Queensland industrial relations commission
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[Extract from Queensland Government Industrial Gazette, dated 26 May, 2006, Vol. 182, No .4, pages 104-113] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - reinstatement Kevin Michael Adams AND Queensland Harness Racing Board (TD/2005/455)
DECISION
The Applicant commenced employment with the Respondent on 5 January 1998 and from January 2003 until his termination he held the position of Deputy Chairman of Stewards. His termination occurred on 21 November 2005 and arose from his activities and involvement in a Stewards' enquiry panel which started on 18 August 2005 and concluded on 19 August 2005. The Stewards' enquiry panel in question was initially comprised of Mr Larry Wilson as Chairman with Mr Don Gardiner and the Applicant as sub-ordinate members. This panel met on 18 August 2005 to review the manner in which a driver, Brent Livingstone, handled his horse in a particular race on the Gold Coast that day. The panel conducted its enquiry and adjourned to determine the question of whether or not a charge should be laid. The panel determined to charge Brent Livingstone pursuant to Rule 149 of the Australian Harness Racing Rules (the Rules). The panel, minus Mr Gardiner, who was released to attend to other duties, reconvened and formally charged Brent Livingstone who immediately sought an adjournment in order that another driver, Graham Prowse, could be called to give evidence. The adjournment was granted. The events the following day culminated in the Applicant reconvening the enquiry in the absence of Mr Wilson who was too ill to work that day, with himself as Chairman and with Mr Gardiner in attendance as the sub-ordinate member. The enquiry concluded with Mr Livingstone being given a 4 week suspension by decision of the panel as constituted i.e. the Applicant and Mr Gardiner. The following week Brent Livingstone appealed the decision on the grounds of having, inter alia, been denied natural justice. The basis of this aspect of the appeal was that the "Steward panel that he(a)rd evidence was not (the) panel that delivered judgement". (RM 4 of Ex.10). Under Part 15 "PENALTIES" of the Rules, r. 256(7)(d) states: "(7) Before an offence is found proven, the following conditions shall be satisfied:- ... (d) in a matter before the stewards, those stewards who finally determine that an offence has been committed shall be present during the whole of the proceedings.". (My emphasis). For the inquiry in question Mr Gardiner was absent for the laying of the charge, the ensuing discussion about the calling of Mr Prowse to give evidence and the granting of the adjournment on 18 August 2005. The Respondent decided not to contest the appeal and the basis of this decision was that Mr Gardiner had not been present for the whole of the proceedings thereby, in the Respondent's view, eliminating any prospects of successfully defending the action. Brett Schimming, Chief Executive Officer of Queensland Harness Racing Board (the Q.H.R.B), notified the Board of the situation and set about investigating the matter in order to report back to the Board. The Board met on 24 October 2005 and interviewed both the Applicant and Mr Wilson. They met again on 31 October 2005 and resolved to issue the Applicant with a show cause notice. The Board met on 16 November 2005, considered the matter including the show cause notice response from the Applicant and concluded that dismissal was appropriate. The Board wrote to the Applicant in the following terms: "At its meeting of 16 November 2005, the Board: (a) confirmed its earlier decision that there is sufficient evidence of misconduct, incompetence and negligence on your part, in that you: (i) reconvened the Livingstone inquiry on 19 August 2005 without the permission or knowledge of the Chief Steward in charge of the inquiry, Larry Wilson (ii) provided an inaccurate account to the Board of the telephone conversation that took place between yourself and Mr Wilson on 19 August in relation to reconvening the inquiry (iii) breached rule 256(7)(d) of the Australian Rules of Harness Racing by allowing Steward Don Gardiner to return to the inquiry panel to determine the matter, despite the fact that Mr Gardiner was not present during the whole of the proceedings (iv) placed the Board in the position of being unable to defend the appeal by Brent Livingstone, thereby allowing a driver guilty of a serious breach of the rules to escape penalty (b) carefully considered all correspondence received from Nicol Robinson Halletts Solicitors, acting on your behalf (c) carefully considered your record of employment in the harness racing industry and for the Board (d) found that it had irretrievably lost confidence in your ability to discharge your role of Deputy Chairman of Stewards. In consequence of the above, the Board resolved that your employment should be terminated by the payment of four weeks salary in lieu of notice, effective 21 November 2005.". Evidence for the Applicant was given by himself and Mr Norman Torpey who at material times, was Chairman of Stewards of the Respondent. Mr Torpey's employment with the Board was terminated on 21 November 2005. Evidence for the Respondent was given by:
