T7487 and T7488
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Andrew Francis Woolley The Australian Workers' Union, Tasmania Branch and Tassal Limited
Termination of employment - procedural fairness - valid reason for termination - quality of investigation procedures - employer's decision to dismiss unfair - parties to present further submissions regarding remedy REASONS FOR DECISION Alleged Background Facts and Circumstances Tassal Limited (Tassal), the respondent employer in these proceedings, employed Ms Maria Ann Monks on curing and soft-slicing duties and Mr Andrew Francis Woolley as a leading hand. Each individual worked in the value added area of the Company's Dover operations.1 On Tuesday 20 January 1998, Tassal dismissed both of them. Ms Monks and Mr Woolley said the events leading to their dismissals occurred on Sunday 18 January 1998 when they were working together on a 6:00pm to midnight evening shift.2 In addition to personal clothing, Ms Monks and Mr Woolley both wore the standard uniform required of them by Tassal. That uniform, worn for reasons of hygiene, comprised a blue coat, mask, hat, gloves and gumboots.3 About 11:30pm that evening, after finishing the salting process, Ms Monks slipped on some grates and hurt her right knee. She reported the incident to Mr Woolley, who is a qualified first aid attendant, telling him she did not require any treatment.4 According to Mr Woolley, the Company's operating procedure requires first aid attendants to record all workplace injury incidents in a first aid book.5 The relevant book for the value added area resides in a nearby first aid room, which also contains a small cupboard, a first aid bed and a small sink.6 Mr Woolley went unaccompanied to the first aid room to enter details of the incident into the first aid book. Ms Monks, for her part, said she never went to the first aid room at any time, but remained in the value added area and began clean-up activities.7 Mr Woolley said he spent about five minutes in the first aid room filling out the first aid book. During that time, according to him, the first aid room door was open. For that reason, he said, he did not turn on the room light because the adjacent corridor lighting accommodated his purpose.8 While in the room he saw no one9 and, having completed his task, finished his shift about midnight.10 The following day (Monday, 19 January), shortly after starting work about 2:00pm, Mr T L Witherington, manager of the Company's wet processing area, suspended both employees because of a workplace incident the previous night.11 Mr Witherington evidently did not offer any explanation as to what he meant by "incident". Mr Woolley, rather than Mr Witherington, told Ms Monks of her suspension.12 Later the same day, about 5:00pm Mr Woolley said, the Company's Human Resources Manager, Mr E C Van Der Ploeg, accompanied by Ms L Gillian, interviewed him. Mr Van Der Ploeg apparently told Mr Woolley that, the previous evening, two witnesses reported seeing him and Ms Monks together on the bed in the first aid room.13 Mr Woolley said he denied the allegation. Ms Monks said that, in her interview with Mr Van Der Ploeg, he provided no real details of the allegations made against her. According to Ms Monks, Mr Van Der Ploeg simply said that the allegations concerned "something the wet processing first aider had seen and left it at that".14 Both Mr Woolley and Ms Monks said that Mr Van Der Ploeg told them they would remain on suspension until completion of the investigatory process.15 The next day (Tuesday 20 January) Mr Van Der Ploeg, this time accompanied by a Mr Oakley, again interviewed Mr Woolley. According to Mr Woolley, Mr Van Der Ploeg asked him if he wished to change any part of the statement he had made the previous evening. Mr Woolley refused because, he said, his statement reflected exactly what happened. Mr Van Der Ploeg then produced a misconduct report,16 which he asked Mr Woolley to sign. Mr Woolley refused the request.17 Mr Van der Ploeg and Mr Oakley then left the meeting for about an hour, apparently to again interview the witnesses. Upon their return, Mr Woolley said, Mr Van Der Ploeg announced his intention to dismiss both he and Ms Monks.18 At that time, according to Mr Woolley, Mr Van Der Ploeg, referring to the misconduct report, read the grounds upon which he proposed to rely in dismissing him and gave him a copy of the report.19 Gender differences aside, those grounds were identical to the grounds referred to below in relation to Ms Monks' dismissal. Mr Woolley alleged that at no time during the interview process did Mr Van Der Ploeg identify the witnesses or give him details of their statements, read them to him or paraphrase any of their contents.20 He also said that Mr Van Der Ploeg never told him what the witnesses alleged he and Ms Monks were doing on the first aid room bed.21 Ms Monks said Mr I Wakefield, an AWU organiser, accompanied her during the interview by Mr Van Der Ploeg on 20 January. Mr Oakley was again present. Ms Monks said Mr Van Der Ploeg told her that, the previous Sunday evening, a witness had seen a man and a woman in a compromising position in the first aid room. Mr Van Der Ploeg evidently identified the man as Mr Woolley and said he believed Ms Monks was the woman involved in the incident. Ms Monks denied the allegation. Mr Van Der Ploeg then produced and apparently asked Ms Monks to sign a misconduct report. After reading the document Mr Wakefield advised her not to sign it.22 Ms Monks said that, during the entire interview process, she was never told who made the allegations against her. According to Ms Monks, Mr Van Der Ploeg then dismissed her on the following grounds: (i) Serious misconduct, in that she gave an untrue account of a workplace incident. (ii) Conduct inconsistent with her contract of employment. (iii) Sexual harassment towards a first aid attendant. On 22 January 1998 The Australian Workers Union, Tasmania Branch (AWU) applied to the President for a hearing in accordance with Section 29(1) of the Industrial Relations Act 1984. The subject matter of that application concerned "a dispute with Tassal Limited over the termination of a member of the AWU". That member was Ms Monks. By way of remedy, the AWU sought reinstatement of Ms Monks' employment contract. The second application, lodged on 27 January 1998 by the applicant's solicitor, requested the President to convene a hearing in accordance with Section 29(1A) of the Act. That application concerned Mr Woolley, who alleged that Tassal wrongfully dismissed him on 20 January 1998 on the grounds of alleged misconduct. Mr Woolley also sought reinstatement. Contentions S Chopping for Andrew Woolley. It is abundantly obvious from the evidence before the Commission that Tassal commenced what the Company called its investigations into the incident with a prejudiced view towards both Woolley and Monks. The subsequent investigation simply reinforced that prejudice. The following circumstances display the clearest indication of that prejudice. When Mr Van Der Ploeg travelled to Dover during the afternoon of Monday 19 January, the only two witnesses to the previous day's incident, Mrs Maggie Mitchell and Mr Mark Franklin, had said nothing, even to their workmates, about the identity of the employees allegedly involved. Mrs Mitchell's evidence is that she did not name the employees until Mr Van Der Ploeg first interviewed her about 4:00pm that Monday afternoon. Mr Franklin's evidence is that he said nothing about the persons he saw in the first aid room, because he did not know who they were. In fact, he only found out their supposed identities the following day. The other person who was in the vicinity of the incident at the time was Mr Witherington, the only manager on duty that evening. However, he said he neither saw into nor entered the first aid room. He also acknowledged that Mitchell and Franklin did not tell him who they thought was in the room. One might question Mr Witherington's actions. He was apparently aware there were two people in the first aid room allegedly engaging in some activity of a sexual nature, but he did nothing to identify the participants. Did Mr Witherington jump to some conclusion as to the identities of the two persons involved? The evidence plainly shows that at midnight on Sunday, 18 January no person had identified the occupants of the first aid room. However, before Mr Van Der Ploeg arrived at Dover the next day to begin his investigation, the Company had stood down both Woolley and Monks. It is apparent that the stand down instruction came from the Company's Managing