2015 WAIRC 00386

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00386

CORAM
: COMMISSIONER S M MAYMAN

HEARD
:
MONDAY, 1 DECEMBER 2014, MONDAY, 9 FEBRUARY 2015, FRIDAY, 13 MARCH 2015, MONDAY, 13 APRIL 2015

DELIVERED : MONDAY, 18 MAY 2015

FILE NO. : CR 32 OF 2014

BETWEEN
:
THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
Applicant

AND

THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Respondent

CatchWords : Industrial Law (WA) - Termination of employment - Allegation of harsh, oppressive and unfair dismissal - Application to seek reinstatement - Penalty of dismissal disproportionate to breaches - Procedural unfairness - Principles considered - Applicant not harshly, oppressively or unfairly dismissed - Application dismissed
Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a), s 44
Result : Application dismissed
REPRESENTATION:

APPLICANT : MR C FOGLIANI (OF COUNSEL)
RESPONDENT : MR D MATTHEWS (OF COUNSEL)

Case(s) referred to in reasons:
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority [2014] WAIRC 00824; (2014) 94 WAIG 1462
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority [2014] WAIRC 01367; (2014) 95 WAIG 1
Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224
Briginshaw v Briginshaw (1938) 60 CLR 336
Garbett v Midland Brick Co [2003] WASCA 36
Kelly v Public Transport Authority [2009] WAIRC 00238; (2009) 89 WAIG 669
Mallard v The Queen (2003) 28 WAR 1
Pantovic v Public Transport Authority [2011] WAIRC 00876; (2011) 91 WAIG 2094
Pinker v Director General, Department of Education [2014] WAIRC 01312; (2014) 94 WAIG 1928
The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203
Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
Reasons for Decision
1 The substantive application in this matter is one by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the applicant) on behalf of Ms Janet Vimpany that she was unfairly dismissed as a Passenger Ticketing Assistant (PTA) on 8 October 2014 following a conclusion reached by the Public Transport Authority of Western Australia (the respondent) that Ms Vimpany been repeatedly dishonest in her accounts of two incidents that occurred on 27 April 2013 at Perth station.
2 The dispute was referred and was first listed for hearing on 9 February 2015. On the day of the hearing the parties sought to amend the memorandum of matters as referred in light of the findings of the Full Bench decision in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 01367, (2014) 95 WAIG 1 (ARTBIU v PTA (FB)).
3 The amended memorandum as referred was specified in detail in the preliminary reasons for decision as issued on 11 March 2015 and I do not intend to re-state them here other than to say on the day of the hearing there was a procedural application by the respondent submitted pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (WA) (the Act) requesting the Commission refrain from hearing part of the matter in the public interest. In particular, that the Commission ought hear no further the question of whether Ms Vimpany (the applicant’s member) gave false accounts of what occurred on 27 April 2013. It was put to the Commission that Kenner C in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00824, (2014) 94 WAIG 1462 (ARTBIU v PTA) had already determined the facts relating to the incidents of 27 April 2013 and therefore Ms Vimpany must accept that her version of events and that of others as found by Kenner C are not able to be reconciled.
4 The Commission, having had regard for the submissions of the applicant in relation to the procedural application made by the respondent pursuant to s 27(1)(a) of the Act, accepted in part the respondent’s application and issued reasons for decision and on 13 March 2015 issued an order that:
1. DECLARES that Application CR 32 of 2014 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority is part dismissed on public interest grounds pursuant to s 27(1)(a) of the Act with the exception of those matters relating to:
(a) whether there were reasonable grounds for the respondent to hold the belief that the applicant’s member was guilty of the misconduct alleged, having regard for the principles reflected in the Full Bench decision The Minister for Health v Drake-Brockman (2012) 92 WAIG 203;
(b) procedural fairness; and
(c) penalty.
2. ORDERS THAT the application, other than those aspects listed in the Declaration, be and is hereby dismissed.
3. ORDERS THAT the application be re-listed at the applicant’s and respondent’s convenience to hear submissions on the matters referred to in the Declaration.
5 The matter was relisted on Monday, 13 April 2015 for hearing and determination of the remaining matters.
Applicant’s Outline of Submissions
6 The applicant submitted the respondent, found that Ms Vimpany had engaged in misconduct and subsequently made a discretionary decision to dismiss Ms Vimpany. It is the applicant’s case that Ms Vimpany has been unfairly dismissed by the respondent. The case of unfair dismissal is made out for two reasons:
(a) Mr Steedman was the decision maker who, on behalf of the respondent, ultimately made the decision to dismiss Ms Vimpany. Mr Steedman did not have reasonable grounds for believing on the information available at the time, that Ms Vimpany was guilty of the alleged misconduct; and
(b) the discretionary decision of Mr Steedman to dismiss Ms Vimpany was harsh, oppressive and unfair.
7 In relation to the alleged misconduct it is the respondent’s allegation that Ms Vimpany:
knowingly gave false accounts of a supervisor’s actions on 27 April 2013, in the course of a disciplinary investigation and in support of claims in a grievance process and an OSH incident report that his behaviour was intimidating and bullying towards you.
(extract of Ms Vimpany’s termination letter exhibit A1, tab 1[2])
8 Mr Steedman, in the same letter concluded Ms Vimpany:
… you were aware and deliberately gave a false account of the relevant events (page 3);
… to deliberately make false allegations against another employee (page 3); and
… acted dishonestly in the way alleged (page 4).
9 These were key findings of fact that it was suggested by the respondent were proved based on the review of documents by Mr Steedman. These findings are denied by the applicant.
10 Where an employer is relying upon the issue of misconduct the applicant submits there is a burden upon the respondent to demonstrate there is sufficient evidence to find that the alleged incident did occur, Garbett v Midland Brick Co [2003] WASCA 36. The applicant submits whether or not the misconduct occurred is not a discretionary decision but a finding of fact giving rise to the right to dismiss Minister for Health v Drake-Brockman [2011] WAIRC 00150; (2011) 92 WAIG 203.
11 The respondent is required to establish not that the employee was guilty of the misconduct but that following a proper inquiry there were reasonable grounds for a belief on the part of the employer that on the information available at the time that the employee, in this case Ms Vimpany was guilty of the alleged misconduct. In making the decision the respondent is required to take into account any mitigating circumstances that might be associated with the alleged misconduct or the employee’s work record to determine whether the misconduct justified the dismissal, Minister for Health v Drake-Brockman.
12 The applicant submitted that what constitutes ‘sufficient evidence’ to establish the facts said to demonstrate misconduct will vary from case to case depending on the gravity of the alleged misconduct having regard for the decision in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224. The allegation made by the respondent against Ms Vimpany was that she ‘knowingly’ gave false accounts of an incident to the respondent. As was recently found by the Full Bench in ARTBIU v PTA (FB):
A finding that a person had formed a state of mind to give a false account, or, put another way, had subjectively determined to give a false account is a very serious matter which attracts a high standard of proof.
13 If the respondent discharges its burden in unfair dismissal matters of this nature the onus then shifts to the employee to demonstrate that the dismissal was indeed harsh, oppressive or unfair.
14 The applicant submits there were a number of documents reviewed by Mr Steedman to come to his finding. These documents are listed in exhibit A1, tab 1, the termination letter of 7 October 2014. It is asserted by the applicant that most of the documents reviewed by Mr Steedman were not relevant to the question of whether Ms Vimpany had formed a state of mind to give a false account or alternatively had subjectively determined to give a false account. It is suggested this is because Ms Blake, Ms Johnson, Mr Geson, Mr Pontarolo, Mr B Singh, Mr A Singh and Mr Hammon did not give any evidence about Ms Vimpany’s subjective state of mind. The applicant suggests that the documents relevant to the assessment of Ms Vimpany’s subjective state of mind include:
- Ms Vimpany’s recollection, dated 29 August 2014 (exhibit A1, tab 3);
- an undated but signed two page statement;
- OSH incident report (exhibit A1, tab 8);
- Initial response, dated 17 May 2013 (exhibit A1, tab 9);
- Subsequent response, dated 11 June 2013 (exhibit A1, tab 11);
- statement in support of a worker’s compensation claim, dated 2 July 2013 (exhibit A1, tab 12);
- Ms Vimpany’s response, dated 27 September 2013 (exhibit A1, tab 14); and
- evidence in the Commission as is contained in transcript, dated 20 May 2014 (exhibit A1, tab 16).
15 It was claimed by Mr Steedman in Ms Vimpany’s letter of termination (exhibit A1, tab 1) that there was no innocent explanation for the difference between Ms Vimpany’s account and the accounts of Mr Hammon, Mr Pontarolo and Mr Geson. This is despite the respondent through their legal counsel having previously made the following oral submission to the Commission at a hearing on 21 May 2014:
We acknowledge that differences in a witness’s statements do not necessarily lead to a finding of dishonesty. We’ve heard different recollections. You know, often these differences can be explained by perception, recollection…
(ts 151, CR 3/2014 Kenner C)
16 The allegation that the respondent made against Ms Vimpany was a serious one. The applicant suggests it was subjective in nature and that given the gravity of the allegation it is asserted by the applicant that the respondent did not have reasonable grounds to sustain that Ms Vimpany was guilty of the misconduct as alleged.
