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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 application for hearing of industrial dispute
Construction, Forestry, Mining and Energy Union,
Tasmanian Branch
(T9197 of 2000)
and
Pasminco Australia Limited
trading as Pasminco Hobart Smelter
| COMMISSIONER T J ABEY |
HOBART, 3 November 2000 |
Industrial dispute - termination - procedural unfairness - to be reconvened for remedy
REASONS FOR DECISION
On 13 September 2000, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Pasminco Australia Limited trading as Pasminco Hobart Smelter (the employer) arising out of the termination of Mr Gene Storey.
On 19 September 2000, the A/President convened a hearing before myself at "Lyndhurst", 448 Elizabeth Street, North Hobart to commence at 2.30pm on Thursday 28 September 2000.
When the matter first came on for hearing on 28 September 2000 Mr A Benson and Mr M Reeves appeared for the applicant. The employer was represented by Mr W Fitzgerald, of the Australian Mines and Metals Association Inc., together with Mr A Hill, Mr M Broad and Mrs S Gorringe.
Following preliminary submissions the matter was adjourned into private conference, with the Commission, in an attempt to find a resolution to the dispute. This proved to be unsuccessful and the application was listed for hearing on 16 October 2000.
Upon resumption, Mr P Harris, a solicitor, sought leave to appear for the applicant. Ms S Zeitz sought leave to appear for the employer. Leave was granted in both cases.
Background
Mr Storey had been employed by Pasminco for 13 years and 7 months. At all material times Mr Storey was employed as shift operator in Casting Division.
On 18 December 1999 an incident occurred which resulted in a lower back injury to Mr Storey.
On 4 January 2000 Mr Storey consulted his General Practitioner, Dr Andrew Stone. Dr Stone's diagnosis was "chronic strain injury".
Over the ensuing months Mr Storey attended Dr Stone on a regular basis. For most of calendar 2000 Dr Stone issued workers' compensation certificates specifying that Mr Storey was partially incapacitated for work. Initially the certificates restricted Mr Storey to six hours per day and with a 7kg lifting limit. Later the lifting limit appeared to have been removed, the hours extended to eight per day and a rehabilitation program implemented.
During May 2000 the employer, apparently frustrated with the lack of progress on the rehabilitation program, commissioned external surveillance of Mr Storey. This included video surveillance.
On 22 August 2000 Mr Storey presented to Dr Stone complaining of an increase in lower back pain. Dr Stone issued a "total incapacity" certificate for 22 and 23 August. Following further consultations, similar certificates were issued for the periods 25 to 29 August and 30 to 31 August 2000. According to Dr Stone, Mr Storey said he aggravated his back by lifting 30kg slabs of zinc at Pasminco.
On 1 September Dr Stone certified Mr Storey as fit for modified duties from 1 September to 11 September 2000 on restricted hours and a lifting restriction.
It is apparent that the employer reinstated the external surveillance of Mr Storey between 25 August and 4 September 2000.
Mr Storey had been issued with a final written warning on 2 October 19981. Apparently it is Company policy that final warnings "expire" after two years. A number of counselling sessions, not all negative, had taken place subsequently.
Meetings involving Mr Storey, his union representatives and Company officials took place on 6 September, 8 September and 12 September 2000. The main issues discussed in these meetings related to allegations by the employer that Mr Storey had engaged in activities inconsistent with a "total incapacity for work" certificate, and that he had failed to answer honestly questions put to him in relation to such activities.
On 12 September 2000 Mr Storey was summarily dismissed for misconduct. This was confirmed by letter of same date in the following terms:2
"This letter serves to record the outcome of the interview conducted on Tuesday the 12th September 2000 between yourself and Andrew Hill (Human Resources Superintendent), Martin Broad (Senior Claims Advisor), and Tony Benson (CFMEU) relating to your fundamental breach of your employment relationship.
At this interview you were summarily dismissed, effective from the 12th September 2000. Two matters were raised with you although either matter would have resulted in your employment being summarily terminated. You were provided with an opportunity to provide an explanation in the presence of your union representative. The two matters raised with you were:
1. Failing to honestly answer questions put in relation to activities performed by you. These matters have been fully canvassed at meetings on 6th September, 8th September and 12th September at which times you had the opportunity to provide an explanation in the presence of your union representative.
