DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ian Law
v
Groote Eylandt Mining Company Pty Ltd T/A GEMCO
(U2017/7539)

Application for an unfair dismissal remedy – Allegations of misconduct –Standard of proof – Circumstantial evidence – Finding of facts based on inference in civil cases – Failure of Applicant to provide explanation for Company property found in bag – Various explanations advanced by Applicant improbable – More probable than not that Applicant placed company property in his bag – Dismissal not unfair – Application dismissed.

[1] Mr Ian Law applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Groote Eylandt Mining Company Pty Ltd T/A GEMCO. Mr Law is a qualified fitter and auto-electrician and was employed by GEMCO as a Technician Maintenance Fitter from 18 November 2011 until his dismissal on 28 June 2017.

[2] GEMCO operates a manganese mine on Groote Eylandt in the Northern Territory. Mr Law was employed on a fly in fly out (FIFO) basis working a roster with seven days on followed by seven days off. Mr Law was dismissed for theft of Company property following the discovery of a number of items in a Puma sports bag which Mr Law had checked in for a flight from Groote Eylandt to Cairns on 16 May 2017 – specifically two 10 watt LED spotlights; two down lights for a range hood; a bag of PVC conduit fittings and a GEMCO towel said to have a combined value of between $674 - $687, which GEMCO asserts are the property of the Company.

[3] Mr Law maintains that he is not guilty of theft and did not place the items into his bag. Mr Law asserts that the items were placed into his bag by a person or persons unknown either by mistake or deliberately. Mr Law also maintains that items of his property are missing from the bag and have not been returned to him. Further, Mr Law asserts that GEMCO cannot prove that the items are Company property in any event. It was also asserted on behalf of Mr Law that the evidence about the contents of his bag was unlawfully and improperly obtained. Mr Law’s representative contended that the Commission should hear the evidence, allow witnesses who gave that evidence to be cross-examined and then decide whether to exclude it.

[4] I determined that it was not appropriate to deal with the question of whether the evidence should be excluded in the manner proposed by Mr Law’s representative and that I would determine whether the evidence should be admitted in the usual manner, by hearing argument prior to the witnesses giving evidence. After hearing submissions from the parties in relation to this issue, I decided that the evidence would not be excluded and informed the parties that I would give reasons for this in my Decision in relation to the application.

[5] Mr Law’s application was made within the time required in s. 394(2) of the Act. It is not in dispute that Mr Law is a person protected from unfair dismissal as defined in s.382 of the Act. GEMCO is not a small business and the dismissal was not a case of redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course taking into account the views of the parties. Both parties sought to be represented by lawyers. Permission was granted on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently, no issues of fairness arose and the seriousness of the allegations made the matter of sufficient complexity to warrant the grant of permission.

[6] Mr Law gave evidence on his own behalf. 1 Evidence for GEMCO was given by:

● Jennifer Ann Isaac, Travel and Accommodation Supervisor;  2 and

● Robert Edward Hill, Fixed Plant Maintenance Supervisor. 3

LEGISLATION

[7] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[8] The employer bears the onus of establishing that there was a valid reason for a dismissal.⁴ A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”⁵ The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,⁶ and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.⁷

[9] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry that the employee was guilty of the conduct.

[10] Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. 8 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.

[11] Mr Law was dismissed as a result of GEMCO finding that he had engaged in theft. Generally, such an allegation, if proven, will be a valid reason for dismissal. In determining whether Mr Law did engage in the conduct alleged and whether there was a valid reason for his dismissal, the standard of proof is the balance of probabilities. Given the seriousness of the allegations, the principle in Briginshaw v Briginshaw is relevant. 9 This principle means that whilst the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct occurred and “should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”10

[12] A more recent consideration of the principle in Briginshaw is found in the High Court Decision in Neat Holdings v Karajan 11 where it was held that statements to the effect that clear or cogent or strict proof is necessary where a question of whether a person in civil proceedings has engaged in theft or fraud is to be determined, should not be understood as directed to the standard of proof. Rather such statements should be understood as: “…merely reflecting a conventional perception that members of our society do not ordinarily engage in criminal or fraudulent conduct.”12 The Court went on to observe that:

“When an issue falls for determination on the balance of probabilities and the determination depends on the choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but on an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately however it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” 13

[13] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable.  A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 14

EVIDENCE

[14] According to the uncontested evidence of Ms Isaac, GEMCO provides private charter flights from Cairns and Darwin to Groote Eyelandt each week. The majority of FIFO employees travel on Tuesday. On Tuesday there are generally five charter flights in total – two in the morning and three in the afternoon. There is also a charter flight on Mondays and Thursdays each week to accommodate some employees rostered on a four days on three days off roster. Approximately 500 FIFO employees arrive at Groote Eylandt each week and 500 depart. Alliance Airlines is the contracting company for all Monday and Tuesday flights to and from Cairns.

[15] On Tuesday 6 May 2017, Mr Law had completed his shift at 5.45 pm and was preparing to depart from Groote Eylandt for his seven days off. Mr Law’s evidence is that he went to the Mine Site Male change rooms taking with him two bags – a backpack and a black Puma sports bag. Mr Law placed the bags on a bench in front of his locker, which is labelled with his name. Mr Law changed from his work clothes into casual attire, which he removed from the black Puma bag. Mr Law also took from the black Puma bag a toiletry bag and a burgundy coloured towel. Mr Law then folded his work clothes and put them back into the Puma bag and placed his work boots on top of his locker. Mr Law then took his toiletry bag and the burgundy towel to the shower section of the change room where he washed his face, chest and hands in a basin as he did not have time to shower.

[16] When he finished washing, Mr Law returned to the bench where his bags were located and placed the toiletry bag and burgundy towel back into the black Puma bag and zipped it up. Mr Law then rushed to the nearest toilet in another section of the change rooms whereupon he suffered an attack of diarrhoea, causing him to remain in a toilet cubicle for fifteen to twenty minutes. Mr Law noted other males in this section of the change rooms before he went to the toilet, but could not identify them. According to Mr Law, before he zipped the Puma bag and went to the toilet, the bag contained the following items:

•  A wet burgundy towel the personal property of Mr Law;

•  A black zipped toiletry bag with white stitching containing soap, toothpaste, a tooth brush, a disposable razor, contact lenses in a left and right lens container and an old army stainless steel shaving mirror;

•  One yellow GEMCO work shirt;

•  One pair of work pants;

•  Two pairs of socks;

•  Five pairs of underpants;

•  One belt.

[17] Mr Law said that he did not check the Puma bag again once he returned from the toilet and took that bag and his back pack and proceeded to the Mine site office to await transport to the Groote Eylandt Airport. At approximately 6.30 pm Mr Law checked in the Puma bag for a flight designated the PM1 Flight from Groote Eyelandt to Cairns. The process of checking in Mr Law’s bag involved placing it on a weighing scale at a check in counter and Mr Law being issued with a ticket and baggage receipt. The airport does not have a security scanner for bags but Mr Law recalls that bags have been searched in the past. When Mr Law arrived in Cairns he could not locate the Puma bag in the luggage from the PM1 flight. On approaching an Alliance staff member, Mr Law was told that his bag might be on the PM2 flight which was late. The Alliance staff member took Mr Law’s ticket details and home address and told him that his bag would be delivered once it was found.

