T7756
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Desmond James LeFevre and Police Association of Tasmania
Industrial dispute - termination of employment - alleged unfair dismissal - application dismissed REASONS FOR DECISION The applicant in this matter contends that he was wrongfully dismissed and claims reinstatement or compensation. His detailed application in part reads:- "No reason was given to the Applicant for his dismissal prior to his dismissal. The Applicant contends that he has not been guilty of any misconduct or any act which would justify his dismissal. The Applicant seeks an order that his employment be reinstated. In the alternative, the Applicant seeks an order requiring the Police Association of Tasmania to pay the Applicant compensation if it concludes that reinstatement to the Applicant's former position is impractical." The issues between the parties in this matter which resulted in a decision of the Executive of the Police Association of Tasmania (the Association) to terminate Mr LeFevre's employment are detailed in Exhibit W.1 a copy of correspondence from the Association's lawyer Mr Dean Cooper of Phillips Taglieri. Part of that correspondence reads:- "Our instructions are that since 8th April, 1998 the actions of your client on three separate issues were contrary to the duties required of him by Clause 9 of the contract made 16th June, 1995 and amounted to breaches of Clause 9(b)(i) and (ii) justifying termination of his employment. Issue One - Samantha Reid Miss Reid was a cadet at the Academy and was the subject of several formal complaints concerning her behaviour and attitude. Her position was discussed by the Executive at its meeting on 21st April 1998 and examples of her inappropriate behaviour were given. Several members of the Executive indicated that they were aware of concerns that had been expressed by members of the Association concerning Miss Reid and the Executive was further advised that a report was to be released that would not be favourable to Miss Reid. The Executive directed your client to ensure that in any dealings with Miss Reid he was mindful of the view of the Executive and the soon to be released report concerning her employment. Our instructions are that your client ignored the direction and actively assisted Miss Reid in responding to correspondence from the Commissioner of Police and in corresponding with the Tasmanian Sex Discrimination Commission. Issue Two - Police Undercover Operations Bill (a) At its meeting on 21st April, 1998 the Executive discussed the above bill and then passed a resolution that our client would support the bill, but that no submission would be made to the Joint Parliamentary Committee.
(b) Your client attended a public hearing into the proposed bill and expressed opposition to certain parts of the bill. A report of his attendance was published in The Mercury newspaper on 2nd May 1998. (c) On 4th May, 1998 during the course of a telephone conversation initiated by the President of our client your client told the President that:- (i) He had been invited to give evidence in camera; (ii) He had accepted the invitation and intended to give evidence opposing the bill. (d) On 5th May, 1998 your client told a meeting of the Southern Branch of our client of his intentions in relation to the bill. (e) When your client attended the public hearing and the in camera hearing he attended in our client's time and utilised our client's vehicle to travel to and from the hearings. (f) Your client is required to carry out his duties in accordance with the Constitution and Rules of the Police Association and one of the main objects of the Constitution (Rule 4(l)) is `to secure or assist in securing legislation for the protection of the interests of the Association and for the general and material welfare of its members'. Issue Three During the course of an informal meeting of the Western Districts Branch of the Association your client told a member of the Executive that:- `He listened to the Executive, but then went and did his own thing'. The member to whom the comment had been made advised the Executive of the comment at its meeting on 19th May, 1998 and the comment was put to your client, who failed to deny it. Our instructions are that the actions of your client in issues one and two are practical illustrations of the comment made by your client in Burnie." Before I address the detailed submissions and evidence going to the merit of the respective accusations detailed above, I will address a threshold issue raised by the parties, i.e. whether in fact a new contract was in place for Mr LeFevre. If there is not, his existing contract at the time of dismissal expired on 15 June 1998. If there is no new contract this matter can only be considered by me in the context of an expired contract and the impact that would have on my deliberations going to any claim for compensation. The relevant background is that Mr LeFevre commenced his employment as General Secretary of the Association on 14 June 1993 in accordance with a contract1 for a period of two (2) years. A new contract2 was entered into from 16 June 1995 for a further period of three (3) years. In March of this year the Executive of the Association resolved to hold a plebiscite of its members to establish whether or not Mr LeFevre should be offered a new contract beyond 15 June 1998. The outcome of the plebiscite is contained in Exhibit W.8 which records the result as:-
It is accepted by the Executive that the outcome of the vote would be binding and an offer would be made, or not made, to Mr LeFevre according to its result. The result of the plebiscite was made public on 8 April 1998 and the President of the Association Sergeant Kemp gave the following evidence in relation to the outcome of the plebiscite and his communication of the result to Mr LeFevre:- "Mr Cooper xn
and
