APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 9 MARCH 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00260

DELIVERED : FRIday, 5 MaY 2023

FILE NO. : PSAB 60 OF 2022

Appellant

AND

Governing Council of North Metropolitan TAFE

Respondent

CatchWords : Industrial Law (WA) - Public Service Appeal Board - Appeal under s 80I(1) of the Industrial Relations Act 1979 (WA) - Application for extension of time - Extension granted - Dismissal - Failure to comply with health and safety duty - Excessive use of employer resources - Dismissal substantiated - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA), s 80C(1), s 80I(1)

  Industrial Relations Commission Regulations 2005 (WA), reg 107(2)

  Public Sector Management Act 1994 (WA), s 78(1), s 82A(3)(b)

Work Health and Safety Act 2020 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr R Goddard (on his own behalf)

Respondent : Mr J Carroll (of counsel)

Case(s) considered:

Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728 (2017); 97 WAIG 1525

Kennelly v Incitec Ltd [1998] FCA 1470

Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388

Mackay v North Metropolitan Health Service [2022] WAIRC 00291; (2022) 102 WAIG 500

Millward v North Metropolitan Health Service [2022] WAIRC 00776; (2022) 102 WAIG 1470

Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817

Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243

Porter v Eltin Underground Operations Pty Ltd and Eltin Limited [2000] WAIRC 01182; (2000) 80 WAIG 5349

The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Henry Walker Eltin Pty Ltd [2002] WAIRC 05198; (2002) 82 WAIG 673

Reasons for Decision

Background

1         The appellant (Mr Goddard) was employed by the respondent (TAFE) as a Technical Support Officer – Fabrication, at TAFE’s Midland campus, from 1 September 2007 to 13 April 2022.

2         On 9 March 2022, TAFE notified Mr Goddard it was terminating his employment with five weeks’ notice, for:

(a)  contravening TAFE’s Staff Code of Conduct (Code of Conduct), the Public Sector Code of Ethics (PS Code), and TAFE’s Information Services Acceptable Use Policy for Staff by using excessive work time and resources on non-work related matters; and

(b)  breaching the Code of Conduct, the PS Code, the Occupational Safety and Health Act 1984 (WA), and TAFE’s Occupational Health and Safety Policy by removing an out of service tag from a forklift without authorisation and using the forklift.

3         Mr Goddard contests the dismissal.

The Board’s jurisdiction

4         There is no dispute that Mr Goddard is a ‘government officer’ pursuant to s 80C(1) of the Industrial Relations Act 1979 (WA) (Act), and therefore by s 80I of the Act and s 78(1) of the Public Sector Management Act 1994 (WA) (PSM Act), the Public Service Appeal Board (Board) has jurisdiction to hear an appeal against a decision to take disciplinary action made under s 82A(3)(b) of the PSM Act.

5         Pursuant to regulation 107(2) of the Industrial Relations Commission Regulations 2005 (WA), Mr Goddard’s appeal to the Board was required to be filed by 30 March 2022. The appeal, however, was filed on 27 July 2022.

6         Consequently, the Board directed that Mr Goddard’s out of time application be heard concurrently with his appeal.

The application to appeal out of time

7         Mr Goddard gave evidence that upon receiving the termination notice on 9 March 2022, he contemplated what to do for a few days. A colleague informed him that an appeal against termination must be made within 21 days of finishing work. He sought advice from MKI Legal around 13 or 14 March 2022, who confirmed the 21-day time frame for lodging an unfair dismissal claim. However, due to his inability to pay MKI Legal’s upfront fee for representation, Mr Goddard did not formally engage their services.

8         Mr Goddard approached Unfair Dismissals Australia, a Melbourne-based organisation, for assistance around the end of March or beginning of April 2022, and they advised him of the 21-day period from the date of dismissal to contest the dismissal. Unfair Dismissals Australia subsequently filed an unfair dismissal application on Mr Goddard’s behalf, initially in the Fair Work Commission and then in the Western Australian Industrial Relations Commission.