17 In determining whether a dismissal was unfair the question to be investigated is one as to whether the respondent has exercised their discretion to dismiss so harshly or oppressively against the employee as to amount to an abuse of that right having regard to the decision of 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 at 387. The applicant asserts there was insufficient evidence before Mr Steedman for him to conclude that Ms Vimpany had made a statement that was ‘knowingly false’ or ‘deliberately false’. A further assertion made in this case by Mr Steedman was a finding that the applicant’s member was unable to meet the integrity test necessary to carry out her duties as a PTA which from time to time required Ms Vimpany to issue infringements and where necessary give evidence in court in support of her actions. The applicant submits that the evidence demonstrates that at the time of Ms Vimpany’s dismissal the respondent did not have an integrity test and therefore it is impossible for Ms Vimpany to fail to meet the requirements of such a test. There was at the time of Ms Vimpany’s dismissal no evidence that she was unable to issue infringements. At the same time there was no evidence that she would not be able to give evidence in court in support of her actions as a PTA. The respondent’s findings with respect to the integrity test and their reliance on those findings are baseless and contribute to the decision to dismiss Ms Vimpany as being harsh, oppressive and unfair.
18 One of the terms of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2014 (the Agreement) requires that:
2.8.22 The type of penalty applied must be proportionate to the conduct which gave rise to the breach of discipline or must be reasonably suitable in consideration of all of the circumstances of the case.
19 Ms Vimpany worked for the respondent for more than eight years and apart from the incident that occurred on 27 April 2013 relating to Mr Hammon and the associated internal processes her employment record was satisfactory.
20 The applicant submitted there were a range of alternative disciplinary options open to the respondent. Each of these options would have been less severe than the decision made by the respondent to dismiss. The alternative options included:
- No penalty being issued at all;
- A reprimand (which may include a final reprimand);
- A permanent or temporary transfer to an another location within the Employer’s business or to another employment position within the Employer’s business, including a position to which the Agreement does not apply;
- A permanent or temporary demotion or reduction to a lower increment or to a lower grade or position to which the Agreement applies; and/or
- A permanent or temporary demotion to another position to which the Agreement does not apply.
([31] applicant’s outline of submissions)
21 In all of the circumstances the applicant submits the decision to dismiss Ms Vimpany was a disproportionate response to the misconduct as found by the respondent.
22 The applicant seeks an order requiring the respondent to reinstate Ms Vimpany into her former position, issuing an order requiring the respondent to recognise her continuity of service; and issuing an order requiring the PTA pay Ms Vimpany the remuneration lost or likely to be lost as a result of the dismissal.
23 In the event the Commission considers that reinstatement or reemployment would be impracticable then the applicant seeks an order that the respondent pay to Ms Vimpany an amount of compensation for loss or injury caused by the dismissal.
Respondent’s Outline of Submissions
24 The respondent submitted that Ms Vimpany was employed by the respondent as a PTA. The respondent included a copy of the Job Description Form (JDF) reflecting that under the heading Responsibilities of the position it is made clear that the position carries with it enforcement powers. The sixth and seventh points listed under the heading are duties relating to enforcement concepts. Under the JDF of a PTA they are required to be ‘subject to satisfactory integrity and criminal records checks’. It is clear that a PTA may be required from time to time to enforce matters with members of the public such as the payment of fares and enforcement of the law on other areas. Such persons have a higher than normal duty to be honest and trustworthy.
25 It has always been the case that Ms Vimpany has said that in that initial contact Mr Hammon was aggressive and that at the point at which the second contact occurred that Ms Vimpany attempted to raise with Mr Hammon the way that this had made her feel and Mr Hammon was again aggressive. Mr Hammon and others give a different account of the events.
26 The events however of 27 April 2013 have been conclusively determined by Kenner C after a contested hearing, ARTBIU v PTA. Of particular relevance is Kenner C’s decision whose findings appear at [36] to [65]:
[44] As is often the case in matters such as this, Ms Vimpany’s version of the events is diametrically opposed to that put by Mr Hammon.
[53] The resolution of the factual contest as to the incident on 27 April 2013 turns on an assessment by the Commission of the credibility of the witnesses who gave evidence in this matter. I have carefully considered all of the oral testimony and the written evidence. I am satisfied that on 27 April 2013 at the Perth Train Station office both Ms Vimpany and Ms Blake entered the office at about 3:15-3:20pm and prepared to leave for the day. Unaware of the prior arrangement with the Station Coordinator on the morning shift, Mr Singh, Mr Hammon questioned Ms Vimpany and Ms Blake and informed them to continue working to their appointed finish time of 4:00pm.
[56] I am therefore satisfied that Ms Vimpany entered the office at around 3:50pm with the purpose of confronting Mr Hammon as to the earlier exchange. I do not accept Ms Vimpany’s evidence in chief, to the effect that she did not go looking for Mr Hammon and only went over to him, somewhat incidentally, after sighting him in the office.
[57] In my view, both Ms Vimpany and Ms Blake were upset with Mr Hammon and I accept Mr Pontarolo’s testimony, that when she entered the office, Ms Vimpany made a “beeline” for Mr Hammon, largely as described by the Authority’s witnesses. I accept that Ms Vimpany did go up behind and to the side of Mr Hammon, and spoke to him in a strong and angry manner whilst pointing her finger at him.
27 Ms Vimpany argued that Mr Hammon had been the aggressor on 27 April 2013. Kenner C found:
[61] … I am not satisfied that Mr Hammon conducted himself in an intimidating, threatening and aggressive manner as alleged. I am not persuaded that Mr Hammon entered Ms Vimpany’s personal space and yelled and screamed at her in the company of the Authority’s staff. I am not satisfied that Mr Hammon bullied, harassed or humiliated Ms Vimpany.
[62] On the evidence however, I am satisfied that Ms Vimpany, when she did return to the office shortly prior to 4:00pm on 27 April, did shout at Mr Hammon and did engage with him in an inappropriate manner, pointing her finger at him and at his face whilst leaning over towards him. Such conduct was not appropriate conduct towards a supervisor.
[64] … there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved. This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013.
[65] Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. Their versions of the events, has been largely consistent, since their first reports in April and May 2013. It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events.
28 The only question remaining for the respondent is whether the accounts given by Ms Vimpany relating to what actually happened on 27 April 2013 were knowingly false or more succinctly, whether it was reasonable for the respondent to conclude they were knowingly false.
29 The respondent submits that the gulf between the truth and Ms Vimpany’s accounts must be acknowledged and with respect the possibility that Ms Vimpany was innocently mistaken for whatever reason as to detail must be rejected.
30 The respondent concluded that Ms Vimpany had knowledge that the account she gave was false and it is submitted that in that the following are relevant issues.
- Given the language submitted in the accounts by Ms Vimpany the respondent was able to conclude that Ms Vimpany considered she was telling the truth.
- The accounts were given soon after the event in each case within three months and on each occasion between 14 May 2013 and mid July 2013. From the respondent’s point of view the accounts amounted to a course of conduct.
- With respect to the OSH incident report (exhibit A1, tab 8) and also Ms Vimpany’s grievance (exhibit A4) Ms Vimpany used internal processes to raise more details associated with the incidents surrounding 27 April 2013. The respondent contends that these were formal and serious processes that were used by the applicant’s member.
- The Subsequent response (exhibit A1, tab 11) was prepared by Ms Vimpany following the receipt of ‘independent advice’.
- The respondent submits that the language of all the documents relating to the events of 27 April 2013 is clear and assertive.
31 On the face of the documents there is no doubt in the mind of the reader that Ms Vimpany is asserting that she has a clear recollection of the events together with a definite version of what occurred. There is nothing in the documents to suggest that Ms Vimpany’s recollection is restricted in any way.
32 The respondent refers to the applicant’s reliance on Briginshaw v Briginshaw (1938) 60 CLR 336. The Full Bench makes reference to the same decision in ARTBIU v PTA (FB) [50]. The reference by the Full Bench was made in the context of whether Kenner C should have found in the matter before him at first instance that a false account had been given. The Full Bench held that Kenner C had not gone so far as to make such a finding.
33 The matter before the Commission as presently constituted in the view of the respondent is, importantly different to the context in which the issue was considered by the Full Bench. What needs to be considered is whether it was reasonable for the respondent to conclude that Ms Vimpany had been dishonest.
34 Ms Vimpany in her role as a PTA had responsibilities and powers to observe the tickets of clients of the Authority. In circumstances where a client is not carrying a valid ticket then she can ask for their name and address and may issue them with an infringement. Ms Vimpany, where a client is uncooperative has the means to call for assistance from personnel in a security capacity with wide coercive powers including the power of arrest. The respondent must have total confidence in the employee concerned. There is enough, in the view of the respondent, if the employer on reasonable grounds has ‘lost confidence’ in the employee. Relevant decisions in this regard relating to Police and PTA Transit Officers in the view of the respondent are Pantovic v PTA [2011] WAIRC 00876 and Kelly v PTA [2009] WAIRC 00238. The respondent is of the view that the test outlined in each of these decisions is a test that is significantly lower than the test in Briginshaw v Briginshaw.