Whilst this is not an exercise confined to the examination of matters considered by the Board with a view to either agreeing or disagreeing with the conclusions reached, I would indicate that the conclusions reached by the Board at point (a)(i) and (iii) in the dismissal notice are in my view accurate. The conclusion of the Board in (a)(ii) was vigorously contested. Paragraph (a)(ii) relates to the Applicant allegedly providing an inaccurate account of the telephone conversation between he and Mr Wilson on 19 August 2005. On this point the evidence of the Applicant was that on the morning of Friday, 19 August 2005 Lisa Maher (office assistant) advised him that John Livingstone, father of Brent Livingstone, had called and stated that he wanted to resume the enquiry that night at the Gold Coast. The Applicant's evidence was that as he was aware that Mr Wilson was to be at the Gold Coast meeting he asked Ms Maher to telephone John Livingstone and advise him to be at the Gold Coast 1 hour before the first race to resume the enquiry. The Applicant stated that he then phoned Mr Wilson and was advised by Mrs Christine Wilson that Mr Wilson was ill and was sleeping. He said that arrangements were made for Mrs Wilson to have Mr Wilson ring the Applicant when he was able. On the evidence of the Applicant Mr Wilson rang him about 2.30 p.m. and advised him that he was still unwell and unable to attend for work at the Gold Coast that night. The Applicant claimed to have told Mr Wilson of his having agreed to the request by John Livingstone to reconvene the enquiry that night. The Applicant recalled Mr Wilson saying words to the effect that the enquiry could be held the following evening to which the applicant claimed to have replied that he would let the Livingstones know and asked Mr Wilson to let him know if he (Mr Wilson) could not attend the following evening. The Applicant believed that he and Mr Wilson came to an arrangement to conclude the enquiry on Saturday, 20 August 2005 (Tp. 27 L. 17). The Applicant stated that he then said that he would let the Livingstones know that Mr Wilson was ill and that the enquiry was off when he got to the Gold Coast. The Applicant denied having been specifically directed by Mr Wilson not to conduct the hearing. He denied having told Mr Wilson that the Livingstones were making a special trip and supported the denial with the claim that it was some time after the phone conversation with Mr Wilson that he realised the Livingstones were making a special trip. The Applicant said that it was on 19 August 2005 when he was reviewing the form guide at about 4.30 to 4.45 p.m. at the Gold Coast that he first became aware that the Livingstones did not have a horse entered in any race at the meeting. This he said was very unusual and the first time it occurred to him that the Livingstones were making a special trip to the Gold Coast for the purpose of participating in the enquiry. The Applicant's account of the phone call in evidence was consistent with the account given to Mr Torpey and Mr Schimming in the interview of the 15 September 2005 (KA 7 of Ex. 2) and his written submission to the Board dated 2 October 2005 (KA 8 of Ex. 2). Exhibit 2 (KA 6) is a record of interview between the Applicant, Mr Schimming and Mr Torpey. In this the Applicant's answers to questions regarding the content of the phone call with Mr Wilson on 19 August 2005 given in that interview are consistent with his evidence in this matter and the account provided to the Board. Larry Wilson's written evidence was: "14. I recall that I returned Mr Adams' telephone call on or around 2.00pm on 19 August 2005. I informed Mr Adams that I would be unavailable to work that evening due to illness. Mr Adams said words to the effect that "if it is okay with you I would like to conclude the Livingstone Inquiry tonight because they are making a special trip to the Gold Coast" I can not recall if Mr Adams asked if he could bring Don back onto the panel. I believe that he would have said something to this effect as I responded to the effect "No, it is not okay, as Don was not present for the whole inquiry, and that we do not want to "stuff up" if it goes to appeal". I then said words to the effect "I should be well enough to attend the Albion Park Meeting tomorrow (ie 20 August 2005 the next evening) and that all parties would be available and we would conclude the