9         On 27 July 2022, Unfair Dismissals Australia filed the Form 8B – Notice of Appeal, to appeal his dismissal to the Board.

10      On 1 August 2022, Unfair Dismissals Australia filed notice that it was ceasing to act for Mr Goddard. Mr Goddard was briefly represented by Nicholas Legal, who on 7 September 2022 filed an Amended Notice of Appeal on his behalf.

11      At the hearing, Mr Goddard represented himself and gave evidence that he notified TAFE of his intent to contest the dismissal shortly after receiving the termination notice. He directed the Board to an email he sent to Jude McCulloch, TAFE’s Principal Employee Relations Consultant, indicating his plans to ‘instigate legal proceedings’. Mr Goddard asserted that this email was sent before he received a message from Ms McCulloch on 21 March 2022.

12      In Nicholas v Department of Education and Training [2008] WAIRC 1645; (2009) 89 WAIG 817, a Public Sector Appeal Board identified the following four key considerations relevant to its determination of an application to extend time in which to appeal:

(a) the length of the delay;

(b) the reason for the delay;

(c) whether the appellant has an arguable case; and

(d) any prejudice to the respondent if the application were granted.

13      Mr Goddard’s appeal was filed roughly four months late, and he attributes this delay to representative error.

14      Representative error may be a sufficient reason to extend time, depending on the circumstances: Mackay v North Metropolitan Health Services (WA Health) [2022] WAIRC 291; (2022) 102 WAIG 500 (Mackay) [28] citing Cruz v Australia Post Corporation [2008] AIRCFB 452 [35].

15      In assessing whether representative error is a sufficient reason, the Board considers to what extent the delay might properly be apportioned between the representative and the applicant. The Board must ask whether the applicant is blameless, or whether the applicant’s conduct has contributed to the delay: Mackay [29] citing Davison v Aboriginal & Islander Child Care Agency (1998) 105 IR 1.

16      TAFE dismissed Mr Goddard for the reasons stated at paragraph 2(a) (Excessive Use of TAFE Resources) and paragraph 2(b) (Tag Out Allegations).

17      In the Amended Notice of Appeal, Mr Goddard admitted he had engaged in the conduct alleged in relation to the Excessive Use of TAFE Resources but denied that the conduct justifies dismissal. In TAFE’s written submissions, TAFE submitted that the Excessive Use of TAFE Resources alone would not have led to Mr Goddard’s dismissal.

18      Consequently, the focus shifted primarily to the Tag Out Allegations. In the Amended Notice of Appeal, Mr Goddard denied engaging in the alleged conduct concerning the Tag Out Allegations. TAFE filed the outlines of evidence for five witnesses it intended to call at the hearing to give evidence regarding the Tag Out Allegations.

19      Given the circumstances, the Board acknowledges that Mr Goddard presents an arguable case.

20      In its Amended Response and written submissions, TAFE did not object to Mr Goddard’s out of time application and acknowledged that, aside from defending the appeal itself, no specific prejudice would arise for TAFE if an extension were granted.

21      The Board finds that by 30 March 2022, when Mr Goddard was due to file the appeal, he had informed TAFE of his intent to contest the dismissal and had contacted both MKI Legal and possibly Unfair Dismissals Australia, both of which had advised him that he had 21 days from the date of his dismissal to contest the dismissal. The Board is satisfied that, had Mr Goddard received the correct advice at that time, he would have filed an appeal or arranged for a representative to file it within the prescribed period. Consequently, the Board finds that Mr Goddard is blameless for the delay in filing the appeal and finds representative error a sufficient reason to extend the time for him to file the appeal.

Excessive Use of TAFE Resources

22      Mr Goddard conceded to unauthorised use of TAFE emails. He argued that the substantial amount of work he had performed at home over 14 years far exceeded the time spent on private matters while at work during the six-month period of unauthorised use.

23      Mr Goddard explained that he experienced a ‘fair amount of pressure’ as his daughter faced significant difficulties, and he provided assistance to her. He emphasised that, despite using work hours to help his daughter, he invested far more time at home on work-related duties. Mr Goddard also pointed out that during this period, there was no flexi-time system to record work performed outside regular hours, as flexi-time was only introduced a few months prior to his dismissal.

