) (i) of the Act is to ensure that the continuity of employment is not disturbed unfairly. Reinstatement should thus be seen as the primary remedy afforded by the subsection. Where as here, the dismissal has been found to be unfair, in our view the Commission should look to reinstatement of the employment unless there is good reason to do otherwise. Traditionally, that has been the approach adopted in proceedings of this nature in this Commission and on others (see: Cliffs Western Australian Mining Company Pty Limited v. the Association of Engineers, Surveyors and Draftsmen of Australia Union of Workers, Western Australian Division (1978) 58 WAIG 1067, and see too: G.J. Coles and Co Ltd v. Pietruszka (1983) 4 IR 329]. The section should not be used principally as a means of recovering a financial reward in preference to recovering lost employment. There would otherwise be little point in the legislature giving to the Commission jurisdiction which to a large degree already exists in the common law courts. This is not to say that reinstatement should be automatic in cases of unfairness [c.f. In re Public Service Association of New South Wales and Public Service Board re Ristall (1979) AR (NSW) 357]. It has long been recognised that reinstatement should not be ordered where it is impractical, nor where management has a genuine distrust and lack of confidence in the employee, nor if reinstatement would adversely affect staff morale or general discipline. [see for example: In re Wellcome Australia Limited re dismissal 1980 AR (NSW) 831; In re Maitland Abattoirs re dismissal 1980 AR (NSW) 185 and In re City of Lithgow RSL Club Limited re refusal to employ 1979 AR (NSW) 501]. In other words reinstatement should not be contemplated without full regard for the consequences and that we take to be the import of the views expressed in Slonim v. Fellows (1984) 8 IR 175 by Wilson J. at 181 that the power to order re-employment "will always be a power to be exercised with caution having regard to the circumstances of the case". However, it has frequently been said that reinstatement is not to be avoided simply because of the mere probability of discomfort or embarrassment in the work place [see: Varney v. Laura Ashley (Australia) Pty Ltd (1980) 47 SAIR 133 and see too: Cliffs Western Australian Mining Company Pty Limited v. the Association of Engineers, Surveyors and Draftsmen of Australia Union of Workers, Western Australian Division (1978) (supra). In the instant appeals the evidence does not reveal that there was any intention to undermine the Appellant's business or that there was otherwise any disloyalty on the part of the employees in question. They were as the Commission found doing work which the indications are would not have been performed by the Appellant in any event. Moreover, they came to do the work not for the purposes of private gain but in the case of Bell, because he had a long standing friendship with the proprietors of G.G. and M.J. Hearn Transport and had been asked to help out. In the case of Bent, he simply went to see his friend Bell to discuss a matter of mutual concern relating to motor cycles and whilst there was called on briefly to help install a radiator. Neither displayed any desire to undermine the Appellant's business as the Commission at first instance observed and we do not think it inappropriate that they be re-employed as indicated in the Commission's order of 17 February 1986.”
332 Even though a period of over two years has elapsed since the applicants were terminated I find that in all of the circumstances of this case it is appropriate to order that each applicant be reinstated to their former positions with the respondent on the basis that I find that their reinstatement is not impracticable.
333 It is clear that a lengthy timeframe has elapsed between the applicants’ terminations and the hearing of their applications however I accept that neither party was responsible for this delay as I find that this lengthy timeframe resulted from the preliminary issue of jurisdiction being dealt with, the unavailability at times of relevant persons and the reallocation of these files to the Commission as currently constituted.
334 I find that reinstatement of the applicants is appropriate and practicable. It is my view that trust can be restored between each applicant and the respondent as I have found that none of the applicants stole the respondent’s alcohol at the end of the Function. Furthermore, none of the applicants have been subject to formal disciplinary proceedings during their employment with the respondent nor did the respondent have any performance concerns with any of the applicants throughout their employment.
335 Following is a brief summary of each applicant’s employment history with the respondent. Ms Samata commenced employment with the respondent on 22 February 2006 on a temporary 12 month basis as a Customer Service/Administration Officer and she was made permanent by letter dated 15 June 2006 on the basis of her “excellent work and attitude since you have been with the Shire”. On 2 November 2006 Ms Samata was promoted to Customer Service/Administration Supervisor because of her “excellent attitude, willingness to work hard and raport (sic) with Administrative Staff” and she was appointed to the position of Debtors Officer in November 2007 (Exhibit R2 documents 2 and 3). Ms Todd commenced employment with the respondent as a Customer Service/Administration Officer on 20 April 2005 and on 23 August 2006 she was appointed to work in the position of Secretary – Planning Department. Mr Samata was employed by the respondent as a Casual General Hand on 1 March 2006 and after serving a three month probation period he was made a full-time employee. Mr Springall was employed by the respondent as a General Hand on 13 October 2008 and Mr Mountford was employed by the respondent as a Waste Management Facility Operator on 7 October 2008.
336 Even though Mr Springall and Mr Mountford were both on probation when they were terminated there was no evidence of any other work related issues with respect to their employment with the respondent so it is my view that there is no impediment to their reinstatement. In particular it is also the case that Mr Mountford has worked for a contractor to the Shire since his termination which in my view demonstrates that the relationship of trust and confidence between him and the respondent can be restored.
337 I note that Mr Springall gave evidence that he did not have positive relationships with all of the employees he worked with however there was no evidence given at the hearing that this would present as an impediment to Mr Springall’s reinstatement. Mr Samata was also direct about his views and that of other employees about Mr Vallentine however I note that both Mr Samata and Mr Vallentine work in a robust work environment and I am therefore of the view that any differences which may have existed between Mr Samata and Mr Vallentine previously can be overcome. Furthermore, I take into account that after his termination Mr Samata was given a reference by one of the respondent’s senior supervisors, Mr Joe Hodges. Ms Samata was regarded by Ms Lowe as being a trusted employee prior to her termination and as already stated she was promoted during her employment with the respondent. Even though Ms Todd in conjunction with Ms Cassidy removed a substantial amount of alcohol from the Centre I accept that there were mitigating circumstances related to her actions as I have already found that Ms Todd was inebriated at the end of the Function which in my view in all probability affected her judgement. Furthermore, Ms Todd showed significant remorse for her actions.
338 The respondent maintains that no positions are available for the applicants if they were to be reinstated. The respondent has been on notice from the outset of these proceedings that all of the applicants were seeking reinstatement and if the respondent chose not to make appropriate arrangements if the applicants’ reinstatements eventuated even though there has been a lengthy timeframe since the applicants were terminated, I find that this is a situation of the respondent’s own making.
339 I will therefore order that the applicants be reinstated to their former positions with the respondent as at the date of their terminations. In addition to an order for reinstatement, pursuant to s 23A(5) of the Act I will order that the respondent pay the applicants a sum of money being the remuneration that the applicants would have earned from their date of termination on 17 December 2008 less any wages and other entitlements paid to the applicants during this period up to the date of reinstatement based on the evidence provided by each applicant with respect to their earnings subsequent to their terminations, which I find is accurate. I will also order that the respondent reinstate the applicants’ accrued entitlements from the date of their termination and that their service with the respondent be regarded as continuous for all purposes, including long service leave.
340 A minute of proposed order will now issue in relation to each application.