2. Continuing to pursue a workers compensation claim for total incapacity and claim payment at a time where our independent evidence indicates a capacity to work. On the basis of the information obtained by the company, the pursuit of your claim was at best a breach of your employment relationship and at worst, misrepresentation.
Because you have been summarily dismissed effective from the 12th September 2000 you will be paid salary up to and including the 12th September, and accrued annual leave entitlements as at that date. All monies will be credited to your bank account, and advice forwarded to you indicating the amounts.
We will advise your superannuation fund of your termination. They will contact you directly."
The applicant contends that the employer's decision to terminate was seriously flawed and sought reinstatement or, in the alternative, significant compensation as the remedy.
The Evidence
The Commission was provided with extensive evidence from the following witnesses:
- Mr Gene Storey
- Mr Marshall Reeves, Honorary Organiser, CFMEU
- Mr Anthony Benson, State Secretary, CFMEU
- Dr Andrew Stone
- Mr Andrew Hill, Human Resources Superintendent, Pasminco
- Mr Martin Broad, Senior Claims Adviser, Pasminco
Some 25 documents were submitted into evidence and extracts from the video surveillance was shown to the Commission.
All of this material has been reviewed by the Commission. However rather than attempting to summarise the witness evidence I have chosen to identify what I consider to be the critical issues, and applied the evidence to these issues.
It is clear from the evidence of Mr Hill and the termination letter of 12 September 2000 that there were two matters raised with Mr Storey, either of which would have resulted in summary termination. I have therefore chosen to deal with each issue separately.
I was informed that Pasminco issues to all new employees on commencement a document which states in part as follows:
"Breaches of discipline warranting summary dismissal
In extreme circumstances the company may be compelled to exercise its award right to dismiss an employee without notice."
The issue for the Commission is whether those "extreme circumstances" existed in this case.
The Workers' Compensation issue
On this issue the employer contends that Mr Storey continued to pursue a workers' compensation claim for total incapacity at a time when independent evidence indicated a capacity to work.
At the heart of this issue is the video surveillance evidence. The Commission was shown two segments from these tapes. The first segment, approximately eight minutes long, showed Mr Storey, along with his brother, unloading firewood from the back of a utility. It was this activity which the employer asserts was inconsistent with a workers' compensation certificate for total incapacity. The employer had made assertions as to a range of other activities identified through the surveillance process. In the main these other activities were not contested by Mr Storey. This, coupled with the fact that Mr Broad identified the wood unloading incident as showing the [offending] "activity at its highest level"3, has led me to concentrate on this aspect.
Separate to these proceedings the Company has taken steps to dispute Mr Storey's workers' compensation claim before the Workers Rehabilitation and Compensation Tribunal. That Tribunal will, I am advised, determine the issue largely on medical grounds. This Commission is, of course, not competent to make a medical finding. The task for me is to assess whether the decision to summarily terminate Mr Storey was in all the circumstances reasonably open to the employer.
The utility incident clearly showed Mr Storey lifting logs of wood out of the tray of the vehicle. Under cross-examination Mr Storey agreed that the weight of the logs would have been similar to the 7kg slabs of zinc he was required to stack at Pasminco4. Mr Storey's activity was limited to unloading. It was apparent that his brother did the splitting.
On the basis of this evidence it was certainly reasonable for the management to have suspicions about the veracity of the total incapacity certificate and to institute the process that followed.
There can be no doubt that at the meeting on 6 September Mr Storey was given the opportunity for representation and to put forward his explanation of events.
Mr Storey's explanation can be summarised as follows:
-
The activities captured on the video tape were in his view less onerous and for a significantly lesser duration than would be required if he was at work.