Director, Mr Peter Shelley.23 Since witnesses Mitchell and Franklin did not tell Mr Shelley the names of the employees they thought were involved in the incident, how did Mr Shelley come by the information that he should stand down Monks and Woolley? Someone provided the information to Mr Shelley, yet the source of that advice, upon which he acted late in the morning of Monday, 19 January and before Mr Van Der Ploeg could commence his investigation, was not made known to the Commission. As a consequence, by the time Mr Van Der Ploeg began interviewing Mrs Mitchell at about 4:00pm the same day, procedural fairness for Woolley and Monks had disappeared. In any event, what Mr Van Der Ploeg called his investigation was such in name only. All he did, in fact, was note what three people told him. He did not stringently examine what he was told by those persons and he did not look for the first aid book to confirm whether Mr Woolley had made the entry in it that he said he did. Indeed, Mr Van Der Ploeg was not even aware that, on the particular Sunday evening, there was a physiotherapist on site who also used the first aid room. In fact, Mr Van Der Ploeg did nothing at all to test the information given him about the identification of the persons concerned in the incident. The evidence before the Commission significantly challenges that identification. It appears that, without any basis for so acting, Tassal predetermined the question of identification and, at a later stage, did nothing at all about assessing whether that predetermination was correct. During the course of their initial interviews, Woolley and Monks told Mr Van Der Ploeg they were not in the first aid room as alleged. The evidence shows Mr Van Der Ploeg did nothing of any significance as a consequence of that advice. He did not re-examine what Mrs Mitchell had told him and he did not again ask Mr Franklin about what he had seen. It is clear that Mr Van Der Ploeg acted on the basis of the Company's prejudgment-one built on an apparent bias formed for reasons unknown-and Mrs Mitchell's evidence that she was not mistaken about who she saw because she had known Mr Woolley for quite a few years. But Mrs Mitchell, in her identification evidence, stated a conclusion. She did not, as a matter of fact, say she had seen Mr Woolley. Mrs Mitchell said she saw a male person, a bare leg and some hair that, by any reasonable standard of proof, was inadequate for purposes of identifying Mr Woolley in what, for Mrs Mitchell, must have been quite surprising circumstances. Since there were some 50 or 60 employees working in the factory that Sunday evening, Mrs Mitchell's evidence was an insufficient basis for concluding that the male person concerned was Mr Woolley. Similarly, while Mr Franklin's identification of Ms Monks is equally suspect, his evidence provided no basis for identifying Mr Woolley as the male involved. It seems clear enough that Mr Van Der Ploeg acted on the premise that there were only two possible scenarios: either Mrs Mitchell and Mr Franklin were lying or Mr Woolley and Ms Monks were lying. However, there is a third and very real scenario. There were many people working at the factory that Sunday evening. Two of them-quite possibly two of the 50 or so employees in the wet processing area who had just started a work break-were in the first aid room when they were interrupted by Mitchell and Franklin. Mrs Mitchell was simply mistaken about the male's identity. As the matter progressed, the Company's action in standing down Woolley and Monks served to reinforce in Mrs Mitchell's mind her initial mistake regarding the identity of the male person. Simply put, there was no examination by Tassal of the basis of Mrs Mitchell's identification of Mr Woolley and no appreciation of the possibility that she may have been mistaken. Mr Van Der Ploeg's assumption that one or other of the parties was lying excludes the possibility of mistake. It is arguable that Woolley and Monks, in denying their involvement, were not lying but merely stating the truth and that Mitchell and Franklin were not lying but merely mistaken as to the identity of the persons they saw in the first aid room. The evidence does not support the Company's conclusion that the two individuals in the first aid room that Sunday evening were Mr Woolley and Ms Monks. Tassal started its investigation with a built-in bias, chose only those facts that supported its prejudgment, and continued the process thereafter by looking for reinforcement of that prejudged position instead of acting in a fair and proper manner to ascertain the truth of the situation. Even after Mr Woolley denied involvement in the incident, there was no proper examination of the matter by Tassal. Indeed, the Company appears to have become even firmer in its initial conclusion that Mr Woolley was the male person involved by further concluding that, because he denied involvement, he must therefore be lying. Tassal's attitude in that regard reflects in the Incident Review Findings section of the Major/Serious Misconduct Report which records, as the first ground for summary dismissal, "Serious misconduct in giving an untrue account of incident".24 In all the circumstances Mr Woolley's denial, which was a truthful and proper denial, resulted in Tassal making a positive finding to the contrary that he was lying. The Company, in order to reinforce its prejudged and biased position against Mr Woolley, then used that finding as a ground for his summary dismissal. Tassal's second ground for Mr Woolley's summary dismissal was "Conduct inconsistent with contract of employment".25 There is no acceptable evidence before the Commission that Mr Woolley engaged in any conduct that was inconsistent with his contract of employment. The evidence shows that, on the evening in question, Mr Woolley was present at his work station, that he performed his work duties and that, since Mr Witherington had attended the area, his work was evidently progressing according to requirements. There is no suggestion in the evidence of inadequate factory production that evening or that anything less than desirable occurred. The only misconduct alleged against Mr Woolley is that involving use of the first aid room. Mr Woolley admits to being in the first aid room at about 11:30pm that Sunday evening to note Ms Monks' knee injury in the first aid book, but says he was there alone. It was Mr Woolley's duty to record such incidents because he was the relevant first aid officer. Tassal, however, never looked at the first aid book in the course of its investigation and, even though the book is within the Company's control, never produced it to the Commission in these proceedings.26 To the extent that Tassal relied on its finding that, in relation to use of the first aid room, Mr Woolley misconducted himself, there was no such misconduct on Mr Woolley's part. The evidence shows that the Company's finding in that regard is obviously flawed, in that it was made without proper basis in support of Tassal's prejudged position concerning Mr Woolley. The third ground relied on by Tassal for its summary dismissal of Mr Woolley was "Sexual harassment towards first aid attendant".27 Tassal's denial of procedural fairness towards Mr Woolley in respect of that allegation is absolute. The first mention of sexual harassment, in relation to Mr Woolley, came in the Major/Serious Misconduct Report.28 The Company gave no prior notice to Mr Woolley of any allegation of sexual harassment, he was given no opportunity to defend himself against the allegation, and the Company did not follow its own established procedures regarding allegations of that nature. In the circumstances that allegation, too, tends to suggest Tassal acted on the basis of prejudgment. All the evidence shows that Tassal denied Mr Woolley procedural fairness, acted in the absence of proper procedure, reached an unjustified and improper conclusion and, as a consequence of those shortcomings, improperly dismissed Mr Woolley from his employment. In the circumstances, the appropriate remedy is reinstatement. R Flanagan for The Australian Workers' Union. The principles of procedural fairness, in relation to the facts of this matter, apply equally and without exception to Ms Monks. In that regard, the AWU supports the contentions argued on behalf of Mr Woolley. The evidence of Mrs Mitchell is that Sunday, 18 January 1998 was a busy night, with some 50 shift work employees working in the wet processing section where she herself worked. All those employees wore the protective clothing required of them by Tassal. During work