inquiry that evening". I cannot recall exactly how the conversation concluded.". In cross-examination Mr Wilson accepted that on 19 August 2005 at the time he made the phone call to the Applicant he was still suffering the effects of his illness and was unable to work (Tp. 99 l. 47). He also said he had stopped vomiting but wasn't feeling 100% (Tp. 100 l. 10). Mr Wilson recalled the interview with Mr Schimming and Mr Torpey recorded by Mr Schimming in the file note (BS 4 of Ex. 3) and believed that he conveyed the information contained in his written evidence at paragraph 14 to them regarding the phone call. The relevant section of BS 4 states: "Larry Wilson then advised that on Friday 20 [sic] August, he was sick in bed and understood that Kevin Adams had called his house at approximately 9.00 a.m. that morning and spoken to his wife. At 2.00 p.m. Larry Wilson called Kevin Adams to confirm that he would not be able to attend the Gold Coast race meeting. Larry Wilson advised that he was not aware that the inquiry was proceeding, and he confirmed that he did say in the conversation with Kevin Adams that they would handle the inquiry Saturday prior to the race meeting, as he felt that he would be better and able to attend. Norm Torpey asked Larry Wilson whether he had any idea that the inquiry had a confirmed date. He said no, there was no confirmed date, it was open.". Larry Wilson's account prepared on 30 September 2005 stated inter alia: "K. Adams telephoned L. Wilson's residence (approx 09.30 a.m.) and spoke to my wife as I was unavailable due to illness. Mr Adams needed to speak to me regarding the Brent Livingstone inquiry and was informed by my wife that I would contact him as soon as I was able. I telephoned Mr Adams (2.00 p.m) informing him that I would be unavailable to work that evening due to illness, Mr Adams asked, if it was OK with me, he would like to conclude the Livingstone inquiry tonight as they were making a special trip to the Gold Coast meeting. I indicated no, as this was not the correct procedure as Mr. Gardiner was not present for all of the inquiry and I was of the opinion that Brent Livingstone would appeal. I felt this action would go against us. I further stated that I would be well enough to attend the Albion Park meeting on the 20th August 2005 the next evening, and that all parties would be available and we would conclude the inquiry that evening, giving Mr Adams the opportunity to notify all parties concerned of our decision. I was of the opinion that we were both in agreement.". He acknowledged that the file note of the interview did not include reference to any discussion about Mr Gardiner's standing on the panel or the prospects of an appeal. He further acknowledged that his own written account of the phone call with the Applicant differed from Mr Schimming's file note in that his written account of 30 September 2005 was more detailed. Mr Schimming in evidence stated that his file note was an accurate account of the interview with Mr Wilson and whilst not a word perfect transcript, the file note recorded key points (Tp. 42 l. 10). He agreed that a substantial part of the interview he had with Mr Wilson was the content of the discussion which Mr Wilson had with the Applicant on 19 August 2005 on the telephone (Tp. 42 ll. 15-20). Mr Torpey's evidence was that his recollection of what Mr Wilson said in the meeting between himself, Mr Schimming and Mr Wilson was consistent with the file note prepared by Mr Schimming. Mr Torpey stated that he also met with Mr Wilson prior to the interview with Mr Wilson involving he and Mr Schimming. From this meeting he recalled that Mr Wilson was unhappy with events and Mr Torpey recalled him saying words to the effect that he told the Applicant "don't convene the enquiry". Mr Torpey said that from the comments he concluded that Mr Wilson meant that he said to the Applicant "don't do the enquiry because I am too sick to do it" (Ex. 5 para. 43). Mr Torpey did not conclude from this comment that Mr Wilson had issued a direction. On the evidence of Mr William Lenehan it was apparent that he believed that the Applicant's "inaccurate account" referred to in (a)(ii) arose through a mistaken recollection by the Applicant and not by the Applicant deliberately providing an inaccurate version . The evidence of Mr Lenehan in cross-examination was that the Board considered Mr Wilson's version to be preferable in that his version was consistent throughout the enquiry. Mr Lenehan conceded that there were inconsistencies between the version of the phone call contained in Mr Schimming's file note and Mr Wilson's written account and that he did not question Mr Wilson on this point (Tp. 131 l. 5). Mr Lenehan said he formed the view that Mr Wilson's version was preferable because of its consistency throughout the process having