35 In circumstances where an employee is required to exercise enforcement powers it would be contrary to accepted wisdom to apply a ‘high standard of proof’ of dishonesty on the part of the employee before the employer can be said to have reasonably lost confidence in the employee.
36 Turning to the question of penalty the respondent submits that if the Commission finds the respondent was reasonably entitled to believe that Ms Vimpany had knowingly given false accounts to the respondent then, the respondent submits that dismissal was clearly within the range of appropriate options open in relation to the matter. Further there is no basis in the view of the respondent, upon which the Commission can or should interfere.
37 Apart from the obvious submission that dishonesty on the part of an employee with enforcement powers in their employment warrants dismissal the following issues are put up as relevant factors in relation to the consideration by the Commission:
(a) It was a continuing course of conduct over a period of months, not a one off incident;
(b) Ms Vimpany actually volunteered two of the false accounts, the HSE Report and the Grievance Document, and accordingly they were calculated and not made in a situation where Ms Vimpany was under pressure of the moment;
(c) The Health and Safety Incident reporting and Grievance Dispute Resolution processes are important, rely on the sincere and will-intentioned participation of employees, and should not be abused or undermined by the make of false reports;
(d) The disciplinary investigation into the incident was designed to get at the truth and employees need to be honest to assist in that process and a failure to do is serious (see Pantovic and Pinker v Director General, Department of Education [2014] WAIRC 01312; and
(e) Ms Vimpany’s accounts went beyond a dishonest denial, or even the maintenance of silence, and constituted a positive and self-serving attack upon a fellow employee, Mr Hammon, which could have had serious consequences for his career.
[67] respondent’s outline of submissions)
Applicant’s Evidence
38 Prior to Mr Rahim giving evidence counsel for the respondent objected to Mr Rahim’s evidence being submitted. Counsel for the respondent put that Kenner C has decided what occurred on 27 April 2013 furthermore there are reasons behind the rules of evidence relating to reliability and dependability of evidence. So far as the courts of Australia are concerned is that there is not case where a lie detector test has been accepted as evidence. The Full Court of the Supreme Court of Committal Appeal of Western Australia in the matter of Mallard v The Queen (2003) 28 WAR 1:
A party offering novel scientific evidence as expert evidence has the burden of demonstrating that the evidence has been accepted as reliable among impartial evidence. Polygraphic examination had not been accepted to any appreciable extent as scientifically valid and reliable by members of the psychological and physiological community as to constitute part of a body of knowledge or experience, which was sufficiently recognised to be accepted as a reliable body of knowledge or experience. Nor have polygraphic examinations been shown to have a sufficient scientific basis to render results arrived at by the application of polygraphic technique part of a field of knowledge, which was a proper subject of expert evidence.
39 The respondent relied on the court’s findings in that case which remains the leading authority in this State that polygraphic evidence is simply not evidence. Whether someone is telling the truth is ultimately a decision for this tribunal to determine, it is ultimately a decision for the Commissioner. Counsel submitted that even if it were relevant it is not relevant in these proceedings because the false accounts of matters going back related to an incident in April 2013 and subsequent accounts given as part of the investigation into the events of 27 April 2013 which the respondent submits were knowingly false.
40 Counsel for the respondent submitted there were no rules of evidence relied upon necessarily in the Commission and at some stage during these proceedings Mr Steedman would be giving evidence that it was his belief that Ms Vimpany was not telling the truth. Such a point a view was an opinion.
41 In response the Commission noted carefully the argument put by counsel for the respondent indicating the Commission would allow the witness to proceed and accord the relevant weight to his evidence applying the principles reflected in Mallard v The Queen having regard for the fact that Commissioner Kenner has already determined what occurred on 27 April 2013.
42 Mr Charles Rahim of Cognitive Resolutions gave evidence for the applicant. Mr Rahim advised that he is employed as a polygraph examiner and this involves undertaking standardised programmes and processes in which a polygraph test is conducted which includes undertaking an interview running on three occasions a polygraph test. Throughout the tests the examiner measures blood pressure, respiration as well as skin response. Mr Rahim gave evidence that there are a series of relevant questions asked including the relevant question itself. In this case Ms Vimpany was asked whether she was telling the truth in relation to the statement. Mr Rahim gave evidence that there are also diagnostic questions drawn up to measure the normality of the nerves of the person associated with blood pressure changes and changes in the respiratory and skin responses. In relating to Mr Rahim’s background he referred to his certification as a polygraph examiner from a school accredited by the American Polygraph Association given there are no associations of polygraph examiners in Australia the American standards are used. Throughout the world there are 22 schools used to accredit polygraph examiners and Mr Rahim gave evidence that he studied at one of these approved schools some 10 years ago.
43 The tests were carried out on Ms Vimpany back in December 2014. At the time Mr Rahim gave evidence he was here in Perth. The pertinent question asked of Ms Vimpany indicated by way of the polygraph instrument that she was in fact telling the truth.
44 In cross examination counsel for the respondent asked what was the relevant question asked of Ms Vimpany. Mr Rahim responded there are also several other diagnostic questions such as were you born in Australia or do you live in Perth. There are seven questions in all asked around the relevant question.
45 Ms Jennifer Anne Blake gave evidence for the applicant. Ms Blake gave evidence that she is a Customer Service Assistant (CSA) with the respondent having worked there for some nine years. Ms Blake is based on the Joondalup line and she has worked with the respondent for most of the period since she commenced with the exception of about a year. The witness gave evidence that for some period she was classified as a PTA and in that capacity she was required to issue infringement notices though was not required to go to court and give evidence in support of a prosecution. In cross examination Ms Blake did indicate that it may be possible that someone else on her line may have gone to court as a result of issuing infringements.
46 Mr Malcolm William Heatherly gave evidence as a character witness for the applicant having been employed for some eight years with the respondent. His substantive position is as a PTA but is currently acting as a CSA. Mr Heatherly gave evidence that he is currently based on the Joondalup line and works with Ms Vimpany, depending on the roster as often as three times a week sometimes twice a month. The witness has worked for the last eight years with Ms Vimpany.
47 Mr Heatherly gave evidence that Ms Vimpany was recommended for special training which was granted to her because of Ms Vimpany’s achievements and knowledge. Mr Heatherly gave evidence that he has been required as a PTA and CSA to issue infringement notices but has never been required to attend court to support such infringements.
48 Mr Robert Charles Hall gave evidence for the applicant. Mr Hall has been employed by the respondent for just over eight years as a PTA. Mr Hall gave evidence that he knows Ms Vimpany very well having worked in the same job and worked together on many stations. Mr Hall gave a character reference for Ms Vimpany based on his experience:
She’s honest, hard-working, very sociable, very good with customers and she’s a pleasure to work with.
(ts 36)
49 Mr Hall indicated that Ms Vimpany writes infringements out as other PTA’s, handles lost property even where there is a monetary value involved and that Ms Vimpany is trustworthy. Mr Hall has had to issue infringements before but has not had to attend court.
50 In cross examination Mr Hall confirmed that the respondent gave Ms Vimpany credit by asking her to volunteer for a course because of her satisfactory performance.
51 Mr David Roger Scott gave evidence for the applicant. Mr Scott is an employee of the respondent having been employed by the respondent for the last 32 years. For the last 10 years Mr Scott gave evidence he has been employed as a CPA based at Warwick train station on the Joondalup line. Mr Scott gave evidence that Ms Vimpany’s professionalism and integrity is beyond reproach. Further evidence was given that as a CPA he is required to issue infringements for parking violations but is not required to go to court to give evidence about infringements.
52 Mr Aleksander Sekulovski gave evidence for the applicant. Mr Sekulovski is an employee of the respondent, employed as a PTA for last seven to eight years and is currently employed on the Joondalup line. In that capacity the witness gave evidence he works shifts from time to time with Ms Vimpany. Mr Sekulovski described Ms Vimpany as an honest person and a good operator as helpful to passengers and co-workers. The witness gave evidence from time to time he issues infringements on behalf of the respondent but had not been required to attend court to in relation to the infringements or indeed for any other matter.
53 In cross examination Mr Sekulovski indicated he had not read Kenner C’s decision.
54 Mr John Raymond Noble gave evidence on behalf of the applicant having been employed with the respondent for approximately 24 years. The witness described he knows Ms Vimpany as a PTA and in the course of interacting on the station during a shift both the witness and Ms Vimpany will interact with each other usually every two to three weeks on average depending on the rosters. The witness indicated he always finds Ms Vimpany to be trustworthy and honest and that from time to time he is required to issue infringements but has never attended court in relation to his duties.
55 In cross examination Mr Noble indicated he had not read Kenner C’s decision.
56 Mr Mark Peter Counsel gave evidence on behalf of the applicant. Mr Counsel is an employee of the respondent having been employed by the respondent since 1981 and known Ms Vimpany through her work for the last eight years particularly since Ms Vimpany had become a PTA on the Joondalup line. The witness described he had not heard of any issues associated with her and only heard managers describe Ms Vimpany in a positive manner.
57 Ms Helen Angela Martin gave evidence for the applicant. The witness has been employed by the respondent for almost nine years and works with Ms Vimpany on the Joondalup line. The number of times the witness works with Ms Vimpany depends on the roster but the occasions are fairly regular. The witness indicated that Ms Vimpany presented herself in a good light and is always helpful to passengers, has a good rapport with staff and with management. There are incidents where staff are required to deal with members of the public on train stations and Ms Martin indicated that she was aware Ms Vimpany had received some commendations from the respondent. The witness indicated that Ms Vimpany from her point of view is an ethical and honest person.