-
He was using strong pain killing medication, namely Panadeine Forte and Celebrex. Mr Storey's evidence was that he didn't take medication whilst at work because he believed that was advisable whilst working with machinery. Further, his dosage had been doubled just prior to the wood unloading incident. It is common ground that Mr Storey said to Messrs Hill and Broad "... if I take tablets, the pain goes away ...".5
It was at this meeting on 6 September that Mr Storey's union representative, Marshall Reeves, requested that the video evidence be shown to Dr Stone. It is fair to say that the Company representatives questioned the relevance of this request and made it clear that the Company was not seeking a report from Dr Stone. Nonetheless, the evidence is that the Company co-operated with this request, albeit probably with some reluctance.
I do have some lingering concerns as to what may have been the mind-set of the Company representatives going into the meeting of 6 September. The evidence is that Mr Broad had prepared prior to the meeting what he described as a "prompt sheet".6 Whilst this is not unusual and indeed probably desirable, some of the references were unusual to say the least. I refer in particular to the following:
"Don't accept answer, nothing changes our position that this is a definite deliberate step to defraud the Company."
and
"Accept no excuses or reasoning."
Under cross-examination Mr Broad said: 7
"It's only a prompt sheet. It's not a cut and dried specific script that one has to follow, it's just a prompt sheet."
In addressing this issue during final submissions, Ms Zeitz said:8
"In those circumstances, had there been a foregone conclusion, Mr Storey's employment, clearly, would not have survived that first meeting. In fact, not only did it survive that meeting - it had survived a further meeting and further discussion."
I acknowledge this submission, but do observe in passing that Mr Broad did raise the possibility of a "settlement" during that first meeting on 6 September9.
Following a further meeting on 8 September arrangements were made for Dr Stone to view the video evidence. This took place on Monday 11 September in the presence of Mr Storey, Mr Reeves and Mr Broad.
Mr Storey was dismissed at a meeting on the morning of 12 September. The report from Dr Stone was not available at the time of the meeting but was expected to be available later that day. According to the evidence of Mr Benson, he told Mr Hill that the actions of the Company were "... very pre-emptive given that the medical report wasn't yet available until later on that afternoon"10.
I agree with Mr Benson. Right from the first meeting on 6 September, the report from Dr Stone was the key plank in Mr Storey's defence. It should have at least been considered by the Company. Indeed, under cross-examination, Mr Hill conceded that dismissal on this ground "... may well have been premature".11
Dr Stone's report was subsequently provided in the form of a letter to Mr Broad dated 12 September 2000. It read as follows:12
"This letter is in response to video footage of Mr Gene Story taken between the dates 27th August and 31st August 2000 inclusive.
Over this period of time Mr Story was seen walking about, in a motor vehicle, lifting wood off the back of a ute (for a short period of time), helping build a gate, going to a medical appointment and walking about behind a tall fence and trees.
Mr Story was seen on the 25th August 2000 and certified as totally unfit for work for the period 25th August to 29th August 2000. This was attributed to an exacerbation of his lower back pain after lifting 30kg slabs of zinc at work.
He was again seen on the 30th August 2000 and issued another certificate for 30th August to 31st August 2000 inclusive.
It was around this time that his dose of Celebrex was increased to two capsules daily (from one). Also as he was not at work he was able to take Panadeine Forte (which he would not normally take at work). The combination of these two medications may have symptomatically improved his back sufficiently to undertake those activities.
In summary due to an increase in medication and the ability to take Panadeine Forte (which Mr Story was reluctant to take at work), I consider the activities as seen in the video are not inconsistent with Mr Story's ongoing back condition."
In his evidence Dr Stone confirmed this opinion and added the following:13
"As he was not working he also was taking Panadeine Forte (which he would not normally take at work because of the possibility of dizziness or drowsiness). The combination of these medications may have symptomatically improved his back sufficiently to undertake those activities.
I note that the activities were for a short period of time only.
When I saw Gene and certified him totally incapacitated I did not specify what activities he was not to perform. With chronic back injuries such as Gene's, it is usual not to tell patients to lie in bed as this rarely improves the symptoms.
After watching the video surveillance tape I maintain my opinion that Gene was totally incapacitated for work between 22 August 2000 and 31 August 2000 inclusive."