breaks, however, it is the practice for some employees to leave the wet processing area and go to either the smoking area or the crib room-a practice that the employees followed on the particular Sunday evening. The Company requires those who go to the smoking area to remove their protective clothing. Mr Franklin's evidence is that, because of the protective clothing, he could not know the clothes and hair colour of those employees who went to the crib room. However, they are the features upon which he relied, together with a name provided by Mr Witherington the following day, to identify Ms Monks as the female involved in the first aid room incident the previous evening. At the time of the incident, Mr Franklin did not know the identity of either the man or the woman concerned, although he believed he saw the same woman during a smoke break earlier that evening. Mrs Mitchell, according to her evidence, identified Ms Monks by reference to her hair, the side of her cheek and her build. However, both Mitchell and Franklin said that they only viewed the scene in the first aid room for a brief period of time-a few seconds-and neither of them saw the faces of the room's occupants. The evidence also discloses that, in this case, there was an unusual departure from Company procedure. Normally, a problem that arises on the factory floor will feed upward through the management structure. However, in the present matter, the problem fed down the managerial line. No explanation was ever offered by Tassal for this unusual departure from normal business practice. It is clear that Mr Van Der Ploeg prejudged the situation. After questioning Mr Franklin and Mrs Mitchell he took their word to be the truth of the matter and did not then cross-check their statements with the best available evidence-the first aid room log book. Mr Van Der Ploeg conceded he did not examine the log book until a later date when he recalled seeing an entry made by Mr Woolley concerning Ms Monks, as Mr Woolley in fact alleged. Mr Van Der Ploeg's evidence also disclosed that, despite being the investigating officer, he was not aware that on shift that particular Sunday evening there was a physiotherapist who had access to the first aid room. In that regard Mr Woolley's undisputed evidence is that people were moving about the area of the first aid room all evening up until about 9:30pm or later. There are fundamental flaws in Tassal's entire approach. Concerning the proposition that there was either a conspiracy by Mitchell and Franklin or Woolley and Monks told lies, there existed a third possibility. That is, there was indeed an incident in the first aid room but Mitchell and Franklin were mistaken in identifying the persons involved as Woolley and Monks. The evidence before the Commission shows that the identification of Woolley and Monks proceeded on the basis of a very limited range of facts. For example, there was no exchange of conversation between Mitchell and Franklin and those who occupied the first aid room, no one ever saw the faces of the individuals concerned, and the whole episode occupied a period of only a few seconds. The flaw in the Company's process is that it did not allow for that third possibility. The processes leading to termination of employment must not only be rational, reasonable and defensible, but also just and fair for the employees concerned. In this case, the accusations against Woolley and Monks were false. There was no false denial, as Tassal alleges, and no breach by either employee of their duty of fidelity. The evidence shows that Woolley-a team leader for the last 3½ years-and Monks-3 years' service as a permanent employee and six months as a casual-were both competent and reliable employees. The Company did not challenge their competence and reliability, capacities that Woolley and Monks continued to demonstrate until dismissal intervened. The Commission's task in matters of this nature goes further than merely determining whether the employer acted in a rational, reasonable and defensible manner in terminating employment. The Commission must also determine the accuracy and validity of claims made against the employees concerned. Guidance in approaching issues of this nature is available from an early decision of Gallagher J of the New South Wales Industrial Commission in the case In re Scott and Pioneer Tourist Coaches Pty Limited (1956).29 In reinstating an employee whom he found had been unjustly dismissed, His Honour observed that:
In the present circumstances there is no doubt that Tassal genuinely, but mistakenly, formed the view that the first aid room incident involved Mr Woolley and Ms Monks. However, that genuinely held view aside, the Company's process of determining Woolley and Monks' involvement in the incident contains so many flaws that the decision to terminate their employment constituted an act of substantive unfairness against both of them. During the course of these proceedings many new matters came to the attention of the parties. For example, Mrs Mitchell's identification of Mr Woolley flows from conclusions rather than from the facts; those who conducted the investigation did not know that, on the evening concerned, there was a physiotherapist on site who had access to the first aid room; and Mr Witherington's evidence is that he saw Woolley and Monks working in the value added area at about 10:30pm, the time the Company alleges the first aid room incident occurred. All this information would have been available to Tassal had the Company conducted a proper investigation. The evidence in this case indicates there is no validity in the claims made against Woolley and Monks. The Company neither conducted a full and extensive investigation nor gave Woolley and Monks a proper opportunity to defend the allegations made against them. The Company's decision to terminate their employment was, in all the circumstances, substantively and procedurally harsh, unfair and unjust. G Geason for Tassal Limited. Procedural Fairness It is nonsense to suggest that Mr Shelley's identification of Woolley and Monks to Mr Van Der Ploeg demonstrated a lack of procedural fairness. The identification of employees whose conduct will become the subject of investigation is a critical threshold point because, in the absence of such an identification, there can be no subsequent investigation. Identification does not stand alone as the measure of procedural fairness-all aspects of the investigation go to make up that particular quality. Furthermore, Woolley and Monks each unequivocally stated, in their evidence, that they understood the substance of the allegations then being put to them. Ms Monks' evidence is that she subsequently advised Mr Van Der Ploeg about an existing medical condition.30 That advice apart, it is the evidence of both applicants that there was nothing either of them wanted to say that they felt they were unable to say at the time of their interviews on Monday 19 and Tuesday 20 January 1998. Of significance also is that Mr Wakefield, who accompanied Ms Monks during her 20 January interview, had a further conversation with Mr Van Der Ploeg concerning the issue of identification. There is no dispute about the fact that Mr Van Der Ploeg then left the meeting to again speak with Mrs Mitchell for the purpose of satisfying himself that he might safely rely on the quality of her identification evidence. That evidence rebuts the applicant's suggestion that Tassal prejudged the situation. Indeed, Mr Wakefield, in his evidence, conceded that the Company's conduct in revisiting the issue was consistent with a conclusion that Tassal did not prejudge the matter.31 Mr Wakefield's evidence also demonstrates the nature of the Company's investigative process. The Commission cannot ignore the fact that, when Ms Monks' representative raised an issue on her behalf, the Company took further steps to ensure that the evidence upon which it proposed to rely was, in fact, reliable. The evidence shows the Company investigated all the relevant matters that surrounded the alleged misconduct of Woolley and Monks, other than those side issues that were not probative of the question. That is, Mr Woolley's log book entry concerning Ms Monks and the fact that Mrs Mitchell's log book entry regarding her treatment of Mr Franklin's injury was wrong in respect of the date and, perhaps, even the time.32 Neither piece of evidence detracts from the quality of the other evidence so as to render the Company's conclusion unsafe or indefensible. There is nothing before the Commission that demonstrates the Company did not investigate all the relevant