58 As the affirmative action representative for females in the workplace the witness indicated she was on the customer service consultative committee as a peer support representative. In that capacity Ms Martin gave evidence that she spoke with Ms Vimpany when the workplace issues first arose. This was the day after the incidents on 27 April 2013. Ms Martin gave evidence that she considered Ms Vimpany was concerned about the workplace processes and that Ms Vimpany did not understand what was happening in the workplace. Many women can feel intimidated by the processes. Ms Martin gave evidence that this was a fairly low level dispute at this stage that could easily have been resolved by the respondent by simply bringing both parties together and resolving the matter through discussion. From the witnesses’ point of view it seemed that Ms Vimpany considered that the process had become ‘quite aggressive’ (ts 48) and she did not understand how to handle it. Ms Martin gave the following evidence:
And one of the matters I did raise was discipline in the workplace and I raised that because staff are very confused by the workplace processes because really they don’t have anyone to turn to and they don’t have any guidance or direction. And - and from the documentation that I've read through the public sector there - it does lead into describing discipline and a way in which you can get assistance through the workplace. So I had put this on the table because that was the direction really that had been indicated to me that I really should take.
(ts 48)
59 Ms Martin went on to give evidence that in Transperth Train Operations there is not a woman in a position of power that a member of staff could speak to or raise an issue with. Ms Vimpany from my point of view lodged the grievance because she felt there was not anyone to talk to. Ms Martin gave evidence because the workplace was so very male dominated and the processes had become quite aggressive she really did not know who to turn to and that is when the grievance process was raised that hopefully by speaking to a female in the respondent’s Peoples Organisational Development (POD) that perhaps some direction could be given to all of this. Ms Martin gave evidence that she contacted Ms Newby by way of email to indicate to her that as the union representative for affirmative action there were some issues in the workplace that Ms Vimpany would like to discuss. Ms Martin in response indicated that she was on extended leave and that Ms O’Callaghan was skilled and able to handle the grievance process and that Ms Newby would forward the information received onto her. Ms Martin indicated that in the email forwarded to Ms Newby she had attached statements from Ms Vimpany and Ms Blake. Ms Martin gave evidence that she was not aware if the outcome was helpful for Ms Vimpany however once the grievance was sent back it was no longer a grievance as the witness understood it, it was sent back to Transperth Perth Trains and from her point of view it was still left unresolved and still remained a problem.
60 At this point counsel for the respondent asked for clarification as to where the questioning was heading with respect to the grievance process asking whether it was to be in terms of procedural fairness submission by counsel for the applicant. In response counsel for the applicant indicated that the evidence was brought forward to indicate that the grievance was not lodged in malice rather to demonstrate that in this case Ms Vimpany had a legitimate grievance rather than lodging a grievance which may have the potential to have a negative effect on another employee (Mr Hammon).
61 Mr Barry Keith Watts gave evidence for the applicant. Mr Watts has been employed with the respondent and its predecessor for some 43 years and has worked with Ms Vimpany for approximately the last seven years. Mr Watts gave evidence he works on a different line namely the Armadale line however on special events over a number of years he has worked with Ms Vimpany, usually a couple of times a year. On those occasions the witness gave evidence he has found Ms Vimpany to be very professional and indeed pleasant in dealing with members of the public and assisting disabled persons.
62 Ms Janet Eileen Vimpany gave evidence as the applicant having been an employee for the respondent for some nine years. She gave evidence she was employed as a PTA based on the Joondalup line and in the period leading up to 27 April 2013 Ms Vimpany has a good repour with management and on her record there were no disciplinary issues to speak of. Ms Vimpany gave evidence that she had always had positive feedback from management during her reviews which occurred on an annual basis.
63 Ms Vimpany was directed to Notification (1) (exhibit A1, tab 7) a memorandum from Mr Gavin Heaysman the Acting Passenger Services Manager on the Joondalup line dated 8 May 2013 [sic]. Ms Vimpany gave evidence that the report came about as a result of Mr Heaysman arriving at Clarkson station and handing the letter to Ms Vimpany. The witness gave evidence that she became really stressed upon reading it and phoned Mr Heaysman who informed her that if you are leaving work you will need to fill out a form. On his advice she rang injury management as she needed someone to speak with. Ms Vimpany gave evidence that at that point she was really stressed and following her conversation with Mr Heaysman she went home and attended her own doctor. Her GP gave Ms Vimpany a certificate and associated medication and Ms Vimpany’s partner went to see Mr Heaysman to get the associated paperwork (the OSH incident report). Injury management required the form to be emailed to the respondent. The form that was filled out and ultimately received by the respondent (A1, tab 8) and the details contained in that form were how she felt at the time, this form, in the witness’ view reflected her views of what occurred on the day.
64 Ms Vimpany was taken to Ms Vimpany’s grievance (exhibit A4) the document she was asked to write immediately following the incident on 27 April 2013. Ms Vimpany is not willing to change her opinion even though Kenner C has made findings in his decision. Her evidence was expressed as:
--- No – no, that – that – that is the true – truth – the truth of what – the events of the day. That’s what happened on that day.
(ts 65)
65 Ms Vimpany then gave evidence that she spoke with Ms O’Callaghan from POD and subsequently had a meeting accompanied by Ms Martin. They advised the witness to write a report of what occurred on the day. The witness took their advice and did that. Accordingly, the Subsequent response was sent to the respondent (exhibit A1, tab 11).
66 Subsequently an interview that took place with Mr Steve McCullaugh, the witness and C Owen in attendance. The interview was typewritten and sent via email to the witness. The Tracked document was reflected at (exhibit A1, tab 13). There were a number of track changes in the document that were inserted by the witness as her own changes. These were changes that were made by Ms Vimpany and where the witness did not agree with comments made by participants in the interview. After the changes had been made Ms Vimpany gave evidence she returned the document to Mr McCullaugh having signed her name as the changes reflecting an accurate record of what had occurred. Ms Vimpany was then referred to exhibit A5 a memorandum to Mr Ian Luff from Mr Steve McCullaugh and she gave evidence that she was taken to the second last page and was asked whether she had seen the results of the investigation carried out prior to the day the respondent dismissed the witness, to which the witness answered in the affirmative.
67 The witness was taken to her JDF at page two at responsibilities of the position:
To monitor and assist customers entering/leaving stations via fare gates. This duty includes checking validity of tickets, issuing of infringements, providing basis revenue protection and addressing fare evasion.
68 Ms Vimpany in response indicated she had carried out her job with honesty and integrity for the past eight years and there had not been any difference in the manner in which she had carried out her work. Ms Vimpany was able to issue infringements and give evidence in court and tell the truth. The witness had never been counselled or disciplined for anything relating to the issuance of infringements in the past nor about giving evidence in court.
69 Ms Vimpany then gave evidence that she had been awarded a Certificate of Appreciation by Mr Ian Luff and Mr Vince Cianci her managers in recent times for:
… you went above and beyond the expectation of a Passenger Ticketing Assistant role by assisting to board a group of aged and some with disabilities at Warwick station travelling to Mandurah. The group insisted on travelling on a through service and arriving on platform one, despite the problem with the train control system at the time. Your prompt actions ensured that the group’s needs were met and to the extent where a letter of commendation was received. - Congratulations on a job well done.
(exhibit A6)
70 The witness explained that she received further commendations for her work performance at the Perth underground during the Sky Show in 2014 (exhibit A7).
71 In cross examination counsel for the respondent explained that there were principally four documents that the respondent relied on in these proceedings. The first of those related to the OSH incident report (exhibit A1, tab 8). The second document that the respondent relies on is Ms Vimpany’s grievance (exhibit A4), namely the witness account of the events as they occurred on Saturday 27 April 2013. The third and relevant matter is the Subsequent response (exhibit A1, tab 11) namely Ms Vimpany’s response to Ian Luff sent on Tuesday 11 June 2013. Finally, the Tracked document (exhibit A1, tab 13) the interview statement which includes the typewritten statement of Ms Vimpany, Mr McCullaugh, C Owen and the tracked changes made by Ms Vimpany and returned to reflect what she actually said on the day. These comprise the four accounts. Counsel for the respondent having gone to each of the four documents asked of the witness:
Now, having gone to each of those do you maintain that each was truthful? --- Definitely. Yes.
(ts 77)
72 The witness explained that she received further commendations for her performance at the Perth underground during the Sky show in 2014 (exhibit A7).
73 Counsel for the respondent having gone to each of the four documents asked of the witness:
Now, having gone to each of those do you maintain each of was truthful? --- Definitely. Yes.
...
So you weren’t unwell in such a way as to affect your recollection of events, or anything like that at the time of giving any of those accounts?  No, not at all.
And you wrote them seeking to be believed in relation to their contents by the reader?    Yes.
Okay.
So as far as you’re concerned this is – in each of the four cases, “This is my recollection of events. I’m asserting it as the truth and I am asking and hoping that they’re believed”?    Yes.