Of course the Company was under no obligation to slavishly accept the report of Dr Stone. However, to dismiss it, sight unseen, and not seek any alternative medical evidence prior to effecting the summary dismissal of Mr Storey was, in my view, procedurally unfair and I find accordingly.
I also consider that there was an element of procedural unfairness in the conceded absence of any investigation into the impact of the medication that Mr Storey was taking.14 In part this relates to the report from Dr Stone but it was of course open to the Company to undertake its own investigation and, I believe, they should have.
Alleged failure to honestly answer questions
This ground goes to the contention by the Company that Mr Storey failed to honestly answer questions put in relation to activities performed by Mr Storey and captured on the video evidence. Specifically this related to the activity of unloading firewood from the utility. In his evidence Mr Hill indicated that, whilst both grounds stood alone, a greater emphasis attached to this issue.
Reduced to its essentials this aspect turns on whether Mr Storey knowingly and/or deliberately misrepresented himself to the Company as to the manner in which he removed the firewood from the tray of the vehicle.
As so much turns on this issue I have attempted to bring together the relevant evidence of each of the participants in the meetings of 6, 8 and 12 September 2000. With one exception I have not included evidence from cross-examination in that it did not materially alter evidence from the examination-in-chief. The one exception {Mr Reeves 8/9/2000] did not modify his evidence but did provide additional clarification.
Meeting of 6 September 2000
Present: G Storey, M Reeves, A Hill, M Broad
Evidence of G Storey - XN
Transcript page 22 (15)
"Now what else was raised with you at that meeting?............ Whether I'd lifted or slid wood off the back of my ute.
What did you say?............ I was unsure."
Transcript page 23 (10)
"Now you've stated that you were asked about whether you lifted wood or rolled wood and your response is that you're unsure?............ That's correct.
Even though you stated you were unsure, what did you think you'd done?............ I think I'd lifted it or slid. I was unsure."
Evidence of M Reeves - XN
Transcript page 62 (30-35)
"Did Martin Broad indicate what they had observed Gene doing while he was under surveillance?............ Martin said there was a range of activities that they had from the surveillance which was cutting wood, lifting large logs, cement mixer, something to do with a roof.
What were Gene's comments regarding these activities?............ He didn't deny any of the activities but he was vague about them.
Do you know what he was vague about? Was it all of it or any particular activity?............ The meeting started to get hung up about the wood from the ute.
What was the issue there?............ Whether he lifted logs, large logs, from the ute or how he removed them, slid, rolled.
From your recollection, what was Gene's response?............ He wasn't sure."
Evidence of A Hill - XN
Transcript page 102 (15-20)
"Did you elaborate on what independent evidence there was?............ Mr Broad did. So he talked about a capacity for work, it was far in excess of his stated incapacity - activities including cutting and carting wood, lifting and carrying wood. I note in my notes about working on the roof, a cement mixer and vehicle work.
What was Mr Storey's response?............ Mr Storey responded that it was not heavy work, it was lighter. He then indicated he didn't carry the large logs off the ute, he pulled them off the ute and he in fact indicated at that time with his hands sort of horizontally; he was sitting and he motioned how he'd done it."
Transcript page102 (40)
"Did you intervene at that point?............ I did at that point. I actually went back to the issue. I asked Mr Storey whether, in fact, he was carrying the logs off the ute or he was pulling them. Mr Storey replied, I pulled them off, I think, and then said, I can't remember."
Evidence of M Broad - XN
Transcript page 131 (20)
"And did he respond to that at all at that point?............ No. Apart from I did make mention of the activities that he had been involved in which had included lifting logs from the back of a ute and I believe after that Gene said that he didn't actually lift them, he rolled them off the back of the ute and he made a motion that he just rolled the logs off and didn't actually lift the logs."
Transcript page 132 (10)
"What happened then in the meeting?............ I believe we had a break and we had further discussion surrounding the issues. I think Andrew had asked specifically of Gene whether he had actually lifted or pulled the logs off. Initially he had said pulled and then he said he wasn't sure, the second time he was asked, ..."
The one fact which was agreed by all is that when asked a second time as to how the logs were removed, Mr Storey said he was unsure. Having established that, it is not entirely clear to me why the Company continued to pursue this issue at the next meeting.