Mr Cooper in opening submissions for the Association conceded "there was an offer and an acceptance insofar as a new contract from 16th June 1998 was concerned"5 however, he denied that there had been any agreement on the actual terms of the contract. While it seems clear that there was no resolution passed by the Executive at its meeting on 21 April 1998, concerning a new contract offer to Mr LeFevre which would have made the position conclusive I have little difficulty in finding that an offer of continued employment beyond 15 June 1998 had been made by the Association and accepted by Mr LeFevre. However, I accept the submission of Mr Cooper and the evidence of Sergeant Kemp that there had been no discussion on the content of a new contract. Mr Wood appearing for Mr LeFevre submitted that in the absence of any conclusive discussions on the content of a new contract I should determine that in fact the employment contract was renewed for a period of two (2) years by the offer and acceptance referred to above. In fact he submitted on the basis of Mr LeFevre's first contract in 1993 I could find that there was a contract for three (3) years. He referred me to Clause 2(b) of that contract which reads:- "At the expiration of the initial period of two years and (if this agreement is then extended) at the expiration of each subsequent period of three years the performance of the General Secretary shall be reviewed by the Executive and a decision made as to whether or not the period of employment should be extended for a further period of three years. If the Executive decides not to extend the period of employment, either party may terminate this agreement by one month's notice in writing to the other."6 However, he acknowledged that the above provision was not in the 1995 contract7 and the two years relied on came from the term decided on by the Executive when it voted on Mr LeFevre's future at a meeting in February 1998. At that meeting the Executive considered a motion that Mr LeFevre be offered a new contract for two (2) years however, that motion was lost and the plebiscite followed. Mr Wood submitted that his client would be more than happy if I decided that a three (3) year contract existed. However, I should not allow any doubts I might have about an inconclusive period lead me to a technical, legal conclusion that there was no contract. Any such doubts could in fact be addressed by exercising my right under Section 20(1)(a) of the Industrial Relations Act 1984 by not resolving issues on a technical, legal basis but by the exercise of good conscience and the merits of the case. He also relied on the history of the establishment of contracts for Mr LeFevre and solicited evidence to the effect that the 1995 contract was not signed until six (6) months after the expiry date of the first contract. The six months was covered by a verbal agreement/contract and ultimately the 1995 contract was virtually a re-write of the 1993 contract. A perusal of exhibit W.4 confirms this evidence and therefore supports Mr Wood's argument that I accept any new contract would be primarily in the same terms as the 1995 contract. Mr Cooper was unable to challenge much of the above but in final submissions put the following construction on his earlier submission that there was an offer of a contract and an acceptance of that offer:- "Mr Cooper
and later
He went on to highlight that in a new contract prepared in the Office of the Association at the request of Mr LeFevre an important omission had been made. That omission was that Clause 9(a) in the two previous contracts did not appear in the new document. That sub clause reads:- "(a) The General Secretary shall retire, and this agreement terminate, on the General Secretary attaining the age of 60 years."10 The above provision had not only been in Mr LeFevre's previous contracts but it was asserted had been in all General Secretary contracts since 1979. Mr LeFevre turns sixty (60) in May 1999 and Mr Cooper contended that even if a contract was in place it could only be up until Mr LeFevre's birthday on 31 May 1999, providing a new contract for him for a period of a little more than eleven (11) months. He submitted that if there had been discussions on the contract the Executive would have insisted that the retirement age provision remained. It had been there for so long and was a clear term in any General Secretary contract. He contended that if discussions had taken place they would have broken down as Mr LeFevre's clear evidence was that he wanted at least a two year contract and would have been unlikely to accept anything less. If this scenario occurred Mr LeFevre has lost nothing as a result of the termination of his employment. In any case he submitted all that was in place "was merely an agreement to agree".11 In coming to a conclusion on the period of the contract I am confronted with a number of critical facts, they are:-
It seems clear to me that if the Executive had not been aware of Mr LeFevre's exact age or if he was much younger it would have offered Mr LeFevre a new contract for two (2) years following the plebiscite. Minutes of the Executive meeting in February 1998 tend to confirm this, the relevant motion reads:- "Motion 7.2.98 M. Barber/P. Allen That the General Secretary, Des LeFevre be offered a further two year contract to continue his employment with the PAT from the expiration of his current contract. (Such contract to be in the same terms and conditions as the current contract). LOST"12 However, what would the Executive have done if Mr LeFevre's age became an issue and I believe it would have done during discussions on the draft contract? From the evidence it would appear that the February resolution was put to the Executive to test whether or not a new employment contract had the support of the Executive. The period of two years was included, again it would appear, to give it a time frame but it ignored the previous provision in the 1993 contract that future extensions would be for three (3) years (this was in any case deleted from the 1995 contract) and it ignored or overlooked the provision in all previous contracts since 1979 that retirement age for the General Secretary would be at age sixty (60). In the absence of any clear evidence to the contrary I am inclined to the view that Mr LeFevre's age had been overlooked by the Executive in the framing of the February 1998 resolution. I come to that conclusion because the final wording in the resolution clearly says that the new contract be in the same terms as the current contract. The two year time frame therefore is in conflict with what was in the 1993 and 1995 contracts re age retirement. Unfortunately there was no clear evidence presented going to the reasons for the age sixty (60) retirement, so I can only make assumptions about its origins and reasons. However, what is clear from the evidence is that there was no discussions between Mr LeFevre and the Executive about the content of a new contract. Sergeant Kemp's evidence on this matter has been quoted earlier and in cross examination by Mr Wood his responses to the critical questions were:- "Now prior to the plebiscite no term other than a two year contract was discussed by the executive or was referred to in any motions to the executive?............ None at all. No. After the plebiscite there was no suggestion by anyone on the executive or by any other motion of the executive that other than a standard termed fixed term contract be offered to the general secretary?............ There was no discussion about the terms, conditions or anything of a contract by anyone on the executive. The executive hadn't discussed it."13 Mr Kemp in cross examination by Mr Wood also answered as follows in relation to questions going to Mr LeFevre's age:- "Mr Wood's xxn And of course you were aware at that time that his age - that he was 59 years of age?.......... I wasn't aware that he was 59, no." and "You say you personally weren't aware of his age?............ No, I thought he was 57 to tell you the truth. So whether other members of the executive, in particular those that voted in favour of a two year contract, were aware of his age, you don't know?............ Absolutely no idea at all."14 I accept the evidence of Mr Kemp on both of these issues. Just as I have concluded that on the evidence there was in place a verbal contract for a period beyond 16 June 1998, based on previous practice and contracts, I conclude that the period for any new contract would have been up until the date of Mr LeFevre's sixtieth birthday on 31 May 1999. Apart from previous practice and contracts another consideration in my conclusion on this issue is the outcome of the vote by the Executive on motion 7.2.98 recorded earlier. I now turn to the merit of this case going to the dismissal of Mr LeFevre. The grounds relied on by the Association are detailed earlier and I will deal with them in the same order. The first issue relates to a Miss Samantha Reid who was a cadet at the Police Academy. Miss Reid was having problems and had sought the assistance of the Association. The submissions going to the evidence and the evidence itself from the Association in this matter is at best vague and on the critical issues not supported by any resolutions from the Executive. Mr Cooper in his opening address in attempting to clarify the Association's position in relation to Miss Reid and a direction given to Mr LeFevre by the Executive said:- "Mr Cooper Now, my friend refers to the correspondence that's been exchanged and the actual grounds for the dispute, or the grounds for the dismissal of the general secretary. The first issue he referred to was that of the Samantha Reid issue. He contends that no direction was given to the general secretary not to deal with Samantha Reid. It's never been asserted that the general secretary was directed not to deal with her. The direction given to the general secretary was that in view of the reports that were to surface, to be presented, that were unfavourable to the cadet, Samantha Reid, and it appeared that it was at least likely, if not highly likely, that her position as a cadet would be under review, that he should be mindful of acting in a manner which may have led her to believe that her position was - put it this way, safer than it actually was. The respondent contends that in fact subsequent to that direction, the general secretary actively supported the cadet in her dealings with, not only the police department but with correspondence to the Sexual Discrimination Tribunal and the respondent contends that the general secretary effectively wrote letters in support of her responses to the police department and the Sexual Discrimination Tribunal."15 The difficulty I have with the above is that it seems clear from the evidence that the Executive did not give Mr LeFevre a direction on what he should or should not do in relation to Miss Reid. I accept from the evidence that some discussion took place at an Executive meeting and that some members had concerns, perhaps strong concerns about the involvement of the Association through Mr LeFevre in the "Samantha Reid" issue. Those individuals expressed their concerns in Mr LeFevre's presence however, no resolution was passed which bound the General Secretary to a particular course of action. The direction itself to the General Secretary:- "that he should be mindful of acting in a manner which may have led her to believe that her position was - put it this way, safer than it actually was"16 is vague and in any case is not a direction that the General Secretary should do nothing more to assist Miss Reid. To put the above in context I quote the following from part of the transcript of Mr LeFevre's evidence on Miss Reid:- "Mr Wood xn What occurred to bring Samantha Reid, as a member who required assistance, to your attention?............ Yes. She contacted the office and I believe spoke to Mrs Harris. Who was she? What was her position in the police force?............ She was a trainee in an existing recruit course that was about to graduate from the Police Academy. Was she a member of the association?............ Yes. And when she was put onto you as the general secretary, what was the grievance that she expressed?............ She expressed to me that she had been told to spend the next ensuing weekend, which was close by, considering whether she should resign because it wasn't intended to allow her to graduate from the academy on the basis that she had an attitude problem and hadn't kept her personal body weight under control. And so what did you see your role, as the general secretary, in regard to the grievance that she expressed?............ Well, throughout all my time there, and I believe earlier, there had been an arrangement between the academy and the police association that members who had failed to perform in any particular area would be counselled three times, that on the second counselling a representative of the association would be present to represent them and to offer any assistance that might help to resolve the problem. This hadn't occurred on that occasion so I went to the academy, saw Samantha Reid and took some instructions from her and then went back to see what I could work out to do, to assist her."17 and part of the responses of Sergeant Kemp in cross examination on this issue read:- "Mr Wood xxn This direction about Samantha Reid and what the general secretary was to do and not do, was put to him at the meeting of the 21st April?............ Yes. Whereabouts is it recorded in the minutes, sergeant?............ It appears not to be in the minutes but there are matters that are obviously discussed in committee that are not recorded in the minutes. I don't know what part of the meeting that was even discussed. I know who the speakers were. I know Pat Allen was one and Kate FitzGerald was another. I suggest to you, if there were things said about Samantha Reid at the meeting of the 21st April, they were personal comment again and not resolutions or formal directions?............ Absolutely. I agree, no resolutions at all. They were personal views. Not even a direction. Directions are recorded, aren't they?............ I said there was no direction. It was just concerns, expressions, put to the general secretary by the members, obviously, who were made aware of them. A lot of the executive members including myself have never met Samantha Reid."18 It is clear from the above that the only conclusion I can come to is that Mr LeFevre was made aware of some concerns of individual members of the Executive in relation to his handling of the Samantha Reid case. However, it appears that he chose not to accept them and/or ignored them. In any case the evidence does not support a finding that he was given a direction from the Executive which was then ignored as claimed by the Association. The allegations by the Association against Mr LeFevre going to his actions in relation to the Police Undercover Operations Bill are again detailed earlier in this decision and are certainly the most serious of the allegations against him. A summary of Mr LeFevre's evidence on this matter is as follows:-
INQUIRY INTO POLICE (UNDERCOVER OPERATIONS) BILL 1998
The Community Development Committee is enquiring into the Police (Undercover Operations) Bill. The Committee requires your attendance on Thursday 30th April, 1998, at 1.00 pm in Committee Room 2, Parliament House, Hobart, to assist with this Inquiry. Thank you for your co-operation in this matter. Yours sincerely, Charles Casimaty (the time was subsequently changed to 1.45 pm) Mr Wood in his final submissions drew the attention of the Commission to Clause 9 Termination of Employment of Mr LeFevre's 1995 contract which detailed a number of provisions which would entitle the Association to terminate the contract of the General Secretary. He submitted the only one which had relevance to this case reads:-
He also referred me to the only authority he could find on "grave misconduct" and quoted from a decision of the Court of Appeal in England called Poad v Scarborough Guardians reported in 1914 Kings Bench Division page 959 where the Chief Justice Lord Reading said:-
He submitted the ordinary dictionary meaning of grave is "serious or very serious". It was Mr Wood's submission that if Mr LeFevre honestly believed he was personally required to give evidence before the Committee and he believed he had been compelled to attend the Committee and give evidence his dismissal was unfair; he was not guilty of grave misconduct. The Association in response to the above evidence of Mr LeFevre called a number of witnesses to demonstrate that on the critical issues Mr LeFevre's evidence was not an accurate reflection of events and that he had not acted in accordance with resolutions of the Executive. The minutes of the Executive meeting of 21 April 1998 contain the following in relation to the Bill:-
The minutes of the next Executive meeting of 19 May 1998 contain the following:-
The first meeting of the Committee at which Mr LeFevre was required to attend was 30 April 1998 and the second 8 May 1998 obviously both in the intervening period between the above meetings. The only direction to the General Secretary coming out of the April meeting according to the minutes was that he obtain a copy of the Police Department submission to the Committee. However, the evidence of Sergeant Kemp and others on the Executive is that the amendments of 19 May 1998 were a more accurate record of what was discussed at the April meeting. Mr Kemp's primary evidence on the Bill, the outcome of the 21 April 1998 meeting of the Executive on the Bill and what followed reads:-
Now at the end of the discussion, can you tell us what view you had of the general feeling of the meeting towards this Bill?............ The general feeling was that, I think it was a unanimous view that we, the association, endorsed the Bill. We wouldn't be making a submission to the parliamentary committee on the Bill. The general secretary was asked or directed, whatever it was, to get a copy or seek a copy of the department's submission. If it accorded with our views we'd basically endorse it. Do you have a practice in the event of a resolution not being unanimous?............ I've always held the view if a resolution is not unanimous that I would seek a motion from the floor to have the particular matter debated. There was no need for me to do this on this occasion because the view was unanimous. And it was the unanimous resolution that the association was not going to make a submission to the parliamentary committee?............ That's correct. Can you tell us what, if anything, was said to the general secretary about any requirement of him at that stage?............ To seek a copy of the department's submission. Now that meeting was on the 21st April 1998; did you read in the 'Mercury' newspaper an article on Saturday, 2nd May?............ I did. And, Mr Kemp, that article is in evidence and that's an article that referred to the general secretary appearing before a committee and giving certain evidence?............ That's correct. Between the 21st April, being the date that the executive committee decided not to make a submission, between that date and the day that you read the article in the 'Mercury', Saturday, 2nd May, did you have any discussion with Mr LeFevre as to his appearing before that parliamentary committee?............ None at all. Did he telephone you at any time in that period and tell you that he had been subpoenaed to appear before that parliamentary committee?............ I'd spoken to him on several occasions between but he did not tell me, in any conversation I had with him, that he was appearing before the committee. Did you have face-to-face conversations as well as telephone conversations in that period?............ I can't recall, you know, one hundred per cent but I would have done, yes. It would be unusual if I didn't. If Mr LeFevre had told you that he had been subpoenaed to attend that committee what would you have done, that is, before he actually appeared?............ I'd first of all be seeking what he was going to say and if it accorded with the association's views. And if it didn't, as far as I'm concerned, he wouldn't have given evidence at the committee. At any stage before you read the 'Mercury' article, were you aware of an approach by the parliamentary committee secretary to have the police association attend?............ No, I wasn't. If you'd been made aware that the police association had been asked to attend, what would you have done?............ I would have jumped at it. The only reason the association elected not to make a submission - like the view was that it was a fait accompli which is a matter of course that it would be accepted by government. If we were asked to make a submission I would have gone down, the general secretary could, with our views - he could have gone down and endorsed the Bill which at the end of the day was being introduced for the benefit of the people that I'm elected to represent and the people who employ the general secretary and pay his salary. There was no great deal about the legislation. It was something that we wanted. Mr Kemp, when you read the article in the 'Mercury' on the 2nd May, what was your reaction?............ One of amazement. I could not believe that the general secretary had gone down there without telling me; going down there contrary to the resolution of the executive and going down there expressing views which were not in the interests of the membership, were not in the interests of the police service, and basically having a go at a couple of our members in the way of superintendents who he said had no CIB experience and shouldn't be allowed or permitted or authorised to sign the warrants - I thought that was amazing because they are our members. Was the view that you read in the newspaper, as being attributed to Mr LeFevre, consistent with or contrary to the view that was expressed by the police association on the 21st April?............ Completely contrary to our view."29 Sergeant Kemp gave further evidence of discussing the newspaper report with Mr LeFevre on Monday 4 May 1998 and asking why he attended the Committee without advising him. He was advised that Mr LeFevre had no choice, that he had received a subpoena and that he had to return to give further evidence in camera to the Committee on the following Friday and that he was going to oppose the legislation. Sergeant Kemp advised him that he would do so "at your peril".30 He gave evidence of the discussion at the Executive meeting of 19 May 1998 when the minutes of 21 April 1998 referring to the Bill were amended as earlier detailed. His evidence was that Mr LeFevre did not express contrary views to the proposed amendments during the discussion leading up to those changes. He explained the events leading up to the suspension of standing orders and the following one to one and one half hours discussion and questioning of Mr LeFevre over his actions (this discussion also ranged over the other matters alleged against Mr LeFevre). His evidence was that Mr LeFevre was given every opportunity to discuss or challenge the issues raised but he generally declined. Towards the end of the discussion Mr LeFevre raised the issue of four letters which were not part of the accusations against him but obviously matters of concern to him personally. Sergeant Kemp's evidence was that this period of discussion was tense but orderly. At the end of the discussions the General Secretary was asked to leave the room. During the debate that followed it was agreed that an approach be made to Mr LeFevre by senior members of the Executive to see if he would be prepared to "leave with dignity".31 The approach was made but Mr LeFevre refused and subsequently a number of motions32 were endorsed by the Executive and passed on to Mr LeFevre. Mr LeFevre subsequently went on leave and did not return to his position. The general thrust of this evidence was supported by the evidence of Sergeant FitzGerald, Inspector Dean, Constable Holloway and Sergeant Wierenga, all members of the Executive. Another example of this evidence is that of Sergeant FitzGerald who has known Mr LeFevre for twenty five (25) years and described herself as a good friend:-
When Sergeant Kemp returned, do you recall him contributing to the discussion?............ Yes, he was clearly in favour of it and said that any legislation that was clearly a tool of our trade should be supported, that it was in the benefit of all of our members and that we as an association should support the legislation. Leaving aside, after Sergeant Kemp had expressed those views, again just leaving aside Mr LeFevre, was there anyone in the room who expressed any views that indicated to you were not supportive of the legislation?............ My clear recollection is that there was nobody at that table who did not support the legislation, aside from our general secretary. And at the conclusion of the discussion, can you recall what was decided or resolved, if anything, by the executive committee?............ It was unanimously resolved that whilst we didn't want to make a submission per se to the committee we wanted to find out what the submission from the police department would be and if that submission accorded with the views that had been stated around the table that day in agreement with the passage of the Bill, that we should support the department's submission. Do you recall any direction being given to the general secretary?............ My recall of it is that his direction was that he should seek out a copy of the submission from the police department to ascertain what it said to inform us and that we would support that submission if it accorded with our views."33 Sergeant FitzGerald also gave the following evidence:-