[18] On Wednesday 17 May 2017 Mr Law received a phone call from an Alliance employee informing him that if he needed the bag it could be placed on a flight on 19 May 2017. Mr Law states that he advised the Alliance employee that he did not need the bag and would be happy to pick it up on his return to work. During a further phone call Mr Law was advised by an Alliance employee that his bag would be on the flight on 19 May 2017.

[19] On Thursday 18 May 2017 Mr Law received a phone call from Mr Robert Hill who advised that his Puma bag had been opened for identification and found to contain electrical fittings, conduit, and spotlights. Mr Hill asked Mr Law whether the items were his and Mr Law responded saying they were not, and he did not know why they were in his bag. Later that day Mr Hill again called Mr Law and told him that a decision had been made to stand him down while an investigation was carried out. Mr Law states that he is not aware of any policy that GEMCO has in relation to bag searches and did not consent to anyone from either the Company or the Airline to open his Puma bag.

[20] On Friday 19 May 2017 Mr Law received an email attaching a letter headed “Notice of Investigation”. The letter states that the Company has commenced an investigation into Mr Law’s conduct on 16 May 2017 when he checked in luggage for the PM1 charter flight from Groote Eylandt to Darwin and due to a flight delay and a subsequent issue resulting in Mr Law’s luggage remaining on Eylandt, GEMCO property had been identified in Mr Law’s luggage. The letter advises of a meeting to be held in Cairns on 23 May 2017 to provide Mr Law with an opportunity to respond, and invites Mr Law to have a support person present. 15 Mr Hill pointed out that the letter incorrectly stated that he was on a flight to Darwin and he was in fact on a flight to Cairns.

[21] Mr Hill attended the meeting on 23 May 2017 but his support person Mr Messenger attended by telephone due to a delay to his flight from Gove. Mr Law said that during the meeting on 23 May 2017 Mr Hill showed him some photographs of the items found in the bag, but these were not all of the photographs in Mr Hill’s possession. Mr Law stated to Mr Hill that the purple towel shown in several of the photographs was not the towel that he had used and placed into the Puma bag on Tuesday 16 May 2017. When Mr Hill showed Mr Law the photographs of the electrical items, he told Mr Law that the Company believed that the items were taken from an electrical store at Non-Process Infrastructure (NPI) also referred to as the ABM shed. Mr Law responded by stating that he had not taken the items nor had he placed them in his bag and that he had no use for the items. Mr Law also stated that he had never been inside a building or structure at NPI that was an electrical store and did not even know that there was an electrical store at NPI until Mr Hill told him. Mr Law said that at no time during the meeting was he provided with access to his Puma bag, the items he allegedly stole and the balance of the contents of the bag. Mr Law recalls that he read out the following statement at the meeting:

“I have been employed by GEMCO full time, this year is my 5th. During this time I have filled positions of Shut Area Supervisor, Leading Hand Fixed Plant and Acting Supervisor for 12 months. GEMCO has trusted me to fill these positions and I have not let us down. I use the Code of Conduct to guide my decisions, I am aware of bag checks in place: and I would not jeopardise my position or my livelihood.”

[22] Mr Law was contacted after the meeting and asked by a Company representative whether his work lockers could be accessed and consented to that request. Mr Law said that he did so notwithstanding that he is not aware of any policy GEMCO has in relation to searching lockers.

[23] At some time after the meeting on 23 May 2017, Mr Hill provided Mr Messenger with an email from Ms Isaac which appears to have been sent to Mr Hill on 18 May 2017, setting out how Ms Isaac dealt with the Puma bag. Mr Law complains that he was not shown the email and it was not discussed at the meeting of 23 May 2017. Ms Isaac’s email was provided to Mr Law by Mr Messenger. The email headed “Statement about possible theft” was tendered by Mr Law and states:

•  Alliance paperwork shows that Mr Law checked into the PM1 Charter flight from Groote Eylandt to Cairns on 16 May 2017;

•  Mr Law checked in one undercarriage bag weighing 5 kg and these numbers are always rounded;

•  Alliance baggage handlers took the bag from Mr Law and accidentally loaded it onto the baggage trolley for the PM2 flight;

•  Mr Law boarded the PM1 flight but his bag remained at the Airport;

•  The PM2 flight struck a bat on entry to Groote Eyelandt and Mr Law’s bag remained on the PM2 trolley behind a locked gate until it was decided that the PM2 passengers would be housed at Pole 13 for the night (Pole 13 is a camp operated by a contractor which is used by the Company on an ad hoc basis when there is overflow);

•  Bags on the PM2 trolley were loaded onto a bus and unloaded at Pole 13 at around 11.00 pm that night;

•  Any bags not picked up by passengers that night were locked in the Pole 13 mess overnight;

•  In the morning when no one claimed the Puma bag, Ms Isacc took it to the airport as she assumed that one of the PM2 passengers had forgotten it;

•  Ms Isaac walked past all of the PM2 passengers with the Puma bag and asked if anyone owned the bag;

•  No one claimed the bag so Ms Isaac opened it to look for identification in case it was owned by a PM2 passenger who had slept in at the Pole 13 camp;

•  When the bag was opened a neatly folded GEMCO towel was sitting on top of the bag and a work shirt with Mr Law’s name on it was under the towel;

•  On checking the manifest Ms Isaac noted that Mr Law was not on the PM2 flight and ascertained from making inquiries that he had travelled to Cairns on the PM1 flight;

•  Ms Isaac took the bag back to her office to contact Mr Law;

•  There was no telephone contact number for Mr Law in a profile Ms Isaac looked at and she was unable to contact him but assumed that Mr Law would contact the Company if he needed the bag;

•  At 4.00 pm on Wednesday 17 May Ms Hood from Alliance team telephoned Ms Isaac to ask whether she had picked up a bag belonging to Mr Law and when Ms Isaac confirmed that she had the bag Ms Hood asked her whether she would take it to Cairns on Friday;

•  Ms Isaac told Ms Hood that she was happy to do that but queried why Mr Law could not wait until Tuesday to collect the bag; and

•  Ms Hood told Ms Isaac that Mr Law wanted the bag to be placed on the Friday plane and that Alliance baggage handlers would personally hand it to him in Cairns. 16

[24] Ms Isaac goes on to state in the email that: “Today I drafted a letter to inform Mr Law that taking towels was not allowed as they are GEMCO property but when I went to remove the towel I noticed other electrical items that could belong to GEMCO in the bag…”. Further, Ms Isaac states that the bag weighs 5.18 kg but without the items weighs 2.78 kg and that: “Therefore additional items have not been added into the bag after it left Mr Law’s possession at the time of check-in”. 17

[25] On 1 June 2017, Mr Law received a Show Cause letter setting out the items said to be GEMCO property found in Mr Law’s bag and stating that he had confirmed during the meeting of 23 May 2017 that he understood and accepted the reasons his bag had been searched and was aware of his obligations under his contract of employment and South32 Code of Business Conduct in respect of the theft or misappropriation of GEMCO property. The letter goes on to state that GEMCO has concluded that Mr Law has breached his contract of employment and the Code of Business Conduct and that the Company is considering terminating his employment. The letter states that Mr Law is being provided with a final opportunity to show cause why his employment should not be terminated and that a further meeting would be arranged once a decision had been made. Mr Law asserts that at no time did GEMCO show him or refer him to any particular section of the Code of Business Conduct in relation to theft or misappropriation of GEMCO property.