Meeting of 8 September 2000
Present: G Storey, M Reeves, A Hill, M Broad
Evidence of G Storey - XN
"And at that second meeting, did Andrew Hill ask you anything regarding the wood that you'd unloaded while you'd been off work?............ I think he asked me if I lifted or slid the wood.
Can you recall your response?............ I wasn't sure.
Did you believe though that you'd slid the wood or lifted the wood?............ I wasn't sure."
Evidence of M Reeves- XN
"Did Andrew Hill make any comments regarding whether Gene had lifted or slid the logs again from the ute?............ Yes. He requestioned Gene about sliding versus lifting.
Can you recall Gene's response?............ Still unclear, but shrugged his shoulders, sliding, lifting, not sure."
Evidence of M Reeves - XXN
"Did Mr Hill raise the issue then of the logs being lifted off the ute or slid off the ute?............ Yes. He intervened and requestioned about lifting versus sliding.
Do you remember what Mr Storey said?............ He still maintained he was sliding but unclear about it.
What were his exact words?............ His body language - I think I was sliding.
That was his body language. What were his words?............ I think I was sliding, I'm unclear about it.
Were they, I think I was sliding, or were they, I think I was sliding but I'm unclear about it?............ I think I was sliding them but I'm unclear about it.
Do you remember him saying something like, I didn't lift the logs off the ute and being quite adamant about it?............ No, he never denied lifting.
Do you remember Mr Hill asking him, you're now saying you didn't lift the logs off the ute?............ Yes.
What was his response?............ I don't think I did.
You don't remember him saying, yes, that's right?............ No.
Did you regard that as a very significant issue, given the company was still pursuing it?............ I was puzzled why we were getting hung up on this sliding versus lifting.
You'd seen the video the day before. You knew he'd been lifting. Why were you puzzled?............ Because if Gene wanted to be dishonest - I'd told him I'd seen the video and he was lifting it."
Evidence of A Hill - XN
"Did you become involved in the process at that stage?............ At that stage, I actually then asked Mr Storey again about lifting the logs off the ute or sliding the logs off the ute. His response was, I didn't lift the logs off the ute. I then said to him, you're now saying you didn't lift the logs off the ute. He said, yes, that's right."
Evidence of M Broad - XN
"Andrew Hill specifically asked Gene Storey again whether he had actually lifted or pulled the logs off, rolled the logs off the back of the vehicle -the ute - to which Gene replied that he had just pulled them off, he hadn't lifted them. Andrew asked him asked a second time if he had actually pulled the logs or lifted the logs and again he confirmed that he pulled the logs of the back of the vehicle."
"So am I right in understanding that Mr Hill's involvement was intended as basically a record keeper?............ That's correct, yes.
And did his role change at all in the process?............ It did. It did.
When was that?............ When Andrew Hill had spoken with Gene and asked him twice the specific question about whether he'd actually lifted or pulled the logs off of the ute and on two occasions Gene had said that he had definitely not lifted, he had pulled those, that was when Andrew's involvement became more prominent and I guess it moved more into the industrial relations area rather than the workers' comp area."
It is at this meeting that the conflict in evidence emerges.
Mr Hill took quite comprehensive and contemporaneous notes of the meeting and his evidence is persuasive. Mr Reeves was equally impressive as a witness and no aspect of his evidence was seriously shaken. It comes down to a question of whether or not at some stage during the 8 September meeting Mr Storey indicated that he was unsure as to how the wood was removed [as he had two days earlier] or whether he categorically denied lifting the wood without offering an alternative.
The evidence of the meeting on 12 September is included for completeness. In reality the die had effectively been cast at the 8 September meeting.
Evidence of G Storey - XN
Transcript page 26 (20)
"At that meeting, what was discussed?............ My termination.
You were terminated at that meeting?............ As I recall, yes.
What were the reasons given to you for the termination?............ Lying. They insinuated that I'd lied.