Just leaving aside for the moment the general secretary, did any of the persons who spoke on this issue speak against the Bill?............ No. My clear recollection is that everyone who spoke, with the exception of Mr LeFevre, supported the general thrust of the legislation." and "Do you recall any discussion about retrospectivity clauses?............ Yes, there was. The subject was raised. My recollection is that it was raised by Mr LeFevre and he said that he held grave reservations about the retrospectivity of the legislation because he believed that it was there to protect the arse of one person and one person only, that of Mr McCreadie, and he emphasised his remarks by thumping his fist on the table."34 This piece of evidence was also supported by other members of the Executive. Other critical evidence given by Sergeant FitzGerald reads:-
and
The meeting referred to in this evidence is a Nothern Branch meeting of 6 May 1998. Mr Charles Gregory Casimaty the secretary to the Committee was called by the Association to give evidence going to his telephone discussions with Mr LeFevre on or about 21 April 1998 re the Committee request for Mr LeFevre's attendance at a hearing and the subsequent letter requiring Mr LeFevre to attend. Mr Casimaty was shown a copy of the minutes of the meeting of the Committee on 21 April 1998 where after the sub heading "Next Meeting" the following appeared:- "It was proposed that the committee resume this inquiry on Thursday 30 April 1998 at which time witnesses from the Police Association and Civil Liberties representatives would be called to present evidence."36 Mr Casimaty acknowledged it was his responsibility to follow up and ensure that the witnesses were available for the next hearing date. The following excerpt from transcript is Mr Casimaty's evidence of what followed his call to Mr LeFevre:- "Mr Cooper xn When you telephoned Mr LeFevre, did you identify yourself and the position that you held?............ Yes. What did you then say to Mr LeFevre?............ That the Community Development Committee were inquiring into the Police (Undercover Operations) Bill and that the committee had resolved to - or wanted the association to make representation. In response to that information, did Mr LeFevre say anything?............ Yes. I can't recall the full detail of the conversation but it was words along the lines of, it's funny you should ask, the committee or some such thing, had had a meeting and resolved that they weren't making a submission. Did you say anything to Mr LeFevre in response to that information?............ I said that I think we will have you come in anyway. Was there then a discussion concerning powers of compulsion?............ Yes. I recall describing the committee's powers and saying that the House of Assembly order that had established the committee, had given the committee power to call for persons and papers and that we could require him to come. Did you say anything to Mr LeFevre as to sending a document of some description?............ Yes. Perhaps you could tell us what you said?............ That I could write a letter requiring him to attend."37 The letter earlier detailed was subsequently sent to Mr LeFevre. Mr Casimaty went on to give evidence to the effect that he did not have any authority from the Committee to ask individual persons to attend. Mr Cooper in summarising the evidence and in his submissions drew attention to two provisions in Mr LeFevre's contract which he submitted allowed the Association to summarily dismiss the General Secretary given the appropriate circumstances. Those provisions are clause 3(b) which reads:- "The General Secretary shall carry out such lawful directions as are given by the Executive from time to time and carry out his duties in accordance with the Constitution and Rules of the Association"38 and clause 9(b)(i) and (ii), 9 (b)(i) reads:- "commit any serious or persistent breach of any of the provisions of this agreement;"39 Clause 9(b)(ii) has been quoted earlier and is conceded by Mr Wood as providing a possible basis for the termination of a General Secretary. It is the contention of Mr Cooper on behalf of the Association that Mr LeFevre failed to support one of the main objects of the Association set out in Rule 4(l) that is; "to secure or assist in securing legislation for the protection of the interests of the Association and for the general and material welfare of its members"40 The Association also claims that "not only did the general secretary fail to support that legislation, that he actually operated so as to militate against that piece of legislation, that his actions were designed to not only prevent the police association from having an input but also were designed to ensure that he expressed his opposition to that piece of legislation".41 Mr Cooper agreed it would be difficult for the Association to argue successfully that Mr LeFevre committed a serious misconduct if he had an honest belief that he had to go himself as an individual and not the secretary of the Association. The issue for my determination he submitted was did Mr LeFevre have that honest belief and whether that belief was reasonably held? To do that he further submitted I would need to conclude that Mr LeFevre was a credible witness, his submission was that a proper consideration of the evidence of Mr LeFevre could only lead to one conclusion, that he was not. Mr Cooper then detailed a number of instances where he alleged Mr LeFevre was anything but a credible witness. I will not detail these incidents but I have found them of some assistance in confirming my view of other more pertinent evidence. This case involved very detailed evidence from a number of witnesses and very detailed submissions from counsel on both sides. I have not recorded or described all or anything approaching all of the evidence of witnesses and the submissions. However, I have endeavoured to focus on the important issues. I have also quoted significant excerpts from transcript and exhibits in an effort to avoid misinterpretation of the important evidence. The critical issue in this particular allegation by the Association is whether Mr LeFevre had a genuine belief that it was he personally and as an individual that was required to attend the Committee. If he did as partly conceded by Mr Cooper his actions may not justify summary dismissal. The first consideration therefore is what do I believe from the evidence transpired at the meeting of the Executive on 21 April 1998? There is no doubt that Mr LeFevre raised the issue of the Bill and deliberations by the Executive followed in relation to that Bill. His evidence was that there was a brief discussion on the Bill and the