24      During questioning about the content of emails sent during work hours, Mr Goddard acknowledged sending and receiving personal emails on his work email address concerning his daughter’s legal issue, tenancy matters, the Speedway Commission, movie streaming, cryptocurrency trading, and contesting an infringement. He admitted these emails were not sent with TAFE’s support or approval.

25      When referred to the Code of Conduct, Mr Goddard acknowledged that the Code of Conduct requires staff to act in an open, transparent and accountable manner, and commit to using public resources responsibly. He conceded that using his work email for personal purposes constituted using TAFE’s resources for purposes other than for TAFE’s purposes. Mr Goddard admitted he should not have utilised his work email for personal matters and should have avoided working on personal matters during work hours.

26      TAFE contends that Mr Goddard’s use of work hours for personal matters and sending personal emails from his work account raises two concerns. Firstly, such actions can potentially undermine the public’s necessary and entitled confidence in TAFE’s usage of taxpayer-funded time and resources. Secondly, the emails could signal to external parties that they were sent on TAFE’s behalf or at least with TAFE’s approval, which could tarnish its reputation, particularly considering the subject matter of some emails, such as those where Mr Goddard contested an infringement to a local council.

27      TAFE argues that for these reasons, Mr Goddard’s conduct was serious. TAFE further contends that Mr Goddard’s lack of understanding regarding the seriousness of his actions demonstrates an absence of insight, which is relevant when determining the appropriate penalty.

28      TAFE’s letter dated 12 July 2021, outlining ‘alleged breaches of discipline’, describes the allegation as ‘using excessive work time and resources on non-work related matters’. The allegation is to the effect that Mr Goddard engaged in time theft, which is a serious allegation.

29      Mr Goddard stated that at the time, he was under extreme pressure, trying to save his daughter from going to prison and assisting her in retaining custody of her children. As a result, he did not recognise the inappropriateness of his actions, claiming ‘at the time, I had no other choice’. While Mr Goddard admitted to the misconduct, his qualification supports TAFE’s submission that he lacks insight into the seriousness of his conduct. This leads the Board to be concerned there remains potential for Mr Goddard to engage in similar conduct in the future, which could weigh against the Board adjusting TAFE’s decision to dismiss him.

30      However, TAFE conceded in its written submissions that dismissal would not solely result from this conduct. In light of these circumstances, the Board refrains from making any findings regarding TAFE’s decision to dismiss based on this conduct alone.

Tag Out Allegations

31      Mr Goddard gave evidence that:

(a) On a Tuesday, about two-and-a-half or three weeks before he was seen operating the forklift (on 15 September 2021), he walked down to see Tom Nagy in Automotive. Mr Nagy was sitting at his desk, and behind Mr Nagy to his left, was Brian Johnston. He heard Mr Nagy say, ‘Oh, stuff it. I’m going to put it - I’m going to take it out myself’. He heard Mr Johnston say, ‘No, don’t you tag it out, get the fellow, when he comes to give you a quote on the machine, get him to put a tag on it, because that will mean more to management if they see somebody from the outside as against someone from the inside putting a tag on it’.

(b) Either later on that day, or the next morning, Mr Nagy told Mr Goddard that the forklift had been tagged out. Mr Goddard and Mr Nagy ‘agreed between ourselves that we wouldn’t use the forklift’. Mr Goddard said to Mr Nagy, ‘I don’t like using that other dangerous heap of shit’ (in reference to the gas forklift, which at the time was the only other forklift).

(c) The following week, Mr Nagy was not working. On the Thursday of that week, Mr Goddard was required to get gas for metal fabrication. He had been operating the gas forklift, when he was ‘lifting up the pack and all of a sudden, the whole lot twisted over, crashing down against the … other pack. The truck driver runs away. The forklift went up on two wheels’. He went and got the other, electric forklift and ‘came around, unloaded the gas, put it away, put the forklift back and never touched it again for another week’.