Transcript page 26 (30)
"Now at that last meeting, you said that you were terminated for lying - did Tony Benson ask you any questions with respect to whether you'd lied or not?............ He asked me whether I'd intentionally lied, and I said, no, I had no intention of lying to anybody.
Is that correct? Did you have any intention of lying to anybody?............ No, I had no intention of lying to anybody. It was to no advantage to me to lie to anybody."
Evidence of A Benson - XN
Transcript page 77 (30) through to page 78 (0 - 5)
"Was it suggested by Andrew Hill that there were two issues involved?............ It was, yes.
Can you recall what those two issues were?............ Workers' compensation and contract of employment.
Was it mentioned about Gene Storey lying regarding lifting or rolling logs?............ Never mentioned about rolling logs but Andrew was quite adamant that Gene had lied.
What was Gene's response?......... I spoke to Andrew in relation to the briefing that Marshall had given him, about Gene being confused. I asked Andrew what notes he had in relation to that matter and Andrew had stated in his notes that Gene had stated he lifted, Gene had stated he had slid logs and then Gene stated, he was confused. It confirmed my opinion, that Gene was absolutely confused.
Did you specifically put anything to Gene regarding this?............ I did ask him, had he deliberately lied and he said, no, he hadn't lied at all. I asked Andrew would he make a note of that response."
Evidence of A Hill - XN
Transcript page 107 (40) through to page 108 (0 - 25)
"... I indicated that the circumstances surrounding your serious misconduct are to be investigated. Mr Storey had the opportunity to provide an explanation in the presence of his union rep. The question put to him was that he'd been observed carrying out activities that were contrary to his capacity to work. We had independent evidence to substantiate this, i.e. repeated cutting and carting wood, lifting and carrying wood, working on the roof, the cement mixer and the vehicle work. He was asked what his response was. His responses were, he didn't lift the logs off the ute, he rolled the wood off. He then mentioned how he did it. I then reiterated and I read the questions that were asked of Mr Storey on both 6 September and 8 September and indicated to him that he categorically stated that he didn't lift the logs off.
Did he respond to that?............ I then indicated that we believed Mr Storey may have breached his contract of employment. He had a duty to be honest. By lying about activities engaged in and the consequence of the seriousness of his misconduct, we may have the right to terminate his employment. Mr Benson indicated he wasn't supportive of this. I then asked Mr Storey if he had anything further to add and he replied, no.
At that point, did Mr Storey make any further comment about his explanation for, or his version of what had been said?............ No. Mr Storey didn't make any further comment for the rest of that meeting.
What then happened?............ Mr Benson asked Mr Storey, and he, in fact, quite specifically asked me to note this question - he asked Mr Storey - was it your intention to lie, to which Mr Storey replied, no.
When Mr Benson asked you to note the question, what did you do?............ I noted it."
Evidence of M Broad - XN
Transcript page 135 (15-25)
"And what happened in that meeting?............ It was run more by Andrew Hill than myself at that stage at which time that Andrew advised that Gene's employment would be terminated on the grounds of, I think, misconduct for misrepresenting himself to his employer. If I'm correct that was the meeting in which Tony Benson then took over the proceedings on behalf of the union because it started off on the wrong foot because the arrangements had been misconstrued between Gene Storey and Marshall Reeves and Tony Benson, so Tony was waiting in one place and Gene was in another place, but he came in. It was a very aggressive meeting right from the outset and it didn't last an awful long time."
I turn now to an assessment of the evidence.
Ms Zeitz contended that the evidence of Mr Storey was unreliable in that his memory was selective and he was evasive in cross-examination.
My own conclusion is that Mr Storey suffers from an extremely poor memory fullstop. An analysis of the transcript reveals that on more than 50 occasions, evenly spread between examination-in-chief and cross-examination, Mr Storey was unsure of or could not recall fairly straightforward facts and events. I cannot however conclude that his memory was selective. There were many occasions whereby Mr Storey could not recall matters which were either helpful, or at worst, neutral to his position.
Mr Storey is also apparently open to suggestion. For example, under re-examination he agreed that the final warning issue was probably raised by the Company at the 8 September meeting when it plainly was not.