matters. Evidentiary Aspects The matter of the first aid room key is an important piece of circumstantial evidence. Mrs Mitchell obtained access to the first aid room by means of the wet processing area key held in Mr Witherington's office. It follows, therefore, that whoever was in the room when Mrs Mitchell tried to gain access did not use the wet processing area key, otherwise that key would not have been available to her. In the circumstances, it is reasonable to conclude that the key used by the occupants of the first aid room was the key kept in the value added area. Mr Woolley's evidence is that, as the value added area first aid officer, he knew where that key was kept.33 This circumstantial evidence corroborates the identifications made by each of the eye-witnesses and gives a quality of reasonableness, defensibility and substance to the direct evidence. The applicants' suggestion that the Company chose the facts that suited the outcome it wished to achieve is nonsense. The only facts available to Tassal were, first, those born of inquiries made of eyewitnesses, ie the persons who were able to give direct evidence of what they saw and, second, the denials of each of the applicants. That being the extent of the direct evidence, there was no choice of facts available to the Company. In particular, the applicants suggested the Company ignored the entry Mr Woolley made in the first aid room log book at about 11:15 or 11:30 that Sunday evening. That evidence is not probative. The fact that Mr Woolley made an entry in the log book after the occurrence of the incident being investigated sheds no light on the subject or purpose of the investigation. Tassal does not say that Mr Woolley's log book entry was an opportunistic step on his part to give himself some sort of defence. It is simply not a defence at all to the allegation that, at 10:30pm or thereabouts when Mitchell and Franklin sought entry that evening, it was Woolley and Monks in the first aid room. The only way in which the log book evidence could be probative of whether Woolley and Monks lied about their presence in the first aid room is if the Company's finding, that they were in the room at about 10:30pm, was not open to it on the evidence. If those circumstances were to obtain, then the Company concedes it cannot be said that Woolley and Monks were guilty of a subsequent lie. However, if the contrary circumstances obtain, then it was a reasonable and defensible conclusion on the Company's part that Woolley and Monks lied about their presence in the first aid room. Then there is the applicants' assertion that, given their denial to the contrary, the Company could not properly satisfy itself, on the evidence of Mitchell and Franklin, that it was actually Woolley and Monks who were in the room rather than some other persons. In this regard the applicants rely on the speculative proposition that the persons concerned were individuals other than Woolley and Monks. The evidence of Mr Woolley is that, on the night concerned, there were other people moving about outside the value added area. Significantly, however, his evidence refers to the period prior to 9:30pm. Hence, because the alleged conduct underpinning the Company's investigation occurred about 10:30pm, Mr Woolley's evidence does not assist in establishing that it was not he and Ms Monks, but others, who were in the first aid room at that time. On the facts, therefore, Tassal was left with a choice between Woolley and Monks' outright denial and Mrs Mitchell's evidence, which she expressed with a confident certainty, as to her identification of Mr Woolley. The Commission must view her evidence in the light of Mr Franklin's evidence. Although he could not identify either individual he did tell Mr Van Der Ploeg, when the latter interviewed him on 19 January 1998, that "he did not recognise them as they were not from his 'area'."34 That piece of circumstantial evidence is of some significance since Mr Franklin's expression "not from his area" must have meant "not from the wet processing area" because he said, in cross-examination, that he "didn't know who they were or where they worked".35 It is undisputed that, on the particular Sunday evening, Mr Franklin was working in the wet processing area and that two people only, Woolley and Monks, were working in the value added area and were without supervision. The combined weight of all that evidence, the elements of which the Commission must view as a whole and not in isolation of each other, is sufficient to support the conclusion reached by the Company. Furthermore, the Commission should prefer that evidence, rather than accept the mere speculation advanced by the applicants. The applicants mentioned, but never pursued, the activities of the physiotherapist. However, as mentioned already, the movement of other people outside the value added area concluded at 9:30pm. Accordingly, there is nothing in that evidence that assists the applicants in any way. Mr Woolley, in re-examination concerning whether he ever experienced any altercations or occurrences with Mrs Mitchell, said he recalled one such incident. Apparently Mrs Mitchell, having returned to work after recovering from a broken ankle, asked Mr Woolley if he thought she had lost weight. According to Mr Woolley, Mrs Mitchell "actually lifted her jumper up and turned around a couple of times" and "I think she had other clothing underneath".36 Mr Woolley, it seems, identified Mrs Mitchell's actions as some kind of proposition, which he rejected. Mr Woolley appeared to rely on that evidence, which did not form the substance of his evidence-in-chief, for the purpose of suggesting that Mrs Mitchell had a motive to lie. It is significant-a significance that is fatal in terms of the evidence being of any favourable weight for Mr Woolley-that the matter was never put to Mrs Mitchell in cross-examination. The evidence is nothing more than speculation and, as such, it is not worthy of consideration. Concluding RemarksAt the conclusion of Tassal's investigatory process the Company was left with two possible scenarios. The first was that Mrs Mitchell and Mr Franklin conspired to accuse Mr Woolley and Ms Monks of engaging in some activity in the first aid room during the course of their duties that particular Sunday evening. Having so conspired, Mitchell and Franklin then brought the matter to the employer's attention and thereafter maintained their conspiracy throughout the duration of the Company's investigatory process. The second scenario was that Woolley and Monks, when confronted with the allegation that while on duty they were seen together in a compromising position in the first aid room, lied about their involvement in the most basic fashion by simply denying the allegation. In the circumstances, it was open to the employer to prefer the evidence of Mitchell and Franklin. The exercise of that preference, on the evidence, was rational, reasonable and defensible. For those reasons the employer's preference constituted a valid conclusion as to what occurred that night in the course of the duties undertaken by Woolley and Monks. Furthermore, it was also open to the employer to conclude that the Company could no longer maintain faith or trust in Woolley and Monks since, by their actions as employees, they were in breach of their duty of fidelity. That is because, first, they were present in the first aid room for no authorised or legitimate purpose related to their work and, second, they subsequently falsely denied or lied about their involvement in that event. In the circumstances it was defensible for Tassal, confronted with the choice of condoning or not condoning what had occurred, to conclude that it should terminate the contracts of employment then and there. It is not for the Commission, as the applicants suggest, to determine whether, on the available evidence, the Company could not have been satisfied regarding the identities of Woolley and Monks. Rather, the Commission's task is to assess whether the Company's conclusion was reasonably open to it in all the circumstances-if it was not, then the Company's conclusion was not fair but, if it was, then the Company's conclusion must stand. If the Commission should conclude that the Company's view was reasonable and rational, it must then follow that the Company's termination of the contracts of employment was for a valid reason. Nothing put forward by the applicants in these proceedings goes beyond what was before the Company at the relevant time. The applicants produced no additional evidence that might enable the Commission to conclude that, in some way, Tassal hindered or prevented them, at the time, from putting forward matters relevant to their defence. It is not the case that, in answering the applications, the Company must exclude every alternative hypothesis. Simply putting forward some alternative hypothesis is not sufficient to displace the conclusion or the quality of reasonableness and defensibility that attaches to the Company's finding. Once the finding is seen to possess those qualities, the Commission cannot characterise it as unfair. The Commission must view all the facts in the context of the legal position. That position is, perhaps, best summed up in Sangwin v Imogen Pty Ltd (1996)37 where His Honour von Doussa J said:
Those principles represent a long line of decided authority. It is enough in terms of the law if, having done all those things mentioned by von Doussa J, the employer honestly and genuinely believed, and had reasonable grounds on the information available to it at the time for so believing, that the employees were guilty of the alleged misconduct. The 1956 case relied on by the AWU is really a case decided on its own facts. In any event, all the Court said was that the quality of the evidence did not support the employer's conclusion. However, in the present matter, the quality of the evidence permitted the employer to reach the conclusion that it did. The process that gave rise to that conclusion was fair in that it explored all reasonable avenues of inquiry. Finally, it is not necessary for the Commission to satisfy itself that all three grounds relied on by the Company independently justify termination. It is enough that one ground is made out, although the principle thrust of the Company's case is that grounds (i) and (ii)38 combine to justify the employer's actions. All the evidence permits the Commission to satisfy itself that the conclusion reached by the Company is defensible, fair and beyond mere speculation. As such, the Company's decision should stand. Findings: Valid Reason for TerminationArticle 4 of the ILO Convention No party in these proceedings suggested that the Company's dismissal of Woolley and Monks was other than, in each case, a termination effected at the initiative of the employer. In those circumstances, bearing in mind the requirements of Section 31(1A) of the Act, it is appropriate to look at Article 4 of Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer. The Article provides that:
Neither the applicants nor the employer contended that the current proceedings, so far as concerns Article 4, go to anything other than the conduct of the two employees concerned. In that regard no party proposed to me that the conduct of Woolley and Monks, if they lied about their involvement in the first aid room incident, could not comprise a valid reason for termination of employment. What is at issue, however, is whether it was reasonably open to Tassal, in all the circumstances, to conclude that Woolley and Monks were actually the persons seen by Mrs Mitchell and Mr Franklin. If that conclusion was not reasonable then, as I construe the submissions, the Company did not have a valid reason for terminating Woolley and Monks' employment. In that context I turn now to examine the evidence. Witness Credibility No party challenged the credibility of any of the witnesses. However, I do find it necessary to make some remarks about the evidence of Mr Witherington.39 Generally, in my view, Mr Witherington clothed his responses with a great deal of uncertainty, ie his evidence is replete with the expression "I'm not sure" or other variations of that phrase. I do not suggest that Mr Witherington was in any way untruthful or that he did not give of his best in attempting to inform the Commission of his recollections. Nevertheless, because of the degree of uncertainty that surrounded his evidence, I formed the view that he was unconvincing in much of what he had to say. Time of the First Aid Room Incident Mr Woolley's evidence on this issue, uncontradicted in cross-examination, is that about 10:00-10:30pm-perhaps closer to 10:30pm-on the Sunday concerned Mr Witherington, the factory manager that evening, visited the value added area looking for a temperature probe.40 At the time, at least at about 10:30pm, Mr Woolley said he and Ms Monks were working in the value added area salting fish fillets.41 At approximately 11:30pm, being quite certain it was not as early as 10:30pm,42 Mr Woolley said he left the value added area and went to the first aid room to make an entry in the log book regarding a knee injury sustained a short time earlier by Ms Monks.43 On his way to the first aid room, which he said is always locked, Mr Woolley recalled that he first went upstairs to get the key which, he subsequently discovered, he did not need because he found the room already unlocked. The reason for that circumstance, Mr Woolley believed, was because a physiotherapist used the first aid room until "9:30 or something or later doing treatment on people from the wet area".44 Mr Woolley finished his shift about midnight. Ms Monks, whose evidence on this issue was not the subject of cross-examination, recalled that Mr Witherington visited the value added area about 10:00-10:30pm to get a temperature probe. The witness also said that, about 11:30pm, she slipped on a grate and hurt her right knee. Ms Monks said she reported her injury to Mr Woolley, telling him it did not require any treatment.45 Ms Monks also finished work at midnight. Mrs Mitchell, on the night in question, worked in the wet processing area, for which area she was also one of two46 duty first aid officers. Her evidence-in-chief and in cross-examination is that during the half-hour break, which occurred between 10:30 and 11:00pm, Mr Franklin told her he had hurt his left knee47 and wanted it bandaged. Mrs Mitchell said she told Mr Franklin to go to the first aid room, while she went to Mr Witherington's office to get the room key.48 At the time, Mrs Mitchell recalled, they had been on their break "about 10 minutes, a quarter of an hour". The witness agreed in cross-examination that, by the time she got to the first aid room, the time was about 10:45pm.49 Having obtained the key Mrs Mitchell said she unlocked the door and, with Mr Franklin, started to enter the room, but then discovered that it was already occupied. Mrs Mitchell said she immediately closed the door and both of them left the area-Mr Franklin for a smoke and Mrs Mitchell to go to the toilet. After completing her toiletries, which she said did not take long, Mrs Mitchell reported the incident to Mr Witherington, whom she met coming in from outside.50 Mrs Mitchell said she then gave Mr Witherington the first aid room key and returned to the tea room.51 In cross-examination Mrs Mitchell said that when she subsequently treated Mr Franklin in the first aid room "it must have been after a quarter to eleven" because "we were still on our break".52 When Mrs Mitchell finally returned to the wet processing area, she recalled looking at the clock and noticing that it was 11:20pm.53 The witness acknowledged, however, that her entry in the wet processing area first aid log book stated the time of Mr Franklin's treatment as 11:45pm on 19 January. Mrs Mitchell readily agreed that the date was an error-it should have been 18 January-and, after affirming that she was back on the packing line at 11:20pm, she conceded the nominated time of 11:45pm was, probably, also a mistake.54 Mr Franklin averred in his evidence-in-chief that, on the particular Sunday evening, he took a work break at 10:30 during which he asked Mrs Mitchell to attend to his injury. In cross-examination, however, he added that he was working "on the floor" when he asked Mrs Mitchell to bandage his knee.55 From there, he said, at Mrs Mitchell's direction, he went directly to the first aid room while she went to get the room key. He waited there, he said, for "just three or four minutes".56 According to Mr Franklin's recollection, those events occurred at the start of his work break.57 After discovering that there were persons in the first aid room, Mr Franklin said he went for a smoke. After finishing his cigarette he said he went upstairs, saw Mr Witherington and then went back downstairs to the first aid room for treatment. All those activities, Mr Franklin said, took about 10-15 minutes from the time when he and Mrs Mitchell initially attempted to enter the first aid room.58 In cross-examination, Mr Franklin said he thought he was back at his work station by "probably 11:00, a quarter past eleven", although he admitted he did not look at a clock or a watch and conceded that "the time is vague now".59 Mr Witherington, in his evidence, said he could recall meeting Mrs Mitchell about 10:30pm at the bottom of the stairs in the vicinity of the first aid room.60 He could not recall whether Mrs Mitchell gave him the first aid room key, but believed she did not.61 He also confirmed that, at an earlier time, he was in the value added area looking for a temperature probe. On that occasion, he said, Woolley and Monks were both present.62 A little bit later-Mr Witherington thought it might have been towards the end of the work break-he said he saw Mrs Mitchell upstairs in the locker room where she was treating Mr Franklin's injury.63 Mr Witherington also believed the time of that treatment was not 11:45pm, as suggested by Mrs Mitchell in her log book entry.64 Mr Van Der Ploeg agreed that Mrs Mitchell's log book time of 11:45pm was wrong but, otherwise, he had nothing to say in his evidence about the time of the actual first aid room incident. This detailed analysis of the available evidence allows me to make the following findings:
It is apparent from the above findings that there is nothing in the evidence, regarding the time the first aid room incident occurred, that is capable of establishing, on the basis of timing alone, that Woolley and Monks could not have been the persons involved. I also note, in passing, that the evidence is entirely silent on whether Woolley and Monks, like the employees engaged in the wet processing area, took a work break at 10:30pm on the relevant night. Identification of the Persons Involved In short terms the applicants contended that Tassal's identification of Woolley and Monks as the persons involved in the first aid room incident was flawed because: (a) the Company prejudged the question of their involvement; (b) the evidence did not support the Company's conclusion that the incident involved those particular employees; and (c) there was no adequate investigation by the Company of all the facts and circumstances. Concerning the issue of prejudgment it is necessary to start with the evidence of Mrs Mitchell. After discovering that there were persons occupying the first aid room, Mrs Mitchell reported that fact, but nothing more, to Mr Witherington. Mrs Mitchell said that, not wishing to get involved, she told no one of her impressions regarding the identity of the persons concerned until interviewed the following day by Mr Van Der Ploeg, even though Mr Witherington apparently told her at an earlier time that "it was well around". Even then, Mrs Mitchell added, she at first only mentioned Mr Woolley's name by inadvertence.67 Eventually, however, Mrs Mitchell said she disclosed both names, but only because Mr Van Der Ploeg asked her directly if the persons involved were Woolley and Monks.68 Mr Franklin's evidence is that he could not identify the male person involved in the incident because he did not see him and, while he believed the female was from the value added area, he did not know her name. Mr Franklin added that, acting on instructions from Mr Witherington, he said nothing about the matter to anyone until interviewed the next day by Mr Van Der Ploeg. By that time however, according to his evidence in cross-examination, he was aware of the persons alleged to be involved because, earlier in the day of his interview with Mr Van Der Ploeg, he said Mr Witherington told him the names of the only two persons who were working in the value added area on the night of the incident.69 Mr Witherington, for his part, did not doubt that Mrs Mitchell knew the identity of the persons in the first aid room. However, while he could not quite remember and could not be positive about whether Mrs Mitchell gave him any names, he nevertheless "got the impression one of them was Maria [Monks]." Mr Woolley's name, he added, did not come up until later.70 There is no reason for me not to accept the evidence of all three witnesses concerning this issue. In summary, the evidence shows that Mrs Mitchell did not talk to anyone about the matter until interviewed by Mr Van Der Ploeg and Mr Franklin did not discuss the incident with anyone prior to his interview. In any event, he did not know the names of the persons allegedly involved until told by Mr Witherington the next day. Mr Witherington's evidence is entirely silent on the question of disclosure. However, his "impression" aside, it is clear enough that he did not have the benefit of Mrs Mitchell's evidence. Nevertheless, early the next afternoon according to Mr Woolley's evidence and that of Mr Witherington himself, the latter, having been asked to do so by Mr Van Der Ploeg,71 stood down both Woolley and Monks (although they apparently both continued to work up until the time of their interviews with Mr Van Der Ploeg). In his evidence-in-chief, Mr Van Der Ploeg said, quite firmly, that the names of the employees allegedly involved in the incident came to him from the Company's Managing Director, Mr Peter Shelley.72 Subsequently in cross-examination, however, he revised that evidence, saying his advice "may have come from Peter Shelley or it may have come from Tim Witherington, I really can't recall."73 Whether Mr Witherington-if he was the source of Mr Shelley's advice-jumped to some conclusion, as Mr Chopping suggested,74 that Mr Woolley and Ms Monks were the persons involved and gave their names to Mr Shelley I cannot know. If it was Mr Shelley who told Mr Van Der Ploeg that Woolley and Monks were the persons involved then, most likely in my opinion, it was Mr Witherington who gave that information to Mr Shelley. In the alternative, relying on Mr Van Der Ploeg's revised evidence in cross-examination, if it was not Mr Shelley who told Mr Van Der Ploeg of Woolley and Monks' alleged involvement, then Mr Van Der Ploeg's information clearly came to him from Mr Witherington. By whatever means Mr Van Der Ploeg came to know of the alleged involvement of Woolley and Monks in the incident it is quite clear that, at the particular time, he could not have known what Mitchell or Franklin or any other witness-except, perhaps, Mr Witherington-might want to say about the matter. At best, he could only form the view that either Mr Shelley or Mr Witherington were alleging that Woolley and Monks were the employees involved in the incident. It follows, in my opinion, that Mr Van Der Ploeg's stand down of Woolley and Monks was peremptory and for that reason unwise and inappropriate, since it was clearly possible that his proposed investigation, which he had not then begun, might conclude it was not Woolley and Monks, but others, who were the persons concerned. In that regard, referring to Mr Geason's submission on this point,75 the focus of the applicant's case, as I construe it, was not the identification of Woolley and Monks to Mr Van Der Ploeg, but the identification and actual standing down of Woolley and Monks in circumstances where, since the investigation had not yet begun, there could be no certainty that they were the persons actually involved in the alleged misconduct. However, the evidence does not satisfy me and I cannot say that the stand down action alone constituted a positive prejudice on the Company's part against Woolley and Monks. But, that said, whether Mr Van Der Ploeg's actions so coloured the investigatory process that, in terms of identification, it constituted a positive bias or a prejudgment against Woolley and Monks, as the applicants argue, is another question. The applicants seriously challenged the evidence Mr Van Der Ploeg relied on to satisfy himself that Woolley and Monks were actually the persons involved in the first aid room incident. In my view, it is not necessary for me to attempt to resolve the question of whether the evidence supported the Company's view that the incident involved the two named employees or other persons in order to determine the fairness or otherwise of the two dismissals. That is because, in my opinion and for reasons that I discuss in some detail below,76 it was not open to Mr Van Der Ploeg, regardless of the accuracy or otherwise of his identification, to dismiss the two employees for giving "an untrue account of a workplace incident"77 (the emphasis is mine), upon which ground-among others-the Company relied as a valid reason for termination. Nevertheless, it is necessary for me to review some aspects of the relevant evidence in order to demonstrate a number of the uncertainties with which Mr Van Der Ploeg had to deal-uncertainties that, in my view, were entirely germane to his capacity to decide whether he was dealing with a certainty, ie a truth or an untruth.