(d) When he went to use the forklift, it had an out of service tag on it, which contained ‘scribble’. He removed the tag and threw it in the bin. He mentioned the incident with the gas forklift to his supervisor, Adam Lansdown on an occasion when Mr Lansdown was walking past his desk, but did not put in a formal report about the incident.

(e) A week later, he received a call from Mark Grealish that someone had put one of the inert gases in back to front, and he could not connect up the gas. Mr Goddard grabbed the electric forklift and unloaded the gas.

(f) Just as he had finished unloading the forklift, and was chatting with Mr Grealish, Mr Lansdown came along. After chatting for a couple of minutes, Mr Lansdown said, ‘Oh, Bob, you know, you shouldn’t really be using the forklift’. Mr Goddard said, ‘I don’t care. You jolly well know why the forklift’s tagged out in the first place’. A little later, Mr Goddard said, ‘And it’s bullshit the staff have to go to these extremes to get management off their butt to get the machine serviced’.

(g) Mr Goddard took the forklift back, parked it, took the key down to Mal Pilkington’s store and left it there.

(h) The next morning, Mr Goddard went to Mr Nagy’s office, and Mr Lansdown was sitting next to Mr Nagy. Mr Lansdown said, ‘Oh, Bobby, you shouldn’t have been using the forklift’. Mr Goddard said, ‘I don’t care. you know why the thing was tagged out. It’s a load of BS.’ ‘The other thing is a dangerous heap of shit.’ Mr Lansdown asked him where the key was, and he said, ‘It’s in Mal’s office’.

(i) Later that day, or the next morning, Mr Goddard walked past the forklift and saw two tags on it; a yellow and black tag on the steering wheel with ‘Waiting for parts’ written on it, and a white ‘Do Not Operate’ tag with Mr Lansdown’s name on it.

(j) He had spent three-and-a-half years in a brake service company, so he inspected the brakes when the technician came to repair the forklift (in October 2021). The technician had new linings and the old ones there, and he told the technician that, ‘You can put them straight back on. There’s nothing wrong with them’. He saw that the wheel cylinder, on the left-hand‑side had a slight ‘sweating’ on one end, so he said to the technician, ‘It’d be wise to replace the wheel cylinders.’

(k) The technician replaced the wheel cylinders. Mr Goddard became aware afterwards that the technician had put the new linings on as well. He went ‘crook’ at Mr Nagy over this, and said to Mr Nagy, ‘That’s wasting money. Those linings had - you know, could’ve stayed on’.

(l) Mr Nagy had an incident with the forklift where he said to Mr Goddard that the brakes ‘didn’t hold’. Mr Goddard experienced numerous incidents when he was unloading, where he ‘had to push really, really hard on the brake pedal’ for it to stop rolling, especially on the slope. He said, it was just ‘the design of the braking system’, and ‘it was just that Tom didn’t push down the pedal hard enough and the - of course, they didn’t hold’.

32      Mr Goddard’s evidence was that he has good mechanical knowledge and can tell whether a forklift is safe to use or not. His evidence was that there was nothing mechanically wrong with the forklift, and the whole ‘business with the brakes’ ‘was purely a charade’ to justify the service of the forklift.

33      Mr Goddard does not dispute that the forklift technician from G&M Forklift tagged the forklift as out of service. However, he disputes the circumstances leading to the tagging. He claims that the technician tagged the forklift at the suggestion of Mr Johnston, who told Mr Nagy to instruct the technician to do so in order to justify servicing the forklift.

34      Having heard from TAFE’s five witnesses whose evidence stood unchallenged and carefully considered the documents tendered into evidence, the Board finds that the timeline of events is as follows:

(a) Around 18 months before Mr Lansdown and Paul Langridge began their respective positions, the forklift started emitting a low-pitch squeak while being driven, which progressively became louder. Mr Nagy reported this issue to his manager at the time, but the manager did not authorise any expenditure for fixing the forklift.

(b) In August 2021, Mr Lansdown commenced in the role of Senior Supervising Technician, supervising approximately 22 technicians across four campuses, including Mr Goddard.