[26] On Tuesday 6 June 2017, in response to a request from Mr Law, Mr Hill forwarded an email attaching copies of all photos taken by the Company of the Puma bag and its contents. Upon reviewing those photos, Mr Law said that he noted his black toilet bag and burgundy towel appeared to be missing. Further Mr Law noted that his clothing appeared to be in a dishevelled state which concerned him as his usual practice is to fold his clothing neatly before packing it into his Puma bag. On 12 June 2017, Agnew Legal on behalf of Mr Law sent a fifteen page response to the Show Cause letter to GEMCO. 18 In summary the response raised a number of issues including in relation to the “chain of custody” of the bag during the period after Mr Law checked it in and asserting that the movement of the bag between various locations over a 36 hour period meant that the Company could not rule out the probability that another person or persons accessed the bag and placed the items into it.

[27] The response also raised issues with the provenance of the items including the lack of stock control in the stores area and alleged deficiencies in the investigation including:

•  The failure to provide Ms Isaac’s email dated 18 May 2017 setting out the basis of the allegations until after the meeting with Mr Law on 23 May 2017; and

•  The failure to provide the complete inventory of the contents of Mr Law’s bag at the meeting on 23 May 2017 depriving Mr Law of the opportunity to establish that items of his property were missing from the Puma bag and to advise the Company of this in a timely manner which may have created a reasonable inference that another person had accessed the bag.

[28] The response also pointed to other relevant considerations including that:

•  The Puma bag was unattended for approximately 15-20 minutes while Mr Law was suffering from diarrhoea;

•  Mr Law’s agreement to his lockers being searched reflects positively on him and is consistent with his position that he did not steal the items or place them in his bag;

•  Given that the site had adopted a well known practice of searching checked baggage it is improbable that a person wanting to commit theft would place items in checked baggage which may be searched rather than into carry-on baggage which would not be searched; and

•  Mr Law told Alliance staff that he was happy to collect his bag upon his return to Groote Eyelandt and was not given an opportunity to refute the inaccurate statement in Ms Isaac’s email of 18 May 2017 to the effect that he had insisted that the bag be returned to him on Friday 19 May 2017.

[29] The response letter contains the following statement:

“We have confidential instructions that there is another relevant consideration surrounding this incident. The sensitive and industrial nature of this instruction is such that it would not be appropriate to commit it to writing but we are prepared, if necessary, to provide the Company with details in a confidential meeting.”

[30] The response letter also requests the provision of additional information as follows:

•  The sections of the Code of Business Conduct and Mr Law’s contract of employment that the Company would rely on in any decision to terminate Mr Law’s employment;

•  Confirmation that the Company could warrant the secure possession of the bag for the time it was out of Mr Law’s possession;

•  Confirmation of the system for establishing a connection between baggage and a passenger; and

•  The authority that the Company relied on in making the initial search.

[31] The response letter concludes with a request for a further meeting following the provision by the Company of the requested information. As requested in Mr Law’s response letter, a further meeting was held on 19 June 2017 between Mr Law and his representative Mr McPherson and representatives of GEMCO. Mr Law states that during that meeting he advised that his toiletry bag was missing and that the purple towel found in his Puma bag was not the towel that he had placed into the bag and that the towel in the bag should have been a burgundy towel owned by Mr Law. Mr McPherson asked a series of questions and Company representatives confirmed that there was no stock control at the store; the store was unmanned; there was no video surveillance or access/egress controls over the site. Mr Law further states that during the meeting Mr McPherson raised an issue of Mr Law’s interaction with a number of Union members prior to the events of 16 May 2017, and that Mr Law believed that he may have been “set up” by them because he refused to join the Union.

[32] Mr Law states that as Mr Wright was refusing to answer Mr McPherson’s questions, he sent an email to Mr Wright on 25 June 2017 19  with a number of questions for GEMCO to answer prior to a further meeting, as follows:

•  Information about the procedures and/or authority relied on by GEMCO to search Mr Law’s bag and lockers;

•  Information or clarification about the chain of custody of the Puma bag during the extended period it was out of Mr Law’s possession and in the possession of Alliance and Gemco;

•  Clarification on the date and time the items were found in Mr Law’s bag;

•  Clarification on the date and time the Company alleges that the items were stolen from the store;

•  Whether or not Mr Law’s toiletries bag or towel have been recovered and what the Company has done to investigate his missing property;

•  Whether the Company had checked his accommodation in relation to magazines discussed at the meeting on 19 June;

•  Details about the alleged discussions between Mr Law and Alliance staff on 17 May in addition to the “hearsay” in Ms Isaac’s email of 18 May which Mr Law refutes; and

•  Confirmation that Mr Law has no disciplinary record.

[33] Mr Law said in his witness statement that he received a without prejudice response to these matters from the Company on 27 June 2017 and that he would seek permission from the Commission to tender it at the hearing. Permission was not required as the document was tendered by Mr Hill as Annexure “RH-19”. The document is an email in which Mr Hill has inserted responses to those questions as follows:

•  Mr Law’s bag was opened purely to identify who the bag belonged to and Mr Law verbally agreed to his locker being searched;

•  In relation to the chain of custody of the bag:

•  ESS bus drivers travelled up to the airport before collecting everyone from the main village mess and loaded all the bags in to the buses with the help of airport baggage handlers;

•  They then went to pick everyone up at the mess but did not allow anyone into the baggage hold of the buses and opened them when they arrived at Pole 13 for people to take their bags;

•  Some people did not want to take their bags and these were delivered to the Pole 13 mess which was locked afterwards and there were 9 such bags; and

•  The mess was opened again at 6.00 am with the site manager present at the door.

•  The items were found in Mr Law’s bag at approximately 11.00 am on 18 May 2017;

•  The Company has no evidence that enables it to accurately identify a specific time and date when these items were removed from the electrical store;

•  Mr Law’s missing property has not been recovered and every effort will be made to return that property if it is recovered; and

•  There are no disciplinary matters on Mr Law’s record.

[34] In relation to the assertion by Mr Law of his dissatisfaction with the manner in which the meeting was conducted expressed by his representative and failure to answer questions, the email states:

“The Company has endeavoured to answer all of the questions you have asked in this process. The support person was advised up front what the role of the support person is, not to answer for or advocate for yourself but consult with you and provide advice and support. Unfortunately despite this the support person continually spoke on your behalf throughout whole meeting.”