spoken to Mr Schimming and read the material provided to him by Mr Schimming. Mr Lenehan conceded that he should have but did not raise the inconsistencies with Mr Wilson. Mr Lenehan acknowledged having examined the file note prepared by Mr Schimming on 13 September 2005 following the interview with Mr Wilson and also the account of events prepared by Mr Wilson on 30 September for Mr Schimming. Mr Lenehan also acknowledged that the later prepared account was more detailed. Ms Moore accepted in cross-examination that the version in KJM 4 of Ex. 11 (Schimming's account) and Mr Wilson's recollections in KJM 7 of Ex. 11 of 30 September 2005 differed in that the latter account was more detailed (KJM 4 of Ex. 11 and KJM 7 of Ex. 11 are the same documents as those at WRL 4 of Ex. 9 and WRL 7 of Ex. 9). Ms Moore accepted that Mr Schimming's file note made no reference to Mr Wilson saying that the Applicant indicated that he wished to complete the Livingstone enquiry at the Gold Coast on 19 August 2005 nor did the file note record Mr Wilson stating that he explained to the Applicant the reasons for his opposition to completing the enquiry in his absence utilising Mr Gardiner. She also acknowledged that the file note did not record Mr Wilson as having been told by the Applicant that the Livingstones were making a special trip to the Gold Coast meeting on 19 August 2005 and she acknowledged that Mr Wilson was not recorded in the file note as having said "no" when the Applicant allegedly expressed a desire to complete the enquiry. Ms Moore stated that she did not pursue the issue of the discrepancies in the two documents as Mr Wilson was not under investigation. The unchallenged evidence of Ms Maher shows that the Applicant did not speak directly with the Livingstones prior to the telephone conversation with Mr Wilson. The Livingstones did not claim to be making a special trip for the enquiry to her. She conveyed the Livingstones' request to reconvene the enquiry to the Applicant. She did not tell the Applicant that the Livingstones were making a special trip and to her knowledge the Livingstones usually attended meetings at the Gold Coast regardless of entries. This evidence does not support the notion that the Applicant, at 2.00 p.m. on 19 August 2005, knew or believed that the Livingstones were making a special trip for the purpose of the enquiry. This I believe supports the Applicant's contention that in his conversation with Mr Wilson there was no mention of the Livingstones making a special trip and it is this statement that is said by Mr Wilson to have led to the subsequent discussion regarding Mr Gardiner's' involvement and a possible appeal. I have concluded that the Applicant's version was preferable and that the Board's conclusion at (a)(iii) of the letter of termination was incorrect and the result of an inadequate investigation. I disagree with the Board's conclusion at (a)(ii) of the letter of termination namely that the Applicant provided the Board with an inaccurate account of the 19 August 2005 phone conversation between he and Mr Wilson. Considering all of the evidence on this point, I believe the Applicant's account was consistent and whilst in his evidence Mr Wilson claimed to be consistent, his account of events does not mesh with the file note in the interview between Mr Wilson, Mr Torpey and Mr Schimming on 13 September 2005. Mr Wilson's account appears to have become more detailed by the time he put together his written account on 30 September 2005 (BS 8 of Ex. 3). This finding is not to suggest that Mr Wilson deliberately misrepresented the facts. The circumstances were that the phone conversation occurred on 19 August 2005. The whole issue of the appeal had almost immediately become the subject of discussion among Stewards. The first interview between Mr Wilson, Mr Torpey and Mr Schimming occurred some 3½ weeks later (13 September 2005) and his written account was prepared another 17 days later (30 September 2005) and whilst the Applicant was in good health at the time of the conversation, Mr Wilson was not and on his own evidence he was sick and "not 100%" at the time. In the letter of termination, reason (a)(iii) is, as I have said, correct as is the reason at (a)(i). However an important distinction needs to be drawn and that is that (a)(i) correctly states that the enquiry was reconvened without the "permission" of Mr Wilson (the Chairman). It does not allege that the Applicant reconvened the enquiry against the specific direction of Mr Wilson. Regarding the reason at 4(a)(iv) in the termination letter, the Board could have defended the appeal had they chosen to do so. On the information available to the Board they chose not to. I accept the submissions of Mr Murdoch that this was a prudent decision on the part of the Board irrespective of how strong