(c) On 9 August 2021, Mr Langridge commenced in the role of Manager Technical Services, based in East Perth. Mr Lansdown is one of his direct reports.

(d) In or around mid-August 2021, Mr Lansdown and Mr Langridge attended at the Midland campus to introduce themselves to the technicians, Mr Goddard, Mr Nagy, Mr Grealish and Mr Pilkington.

(e) A few days prior to the meeting, Mr Nagy experienced an issue with the forklift’s brakes. While carrying a substantial amount of steel on the tines, the forklift began to roll forward, despite applying pressure to the brake pedal with both feet. His concern was that, had the forklift collided with the truck, the steel could have fallen off and potentially caused fatalities in a worst-case scenario.

(f) During the meeting, Mr Goddard mentioned that the forklifts had not been serviced since 2016 and 2018. Mr Nagy brought up the brake issue with the electric forklift. He drove the forklift in front of Mr Langridge, demonstrated the touching on the brakes, and Mr Langridge heard the reported noise. Consequently, Mr Langridge decided to have the forklift serviced, and for the service technician to assess the forklift and prepare a quotation for any necessary repairs.

(g) On 19 August 2021 at 1.24pm, Mr Langridge sent an email to Ann Watson, copied to Mike Bezaud, on the following terms:

Hi Ann

The Midland forklift has a problem with the brakes and was last serviced 5/7/2018.

Can you please let me know if Facilities is responsible for the servicing of this unit or is it the Portfolio cost centres?

Cheers

Paul

(h) Either on the same day as the meeting or the following day, Mr Lansdown asked Mr Nagy to contact the forklift service providers to initiate a repair quote. Consequently, Mr Nagy arranged for G&M Forklift to inspect the forklift.

(i) On 25 August 2021, Jack from G&M Forklift serviced the forklift, informed Mr Nagy of an issue with the brakes, and tagged the forklift as out of service. Jack advised Mr Nagy that he would need to order parts for the forklift. Mr Goddard was not present during the servicing, and Mr Nagy, needing to keep his department running, did not observe Jack throughout the service and was unsure whether Jack inspected the brakes on that day.

(j) On 25 August 2021 at 11.55am, Mr Nagy sent the following email to Mr Langridge, Mr Lansdown, Mr Goddard, Mr Pilkington and two others:

Hi all the fork lift is being service NOW and is not looking good the technician is not happy with the brakes

I will let everyone know the outcome from the service—Tom

(k) On 25 August 2021 at 1.50pm, Mr Nagy sent the following email to Mr Langridge, Mr Lansdown, Mr Goddard, Mr Pilkington and others:

Hi All the service is done, The forklift has been tagged out because of the brakes. A quote is being done for the repairs hopefully I will see it soon

It is parked in its charging station —Tom_

(l) Mr Nagy received a Job Estimate dated 27 August 2021, which he forwarded to Mr Langridge or Mr Lansdown. The document states:

JACK SERVICED MACHINE, AND TAGGED IT OUT, BRAKES ARE METAL ON METAL, BATTERY IS UNSERVICEABLE, BROKEN LENSES NEED REPLACING, FLOOR MAT NEEDS REPLACING, UNIT NEEDS A ROTATING BEACON - SUPPLY QUOTE TO TOM

(m)  Mr Nagy received a Tax Invoice dated 31 August 2021, which he arranged to have paid on 31 August 2021 at 11.27am, which states:

Job Description

SERVICE FORKLIFT AND CHECKOVER

PERFORM ALL OPERATION TESTS ON CUSTOMER OWNED EQUIPMENT

TAKE PHOTOS OF ANY SEVERE WEAR AND TEAR/DAMAGE

brakes seem to be metal on metal - MACHINE TAGGED

RH indicator lenses cracked

multiple battery posts cracked

beacon inop

[…]eat minor tear

floor mat has hole

driveline oil history?

tyres OK very dried out though

most battery terminals corroded out

battery links badly perished

(n) On 15 September 2021, Mr Nederlos, a facilities officer, asked Mr Lansdown whether the forklift had been restored to service, as he had just seen Mr Goddard operating the forklift.