And is it fair to say that in each of the four documents in relation to the events on 27 April 2013, Mr Hammon is represented by you as the aggressor in relation to the contact between yourself and him on that day?    Yes.
And you are portrayed as the victim of that aggression?    Yes.
And do you maintain that position today?    Yes.
(ts 77, 78)
74 Counsel for the respondent took the witness to the OSH incident report (exhibit A1, tab 8) suggesting to Ms Vimpany that it was false to portray Mr Hammon as the aggressor which was denied by the witness.
75 In relation to the second document, that being the Ms Vimpany’s grievance submitted to the respondent on 24 May 2013 (exhibit A4) counsel for the respondent suggested to Ms Vimpany that it was false to portray Mr Hammon as the aggressor and Ms Vimpany as the victim of Mr Hammon’s aggression. The witness denied that what she had written was a false account and on each occasion where she was required to put a substantive response to the respondent including the Tracked document (exhibit A1, tab 13) where the witness had amended the document though the provision of tracked changes as a result of an interview. Ms Vimpany gave evidence that with the changes made it is a true reflection of what had occurred and she considered the tracked changes reflected an accurate record of what had been said in the interview. The witness rejected the respondent’s assertion that the information as provided by the witness was false in that it portrayed Mr Hammon as the aggressor and herself as the victim of the aggression.
And you don’t offer up to the Commission any suggestion, do you that your versions given may have been affected in terms of their dependability or reliability by stress, overwhelmed feelings, intimidation by the employer, or anything else?    No. That’s a true account. They’re all true accounts of what happened on that day.
(ts 79)
76 In re-examination Ms Vimpany indicated to counsel for the applicant that it was never her intention to give any false statements.
Respondent’s Evidence
77 Mr Jeffery Charles Steedman, Business Manager, Transperth Train Operations gave evidence for the respondent. Mr Steedman indicated he had been employed by the respondent for some 42 years and has acted in the position of General Manager Transperth Train Operations and in that position dealt with allegations brought against Ms Vimpany.
78 Mr Steedman gave evidence that Ms Vimpany’s letter of termination dated 7 October 2014 was signed by himself (exhibit A1, tab 1). Prior to drawing together the correspondence Mr Steedman gave evidence he had a file of relevant background information provided by Mr Farrell the Industrial Relations Manager for the respondent. Mr Steedman indicated that the letter of termination set out in some detail his findings in relation to the allegations against Ms Vimpany together with the reasons for those findings and the determination made by the respondent for the penalty decided ultimately to be imposed on Ms Vimpany.
79 In cross examination Mr Steedman was asked as to whether he had received any training in relation to how to undertake disciplinary investigations and how to make disciplinary findings. The witness indicated the primary issues he was required to consider when reviewing the evidence was to determine whether Ms Vimpany’s claims themselves were knowingly false. Mr Steedman gave evidence that he initially reviewed all the primary documentary evidence that had been prepared in the identified bundle. That was undertaken as a first step and when the documents that had been provided were reviewed, a series of notes were made by the witness, some 12 pages in all (exhibit A9). The witness confirmed these were the only notes that he made in conducting the investigation process. The final sentence on page 12 of Mr Steedman’s notes reflects:
On balance Hammon version of events appear to represent what happened on the day given the support from Felix and Fab.
(extract of last paragraph from exhibit A9)
80 Counsel for the applicant suggested to the witness there was nowhere specified in the notes where Mr Steedman dealt with the honesty issue related to Ms Vimpany. Whilst Mr Steedman agreed he had not written it specifically in the notes it was understood at the time when he was making the decision that was what he had to determine.
81 Mr Steedman gave evidence that on a telephone hook-up with Mr Farrell and Ms Annese on 2 or 3 October 2014 there was a discussion regarding a draft letter to Ms Vimpany. In that meeting Mr Farrell reported that he had prepared a draft decision letter based on the notes that the witness had prepared and on the discussion that had occurred the previous day. Mr Steedman gave evidence that he had reached conclusions regarding Ms Vimpany:
That - um - I’d - um - reached the conclusions that - um - my - the - um - statements - I didn’t believe the statements, er, of - um - Jan Vimpany. And that - um - I had - we’d discussed the various penalties as well at some point. I don’t know if it was in that specific meeting, but I had had discussions with Richard about under the - um - agreement that CSAs and PTAs are employed with. What they’re - what the different disciplinary processes were and - um - given the severity of the - the - um - this - um was dismissal.
And - so by this point you had decided that you were going to dismiss Ms Vimpany, is that correct?    Correct.
(ts 113)
82 The witness was asked whether he wrote the contents of the draft letter. The answer was in the negative. The witness indicated that Mr Farrell gave him the draft letter to enable him to review it and make changes to the correspondence if necessary. The draft letter was identified as exhibit A12. Exhibit A13 indicates that Mr Mark Burgess confirms that Mr Steedman has a continuing delegation to deal with the disciplinary matter relating to Ms Vimpany. Accordingly, there was no need for Mr Italiano to be involved in the investigation or disciplinary process associated with Ms Vimpany even after his return to the position of General Manager. Mr Steedman advised he was however informed of what the witness was doing and the decisions the witness was making.
83 In answer to the question as why Mr Steedman thought Ms Vimpany was being deliberately dishonest Mr Steedman gave the following response:
I read Ms Vimpany’s account, I read Jen Blake’s account, I read Felix and Fab and I noticed significant differences between all the versions. Hammon, Fab and Felix’s were similar and were at odds with Jan Vimpany’s.
(ts 123)
84 The witness was taken to exhibit A1, tab 20 to an interview of Ms Johnstone, Mr Luff and Mr McCullaugh dated 19 July 2013 and informed that Ms Vimpany had given evidence that she had not seen the document prior to the decision being made by the respondent to dismiss her. The witness was asked whether Ms Vimpany had seen this particular document and whether she ought to have had an opportunity to consider such a document prior to her dismissal the witness answered in the negative.
85 Mr Heatherly said in his evidence:
The special training dealt with special needs children and that Jan went out and gave speeches to the special needs children and introduced them to the system.
(ts 131)
86 Mr Steedman was asked whether he took issue with the evidence of Mr Heatherly and in response he indicated he was not aware of such information. However Mr Steedman found in his review that in investigating Ms Vimpany the respondent considered they could not rely on her to be totally honest in circumstances such as court proceedings.
87 Counsel for the applicant asked the witness:
In any - in any of the - well, in your opinion, has Ms Vimpany ever lied in court?    I don't know.
But you have no reason to believe that she has?    I don't know if she’s ever gone to court.
(ts 132)
88 Mr Steedman indicated that no one has raised the issue of Ms Vimpany’s ability to issue infringements or her ability to give evidence in a court. The witness was asked whether he considered any of Ms Vimpany’s performance reviews when was making the decision to dismiss. The answer to this question was in the negative. The witness did not consider performance reviews were relevant to the exercise. The witness’s view was to review what happened in the incident on 27 April 2013 and the subsequent documents that were submitted. Nor did Mr Steedman review Ms Vimpany’s personnel file before making the decision to dismiss her, nor did the witness consider any commendations or adverse findings that may have been contained in Ms Vimpany’s personnel file.
89 Mr Steedman gave evidence he was not aware of any disciplinary action that had been taken with respect to Ms Vimpany prior to making the decision to formally dismiss.
Respondent’s Concluding Submissions
90 Counsel for the respondent submitted the basis from which the applicant might succeed if the Commission found that Ms Vimpany had not given false accounts. The first option is no longer available as a result of the Commission’s decision on the preliminary matter that was found [2015] WAIRC 00229; (2015) 95 WAIG 371. That is, it is no longer in dispute in these proceedings that Ms Vimpany did give false accounts to her employer about the events as they occurred on 27 April 2013.
91 The second matter is whether it was reasonable or not for Mr Steedman the business manager of the respondent to conclude, following an investigation, that Ms Vimpany has given deliberately false accounts to the respondent. Mr Steedman explained his conclusions and the reasons for them. In his correspondence of 7 October 2014 (exhibit A1, tab 1) the respondent submits the conclusions reached by the witness were open, fair and reasonable. Furthermore Ms Vimpany’s version remains the complete opposite to other versions given by persons who had been present on the day including Mr Hammon, Mr Pontarolo and Mr Geson. Counsel for the respondent referred to the findings of Kenner C and in particular [44], [34], [64] and [65].
92 The principle question for the Commission to answer is whether it was reasonable for Mr Steedman on behalf of the respondent to consider that Ms Vimpany had deliberately given false accounts.
93 The respondent considers that Mr Steedman has explained his findings from the investigative process and ultimately the reasons he reached in making the particular findings. There remains an insistence that Ms Vimpany is telling the truth and all others are not. Counsel for the respondent submits it was reasonable for Mr Steedman to have come to the conclusion that he did. The respondent submits that in their view it is almost inevitable, that the Commission as presently constituted would find that Mr Steedman’s conclusions were reasonable.
94 Moving to the third matter that is that the applicant may wholly succeed if the process leading to the findings of Mr Steedman were so flawed that as a matter of procedural fairness the Commission would not allow them to stand. In this matter the respondent submits such matters in terms of the process would be required for the purpose of interference to be an absolute mess for the Commission to interfere. In the respondent’s view there was simply nothing wrong with the process. In terms of the decision-maker Mr Steedman carefully went through some 12 pages of notes in reviewing the documentation as part of the investigation process in the respondent’s view. To undertake such a process was ‘thorough’ and although Mr Steedman was assisted by Mr Farrell to do so was typical for decision makers and Mr Steedman was clearly independent and clear thinking as he proceeded through his consideration process.