the defence was on the merits (T.p. 198 l. 28), the procedural flaw arising from Mr Gardiner's return to the panel was probably insurmountable. However, it is interesting to note that Brett Livingstone in his appeal made the same error as the Applicant by claiming in his notice to appeal [that he was] "denied natural justice because steward panel that heard evidence was not panel that delivered judgement" (NT 1 of Ex. 5). Don Gardiner's evidence was that he believed the Livingstones were not denied natural justice. It seems that Brett Livingstone was as wide off the mark as the Applicant on his understanding of the rules. It is arguable that Mr Gardiner did hear all of the evidence. What is not arguable is that Mr Gardiner was not present for the entire proceeding as required by the rules. The Applicant stated that when he was approached by John Livingstone he advised him that the enquiry could not proceed and why. Mr Livingstone, according to the Applicant's evidence, expressed anger at having come to the Gold Coast for nothing whereupon the Applicant sought the agreement of Mr Livingstone to reconvene the enquiry with the Applicant as Chairman accompanied by Mr Gardiner. John Livingstone agreed on those terms according to the Applicant. The Applicant claimed to have given consideration to the possibility of reconvening the enquiry when he first realised that the Livingstones had no entries and prior to speaking with John Livingstone (Ex. 2 para. 64). In cross-examination he conceded that he had not referred to the rules, he made no attempt to consult with seniors and made no call to Mr Wilson. Nonetheless after the reaction of Mr Livingstone the Applicant said that he decided that the enquiry could be reopened in this fashion as, he believed, Mr Gardiner had "heard all of the evidence". It was the Applicant's confusion of the term "present for all of the evidence" with "present for the entire proceeding" that caused his error. Rule 256(7)(d) requires the Stewards to be present for the entire proceedings not all of the evidence. Worthy of note are the steps taken by the Applicant in attempting to ensure that those concerned with the enquiry were in agreement and that the enquiry could be reconvened and determine the issue. The transcript of the reconvened enquiry (KA 4 of Ex. 2, l. 24) recorded in part: "Mr Brent Livingstone, Mr Larry Wilson, as I said who was the Chairperson of that inquiry, is unavailable today through sickness. During that inquiry, the stewards present - myself and Mr Don Gardiner - heard all of the evidence that was taken in the inquiry. Mr Gardiner was not present when the charge was laid, however he did hear all the evidence that was given in that inquiry. The question to you, Mr B. Livingstone: are you prepared at this stage to move on in the absence of Mr Larry Wilson? MR B. LIVINGSTONE: Yes THE CHAIRMAN: You're happy to do that? MR B. LIVINGSTONE: Yes. THE CHAIRMAN: For the purpose of this inquiry, I will take over the Chairperson's role in the inquiry, and that is myself, Kevin Adams, and Mr Don Gardiner will assist me on the panel.". I accept that the Applicant went to the 19 August 2005 meeting at the Gold Coast with the intention of informing the Livingstones that the enquiry could not proceed in the absence of Mr Wilson. I further accept that when the Applicant arrived at the Gold Coast meeting he discovered that the Livingstones had no entries in the Gold Coast meeting on 19 August 2005 and until this point had not considered the possibility that the Livingstones were making a special trip to the Gold Coast for the purpose of the enquiry. I accept the Applicant's evidence that it was John Livingstone's expression of anger and disappointment at having made a special trip that caused the Applicant to try to finalise things in the manner that he did. With regard to the rules, there does not appear to be any barrier to conducting or concluding an enquiry with 2 stewards rather than 3 if the 2 were present for the whole of the proceeding. I am mindful of the submissions of the Respondent regarding the effect on the decision making balance of power that occurred as a result of the changed structure of the panel. The submission was that while the panel consisted of 3 people, Mr Wilson was Chairman and as such entitled to his deliberative vote and if required, a casting vote (one can only wonder how useful the casting vote might be on a panel of 3). Under the changed arrangements the Applicant assumed the chair and thus his position changed from a sub-ordinate member of a panel of 3 with one vote only, to the chair of a panel of 2 with, if necessary, a casting vote. In other words it would be impossible for his view not to prevail. Mr Gardiner's evidence was that he expressed some reservations about the process at the time, he nonetheless