[35] On 28 June 2017 Mr Wright telephoned Mr Law and his representative Mr McPherson and advised that Mr Law’s employment was terminated. Mr McPherson asked whether Mr Law’s toiletry bag and burgundy towel had been found and Mr Wright responded by stating that nothing had been found. On 28 June 2017 Mr Law received a letter under the signature of Mr Wright informing him that a decision to terminate his employment had been made. The letter states that the Company has determined that items were found in Mr Law’s personal bag which were the property of GEMCO; Mr Law did not have permission to be in possession of the items; and Mr Law was unable to provide any evidence to support his assertion that a third person placed the items in his bag. The letter states that: “Based on the totality of the information available, it is open on the balance of probabilities for the Company to conclude that the above circumstances constitute theft of Company property.” The letter further states that Mr Law’s employment will be terminated on 28 June 2017 with payment in lieu of notice and accrued leave being made to him.

[36] Mr Law states that he was not paid his annual leave entitlements until 18 July 2017 and it was necessary for his representative Mr McPherson to telephone the Company and send an email requesting such payment. Mr Law’s Puma bag was not returned to him until 26 July 2017 and contained the following items:

•  One GEMCO purple towel;

•  One yellow GEMCO work shirt;

•  One pair of work pants;

•  Two pairs of socks;

•  Five pairs of underpants;

•  One belt.

[37] Mr Law said that as part of the reason for the termination of his employment was the theft of the purple towel, he contacted his legal representative Mr McPherson and asked him to advise GEMCO and arrange for the towel to be returned. To date, GEMCO has not been able to locate and return Mr Law’s toilet bag and burgundy towel.

[38] Mr Law gave further oral evidence at the hearing. Mr Law said that he had never been shown any of the items that he had allegedly stolen and had only seen photos of them. Mr Law also gave evidence about a discussion with union members while they were cleaning the workshop on Sunday as follows 20:

THE DEPUTY PRESIDENT: Yes?--- On that Sunday we clean it so it's ready for the Monday and the start of a new week. Whilst cleaning that, I had three union members at the end of the workshop - I was leading hand and organising the cleaning of that - and they were standing around and not cleaning. I went up to the guys and said, "Hey, listen, I needs youse to start working with the rest of the guys." The question was to me, in that conversation, have I ever considered being a member of the union. I replied that, no, I was not a union person and that I don't need - I don't have any need or any use to be in the union. Mr [name removed] was the main person I was talking to and he said, "Oh, I can get you a membership for the union if you like." I said to [name removed], "With respect, mate, I was in the military and I believe that if we had a union in the military, we probably wouldn't have won some of our conflicts." He seemed a bit disappointed in my attitude in that, but it was my belief and that's how I feel about unions, your Honour.

MR AGNEW: Do you know which union these gentlemen were from?--- I believe - because they work down at the port, I believe, your Honour, that they were in the [reference removed] Union.

THE DEPUTY PRESIDENT: Right?--- Yes. Normally on fly in/fly out days, the three of them wear their shirt and hats with the union.

Okay?--- During that conversation also [name removed] said to me that if I was ever in need of representation in a law court, that the union would support me and represent me. I said, "I have no intentions of being in dispute ever with South 32.

MR AGNEW: In your discussions with Mr Hill, did you ever mention to him a name of any persons that may have interfered with your bag?--- No.

[39] Mr Law also said that when he is flying back to Groote Eylandt he would always put his toiletry bag and towel into his bag. Mr Law would sometimes take other items such as extra soap or washing detergent or books. Sometimes Mr Law’s baggage would weigh more than 5 kg and sometimes less. Mr Law’s lockers have information tags on them stating his name. On 16 May 2017, Mr Law’s black Puma bag was located directly in front of his locker. Mr Law tendered a diagram of the change room where his bag was located on 16 May 2017. The area has a clean section and a dirty section and Mr Law’s bag was located in front of his locker in the dirty section.

[40] Under cross-examination Mr Law was shown his contract of employment and agreed that it referred to the Code of Business Conduct and to appropriate use of Company resources. Mr Law further agreed that he had signed the contract of employment indicating that he should read the Code of Business Conduct carefully. Mr Law was taken to the Code which provides examples of inappropriate use of Company assets including an example making clear that even waste items are Company property and cannot be taken or removed from site without authorisation. Mr Law agreed that the Code makes it clear that Company assets should not be taken or used other than for Company purposes and that he was very familiar with the requirements of the Code. Mr Law also agreed that he has been regularly trained in the requirements of the Code including computer based training every twelve months which requires participants to go through the Code section by section reviewing practical questions and answers. Mr Law most recently completed that training on 16 May 2017 – the morning of the day when he checked his bag at the Groote Eylandt Airport.

[41] In response to the proposition that his statement stating that at no stage was he shown the Code of Business Conduct was incorrect, Mr Law said that he was not shown the Code at the meetings on 23 May and 19 June 2017. Mr Law agreed that in the week prior to his departure from Groote Eylandt on 16 May 2017, he was working in the port dump station area which is close to the ABM shed. In response to the proposition that the items found in his bag were taken from the ABM shed, Mr Law said that he was told they were taken from the NPI which is also referred to as the ABM shed. Mr Law agreed that his bag weighed just under 3 kg when he arrived on Groote Eylandt at the start of his last swing and that the bag weighed 5 kg when he checked it in at the airport on 16 May 2017. Mr Law disagreed with the proposition that the electrical items found in his bag must been put there before he checked the bag in at the Airport. Mr Law said that he packed the bag in his room before leaving Groote Eylandt and the bag contained: a personal burgundy coloured towel, a black zipped toiletry bag, one yellow GEMCO work shirt, one pair of work pants, two pairs of socks, five pairs of underpants and one belt. Mr Law said that he did not bring all of those items with him when he commenced his swing. Items Mr Law brought with him when he commenced his swing were a burgundy towel, shaving bag, soap and laundry washing detergent in a Ziploc bag.

[42] Mr Law also said that he did not agree that the disputed items were placed in his bag before check in as he was only shown the full contents of the bag on 6 June 2017 when he was emailed photos of the entire contents of the bag. Previously, Mr Law was only shown the stolen items. Mr Law said he had no reason to dispute Ms Isaac’s evidence about the weight of the bag with and without the electrical equipment, but said he did not know the exact weight of the bag. In response to questions from the Commission, Mr Law agreed that on his evidence, the only difference in the contents of the bag between when he zipped it and when Ms Isaac opened it was that the burgundy towel and his toilet bag were missing and the electrical items and the purple towel were in the bag. Mr Law further agreed that his case is that someone removed his toilet bag and personal burgundy towel and replaced those items with the electrical items and a purple GEMCO towel. 21

[43] Mr Law was shown his responses to questions at a meeting on 23 May 2017 contained in a file note, 22 which records that Mr Law agreed at that time that the items must have been placed in the bag before it was checked in, due to its weight being the same at check in as it was when the items were found in it. Mr Law said that he made that concession without knowing that other contents of his Puma bag – the toilet bag and burgundy towel – were missing. Mr Law said that he did not know that these items were missing because he was not shown the entire contents of his bag at the meeting on 23 May 2017 but was only shown photos of some items. Mr Law agreed that the toiletry bag contained his contact lenses. In relation to his comment recorded in the file note of the meeting of 23 May 2017 that he thought he had a red towel but it might be in his room, Mr Law maintained that he was certain he was using a burgundy towel and not a purple Gemco towel. Mr Law also said that the burgundy towel was damp as he had used it after washing his face and chest, but was not wet because he had not showered.