Association's position on it and it was resolved as detailed in the minutes of that meeting that the Association "would not make a submission to the Committee". Mr LeFevre denies the second part of the minutes dealing with the Bill which says; "General Secretary to ask the Department for a copy of their submission". The consistent evidence of members of the Executive called by the Association was that discussion on the Bill occupied some fifteen to twenty minutes with approximately half of the Executive members speaking and speaking in favour of the Bill. Their evidence was that only Mr LeFevre spoke against it. At the meeting of 19 May 1998 members raised their concern about what was in the minutes and after some discussion amendments were agreed and made to the minutes of 21 April 1998. These amendments were made after the events, the subject of this issue i.e. the attendance by Mr LeFevre at the Committee hearings. Unfortunately the amendments did not help in some of the key issues, for example there was no clear resolution detailing the Association's support of the Bill. However, two things were confirmed, the Association would not make a submission to the Committee and it would seek the Department's submission to see if it supported the Association's views and support the submission if it did. Again, however, the minutes were deficient in that they didn't record where the Association would register it's support if it agreed with the Department's submission. In deciding between the evidence of Mr LeFevre and that of Executive members on what occurred in the 21 April 1998 meeting I have obviously taken into account all of the evidence however, I will highlight some of the evidence of Sergeant FitzGerald on this issue. The key parts of her evidence have been quoted previously. I have selected Sergeant FitzGerald from the other members of the Executive who gave evidence because her testimony was that she was a friend of Mr LeFevre over a long period of time, had been a supporter of him and she made up her own mind about issues. She was also a very considered and convincing witness. I will not quote her evidence again but summarise it as follows. She described how Sergeant Kemp returned to the Executive meeting late in the discussion on the Bill but spoke in favour of it and made the comment that the Association should support what was clearly a tool of trade and something of benefit to all members. She indicated that it was her clear recollection that nobody spoke against the Bill except the General Secretary and the meeting resolved to not make a submission but establish whether the Police Department submission supported the Executive views expressed around the table that day and if they did, support the Department's submission. She concluded her evidence on this meeting by detailing what she understood was the direction given to the General Secretary i.e. "that his direction was that he should seek out a copy of the submission from the police department to ascertain what it said, to inform us, and that we would support that submission if it accorded with our views".42 I accept the evidence of Sergeant FitzGerald and that of other members of the Executive where it is consistent with her testimony in preference to that of Mr LeFevre. However, I make the observation that if clearer and more detailed motions had been put thus becoming properly recorded resolutions of the Executive this matter may not have gone the way it did, I must also acknowledge that from the evidence it seems clear that no motions were voted on by the Executive in relation to the Bill. But Sergeant Kemp indicated that motions were not necessarily put where there appeared to be unanimous support of the Executive for an issue. Having indicated that I prefer the evidence of the Executive on the discussions on the Bill on 21 April 1998 compared to Mr LeFevre's it follows that, I accept that Mr LeFevre clearly knew what the feeling of the Executive was in relation to the Bill and that he was requested to ascertain the views of the Department, something he denies. I now turn to the events surrounding the requirement for Mr LeFevre to attend the Committee hearing on 30 April 1998. On the afternoon of 21 April 1998 or the morning of the next day Mr LeFevre received a telephone call from Mr Casimaty and on 24 April 1998 received a follow up letter. These events are described earlier both from Mr LeFevre's perspective and Mr LeFevre maintains he was required to attend the Committee as an individual not as Secretary of the Association. He did make a statement at the outset of the hearing on 30 April 1998 which is also quoted earlier, indicating that the Association did not require him to make a submission and that he was there "more in the capacity of a private person". Mr Casimaty did not believe that at any time during his discussion with Mr LeFevre that he was talking to him (Mr LeFevre) as anything other than the General Secretary of the Association. Indeed he acknowledged in evidence that the Committee "hadn't made such a resolution"43 to allow him to invite individual persons to the hearing. The letter that was subsequently sent to Mr LeFevre, also detailed earlier was addressed:-
I find it difficult to believe that a letter so headed could then be accepted by the recipient as being addressed to Mr LeFevre individual and not Mr LeFevre General Secretary of the Association. Over a period of time many letters would have been received by the General Secretary, addressed the same way or in a similar vein and undoubtedly they would have been "official" to the organisation and not "personal" to Mr LeFevre. The Association provided examples of the above. Mr LeFevre did not deny that he later described the letter to colleagues as a subpoena. He was unable to satisfy me in the evidence that he gave that there was a good reason for doing so other than to convince those he told that there was a personal requirement to attend. He would certainly know the difference between a subpoena and a letter. He did not produce the letter from Mr Casimaty requiring his attendance at the Committee to any of his colleagues or the Executive although the evidence is, he was asked on a number of occasions to do so, why? Again I acknowledge Mr LeFevre denies being asked to produce the "subpoena". I refer briefly to answers given in cross examination by Sergeant FitzGerald relating to the "subpoena".