95 The final matter was that in relation to penalty. The respondent submits that even if the applicant was not wholly successful in other matters it may partially succeed in relation to the issue of penalty. That may be because the Commission may find that dismissal may not be within the range of penalties which the employer could impose. The respondent referred to the decision of Minister for Health v Drake-Brockman [88]:
There is no universal or exhaustive list of circumstances of which may constitute harsh, oppressive or unfair dismissal. However, where dishonesty is alleged, such conduct usually falls with the class of conduct which is destructive of mutual trust between an employer and employee that will inevitably result in dismissal.
96 In the same decision a High Court Case of Concut Pty Ltd v Worrell is then referred to in the decision of Kirby J from that case and is quoted:
It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily.
97 Counsel for the respondent suggested there could only be interference with the decision made by Mr Steedman on behalf of the respondent if the Commission thought the penalty as determined; that of dismissal, was outside the range of appropriate penalties. Because Ms Vimpany was employed by the respondent with enforcement powers in her JDF she therefore warrants dismissal because:
(a) It was a continuing course of conduct over a period of months, not a one-off incident;
(b) Ms Vimpany actually volunteered two of the false accounts, the HSE Report and the Grievance Document and accordingly they were calculated and not made in a situation where Ms Vimpany was under the pressure of the moment;
(c) The Health and Safety Incident reporting and Grievance Dispute Resolution processes are important, rely on sincere and well-intentioned participation of employees, and should not be abused or undermined by the making of false reports;
(d) The disciplinary investigation into the incident was designed to get at the truth and employees need to be honest to assist in that process and a failure to do is serious (see Pantovic and Pinker v. Director General, Department of Education 2014 WAIRC 01312); and
(e) Ms Vimpany’s accounts went beyond a dishonest denial, or even the maintenance of silence, and constituted a positive and a self-serving attack upon a fellow employee, Mr Hammon which could have had serious consequences for his career.
((a) – (e) respondent’s opening submissions [67])

Applicant’s Concluding Submissions
98 Counsel for the applicant submitted the Commission needs to consider whether it is open on the evidence to conclude whether Ms Vimpany has been deliberately dishonest with the respondent. Mr Steedman was required to review the documents contained in Ms Vimpany’s letter of termination (exhibit A1, tab 1) and make a determination about whether the accounts given by Ms Vimpany were false. Counsel for the applicant submits it is unnecessary to make a determination about whether the matters dealt with by Kenner C need to be reconsidered. These are matters already determined. The issue that Mr Steedman was to deal with was whether Ms Vimpany had been deliberately dishonest.
99 The applicant submits that Ms Vimpany did not do that. The applicant submits what was before Mr Steedman and what was reasonable for him to conclude that Ms Vimpany has maintained the same story throughout the proceedings. It has not changed. She believes her version of events. There is no evidence to suggest that Ms Vimpany was in some way ‘delusional’.
100 Counsel for the applicant submits that Mr Steedman was not shown the commendations that were given to Ms Vimpany nor did he look at her personnel file to consider what was going on in her employment. Mr Steedman agreed that he had not made an inquiry in relation to Ms Vimpany’s performance to determine her status as an employee. Further he had no knowledge as to whether Ms Vimpany had issued infringements in the past nor did he know whether she had given any evidence in court yet he went so far as to make findings that there was an integrity issue associated with Ms Vimpany to the extent she could not issue or be trusted to issue infringements and she could not be trusted to give evidence in court. The applicant considers these findings were not open to Mr Steedman and they were not reasonably open to be made.
101 The test as to whether a decision-maker had reasonable grounds for finding that misconduct actually occurred lies in our view with the sufficient evidence test. That is, the evidence needs to be sufficient to establish for the respondent to conclude that Ms Vimpany was dishonest not just on the day concerned but that she was deliberately trying to be dishonest. In relation to the procedural fairness issue there are two documents the applicant submits that Ms Vimpany was not shown. The first is the statement of Rebecca Johnson (exhibit A1, tab 20). The applicant considers Ms Vimpany should have been given an opportunity to review that document before Mr Steedman made his decision because it is one of the documents that was considered by the respondent before the decision to dismiss was made.
102 Counsel for the applicant submits that the finding that was ultimately made by Mr Steedman and the evidence that was given in the Commission is flawed. Mr Steedman indicated that he has not been trained in disciplinary investigations or how to conduct them. The applicant does not consider that there has been any form of malicious intent by Mr Steedman as he was only in the position for four to five weeks.
103 Turning to the question of penalty Mr Steedman conceded the most severe penalty was dismissal. He neglected to consider Ms Vimpany’s past performance which the applicant considered is a relevant factor given she has been employed by the respondent for some seven to eight years and has a positive employment record. Evidence was given by Mr Steedman that he did not consider that to be particularly relevant and with respect to the submission by the respondent on Minister for Health v Drake-Brockman such a submission needs to be read in context and that is the ability to summarily dismiss.
104 The applicant submits that there are various degrees of dishonesty and in most of these matters where dishonesty is an issue it is in circumstances where an employer is attempting to protect their businesses from the potential element of shoplifter as an example. With Ms Vimpany is it a very different type of dishonesty that is being alleged. In this case it is that Ms Vimpany was a good operator and the employer was not vulnerable by allowing Ms Vimpany to remain in the workplace. The applicant submitted it was necessary to place this matter and the whole incident into context:
It was - at the end of the day it was an argument between a manager and an employee that seems to have blown up to unusual proportions where it’s already had one set of proceedings, it’s had an appeal and now we’re here with an unfair dismissal. So all of this arrives - derives from a little spat in the workplace that otherwise in normal circumstances wouldn’t have gone anywhere, is something that just happens. People have arguments with their managers and subordinates in the workplace. That is quite common; and voices do get raised from time-to-time.
So this whole dismissal and - it needs to be looked at in that context as well. This wasn’t one where Ms Vimpany was alleged that she was stealing from the employer or committing a fraud or anything along those lines, it was - it arose out of a dispute over what happened in the workplace, a workplace spat and that’s where this is distinguishable from what’s been talked about in the context of summary dismissal in the Drake-Brockman sense and also dishonesty in the Bi-Lo sense that this is different to that.
(ts 150)
105 The evidence presented in these proceedings was that Ms Vimpany was a good operator. There has been no evidence to the contrary. Commendations have been received in recent years for Ms Vimpany’s employment. The applicant submits that the respondent would not be vulnerable if Ms Vimpany was to remain in the workplace. Mr Steedman conceded that the penalty for Ms Vimpany must be proportionate and that the circumstances of Ms Vimpany must be considered when determining the penalty. Counsel for the applicant submits that the decision taken by the respondent to dismiss was not a proportionate response in all of the circumstances particularly given Ms Vimpany’s performance in the past, her record of employment and her length of service.
106 Counsel for the applicant submitted that they were seeking reinstatement or alternatively compensation. It is the submission of the applicant that a reprimand would have been adequate in this circumstance.
107 The applicant denied Mr Steedman’s notes (exhibit A9) were ‘thorough’ (ts 152) and in response suggested there were 11 pages of the witness copying what had been contained in the documents for the first 11 pages of his notes then for a single page a conclusion on the first question as to whether Ms Vimpany’s accounts had been false.
108 It was put that the Commission needed to make a finding on the evidence contained in exhibit A1 that Ms Vimpany had the intention at the time she put the documents in that is the OSH incident report (exhibit A1, tab 8) and Ms Vimpany’s grievance (exhibit A4) to give a deliberately false account. In this context the applicant submitted the test to be supported by Briginshaw v Briginshaw [50]:
A finding that a person had formed a state mind to give a false account, or, put another way, had subjectively determined to give a false account is a very serious matter which attracts a high standard of proof.
109 This particular test applies in the Commission and it is the applicant’s submission that Kenner C did not make any findings regarding Ms Vimpany having been dishonest.
110 At the conclusion of proceedings counsel for the applicant considered that for the application to fail the Commission would have to find that Ms Vimpany deliberately gave false versions to the respondent.
Commission’s Conclusions
Credibility of Witnesses
111 Having heard all of the evidence, the Commission is required to determine witness credibility. The applicant led evidence from Ms Vimpany herself and Mr Charles Rahim a polygraph examiner. The remaining witnesses for the applicant; Ms Jennifer Blake, Mr Malcolm Heatherly, Mr Robert Hall, Mr David Scott, Mr Aleksander Sekulovski, Mr John Noble, Mr Mark Counsel, Ms Helen Martin and Mr Barry Watts in the main appeared as character witnesses on behalf of the applicant. With respect to those persons who gave character references I accept their evidence was given in good faith and was largely unchallenged.
112 With respect to the evidence given by Mr Rahim the Commission has already adopted the view in this matter that Mr Rahim would be accorded the relevant weight applying the principles reflected in Mallard v The Queen. Accordingly, the Commission accords little weight to his evidence. What is also relevant is that the polygraph test given to Ms Vimpany was given some considerable time after the incidents of 27 April 2013.