(o) Mr Lansdown went ‘to see what was actually going on because as far as I was aware, the forklift still hadn’t been returned to service’. He found Mr Goddard sitting in the driver’s seat of the forklift and conversing with Mr Grealish at the back of E block. When questioned about his actions, Mr Goddard stated that he had just finished unloading a gas delivery from a supplier. Mr Lansdown then instructed Mr Goddard to park up the forklift.

(p) As Mr Goddard drove away to park up the forklift, Mr Lansdown returned to his office and called Mr Langridge to update him. During this call, Mr Langridge requested Mr Lansdown to document the incident. While drafting an email for Mr Langridge, Mr Lansdown received a call from him containing Executive Director Darren Channell’s instructions for Mr Lansdown to retrieve and secure the forklift key in his office to prevent its usage and to retag the forklift as out of service.

(q) Mr Lansdown went to retrieve the forklift key, and on returning to his office, completed the email to Mr Langridge. The email sent at 3.43pm states:

Hi Paul,

I have just witnessed (approx 2:30pm) Bob Goddard driving a forklift that has been tagged out by a technician from G&M Forklifts. Bob has removed the tag claiming that the whole situation in "bullshit" and that he didn’t care that he removed the tag.

I informed Bob that as the tag was placed by the technician from G&M Forklifts we are unable to remove the tag and/or operate the forklift. He didn’t care and he will do as he pleases. I said to Bob that the main reason for the forklift being out of service was that there are major issues with the brakes, as per the report from G&M. He said it is all rubbish and that there is nothing wrong with the brakes. He then proceeded to demonstrate that the brakes worked, while ignoring the screeching from the faulty brake drums. I was then informed that the squeak was from the rubber working on the wheels, and not the brakes.

Bob went on to say that this wasn’t the first time this week driving the forklift.

I re‐iterated that the equipment has been tagged out and needed to be parked up. He continued to say that he doesn’t "bloody care" and he refuses to drive the "piece of shit gas forklift" so he will continue to drive the electric.

Bob suggested that he couldn’t be bothered waiting for the thing to be serviced. I told Bob that as soon as Mike Bezaud approved the quote from G&M I would have a technician onsite to repair the forklift. He wasn’t interested in hearing this.

The above exchange was witnessed by Mark Grealish.

As per the photos included, I have re‐tagged out the electric forklift, and the key is in my office with me as per our phone conversation. The staff that would use the forklift have been made aware that the fork is once again out of service.

Thanks Paul.

Adam Lansdown

Senior Supervising Technician

(r) On 15 September 2021 at 08:01:03, Mr Lansdown sent an email to Mr Langridge that states:

Hi Paul.

I forgot to mention that as I was picking up the key from Mal Pilkington, he mentioned that he had spoken to Bob about driving the fork and told him not to. If he did drive the forklift he would end up in trouble as it had been tagged out.

Thanks Paul,

Adam.

(s) On 15 September 2021, Ryan Johnston, Safety and Injury Management Consultant, sent Mr Langridge and Mr Lansdown an email on the following terms:

Gents, some information for you from the WorkSafe Guidance Note on Isolation of Plant.

Mick and I are of the opinion that if there is significant proof that it needs to be referred to Jude in IR, will discuss with you again shortly.

Out of service tags

A yellow and black out of service tag on a piece of plant indicates that it is unserviceable and should not be used. It can be attached to non-powered plant such as ladders, jacks and trolleys as well as powered plant and should be attached to the main controls if possible, or to a prominent part if there are no controls, eg a damaged ladder.

These tags serve to indicate plant or equipment that is out of service for repairs, maintenance, cleaning, or being installed etc. A piece of plant or equipment fitted with an out of service tag must not be operated while the tag is in place.

Out of service tags should be attached by a competent person having specific knowledge relating to the plant. However, this should not prevent any other person from attaching an out of service tag in emergency situations where it is apparent that the continued use of the equipment could be dangerous. Out of service tags should, where applicable, be placed on devices which isolate energy sources, only when those devices are set in the ‘off’ or ‘safe’ position.