[44] Mr Law also maintained that he heard two people talking while he was in the change room and did not recognise their voices. In relation to the interaction he had with union members earlier on 16 May 2017, Mr Law agreed that he knew the name of one person involved in the discussion but did not mention the name of that person during the investigation process. Mr Law further agreed that he had not put this information into his witness statement but denied that this was because the discussion did not occur. In response to the fact that swipe records show that only two people were still on site at the time he heard the conversation in the change room, Mr Law said that there was a shift that was coming in and persons on that shift could also have been in the change room at the relevant time.

[45] Mr Law agreed that notwithstanding his evidence that he had not given permission for his bag to be opened, he did not complain of this when Mr Hill telephoned him on 19 May 2017 or at the meeting on 23 May 2017. Mr Law also agreed that he stated that he was happy for Company representatives to open his bag and understood why it had been checked. Further Mr Law agreed that his name was not on the Puma bag. In response to questions from the Commission, Mr Law agreed that his evidence is that when he zipped his bag in the change room before going to the toilet, the burgundy towel and his toiletry bag were in it and the electrical items and the purple towel were not in his bag but could have been put into his bag at any point after that.

[46] Mr Law said that there were a range of possible explanations including mistake or that someone put the items in his bag to make sure that he was caught with them in retaliation for refusing to join a union. Mr Law also said that this may have occurred when the bag was in front of his locker in the change room given that the bag does not have Mr Law’s name on it but the locker does. Mr Law had the following exchange with Counsel for GEMCO 23:

“MR POLLOCK: Let's deal with that first scenario, Mr Law, that someone put it in your bag deliberately out of spite or to get you in trouble. You raised it generally in your show cause meeting and you gave some specific evidence about that interaction today with some [name removed] members?--- Yes, your Honour, that's correct.

The topic of that discussion was whether or not you were a union member and what you thought about union membership?--- Yes, your Honour, that's correct.

So one of these possibilities you're asking the Tribunal to consider or to accept is that this was some kind of retaliation for you not joining the union or speaking up and saying, "I don't like - unions aren't for me"?--- A possibility, your Honour.

Let's just play that through for a bit. Such a person would have had to have known that you would go to the bathroom at that time, wouldn't they?--- Yes.

They would need to know that you would have left your bag unattended, wouldn't they?--- Yes, your Honour.

Of course, you left your bag unattended because you, on your evidence, had diarrhoea?--- Yes, that's correct, your Honour, I did.

Presumably they would need to know that as well?--- No, your Honour.

That they would have a 15 or 20-minute window in order to put this stuff into your bag?--- I wouldn't presume that's the case, your Honour. I wouldn't presume that at all.

They would also need to know that your bag would be inadvertently left behind from your flight, wouldn't they? They way in which this was discovered was because your bag was inadvertently left off your flight?--- Okay.

Otherwise they would have been giving you a gift of $600 worth of lights, wouldn't they?--- Yes, your Honour.

Of course, they would have needed to have known all of those things in advance in order to concoct this plot to go and steal some lights from the ABM shed and to put all your stuff in your bag?--- Possibly, if there had have been a bag search then, well then I would have been caught with some lighting if that's the case when they put it in there in the toilet, I would've been caught with it at the airport.

That's a lot of coincidences, isn't it, Mr Law?--- Well, I don't think so because, first of all, I didn't steal the gear, I did not put it in my bag, so there must have been someone that's put it in my bag, and I don't necessarily know - I have suspicions, I have no proof - but, again, and I'll suggest that someone's put it in my bag because I know that I didn't steal that gear and I didn't put it in my bag.”

[47] In re-examination Mr Law said that he recalled Mr Messenger at the meeting of 23 May 2017 providing the names of the employees who may have set Mr Law up.

[48] Ms Isaac’s evidence was that Mr Law checked into the PM1 charter flight from Groote Eylandt to Cairns at approximately 6.30 pm. Mr Law checked in one bag weighing 5kg rounded to the nearest kilogram. A handwritten tag was put on Mr Law’s bag recording the weight. The source of Ms Isaac’s knowledge of these matters is that this is the standard procedure undertaken by Alliance. Ms Isaac was informed by the Alliance Team Administrator Ms Hood that after Mr Law checked into his flight his bag was accidentally loaded onto the baggage trolley for the PM2 flight. In the ordinary course, baggage trolleys are kept behind locked gates in a secure caged area. That area is fenced off with barbed wire, has a padlocked gate and is only accessible by Groote Eylandt airport baggage handlers, Alliance staff who are authorised to enter the area and passengers who have disembarked their flight and are collecting their luggage. Ms Hood also informed Ms Isaac that:

•  Mr Law boarded the PM1 flight at approximately 7.00 pm;

•  Mr Law’s bag remained on the PM2 baggage trolley behind locked gates;

•  At approximately 7.20 pm the PM2 aircraft struck a bat on approach to Groote Eylandt; and

•  The PM2 aircraft required inspection and was unable to depart as scheduled at 7.50 pm on 16 May 2017.

[49] Ms Isaac said that it was not possible for another aircraft to be sent from Cairns due to landing restrictions in place on that night at the Cairns Airport and it was decided that all PM2 passengers would be housed overnight on Groote Eylandt. As all GEMCO accommodation was full on that date, Ms Isaac rented the camp known as Pole 13 for the PM2 passengers to stay in overnight. A bus was also organised by Ms Isaac to transport the passengers to the GEMCO village for a meal and then to the Pole 13 camp. Ms Isaac states that she was informed that the bags held in the secure baggage trolley for the PM2 charter flight (including Mr Law’s bag) were subsequently loaded into the baggage hold of the bus organised to travel to Pole 13. The loading was undertaken by Alliance baggage handlers and the bus drivers. The bus arrived at Pole 13 at approximately 11.00 pm on that night and the baggage hold of the bus was opened for passengers to collect their bags. After the bags were unloaded for collection approximately six bags were not claimed by PM2 charter flight passengers. The Pole 13 camp manager informed Ms Isaac that these bags were delivered by the bus drivers to the mess hall and were locked in inside.

[50] On 17 May 2017 Ms Isaac arrived at the Pole 13 mess door at approximately 6.10 am. The Pole 13 camp manager was already at the door of the mess and informed Ms Isaac that he had been there since 6.00 am. Ms Isaac stood beside the unclaimed bags while they were collected. She noted that one bag – which she later learned was Mr Law’s bag – was not collected. Not knowing who owned the bag, Ms Law assumed that one of the PM2 passengers had not collected it and loaded the bag onto the bus that was returning to the Airport with the PM2 passengers. Ms Isaac drove behind the bus and arrived at the Airport at the same time as the bus. Once all PM2 passengers had exited the bus, Ms Isaac noticed that the same bag had been left unclaimed. Ms Isaac walked past the PM2 passengers carrying the bag and asking if anyone owned it. Nobody claimed the bag. At 7.30 am Ms Isaac decided to open the bag as it did not have a luggage tag or name to identify the owner. Ms Isaac said that she did this to ensure that no passengers had slept in and been left behind at Pole 13. When Ms Isaac opened the bag, she saw a neatly folded GEMCO towel and shirt with Mr Law’s name embroidered on it. On ascertaining that Mr Law had already travelled to Cairns the previous evening, Ms Isaac took the bag to her office for safekeeping, as the GEMCO offices are securely locked.