If you were to assume - and I ask you to assume, that Mr LeFevre had received a document issued by the parliamentary committee which required his attendance before the parliamentary committee to give evidence and he honestly believed the document was directed to him personally - not to the association, would you agree that the termination of his employment was unfair and in breach of his contract?............ Yes, if he believed that and if he had contacted senior executive and advised them of what he was doing because, clearly, at the April meeting he had espoused, clearly, strong views against the legislation. So the only rider you put on your acceptance that his termination would be unfair and in breach of the contract, is as long as he'd informed the association that he was required to go and give that evidence?............ No, but there'd have been other issues raised had he informed somebody that he was going because of the objections that he raised to the legislation. Would you agree with me, if we continue with our assumption - would you agree with me that if they were the circumstances and he had omitted to inform the executive of the requirement to go and give evidence, that that would be a lapse of judgment but it wouldn't be misconduct?............ It would be serious misconduct because he had a view that was totally in conflict with his employer's and his membership. If you, Sergeant FitzGerald, were to receive a subpoena to go to court to give evidence, which you knew if given on oath would adversely affect your employment, you'd still go and give that evidence. You'd answer the subpoena?............ I would answer the subpoena but not before I'd advised my senior officers of the evidence I was going to give and the fact that I'd been subpoenaed."44 The above responses by Sergeant FitzGerald are not only important opinions but in my view sum up the manner in which this issue could have been properly dealt with by Mr LeFevre. I acknowledge that Mr LeFevre claimed he told a number of colleagues that he had received a subpoena before he attended the Committee hearing on 30 April 1998, they were, Sergeant Kemp, Mr Kadziolka, Pat Allen, Greg Chambers and some branch meetings. The only one of those named above who was called to give evidence in this case was Sergeant Kemp and he strongly denies that he was so advised. Why the others were not called particularly Mr Kadziolka the Assistant Secretary of the Association, if only to give evidence on this point is not clear to me. However, I accept from his total evidence in this case that if Sergeant Kemp had been advised that Mr LeFevre was attending the Committee he would have reacted to that advice. I believe from the evidence he wasn't told. Consistent with the above conclusion is the evidence of Deputy Commissioner Johnson that if he had thought Mr LeFevre did not support the Bill he would have done something about it, he would have rung Sergeant Kemp, part of his response to a question from Mr Cooper is; "The fact that I'd appeared before the committee and the view that I held, I would have been in touch with the police association president because I was of the view that they should support the Bill, so if he'd expressed a different view to mine, I would have wanted to try and persuade the association to do something different."45 My conclusion from the evidence in this case is that Mr LeFevre did not have an honest belief that he personally and as an individual and not the General Secretary of the Police Association was required to attend the Committee hearing to give evidence in relation to the Bill on 30 April 1998. Mr LeFevre advised the Committee at the outset that the Association did not require him to make a submission and he also said "so I am more here in the capacity of a private person with some considerable experience in the area of policing over a very long period. In fact I was 34 years in the police force".46 There is little doubt in my mind that in spite of his opening statement the Committee accepted his evidence in accordance with the above ie. his long and successful police career and also on the basis that he was at the time the Association General Secretary. He did not at any time indicate during the hearing on 30 April 1998, that his views might be different from or were different from the Executive of the Association and yet I believe from the evidence he clearly knew the Executive's views from the meeting on 21 April 1998. Mr LeFevre would know that his evidence would carry far more weight with the Committee than that of an ordinary citizen and it would be almost impossible for the Committee to treat his evidence as personal. The third issue in this case involves the allegation by a member of the Executive that Mr LeFevre made the comment that; "he listened to the Executive, but then went and did his own thing"47. The evidence came from Constable Holloway who is a police officer in the North West of the state and a member of the Western District Branch of the Association and a relatively new member of the Executive. Constable Holloway describes how he attended a regular meeting of the Western District Branch in March at the Burnie Police Station, however there were insufficient members present for the meeting to proceed. After some informal discussions with those that attended Constable Holloway indicated to Mr LeFevre that after only one meeting of the Executive since he was appointed he felt that the Executive was not functioning efficiently and there was some degree of factionalism to which Mr LeFevre responded; "well, I just go along and listen to what they've got to say and I go and do what I was going to do anyway".48 His evidence was that the above observation was put to Mr LeFevre in a serious context and that he believed the response of Mr LeFevre was just as serious. Mr LeFevre acknowledged the discussion with Constable Holloway but in response to a question from Mr Wood, indicated that his comment to the Constable was; "I told him that I listened to the Executive but there were often occasions when I had to make decisions and do my own thing".49 This discussion occurred without witnesses, I am therefore unable to make a conclusive finding about which version is correct. However, having regard for my findings on the major issue in this case, I am inclined on the balance of probabilities to accept the version of Constable Holloway. Having regard to my findings in relation to the allegations by the Association regarding Mr LeFevre's actions over his attendance before the Committee I am not prepared to overturn the decision of the Association to dismiss Mr LeFevre. I believe from the evidence that he did not act in the best interests of the Association that his actions were in clear breach of Clause 4, sub clause (l) of the Association's Rules and Constitution and against the wishes of the Association Executive. He misled the Executive by claiming that he personally as an individual was required to attend the hearing before the Committee on 30 April 1998 and 8 May 1998. I might have been persuaded that a one off indiscretion on his part relating to the 30 April 1998 appearance, although serious, did not warrant his dismissal. However, on 4 May 1998 I believe he was told by the President Sergeant Kemp that if he attended the 8 May hearing he would do so "at his own peril". There was also the evidence from Sergeant FitzGerald that after a Northern Branch meeting of the Association on 6 May 1998, Mr LeFevre confirmed that he would be attending a further hearing of the Committee which would be "in camera" and he would not be able to be attacked for any comments he made in those circumstances. He clearly had the opportunity to retrieve the situation between the first and second hearing of the Committee that he attended, but chose not to, in my view compounding acts of serious misconduct and/or breaches of the Association's Rules and Constitution. Mr LeFevre's motive to do what he did is not clear. Consistent evidence was given by members of the Executive that Mr LeFevre believed some aspects of the Bill were there to protect the Police Commissioner, Mr McCreadie. I make no finding in relation to this aspect, I don't need to, Mr LeFevre's actions no matter what the motives are the important considerations. In accordance with Section 31 (1) of the Industrial Relations Act 1984, this application is dismissed and I so order.
J G King Appearances: Date and place of hearing: 1 Ex W.3 |