113 Ms Vimpany in her evidence was insistent and unwavering that her version of the events on 27 April 2013 remains a reality. From the actual day, that being 27 April 2013 through to the OSH incident report (exhibit A1, tab 8), Ms Vimpany’s grievance (exhibit A4), the Subsequent response (exhibit A1, tab 11), the Tracked document (exhibit A1, tab 13) and Ms Vimpany’s recollection (exhibit A1, tab 3) all the documents are consistent.
114 The Commission observed Ms Vimpany closely throughout the giving of her evidence however rejects that aspect of her evidence that relates to the events of 27 April 2013 and rather considers that with the passage of time that, sadly, for Ms Vimpany she has convinced herself that her version of what occurred on 27 April 2013 has become the reality.
Termination
115 Ms Vimpany’s employment was terminated by way of correspondence (exhibit A1, tab1) by Mr Steedman, the business manager of the respondent. Ms Vimpany’s dismissal was effective from 5.00 pm Wednesday 8 October 2014 and paid Ms Vimpany five weeks’ pay in lieu of notice.
Decision of Kenner C
116 It is conceded by the applicant and the respondent that the findings of Kenner C in ARTBIU v PTA stand with respect to the events of 27 April 2013. Therefore in terms of Ms Vimpany’s account of the events of 27 April 2013 the Commissioner considers it is relevant to consider the relevant findings of Kenner C:
[44] As is often the case in matters such as this, Ms Vimpany’s version of the events is diametrically opposed to that put by Mr Hammon…
[53] The resolution of the factual contest as to the incident on 27 April 2013 turns on an assessment by the Commission of the credibility of the witnesses who gave evidence in this matter. I have carefully considered all of the oral testimony and the written evidence. I am satisfied that on 27 April 2013 at the Perth Train Station office both Ms Vimpany and Ms Blake entered the office at about 3:15-3:20pm and prepared to leave for the day. Unaware of the prior arrangement with the Station Coordinator on the morning shift, Mr Singh, Mr Hammon questioned Ms Vimpany and Ms Blake and informed them to continue working to their appointed finish time of 4:00pm.
[56] … I do not accept Ms Vimpany’s evidence in chief, to the effect that she did not go looking for Mr Hammon and only went over to him, somewhat incidentally, after sighting him in the office.
[57] In my view, both Ms Vimpany and Ms Blake were upset with Mr Hammon and I accept Mr Pontarolo’s testimony, that when she entered the office, Ms Vimpany made a “beeline” for Mr Hammon, largely as described by the Authority’s witnesses. I accept that Ms Vimpany did go up behind and to the side of Mr Hammon, and spoke to him in a strong and angry manner whilst pointing her finger at him…
[61] … I am not satisfied that Mr Hammon conducted himself in an intimidating, threatening and aggressive manner as alleged. I am not persuaded that Mr Hammon entered Ms Vimpany’s personal space and yelled and screamed at her in the company of the Authority’s staff. I am not satisfied that Mr Hammon bullied, harassed or humiliated Ms Vimpany.
[62] On the evidence however, I am satisfied that Ms Vimpany, when she did return to the office shortly prior to 4:00pm on 27 April, did shout at Mr Hammon and did engage with him in an inappropriate manner, pointing her finger at him and at his face whilst leaning over towards him. Such conduct was not appropriate conduct towards a supervisor.
[64] … there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved. This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013.
[65] Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. … It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events.
Documentation
117 Documents play a crucial role in these proceedings and therefore it is considered important that each document be clearly identified both for the purposes of understanding which documents were reviewed by Mr Steedman in the investigation process. The documents that are of particular relevance are as follows:
(a) Notification (1)
Mr Gavin Heaysman, acting passenger services manager on the Joondalup line on 8 May 2013 [sic] notified Ms Vimpany pursuant to subclause 2.6.2 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011.
A response required Ms Vimpany describe her conduct in the workplace on 27 April 2013.
(exhibit A1, tab 7)
(b) Initial response
Ms Vimpany responded on 17 May 2013 with a two line memo.
(exhibit A1, tab 9)
(c) Subsequent response
Ms Vimpany’s response to the allegation was sent, dated 11 June 2013 and forwarded same to Mr I Luff and Ms K Callaghan.
(exhibit A1, tab 11)
(d) OSH incident report
Dated 14 May 2013 forwarded by Ms Vimpany with respect to the events of 27 April 2013.
(exhibit A1, tab 8)
(e) Ms Vimpany’s grievance
Forwarded from Ms Martin on behalf of Ms Vimpany to the respondent on 24 May 2013 in the form of a grievance relating to the events of 27 April 2013.
(exhibit A4)
(f) Tracked document
Typewritten notes of an interview between Ms Vimpany, Mr McCullaugh and C Owen of 15 July 2013. The tracked changes were amendments inserted by Ms Vimpany to appropriately reflect the truth as she considered it to be.
(exhibit A1, tab 13)
(g) Explanation required
A response sent by Mr I Luff, manager, customer service on 23 September 2013 to Ms Vimpany requiring her response to the respondent’s view that she knowingly gave a false account of Mr Hammon’s actions of 27 April 2013, and provided a similar false account in support of a grievance of 24 May 2013 and made a false allegation on 14 May 2013 in relation to an OSH incident report.
(exhibit A1, tab 2)
(h) Notification (2)
Correspondence from Mr Luff dated 11 August 2014 to Ms Vimpany providing her with a final opportunity to respond to the allegation and on any issue associated with penalty. Ms Vimpany was advised that her response should be in writing addressed to the general manager and submitted by 5.00 pm on Monday, 25 August 2014. Ms Vimpany was stood down on full pay until such time as the General Manager’s decision had been made. Furthermore Ms Vimpany was also advised that 2.6.6 of the discipline provisions of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011 provides that:
After considering any explanation provided by the employee, the Chief Executive Officer may either decide to take no further action or may arrange to carry out further investigations.
(exhibit A1, tab 37)
(i) Ms Vimpany’s recollection
Correspondence sent by Ms Vimpany dated 29 August 2014 to Mr Italiano the general manager of Transperth train operations. The correspondence indicates Ms Vimpany did not at any stage give any false accounts of the events of 27 April 2013 and further she understands the seriousness of lodging grievances and OSH reports.
(exhibit A1, tab 3)

(j) Ms Vimpany’s response
Correspondence from Ms Vimpany dated 27 September 2013 the purpose of which was to provide a response to allegations of inappropriate conduct made by the respondent. Ms Vimpany rejected the allegations as made and outlined in some detail her reasons, including the view that ‘the fact is little weight should be placed on the investigation process as a whole, given management throughout the Authority were actively conspiring to gather evidence to discipline me.’
(exhibit A1, tab 14)
(k) Ms Vimpany’s letter of termination
Dated 7 October 2014. The letter was written by Mr Steedman.
(exhibit A1, tab 1)
Principal Tasks
118 In the remaining matters before the Commission the principal tasks for determination are:
- having undertaken a review of relevant materials associated with the investigation into Ms Vimpany were there reasonable grounds for Mr Steedman to consider Ms Vimpany was guilty of the misconduct as alleged. In other words, had Ms Vimpany continued to deliberately give false versions of the incident on 27 April 2013 to the respondent;
- in the process of investigating the misconduct as alleged by the respondent was the conduct by the respondent procedurally fair; and
- was the penalty of dismissal as determined by the respondent a proportionate or disproportionate response?
Procedural Fairness
119 In considering the question of procedural fairness the applicant questioned the ability of Mr Steedman to conduct the investigation, suggesting his lack of training and limited time acting in the position of general manager Transperth train operations had meant the review of the information was undermined. Furthermore, counsel for the applicant raised two documents that had not been seen by Ms Vimpany prior to her dismissal, one of which was (exhibit A1, tab 20) suggesting the investigation may have been procedurally unfair as a result of the omission. The second document was not named by the applicant. Referring to (exhibit A1, tab 20) the document is the transcript of an interview:

Did you overhear any part of the conversation between Dave Hammon and Jan Vimpany.
When I walked into the office to finish up I could hear raised voices but all I remember hearing was Dave say “just go” and one of them said something like “write me up” or words to that effect. I think that they were both standing up at the time.
I cannot be sure but that is what I think happened, I only came into the office at the end of the conversation and can vaguely remember it.
This account is a true and correct account to the best of my knowledge.
(Signed)
R. Johnston
(p 113)
120 The Commission has had regard for the exhibit identified by the applicant and the fact that this was not seen by Ms Vimpany prior to her dismissal. In the overall context of the documentation considered by the respondent (exhibit A9) the Commission considers that the exclusion of exhibit A1, tab 20 has not compromised the relevancy of procedural fairness as to what was reasonable in the circumstances. The respondent is not required to investigate alleged misconduct ‘at large’. The failure of the respondent to provide exhibit A1, tab 20 to Ms Vimpany prior to her dismissal has not in the view of the Commission compromised the fairness of the procedure.