It will be clear from the above summary that, on the evidence he possessed, Mr Van Der Ploeg's identification of Mr Woolley was by no means as certain as he professed it to be in the current proceedings. That is to say that, according to him, on the evidence of Mitchell, Franklin and Witherington, the proof was in front of him that Mr Woolley (and Ms Monks) were actually involved in the first aid room incident despite their continued denials to the contrary.84 I add, in concluding this point, that I do not see anything in the identification evidence as a whole that supports the applicants' contention that the Company's actions (or those of Mr Van Der Ploeg), regarding the identification process, constituted prejudgment or a positive bias against Woolley and Monks. Concerning Mr Van Der Ploeg's investigation of the incident, the applicants' contention in brief is that the Company did not, in terms of Sangwin v Imogen, conduct "as full and extensive investigation into all the relevant matters as was reasonable in the circumstances". Mr Van Der Ploeg said his investigation originated in a notification he received from Mr Shelley-most likely during the morning of 19 January 1998-directing him to investigate an incident that had occurred at Dover the previous evening. He said he then rang Mr Witherington and asked him to stand down the two employees allegedly involved-having been given their names by either Mr Shelley or Mr Witherington. In the afternoon of the same day, Mr Van Der Ploeg travelled to Dover. According to Mr Van Der Ploeg's evidence,85 the Company's investigation procedures took the form of personal interviews with each of the individuals concerned. In that regard Mr Van Der Ploeg said he spoke to Mrs Mitchell, Messrs Franklin, Witherington and Woolley, and Ms Monks on 19 January and that he conducted second interviews with Mitchell, Woolley and Monks the following day. He also made contemporary notes of the first interviews-and the second interview in the case of Mrs Mitchell-which reflect in Exhibits G2 and G3 tendered in the current proceedings. Exhibit G2 shows that Mr Van Der Ploeg, who was unaccompanied at the time, interviewed Mrs Mitchell first. He attended to that task at her home-Mrs Mitchell having already finished work for the day-before proceeding on to the Company's plant. When he arrived at the plant he interviewed all the other persons concerned. On those occasions-except for his interview with Mr Franklin, which he conducted by telephone-he was accompanied by Ms L Gillian, a Company witness. Mr Van Der Ploeg's second interview of Mrs Mitchell, which occurred on 20 January, again took place at her home. The need for the interview apparently arose out of matters put to him earlier the same day by Mr Wakefield on behalf of Ms Monks. On that occasion, according to Mr Van Der Ploeg, his accompanying Company witness was Mr M Oakley, who was also present at the second interviews with Woolley and Monks. At his separate first interviews with Mr Woolley and Ms Monks, Mr Van Der Ploeg said he explained to each of them that his task was to investigate an incident that had occurred in the plant first aid room the previous evening, in which it was alleged they had been seen together on the first aid room bed. Mr Van Der Ploeg also acknowledged that, later in the evening following his first interview with Ms Monks, she had telephoned him to inform him of her medical problem, in support of which she offered a doctor's certificate. Mr Van Der Ploeg's further evidence is that, following his interviews of 19 January 1998 he did not form any views about the most appropriate course for the Company to take regarding Woolley and Monks' alleged misconduct. In coming to his decision, Mr Van Der Ploeg described in the following terms the process he adopted in weighing the evidence that was before him:86
Mr Van Der Ploeg added by way of explanation that he interpreted the denials of Woolley and Monks as suggesting to him that "you go out and prove it that we were in there".87 Mr Van Der Ploeg's evidence is that he did not come to a conclusion about the matter until after his second interview with Mrs Mitchell, which occurred on 20 January. It was following his return to the plant from that interview, he said, that he determined the matter by circling the word "Yes" appearing next to "Dismissal" on the Major/Serious Misconduct Report.88 I begin my consideration of the quality of Mr Van Der Ploeg's investigation with the matter of the physiotherapist. The information about the physiotherapist in the current proceedings has its origin in the evidence of Mr Woolley. It is clear from what he had to say that Mr Woolley was aware on the night in question that the physiotherapist was on site.89 Surprisingly, however, because he now arguably relies in part on that person's presence in support of his case, he never mentioned the fact to Mr Van Der Ploeg at either of his interviews. Indeed, no person interviewed by Mr Van Der Ploeg in connection with the incident-including Mrs Mitchell, whose evidence shows that she, too, was aware that the physiotherapist was on site-told Mr Van Der Ploeg of that presence. I accept the applicant's argument that the presence of the physiotherapist in the first aid room that night is a relevant consideration-because it is another uncertainty, since Mr Witherington said that, in referring to the vicinity of the first aid room and the time period of the work break "it's a high traffic area at that time and there's too many coming there"90-regarding the contention that others, in addition to Woolley and Monks, had the opportunity of access to the first aid room. That said, however, I cannot see, in the circumstances before me, how Mr Van Der Ploeg could reasonably be expected to have diligently informed himself of the physiotherapist's presence when those who knew of her presence did not share that knowledge with him. For example, what questions might he have asked and of whom, since he had already spoken to all the persons known to have been involved in the incident? In my opinion it was up to the applicants, or at least Mr Woolley, to mention the physiotherapist to Mr Van Der Ploeg if they or he thought the matter was relevant. The fact that neither they nor anyone else did so does not, in my view having regard to all the circumstances, impeach the quality of Mr Van Der Ploeg's investigation. I now go to the matter of Mr Woolley's log book entry. I accept Mr Van Der Ploeg's admission that he did not verify the entry until after he had dismissed Woolley and Monks.91 Mr Geason's submission is that the entry was simply not probative of whether Woolley and Monks were the persons seen in the first aid room. Perhaps so. The fact remains, however, that the law required Mr Van Der Ploeg to conduct "as full and extensive investigation into all the relevant matters as was reasonable in the circumstances". When Mr Chopping, in cross-examination, asked Mr Van Der Ploeg why he did not examine the log book entry his response, in effect, was that he saw no reason to do so because he believed what he had been told by Mitchell, Franklin and Witherington.92 In my opinion Mr Van Der Ploeg's clear duty as investigating officer was to investigate "all relevant matters" before exercising his judgment and determining the matter. By his own admission, however, he decided the incident issue against the interests of Woolley and Monks, who relied in part on the log book evidence, without first verifying that the entry was indeed not probative. The probative value of the evidence was something Mr Van Der Ploeg could not know with any certainty until such time as he verified the evidence. In the circumstances, I believe Mr Van Der Ploeg's failure to verify the log book entry before dismissing Woolley and Monks was a shortcoming in his investigative process. However, because of the view I take about his capacity to determine what was either true or untrue, I do not think the shortcoming was fatal to Mr Van Der Ploeg's investigation as a whole. There was some suggestion by Mr Chopping that, to use my words, Mr Van Der Ploeg was not sufficiently diligent in his investigation of the applicants' denial of their involvement in the incident. It is clear from the evidence that, while Mr Van Der Ploeg twice interviewed Woolley, Monks and Mitchell regarding the incident, he did so from the premise that Woolley and Monks were untruthful. It is certainly the case, I think, that Mr Van Der Ploeg came to that position very early in his investigation. For example, in his examination-in-chief, he said that "at no stage did I ever ... believe that all three of them [Mitchell, Franklin and Witherington] were lying"93 and, in cross-examination, that "there is no stage at all that I believed that it may not have been the fact that he [Woolley] may not have been in that room".94 The criticism of Mr Van Der Ploeg's investigation in this regard, in my view, really derives