Prior to attaching an out of service tag all required details on the tag must be clearly and indelibly entered in the spaces provided, with emphasis given to the reason for placing the tag. Tags must be securely fixed and be clearly visible.

Out of service tags should be removed only by an authorised person who is both familiar with the equipment and fully aware of the reason that the tag was placed, except in an emergency situation. In the absence of any personal danger tag or lock, removal of an out of service tag effectively releases plant or equipment for use. This must not be done before ensuring that:

a) all people known to have been working on the plant are clear of the equipment; and

b) an inspection of the plant indicates that all machinery guards are in place, all protective devices are functional and all maintenance tools and aids have been removed, and that the equipment is safe for normal use.

Out of service tags are intended to convey a clear DO NOT OPERATE warning and the failure to comply may result in damage to the equipment and or could cause injury. It is essential that isolating mechanisms with out of service tags attached are not switched, manipulated, or interfered with in any way while these tags are in place.

Out of service tags must not be relied on to provide personal protection.

(t) On 7 October 2021 at 11.07am, Mr Nagy sent Mr Langridge, Mr Lansdown, Mr Goddard and others an email on the following terms:

Hi all the brake have been repaired on the electric fork lift. I have charged the batteries this morning, given it a very small test drive feels good, hand brake is a little hard to use be it will be getter with use —Tom

(u) Mr Nagy received a Tax Invoice dated 8 October 2021, which he arranged to have paid on 21 October 2021 at 1.03pm, for the replacement of the brake fluid, cleaning everything down with brake cleaner, replacing the brake shoes (which are inside the brake drum, which pushes out and puts pressure on the drum, to slow the forklift down when you apply the brakes through the hydraulics), oil seals – inner and outer, the right‑hand indicator lenses, the floor mat, rotating beacon, and the battery link kit including bolts.

(v) After G&M Forklift repaired the forklift, another issue emerged with a tyre; G&M Forklift ultimately replaced all the tyres. On a day when WorkSafe was on site, Mr Langridge received a call from safety officer Mick Pentreath, who informed Mr Langridge that he had just seen Mr Goddard driving the forklift despite having noticed earlier that the forklift had a piece of the front tyre missing, rendering it unsafe. Mr Langridge instructed Mr Goddard to park and tag out the forklift and to use the alternative forklift. As Mr Goddard refused to use the other forklift, Mr Langridge asked Mr Lansdown to complete the job using the other forklift.

Considerations

35      Each of TAFE’s witnesses gave evidence regarding the purpose of an out of service tag, including who can apply one, who can remove one, and the procedure to be followed before removal, largely consistent with Mr Johnston’s email sent on 15 September 2021. They emphasised that, barring an emergency situation, an out of service tag may only be removed by someone deemed competent to do so, and Mr Goddard did not meet this criterion.

36      Additionally, other than in an emergency situation where using a tagged out forklift could save lives, a tagged out forklift should not be operated whilst tagged out. The witnesses concurred on the potential adverse consequences of using a forklift whilst tagged out.

37      It is undisputed that Mr Goddard removed the out of service tag and operated the forklift in a situation where Mr Goddard was aware the forklift had an out of service tag on it. It is undisputed that this conduct breached TAFE’s guidelines concerning out of service tags.

38      The dispute rests with Mr Goddard’s refusal to acknowledge that the out of service tag was placed on the forklift due to its unsafe condition. He contends that the tag served as a façade or charade. While Mr Goddard concedes that a G&M Forklift technician tagged the forklift as out of service and admits to receiving emails from Mr Nagy conveying the technician’s concerns about the brakes, he maintains that this occurred ‘because we were all playing along’.

39      The Board accepts TAFE’s submission that this does not make sense. Upon evaluating TAFE’s witnesses and the contemporaneous documents, the Board finds that:

(a) Mr Nagy held a genuine concern regarding the forklift’s brake safety, stemming from an incident in mid-August 2021 where, despite firmly applying both feet on the brake pedal, the forklift proceeded to roll forward. Mr Nagy communicated these concerns to his superiors and also to Mr Goddard.