121 In Minister for Health v Drake-Brockman the Full Bench considered the type of investigation an employer should conduct in matters such as this [107-110]:
The principles enunciated in BiLo and in Sangwin establish that a 'full and extensive investigation' by an employer is to be conducted. Such an investigation is one that entails an investigation of relevant matters surrounding the alleged misconduct that is reasonable in the circumstances. An employer is not required to investigate alleged misconduct 'at large'. What should drive an investigation that meets this duty is the gathering of any information that is available that is centrally relevant to whether the employee in question has engaged in conduct that can be characterised as misconduct.
When conducting an investigation, employers are not required to have the skills of police investigators or lawyers, but instead should only be expected to operate in a practical way in a commercial and industrial environment: Schaale v Hoescht Australia Ltd (1993) 47 IR 249, 252; Heard v Monash Medical Centre (1996) 39 AILR ¶3203 and Amin v Burswood Resort Casino (1998) 78 WAIG 2441, 2442.
Whilst an employer must ensure that an employee is given detailed particulars of the allegations, an opportunity to be heard in respect of the allegations and an opportunity to bring forward any witnesses he or she may wish to answer, an employer is not bound to investigate every avenue that may be suggested to him or her. An employer is only required to act fairly and reasonably in the circumstances and gather relevant information that is critical to the issue whether the alleged conduct occurred.
Except if a departure results in actual unfairness, a decision-maker is not bound by any principle of procedural fairness to adhere to a statement of intention as to the procedure to be followed in an investigation. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, a departmental officer who was considering whether to recommend that Lam's visa be cancelled wrote a letter to Lam requesting contact details for the carer of Lam's children and said he wished to contact the carer to assess the impact that cancellation would have on the children. Lam provided the details but no contact by the department was made with the carer. The High Court held:
(a) When a public authority represents that a particular procedure will be followed that may, but will not necessarily, affect the content of the requirements of procedural fairness;
(b) To establish a breach of procedural fairness it must be demonstrated that the procedure adopted was unfair, not that an expectation engendered by a representation has been disappointed.
122 The Commission finds that in investigating the misconduct alleged by the respondent the procedure adopted by the respondent was fair and reasonable in the circumstances; Ms Vimpany was provided with:
- details of the contentions;
- an opportunity to respond to the employer, in particular Ms Vimpany was sent:
- Notification (1) (exhibit A1, tab 7);
- Explanation required (exhibit A1, tab 2) and
- provided with the opportunity to amend the interview as per the Tracked document, (exhibit A1, tab 13).
Penalty
123 The issue of penalty was one of the remaining matters to be considered. One of the terms of the Agreement submitted by the applicant was drawn from the 2014 Agreement, an agreement that did not apply at the time of Ms Vimpany’s dismissal. The relevant aspect relating to penalty is drawn from the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011 and in particular clause:
2.6.9 After giving the employee a reasonable opportunity to be heard the Chief Executive Officer will determine the matter including penalty. The employee shall be given prior written notice of such intended action, stating the reason for the action being taken.
124 The applicant submitted there were a range of alternative disciplinary options open to the respondent. Each of these options would have been less severe than the decision made by the respondent to dismiss. The Commission has drawn the alternative options included:
2.6.10 The Chief Executive Officer may apply any of the following remedies:
a) a reprimand;
b) a transfer within the Employer;
c) a reduction in grade; or
d) dismissal.
125 The decision to dismiss Ms Vimpany was, in the view of the applicant, a disproportionate response to the misconduct as found by the respondent. The applicant seeks an order requiring the respondent reinstate Ms Vimpany into her former position, requiring the respondent to recognise her continuity of service and requiring the respondent pay Ms Vimpany the remuneration lost or likely to be lost as a result of the dismissal or alternatively that the respondent pay to Ms Vimpany an amount of compensation for loss or injury caused by the dismissal.
126 The respondent considers that dismissal was within the scope of matters available on penalty having undertaken a full and proper investigation. Further, the respondent suggests the Commission had no basis on which it could interfere with the respondent’s decision if the Commission considers the investigation was reasonably thorough in the circumstances.
127 The Commission is of the view that given the period of time over which false allegations were made by Ms Vimpany the penalty of dismissal is proportionate to the allegations as committed. In addition, failure to be honest in an investigation process is considered serious Pinker v Director General, Department of Education [2014] WAIRC 01312.
Summary
128 In conclusion, the Commission is not of the opinion that Ms Vimpany was harshly or unfairly dismissed. In making this decision the Commission has taken into account:
- aspects of Ms Vimpany’s JDF as a PTA. In particular, the responsibilities of the position which require her to:
Monitor and assist Customers entering/leaving stations via fare gates. This duty includes checking validity of tickets, issuing of infringements, providing basic revenue protection and addressing fare evasion.
(exhibit A1, tab 41)
- Much was made of the integrity test particularly by the applicant’s counsel. It was submitted at the time of Ms Vimpany’s dismissal no such test existed and therefore it is impossible for Ms Vimpany to fail to meet the needs of such a test. The Commission finds that Ms Vimpany in her position as a PTA is expected to undertake enforcement skills as part of the responsibilities of the position of a PTA.
- the continuing insistence by Ms Vimpany that she remains the victim and Mr Hammon the aggressor. Ms Vimpany continues to hold the view that Mr Hammon was the individual displaying antagonistic behaviours on 27 April 2013. This is in spite of the findings by Kenner C in ARTBUI v PTA and the view now held by the applicant regarding the Kenner C’s findings:
The second thing was to make a determination about whether the accounts were false, which have been dealt with by Commissioner Kenner, it is not in dispute in these proceedings. We’re not going there and we’re not - we have no intention of going there; never did. I know my learned friend said it’s no longer a string in our bow, but it never was a string in our bow because we - at no point have we argued that the Commission should be looking to overturn the findings made by Commissioner Kenner or anything along those lines.
(ts 145)
- Ms Vimpany in response to questioning from the respondent’s counsel continues to insist she remains the victim and Mr Hammon the aggressor (ts 77,78);
- persons classified as a PTA have a higher than normal duty to be honest and trustworthy; and
- that the respondent on reasonable grounds ‘lost confidence’ in the employee.
129 Having regard for:
- Ms Vimpany’s grievance (exhibit A4) dated 24 May 2013 forwarded by Ms Martin on behalf of Ms Vimpany with respect to the events of 27 April 2013;
- OSH incident report (exhibit A1, tab 8) dated 14 May 2013 forwarded by Ms Vimpany with respect to the events of 27 April 2013;
- Subsequent response (exhibit A1, tab 11) Ms Vimpany’s response to the allegation of the incidents on 27 April 2013, dated June 11 2013;
- Tracked document, notes of an interview between Ms Vimpany, Mr McCullaugh and C Owen of 15 July 2013 which inserted amendments by Ms Vimpany to appropriately reflect the truth as she considered it to be (exhibit A1, tab 13); and
- Ms Vimpany’s recollection (exhibit A1, tab 3) dated 29 August 2014, as sent to Mr Italiano.
The Commission finds the views contained overall in the aforementioned documents relating to the two incidents on 27 April 2013 establish a course of conduct on the part of Ms Vimpany.
130 The language used by Ms Vimpany is clear. Ms Vimpany states her memory of what occurred is clear and the Commission finds overall there was nothing to impair Ms Vimpany’s judgement on the separate occasions she was required to recount events or indeed chose to submit her own views as to what occurred on 27 April 2013. The Commission is not of the view there was anything amiss that may have affected the reliability of the versions that were given on each occasion. The Commission is therefore of the view that the respondent was reasonably entitled to ground the view that Ms Vimpany had given false accounts and had done so knowing them to be false.
131 The Commission considers that having undertaken a review of relevant materials associated with the investigation into Ms Vimpany, there were reasonable grounds for the respondent to consider Ms Vimpany was guilty of the misconduct as alleged. The review was thorough, detailed and just according to the circumstances. Mr Steedman was briefed by personnel within the respondent’s organisation on the task required and based on his evidence he carefully weighed up the statements from Mr Geson, Mr Pontarolo, Ms Vimpany and Mr Hammon. Furthermore, Mr Steedman understood clearly the task he was required to determine that being to conclude whether Ms Vimpany had given false accounts knowing them to be false. The Commission determines the fact that Mr Steedman did not write the answer to that question in his notes is irrelevant as he clearly understood the task he was required to complete when giving evidence.
132 It was said in Minister for Health v Drake-Brockman [60]:
Considerations going to the interests of both employer and employee are part of the requirement at law, that in assessing whether a dismissal is unfair, the Commission is to have regard to the principle of a fair go all round, that is fairness to the interests of the employer and employee. Pursuant to s 26(1)(c) of the Act, the Commission is also required to have regard to the interests of persons immediately concerned whether directly affected or not and, where appropriate, the interests of the community as a whole.
133 The Commission has had regard for this matter in accordance with s 26(1)(c) of the Act and having found that the investigation conducted by Mr Steedman on behalf of the respondent was thorough the Commission notes that if there had been any error on Mr Steedman’s part it was a failure to take into account those circumstances relating to Ms Vimpany’s work history, her years of service and the record contained within her personnel file. However, that failure did not of itself result in Ms Vimpany being treated harshly, oppressively or unfairly by the respondent in its ultimate decision to terminate her employment.
134 In all of the circumstances the Commission is not satisfied that the respondent failed to provide Ms Vimpany with a fair go.
135 Accordingly the Commission will issue an order dismissing the application.