[51] Ms Isaac attempted to look up Mr Law’s contact details on SAM, the GEMCO operating system for accommodation but was unable to obtain contact details for Mr Law. Ms Isaac was contacted by the Alliance Administrator Ms Hood who asked about leftover luggage and stated that she had been contacted by Mr Law about the missing bag. Ms Isaac states that Ms Hood told her that she needed to get Mr Law’s bag back to him and asked whether Ms Isaac would carry it on the flight on Friday 19 May. Ms Isaac told Ms Hood that it would be inconvenient and asked whether Mr Law could wait until the following Tuesday when he was due to return to Groote Eylandt. Ms Hood subsequently advised that Mr Law wanted the bag on the Friday flight and Ms Isaac agreed that she would take the bag on the basis that it would be offloaded at Cairns as a priority and personally handed to Mr Law by the baggage handlers. Ms Isaac left Mr Law’s bag in the GEMCO office on the evening of 17 May 2017.

[52] On 18 May 2017 Ms Isaac opened Mr Law’s bag to remove the GEMCO towel. Ms Isaac planned to inform Mr Law that he could not remove GEMCO property from the site when she returned the bag to him. When Ms Isaac removed the towel, she noticed electrical equipment underneath which she thought may belong to GEMCO. Ms Isaac photographed the electrical equipment and emailed the photographs to Mr Law’s managers, Mr Hill and Mr Wright. The email tendered by Ms Isaac was sent at 12.01 pm on 18 May 2017 and states:

“Hi Bruce and Rob

A bag was left behind at the Groote airport on Tuesday and when I looked inside to establish who the bag belonged to I found a village towel on top of the bag. The owner is Ian Law from your Department and we are organising for him to collect his bag from the airport tomorrow in Cairns. I drafted a letter to inform him that taking the towels was not allowed as they are GEMCO property but when I went to take the towel out I noticed other items that could belong to GEMCO. Please see the below photo and let me know if these are GEMCO items and if you want me to return them to you?” 24

[53] Ms Isaac left Mr Law’s bag in her office and went to a meeting. At approximately 2.20 pm Ms Isaac took the bag to the post office and weighed it. The bag weighed 5.18 kg with the electrical equipment in it and 2.78 kg without the electrical equipment. Upon returning from the post office Ms Isaac put all the items back into Mr Law’s bag, in the manner in which she recalled that they had been packed, and photographed the bag and the bag tag. At or around 3.00 pm Ms Isaac put together a timeline of events regarding the movement of Mr Law’s bag. That timeline is set out in the email tendered by Mr Law (summarised above) 25 and that email was also tendered by Ms Isaac.26 Ms Isaac kept Mr Law’s bag overnight in the GEMCO offices. On 19 May 2017 Mr Hill came and collected Mr Law’s bag. On 25 May 2017 in response to an earlier request from Mr Hill, Ms Isaac confirmed that the rounded weight of Mr Hill’s bag when he left Cairns and arrived at Groote Eylandt on 9 May 2017, was 3 kg and the rounded weight of the bag when it was checked in on 16 May 2017 was 5 kg.

[54] In response to Mr Law’s evidence Ms Isaac said that she was informed by Ms Hood of Alliance that Mr Law wanted his bag to be returned to him in Cairns and for that reason she was asked to take the bag to Cairns on 19 May 2017. Ms Isaac also said that the bag was not on the flight on 19 May 2017 but remained locked in a cupboard in the office of the Fixed Plant Superintendent. In a further witness statement Ms Isaac said that the bag could not have been identified by reference to the numbers on the tag. Those numbers on the baggage tag are the phone number for Alliance; the number 5 indicating the weight of the bag; and a series of numbers corresponding to another section of the tag which was removed and given to Mr Law to enable him to identify the bag. Alliance does not record this number against the names of passengers and does not have any way to identify a bag via this number. Only the passenger -who keeps the tear off receipt in his or her possession – can come forward and present the corresponding section of the tag to claim a bag.

[55] Under cross-examination Ms Isaac said that her office is within 200 metres of the camp where some 500 people reside at any one time. There is also a mess hall in the camp where chefs and kitchen attendants are working 24 hours a day. The front door of the mess is locked at night but kitchen staff access the mess by a back door. There is also a common room. In addition to the GEMCO charter flights Groote Eylandt is serviced by Air North. Generally charter flights carry only employees of GEMCO but on occasion persons who are not employees are transported. Ms Isaac said that on 16 May 2017 when Mr Law checked in for the PM1 flight, there would have been 280 to 300 people at the Airport. The terminal is a very small area and generally is used for charter flights. Ms Isaac uses an area beside the bus to check people in and out of the camp. Ms Isaac agreed that it is busy at these times and that there are three flights in succession where incoming and outgoing passengers are checked in and out of the camp.

[56] Ms Isaac agreed that she was not with Ms Hood on the night of 16 May 2017 when Mr Law checked his bag in. However, Ms Isaac knows the bag weighing process well because she has assisted in the past to check in bags. Ms Isaac’s understanding is that the weights of .5 kg and over are rounded up and less than .5kg are rounded down. Once luggage is checked in at the Airport it is handed over to Alliance. If bags are left at the airport they come to Ms Isaac’s office and generally owners of such bags come to Ms Isaac first to reclaim them.

[57] Ms Isaac agreed that on the evening of 16 May 2017 there would have been a trolley holding the luggage for the PM1 flight and another trolley holding the luggage for the PM2 flight. Once the baggage collection area is clear, the gate is opened and passengers who have disembarked go to the trolley and pick up their bags. Ms Isaac maintained that the luggage area is secure notwithstanding that large numbers of employees access the area to collect their bags. In response to a question from the Commission, Ms Isaac said that passengers from one flight at a time are given access to the luggage area and passengers from two flights would not be in the area at the same time. Bags are taken from tables where they are weighed and placed onto trolleys by baggage handlers and passengers do not place their own bags on trolleys.

[58] In response to a question about how luggage from different flights is quarantined, between the incoming and outgoing flights, Ms Isaac said that as soon as a plane lands, two luggage trolleys, one empty and one loaded with bags for the outgoing flight, are driven to the plane by baggage handlers. Bags are taken off the plane and loaded onto the empty trolley and bags on the full trolley are loaded onto the plane. The unloading and loading process occurs while passengers are disembarking from the incoming flight. The baggage handlers are Alliance employees and live locally. Alliance check-in staff have access to the baggage area. GEMCO staff also have access to that area, but are not near the baggage.