from the benefit of hindsight. At the time, as I have already said, Mr Van Der Ploeg had to do the best he could without the luxury of an extended period of contemplation. In those circumstances I believe the fact that he twice interviewed each of the primary witnesses was reasonable. If there was a fault in Mr Van Der Ploeg's process it lay, in my opinion, in the dichotomy of his approach: that Woolley and Monks were untruthful and Mitchell, Franklin and Witherington were truthful. While that approach is not indicative of a positive bias against Woolley and Monks it had, in my view, important consequences regarding the manner in which Mr Van Der Ploeg dealt with the incident as a whole. I discuss those consequences below. Finally, concerning the quality of the investigation conducted by Mr Van Der Ploeg, I note and accept the cross-examination evidence of Woolley and Monks that, at the time, they each understood the substance of the allegations made against them and both believed there was nothing they wanted to say at their respective interviews that they felt unable to say.95 I similarly note and accept Mr Wakefield's evidence that, when he represented Ms Monks, he did not feel the Company precluded him from putting a case on her behalf and acknowledged that, when he raised additional questions regarding identification, the Company did give the matter further attention.96 After considering and weighing the evidence concerning the Company's investigation I am satisfied that the process adopted and followed by Mr Van Der Ploeg, despite the flawed approach to the matter of Mr Woolley's log book entry, was "as full and extensive investigation into all the relevant matters as was reasonable in the circumstances." I draw support for this conclusion from the evidence of Woolley and Monks who each agreed in cross-examination that, in effect, they had nothing additional to offer in the current proceedings that was not put to Mr Van Der Ploeg at the time of his investigation.97 During the course of my review of the relevant evidence I noted as appropriate that, in my opinion, there was nothing in the actions of the Company or of Mr Van Der Ploeg that, on the part of the employer, constituted prejudgment of the matter or demonstrated a positive bias against Mr Woolley and Ms Monks.98 Accordingly, after considering and weighing the evidence, I am satisfied that the Company did not prejudge the question of Woolley and Monks' involvement in the first aid room incident or form a positive bias against them in that respect. Basis of the Decision to Dismiss I mentioned earlier the matter of Mr Van Der Ploeg's untruthful/truthful dichotomy.99 The issue arises in connection with what both Mr Chopping and Mr Flanagan referred to as "mistake". However, I believe it best for the Commission, as an administrative tribunal, to consider the question in the context of Mr Flanagan's submission, ie that the Commission's task goes further than merely determining whether the employer acted in a rational, reasonable and defensible manner-it must also determine the accuracy and validity of claims made against the employees concerned. I now turn to that question. In this aspect of determining the existence or otherwise of a valid reason for termination, the applicants' contention, in effect, is that Mr Van Der Ploeg, in assuming that either the applicants or Mitchell, Franklin and Witherington were lying, excluded the possibility of mistake and, in so acting, unfairly dismissed Woolley and Monks. Mr Van Der Ploeg's own evidence makes it quite plain that he decided to dismiss Woolley and Monks, not on a balance of probabilities according to the facts and circumstances, but on the basis of a certainty, ie that the parties were either truthful or untruthful. For example, Mr Van Der Ploeg decided, at an apparently early time in the course of his investigation, that "at no stage did I ever ... believe that all three of them [Mitchell, Franklin and Witherington] were lying"100 and, in cross-examination, that "there is no stage at all that I believed that it may not have been the fact that he [Woolley] may not have been in that room".101 In my opinion it was not open to Mr Van Der Ploeg to determine the matter on the basis of truthfulness and untruthfulness. In doing so he moved from a balance of probabilities situation, upon which I believe he was entitled to rely, to a situation of absolutes, ie Mitchell, Franklin and Witherington were truthful whereas Woolley and Monks were untruthful. In my judgment, the facts and circumstances that were before Mr Van Der Ploeg at the end of his investigation did not permit him to indulge in absolutes or certainties so that he might conclude, as he did, that there was a valid reason for the termination of Woolley and Monks because "they gave an untrue account of a workplace incident". Notwithstanding the uncertainties that confronted him, some of which I mentioned earlier,102 Mr Van Der Ploeg proceeded to dismiss Woolley and Monks because, having concluded they were untruthful, "I had no other option but to take the action I did. I couldn't condone it and just walk away from it or give them a warning. I felt that I had to take more serious action than that in light of our procedures".103 In approaching his investigation Mr Van Der Ploeg correctly identified his task, ie "I was trying to establish whether they were in fact in the room".104 However, he appears to have strayed into the arena of moral judgment because he felt obliged to uphold Tassal's policy regarding plant culture, ie a culture based on people speaking honestly to one another.105 I agree that it was his duty to uphold the Company's policy in that regard. Nevertheless, that policy arguably did not oblige him to positively conclude, in circumstances where he could not possibly know one way or another, whether one party or another, or any or all of them, were in fact truthful or untruthful. By taking the approach he did, in my opinion, Mr Van Der Ploeg led himself into error. Had he come to his conclusion on a balance of probabilities, rather than on the basis of truth or untruth, that Woolley and Monks were the persons involved in the first aid room incident, he was bound to consider and take into account, in determining what to do about their presumed involvement, all the facts and circumstances that were before him that tended to support their case including their years of service and good work records. There is no evidence before me that he weighed any of those factors or took them into account in concluding that he should dismiss Woolley and Monks, since he acted solely on the basis of his conclusion, about which he entertained no doubt, that they were untruthful. That omission, in my opinion, constituted an act of substantive unfairness against Woolley and Monks. In the circumstances, I conclude that, unless and until the Company considered and weighed those factors, it could not determine whether there was a valid reason for dismissing Woolley and Monks on the ground that they gave an untrue account of a workplace incident. Given the above conclusion it does not seem to me that the second ground, ie conduct inconsistent with their contracts of employment, can stand on its own in all the circumstances. I say that because Mr Van Der Ploeg said quite firmly that:106
I turn now to deal quickly with the Company's charge that Woolley and Monks engaged in sexual harassment towards a first aid attendant. In cross-examination by Mr Chopping, Mr Van Der Ploeg admitted, with commendable candour, that he did not ask Mr Woolley about the sexual harassment allegation or give him an opportunity to respond to or seek advice about the allegation. Mr Flanagan did not put the same questions to Mr Van Der Ploeg in respect of Ms Monks. However, it is open for me to conclude, I think, on the basis of his frank admission regarding Mr Woolley, that on a balance of probabilities Mr Van Der Ploeg, in similar fashion, most likely did not ask Ms Monks about the sexual harassment allegation or give her an opportunity to respond to or seek advice about the allegation. In the circumstances I find that, to the extent the Company relied on the allegation of sexual harassment as a ground for dismissing both Woolley and Monks, it acted unfairly in that it did not give them an opportunity to defend themselves against the allegation. In summary and for all the above reasons, I find that the Company's dismissal of Woolley and Monks was unfair. Further Proceedings It was common ground between Mr Chopping, Mr Flanagan and Mr Geason that, should I find against the Company, there would be an opportunity for the parties to address the Commission on the question of remedy. For that reason my Associate, Mrs J Gillie, will be in touch with the parties in due course to arrange a mutually agreeable continuation date.
B R Johnson Appearances: Date and Place of Hearing: 1 The area in which curing of fish fillets occurs. |