participated and the penalty handed down was agreed to by him. He did not dissent. There was no requirement for the Applicant to use the casting vote. Part II of the Rules "INQUIRIES AND INVESTIGATIONS" makes no reference to the constitution of a panel of stewards charged with the conduct of an enquiry. It is at Part 15 "PENALTIES" at Rule 256 that mention is made regarding who may determine an issue and this is in the last sub-section of sub-rule 7 i.e. sub-section (d) of sub-rule (7) of rule 256 (referred to earlier). Part 2 of the rules "STEWARDS" also makes no stipulation regarding the constitution of a panel for the purposes of an enquiry. I have considered the Respondent's references to training provided to stewards and the requirement for the Applicant to have an operational knowledge of the rules. The Respondent also submitted that it was generally understood by stewards that they had almost instant access to Senior Stewards or legal advice in areas of uncertainty. The Applicant's evidence indicated that he "wondered" if he could conclude the enquiry (para. 64 Ex. 2) when he first realised that the Livingstones had no starters and further, that at this time he did not avail himself of any of the avenues of advice available to him nor did he consult the rules to clarify the position. However at this stage he was still committed to advising the Livingstones that the enquiry could not proceed. It was only when pressured by John Livingstone that this changed. I believe that it would be unrealistic to expect someone in the Applicant's position to have a photographic recall of every rule. Whilst in my view the rules in relation to panels of stewards could be better constructed, it is fair to say that a person in the Applicant's position should refer to the rule book when uncertainty exists. He didn't and this led to his procedural error. There was no suggestion by the Respondent that the Applicant's actions were somehow designed to bring about an undeserved advantage or benefit to any one and so that it is abundantly clear, there was no suggestion of corruption. Mr Lenehan stated that in considering the appropriate disciplinary action, the Board did not consider the positive outcome of the recent performance review of the Applicant but felt it would not have altered the decision. Worthy of note here is the claim at Part (c) of the termination letter namely: "(c) [the board] carefully considered your record of employment...". In my view the Applicant's actions, though procedurally flawed, were motivated only by a desire to provide a fair and expedient service to the stakeholder. That very stakeholder agreed to proceed with the hearing in the manner proposed by the Applicant and as much is recorded in the transcript of that proceeding referred to earlier. Part (D) of the letter of termination advised the Applicant that the Board had "irretrievably lost confidence" in the Applicant's ability to discharge his role of Deputy Chairman of Stewards. Mr Murdoch, in his submissions for the Respondent, referred to the evidence of Ms Moore in relation to the expectation that the Chief Steward and Deputy Chief Steward would know the rules (T.p. 1. 199 l. 13) and further to the fact that the Board, having chosen to prefer Mr Wilson's version (of the phone call) over the Applicant, the Board was justified in concluding that they now lacked the necessary confidence in the Applicant. I have already concluded that the Board lacked sound justification for concluding that the Applicant's version of the phone call was inaccurate, accordingly I reject the submission that this is grounds for a loss of confidence in the Applicant. Further, having already accepted that the actions of the Applicant in the enquiry were procedurally flawed and that the flaw related to an incorrect understanding of the rules, I accept that this would have some impact on the Board's confidence in the Applicant. However, I do not accept that the error of the Applicant was so grave as to prevent the Board from regaining confidence in the Applicant's ability to perform in his former position. I accept the submissions of Mr Horneman-Wren for the Applicant and the evidence of Mr Schimming that the Applicant would be most unlikely to re-offend. Mr Murdoch referred the Commission to the decision of Hall P in Roma Town Council & Lattimore ((2001) QIC 30 (19 June 2001) 167 QGIG 176). Mr Murdoch referred also to the decision of the President in Bandit and the Department of Corrective Services (2005) 180 QGIG 97. He submitted that the broad principle established in these cases was that if there existed an honest belief by the employer on reasonable grounds after sufficient enquiry that the employee has been guilty of serious misconduct then grounds for termination exist. For reasons outlined earlier, I do not accept that the