[59] Ms Isaac was also asked about events of the evening of 16 May 2017 in relation to the PM2 passengers after their flight was delayed. Ms Isaac said that the PM2 passengers were initially bussed to the main village mess (ie. the GEMCO mess) and their bags were kept in the locked area at the airport. This was because it was hoped that another flight could be arranged that night for the passengers. The PM2 passengers retained only their carry-on luggage. Later when it was necessary for the PM2 passengers to remain on Groote Eylandt, the Pole 13 camp was rented for the night and the bus drivers took PM2 passengers to that camp before returning to the airport and collecting their checked luggage and bringing it to the Pole 13 camp. According to Ms Isaac some passengers waited for their checked luggage to be brought to the Pole 13 camp and some passengers did not wait but went to be. As a result there were approximately six bags which were not claimed that night. Those bags were locked in the Pole 13 mess by the Pole 13 camp manager, Mr Bennett. Ms Isaac was not on the bus at this time or at the Pole 13 mess on the evening of 16 May 2017 and her knowledge is based on what she was told by the bus drivers and Mr Bennett, and the fact that Mr Laws’ bag, together with those of the PM2 passengers was in the Pole 13 mess on the morning of 17 May 2017.

[60] Ms Isaac said that the PM2 passengers were not provided with food at the Pole 13 mess because they ate at the GEMCO mess in the main village before being bussed to Pole 13. Ms Isaac is not aware of whether anyone other than the manager of the Pole 13 camp had keys to the mess but maintained that the manager (Mr Bennett) told her that he locked the bags inside the mess. When Ms Isaac arrived at the Pole 13 mess at 6.10 am on 17 May 2017, Mr Bennett was present and had set up a coffee station. Mr Bennett told Ms Isaac that he had been at the Pole 13 mess since 6.00 am and had opened it at that time. PM2 passengers who had not collected their bags the night before put their bags on the bus along with other PM2 passengers who had retained their bags. Ms Isaac maintained that she picked up Mr Law’s black Puma bag from the floor of the Pole 13 mess and placed it on the bus because no passenger had claimed it and it was the last bag left in the Pole 13 mess.

[61] In relation to the circumstances in which she opened Mr Law’s black Puma bag at the airport on 17 May 2017, Ms Isaac said that she opened a corner of the bag and saw the purple GEMCO towel. Ms Isaac lifted the corner of the towel and saw a work shirt with Mr Law’s name embroidered on it, under the towel. Ms Isaac did not see the other items in the bag at that time, as she only lifted the corner of the purple towel at which point she saw Mr Law’s name was embroidered on a shirt. In response to a question from the Commission, Ms Isaac said that she did not tell anyone that she was taking the bag to her office as she was concerned about getting everyone on the flight and only opened the bag to make sure that its owner had not slept in and been left behind at the Pole 13 camp.

[62] Ms Isaac did not agree that the electrical items could have been placed in the bag between the first and second occasion that she looked into the bag. Ms Isaac said that the bag was in her office which is in a building that is locked at night when no-one is there. Ms Isaac also said that the bag was in a cupboard in her office and that she locked the office at 7.30 pm that night when she left. Ms Isaac left her office on a few occasions during the day of 17 May 2017. In response to the proposition that someone interfered with the bag while it was in her office, Ms Isaac said this was unlikely given that the bag was in a cupboard and that there was no reason for anyone to go into her office while she was not there.

[63] On 18 May 2017 at or around 11.30 am when Ms Isaac discovered the electrical items, she decided to take the bag to the post office to weigh it because she knew that if Mr Law was going to debate what was in the bag, it would be necessary to establish its weight with and without those items. In response to the proposition that someone could have removed Mr Law’s toilet bag and replaced it with the electrical items, Ms Isaac said that the items in the toilet bag would probably result in it being lighter than the weight of the electrical items. Ms Isaac also said that the weight of the toilet bag would need to be identical to that of the electrical items because the Alliance practice was to round 500 grams up to the next kilogram. Therefore if the toiletry bag was in Mr Laws’ bag when it was weighed by the airline and removed while in her office, there would have to be less than a 500 gram difference between the weights.

[64] Ms Isaac was also asked about the request Mr HiIl made for her to check the weight of Mr Law’s bag when he arrived on Groote Eylandt to start his swing. In response to the proposition that she assumed that anyone who comes to Groote Eylandt with a bag that is a certain weight and left with a bag with a greater weight was a thief, Ms Isaac said: “No, only when I find items in his luggage that are not his.” 27  Ms Isaac agreed that there were other swings when Mr Law brought a bag to Groote Eylandt weighing 5 kg or more but said that these occasions were not relevant to the present case, where Mr Law came to Groote Eylandt for a swing with a bag weighed as 3 kg and left with a bag weighed as 5 kg.

[65] Ms Isaac agreed that a bag marked by Alliance staff as weighing 5 kg could have actually weighed just over 4.5 kg. Ms Isaac maintained that the electrical equipment weighed 2.5 kg and that with the equipment the bag weighed around 5 kg and without the equipment weighed around 2 kg. In relation to her evidence on discovering the GEMCO towel, Ms Isaac intended to draft a letter to Mr Law and tell him that he was not permitted to remove towels. Ms Isaac said that she was thinking of giving Mr Law the benefit of the doubt on the basis that he may have forgotten that he had the towel in his bag.

[66] It was also put to Ms Isaac that Mr Law had been given by an Alliance employee the stub for his bag tag when it did not arrive in Cairns on 16 May 2017 and that the Alliance staff member would have known whose bag was missing. Ms Isaac said that it is a totally manual thing, and the number on the stub and the bag was not recorded on a computer.

[67] Mr Hill said that on receiving Ms Isaac’s email at 12.01 pm on 18 May 2017, he formed the view that the items in the photograph attached to the email may have been GEMCO’s property because he is aware that there are other similar items around the GEMCO site and there are no stores on Groote Eylandt to purchase such items. After having a discussion with Mr Wright who confirmed that he should commence an investigation, Mr Hill at 12.16 pm requested that Ms Isaac put Mr Law’s bag in a secure place and told her that he would collect the bag and commence an investigation.

[68] Mr Hill then telephoned Mr Law and asked him about the contents of his bag. Mr Law said words to the effect that the thought that he had two shirts, two pants, two socks and jocks in his bag. Mr Hill asked Mr Law about the electrical items and he denied knowledge of the items being in his bag. Mr Hill then requested a time line of events from Ms Isaac which was sent to him by email on 18 May 2017 at 4.59 pm. 28 The contents of that email which was also tendered by Ms Isaac are summarised above.29 Mr Hill collected Mr Law’s bag from Ms Isaac and locked it in the Fixed Plant Superintendent’s office inside the Fixed Plant workshop. Mr Hill states that he is the only person who has access to the keys to this cupboard. On the same day, Mr Hill telephoned Mr Law and told him that a letter was being sent to him by email and post. Mr Hill read the letter out loud to Mr Law. The letter informed Mr Law that an investigation into GEMCO property being found in Mr Law’s bag would be conducted; Mr Law was required to attend a meeting to respond to the allegations at 1.00 pm on 23 May 2017 in Cairns with Mr Hill, Mr Kleinschmidt and Mr Messenger who had agreed to be Mr Law’s support person; and Mr Law was suspended on full pay pending the outcome of the investigation.30

[69] In his witness statement Mr Hill detailed the contents of Mr Law’s bag as follows:

“GEMCO Property

Personal items

a. one work shirt;

b. one pair of work pants;

c. two pairs of socks;

d. three casual t-shirts;

e. four to five pairs of jocks; and

f. one belt.”