Ms Zeitz invited me to conclude that, based on discrepancies relating to the reporting of the December 1999 incident, Mr Storey had been less than honest with his treating doctor. I have examined the evidence of both Mr Storey and Dr Stone and compared this with the "Incident Notification"15. In each case the cause of the accident is the same, namely striking his buttock on an obsolete steel pole. Any uncertainties relate to whether Mr Storey slipped or turned suddenly, or whether any stairs were involved. On the basis of this evidence I am not prepared to conclude that Mr Storey was dishonest with his treating doctor.
When dealing with evidence based on an individual's recollection of events there must be a sense of realism as to the level of precision we can reasonably expect. Not surprisingly in a case of this nature, there was a number of inconsistencies, omissions and contradictions in the totality of the evidence. I instance the following examples:
-
It was put to Mr Storey that he had been observed cutting wood when, it transpires, there was simply no evidence of such activity.
-
Mr Broad said that he did not believe he had raised the possibility of a settlement during the 6 September meeting16 when there is no doubt it was.
-
Similarly, the notes of Mr Hill, comprehensive as they were, did not mention the possibility of settlement referred to above.
-
The surveillance agent reported that Mr Storey's house roof had been painted a mist green colour since last attendance17. This was flatly denied by Mr Storey and not pursued by Ms Zeitz18.
The above examples are in no way a reflection on the integrity of the witnesses and nor do they cause me any concern. They simply serve to remind us that we are dealing with human frailties, and the very most we can expect is an individual's best recollection, honestly given.
An important part of the evidence is the fact that Mr Reeves viewed the video on the afternoon of 6 September. His evidence was that, prior to the 8 September meeting, he in fact told Mr Storey that he was lifting the firewood19. In the light of this knowledge it would in my view be fatal to Mr Storey's position if he offered a blanket denial when the question was put to him. He had been equivocal on the issue two days earlier and, in the light of the information provided by his own representative, there is simply no logical motivation as to why Mr Storey would categorically deny lifting the logs without offering at least a suggestion that he was unsure.
I accept the relevance of the final warning and subsequent counselling sessions notwithstanding that they were not raised in any of the meetings. They do point to a recent employment history which is not particularly impressive. In the circumstances I am surprised that Mr Storey did not conduct his defence, in what was clearly a serious situation, in a more forthright manner than apparently was the case.
Be that as it may, the issue for the Commission is whether Mr Storey has done anything which strikes at the heart of the employment contract and as such constitutes serious misconduct.
I have reached the conclusion that Mr Storey may well have unwittingly misled his employer, but I am unable to find that he deliberately and knowingly acted in a dishonest manner.
Conclusion
It follows that I find, in relation to both grounds set out in the letter of 12 September 2000, the summary termination of Mr Storey was unfair.
In a supplementary written submission dated 25 October 2000, Ms Zeitz urged that, should I find that the dismissal was unfair, the hearing should be reconvened for further evidence and submissions. I agree that such a course of action is appropriate.
As a consequence, this hearing will be reconvened in the near future to hear evidence and submissions on the issue of remedy alone. The parties will be contacted to arrange a convenient date.
Tim Abey
COMMISSIONER
Appearances:
Mr A Benson, Mr M Reeves and Mr P Harris, legal practitioner, for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch.
Mr W Fitzgerald of the Australian Mines and Metals Association Inc. and Ms S Zeitz, legal practitioner, with Mr A Hill, Mr M Broad and Mrs S Gorringe for Pasminco Australia Limited trading as Pasminco Hobart Smelter
Date and Place of Hearing:
2000
September 28
October 16, 17
Hobart
1 Exhibit P1
2 Exhibit P8
3 Transcript p. 132
4 Transcript p. 44
5 Transcript p. 102
6 Exhibit P11
7 Transcript p. 138
8 Transcript p. 155
9 Transcript p. 155
10 Transcript p. 80
11 Transcript p. 116
12 Exhibit A12
13 Exhibit A11
14 Transcript p. 116
15 Exhibit P9
16 Transcript p. 147
17 Exhibit P10, p. 10
18 Transcript p. 52
19 Transcript p. 74 | 