conclusion reached by the Board that the Applicant provided an inaccurate account of the phone call was based on reasonable grounds nor was it the result of sufficient enquiry. Further based on reasons already given, I disagree that the flawed actions of the Applicant amounted to serious misconduct as submitted by Mr Murdoch (T.p. 199 l. 50) and T.p. 201 l. 16). Additionally, the Board did not consider the Applicant's most recent performance review when determining what penalty should apply contrary to the claim at Part (c) of the termination letter that the Board carefully considered his record of employment. In my view any careful consideration should have taken account of the conclusions in this performance review. For these reasons I have concluded that these authorities do not assist the Respondent. Having considered all of the evidence, material and submissions, including the length of service of the Applicant, his employment history with the Respondent, especially the positive performance review for the period July 2004 to June 2005 which led to the confirmation of him in the position of Deputy Chairman of Stewards and his being awarded a pay increase, I am of the view that the penalty of dismissal in these circumstances is unfair in that it is excessive and therefore all of harsh, unjust and unreasonable. Regarding remedy, Mr Murdoch submitted that in the event of an adverse finding, reinstatement was inappropriate. He cited the size of the workforce and the inability of the Board to regain the necessary level of confidence in the Applicant as Deputy Chief Steward. Mr Murdoch referred to the evidence of Mr Lenehan and Ms Moore regarding their expectations as Board members of leaders of the Stewards, the Deputy Chief and the Chief. I have taken account of Mr Horneman-Wren's reference to Perkins and Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 wherein Wilcox C.J., Marshall and North J.J. canvassed the term "impracticability" as it relates to reinstatement and also the question of loss of confidence by the employer in the employee. I agree with the thrust of this decision and the authorities contained therein that the loss of trust and confidence must be soundly and rationally based. Under the heading "Principles" the decision records: "Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Buruzin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Div 2 of Pt VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee."; and further: "In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.". The Applicant has had a long and productive career in the racing industry (8 years with this employer) and with the exception of his association with a false start some 6 years ago has, apart from his error on this occasion, an unblemished record. There have been no other instances of an error in applying the rules in the course of some thousands of enquiries involving the Applicant. Given that the finding by the Board in (a)(ii) of the dismissal letter was not, in my view, the result of a reasonable consideration following a sufficient enquiry, it follows that I find that this matter is not a reasonable basis for loss of confidence in the Applicant . I also believe that any impact on the confidence in the mind of the Board arising from the Applicant's error would, in time, be restored. The continuation of the Applicant in employment during the course of the review of his action was fair and not considered in any way in relation to the finding of unfairness in the dismissal. However on the questions of confidence and the practicability of reinstatement I regard the actions of the Board subsequent to the conclusion of the enquiry as important. The enquiry concluded on 16 November 2005. On 31 October 2005 the Applicant was asked to show cause why he should not be disciplined (BS 14 of Ex. 3). He did so on 11 November 2005 (BS 15 of Ex. 3). It was on 16 November 2005 the Board met and considered the Applicant's response. The minutes recorded that the Board concluded that they had "Irretrievably lost confidence" in the Applicant's ability to discharge his role of Deputy Chairman of Stewards. It was after this supposed complete loss of confidence the Board allowed the Applicant to continue in the position of acting Chairman of Stewards and on 19 November 2005 the Applicant performed as Chief Steward at the Albion Park race meeting. All of this passed without incident. I note further that the Applicant's position had not been filled at the time of the hearing. Having considered all of the submissions, evidence and material, I have decided that the Applicant is to be reinstated to his former position forthwith without loss of any entitlements that he would have received in the absence of the unfair dismissal. I so order.
Government Printer, Queensland The State of Queensland 2006. |