(b) A forklift specialist from G&M Forklift serviced the forklift, and based on their concerns surrounding the brakes, tagged out the forklift. Despite Mr Goddard’s assertion that all parties were ‘playing along’ to pressure management into servicing the forklift, the specialist performed the service on 25 August 2021 and tagged the forklift as out of service. Mr Goddard was not present during the service and cannot contradict that the forklift specialist tagged out the forklift for any reason other than the stated reason.

(c) On or around 8 October 2021, G&M Forklift replaced the brake shoes and invoiced TAFE accordingly. There is no basis for the Board to conclude that G&M Forklift did not have a reasonable basis for undertaking a replacement of the brake shoes. This is supported by Mr Goddard’s admission that, if he had been responsible for the task, he would have taken the shoes and old lining to a company in Malaga, where the turnaround for completion would be within a day.

40      The removal of a safety tag outside of the proper process for removal of tags can amount to serious misconduct warranting summary dismissal even where the conduct is not found to be wilful or deliberate: Kennelly v Incitec Ltd [1998] FCA 1470.

41      The Board finds the Tag Out Allegations are substantiated and accepts TAFE’s submission that Mr Goddard’s conduct was wilful and deliberate as he had intended to remove the out of service tag and operate the forklift, but not malicious.

42      The Board finds that Mr Goddard should not have operated the forklift once it was tagged out of service. If Mr Goddard needed to move steel or gas pallets, he should have used the gas forklift. If Mr Goddard truly considered the gas forklift unsafe, he should have submitted a formal report or tagged it as out of service himself. If this led to both forklifts being unavailable, work requiring a forklift would have to cease due to health and safety obligations.

43      The Board finds that Mr Goddard prioritised his mechanical knowledge over TAFE’s procedures. He removed the out of service tag without conducting a brake inspection or enlisting a qualified individual to do so, thus failing to adhere to TAFE’s processes for returning the forklift to service. The Board finds that he did so because he believed the forklift was tagged out for an ulterior motive, which for the preceding reasons the Board does not accept.

44      A government officer’s insistence that their conduct is in good faith and without fault may cause a Public Service Appeal Board to have real concerns about the officer’s lack of insight and awareness about why their conduct is serious and problematic, and to raise concerns about the officer’s suitability for continued employment: Millward v North Metropolitan Health Services [2022] WARIC 776; (2022) 102 WAIG 1470 [289].

45      Throughout the hearing, Mr Goddard steadfastly argued that his mechanical knowledge, despite lacking formal qualification, justified his removal of the out of service tag. He insisted that even though the forklift specialist tagged the forklift, there was nothing wrong with it and stated, ‘I knew there was nothing wrong with the forklift, because I’ve been using it beforehand - before it was tagged out, I’d been using it. I had no hesitation whatsoever in using the forklift. I had no cause to use the forklift - not to use it, rather’.

46      He maintained that the issue with the brakes was a ‘furphy’, and ‘anybody that - that says anything different, they’re - they’re lying their heads off.’

47      In closing submissions, when questioned about whether he would do anything differently, Mr Goddard maintained that he would not use the gas forklift and would ‘do the same again’. The Board finds that Mr Goddard lacks insight into his conduct and, based on his own submissions, is not persuaded that he would not engage in similar conduct if he was returned to work.

Conclusion

48      The Board finds that both the Excessive Use of TAFE Resources and Tag Out Allegations are substantiated.

49      While the Board has taken into account Mr Goddard’s age, length of service, and financial situation, it finds that these mitigating factors are insufficient to warrant adjusting TAFE’s decision to dismiss Mr Goddard in light of the circumstances.

50      For the preceding reasons, the Board finds that dismissal is a proportionate and reasonable response to Mr Goddard’s conduct and remains unconvinced that TAFE’s decision to dismiss him should be adjusted.

51      Accordingly, the Board will order that Appeal No. PSAB 60 of 2022 be dismissed.