[70] Mr Hill commenced the investigation on 19 May 2017 and was assisted by Mr Ryan Kleinschmidt (GEMCO Manager Processing and Logistics) and Mr Arlyn Mattinson (GEMCO Electrical Superintendent). Mr Kleinschmidt told Mr Hill that the LED spotlights found in Mr Law’s bag were the same kind used in and around the GEMCO site. Mr Mattinson also said that GEMCO frequently ordered those LED spotlights and that they are stored in the ABM Shed (an electrical shed close to the township on Groote Eylandt). The ABM shed is open 24 hours per day in order the GEMCO civil service team who perform callout breakdown works to be able to access any materials they require. Mr Mattinson also identified two sets of downlights used to repair range hoods in GEMCO housing. Mr Hill tendered a work order for a project scheduled for 24 May 2017 involving the installation of such downlights which was not able to be completed because of a lack of supply of the downlights. 31 Mr Hill also said that in relation to the PVC fittings found in Mr Law’s bag are consumable items that are also held in the ABM shed and are used by the civil service team. They are bought in bulk orders to replenish the holding in the ABM shed.

[71] Mr Hill also tendered notes of the meeting with Mr Law held on 23 May Mr Kleinschmidt who was also in attendance. The notes indicate that Mr Law agreed that the meeting could proceed with his support person attending by telephone. Mr Law’s acceptance that his bag could be opened and searched is also set out in the meeting record. Mr Law is recorded as stating that he went to the change rooms at around 5.45 pm or a bit earlier and went to the toilet for 20 minutes before washing his hands and that he was not feeling well. Mr Law is further recorded as stating that his bag was unattended during that time. In response to a question about who was in the change room, Mr Law is recorded as stating that he could hear people talking while he was in the toilet and Mr Messenger as stating that he was there after Mr Law and there were at least three others.

[72] The notes further indicate that in response to being told of the electrical items found in his bag and being shown photographs of those items, Mr Law stated that the items were not familiar and he had not put them in in his bag. Mr Law is recorded as stating that he thought he had a red towel which could possibly be in his room, and would not be wet because he did not shower. When asked to comment on the allegation that his bag was 5 kg when checked in and 5 kg with the electrical items in it, Mr Law is recorded as stating that the contents of the bag included: “few pairs of jocks and socks, belt, pair of pants, shirt, 3 pairs of underpants, military polyester belt, black toiletry bag.” Mr Law is also recorded as stating that as an ex-military person he does not “leave anything in the bush” and that the bag would have been all zipped up. In response to a question as to who would have a motive to put anything in his bag, Mr Law is recorded as stating that it may have been a mistake or someone being vindictive towards him and that he would have no need for any of the electrical items and would not jeopardise his position by stealing. In relation to his knowledge of the ABM shed Mr Law is recorded as stating that he did not know the area well.

[73] In relation to the chain of events involving his bag, the notes record that Mr Law agrees that the items must have been placed in the bag before he checked it in due to the weights being the same at check in as they were when the items were found. Mr Law is also recorded as stating that he told Alliance staff that he was not in need of anything in the bag and it did not concern him if it stayed in the office. In his evidence, Mr Hill outlined further steps he took to investigate the matter following the meeting with Mr Law, including speaking with employees in electrical and mechanical work crews and asking them whether they had noticed anything in the change room when Mr Law claimed his bag was tampered with, and whether anyone had seen the black RS components bag in which the PVC conduit fittings were found inside Mr Law’s bag. Mr Hill also spoke to a number of leading hands and supervisors to ascertain whether anything had been reported to them. Two persons were later identified by Mr Messenger as being in the change room on 16 May 2017 at or around the time that Mr Law was there. Both persons were spoken to as part of the investigation. One of those persons confirmed that he was in the change room on 16 May 2017 from 5.55 pm until 6.10 pm and stated that he had not seen anything unusual or noted Mr Law or his bag in the change room. It was confirmed by reference to flight manifests that the other person identified by Mr Messenger left Groote Eylandt on the morning of 16 May 2017.

[74] Mr Hill confirmed that he requested Ms Isaac to obtain information about the weight of Mr Law’s bag when he checked in for his flight to Groote Eylandt on 9 May 2017 and when he departed on 16 May and that he was informed that on arrival the bag weighed 3 kg and on departure 5 kg rounded to the nearest kilogram. Mr Hill forwarded an overview of the investigation and his recommendation that Mr Law be required to show cause as to why his employment should not be terminated to Mr Kleinschmidt and sought a peer review involving a blind assessment of the facts and the recommendation was supported by the review.

[75] On 1 June 2017 Mr Law was informed that the investigation into the alleged theft of Company property had found that the items were not placed into Mr Law’s bag without his knowledge and that GEMCO considered that it was substantiated on the balance of probabilities that Mr Law stole the property. Mr Law was further informed that no final decision had been made about his ongoing employment and that he would be required to show cause as to why GEMCO should not terminate his employment. A letter requiring Mr Law to show cause as to why his employment should not be terminated was sent to Mr Law on 1 June 2017. The letter sets out the items found in Mr Law’s luggage and states that during the meeting on 23 May 2017 Mr Law confirmed that the bag was his and accepted the reasons for the search of the bag.

[76] The letter further states that Mr Law had confirmed that he understood his obligations under his employment contract and the South32 Code of Business Conduct in relation to theft and misappropriation of property and that it had been concluded that his conduct was in breach of these obligations. The letter concludes by giving Mr Law a final opportunity to provide a written response in relation to why his employment should not be terminated by 4.00 pm on 8 June 2017 and that once a decision had been made a further meeting would be arranged to advise Mr Law of the outcome.

[77] On 6 June 2017 Mr Law telephoned Mr Hill and requested photos of the contents of his bag. An email listing the contents (excluding the GEMCO property) and attaching photos was sent to Mr Law at 12.13 pm on that date. Mr Law requested and was granted an extension to respond to the show cause letter to 4.00 pm on 12 June 2017. As set out above, a 15 page response letter was sent to Mr Hill by Mr Law’s legal representative on 12 June 2017 making assertions about the show cause process and asking for further information in relation to various matters. The response also pointed out alleged deficiencies in the investigation. Upon receipt of the response to the show cause letter, Mr Hill made further enquiries about who had access to the shed from which GEMCO maintained that the items had been taken; Mr Law’s work roster during the shutdown period when he had been working close to the shed; Mr Law’s missing toiletry bag including conducting another search of Mr Law’s locker, room and surrounding area and Ms Isaac’s office. Mr Hill said that the toiletry bag was not located.

[78] A further meeting was conducted with Mr Law and his legal representative on 19 June 2017 in Cairns. GEMCO was represented at the meeting by Mr Wright and Mr Adams. Mr Hill was informed that during that meeting Mr Law made claims about someone tampering with his bag and that this may have been the result of union involvement. Mr Wright and Mr Adams informed Mr Hill that the outcome of the meeting was that further inquiries would be made about the timeline of events, the chain of custody of the bag and whether anyone else might have been present in the change room. Mr Hill and Mr Wright took steps following the meeting of 19 June 2017 to investigate the outstanding areas for inquiry raised by Mr Law and his representative. One of the steps was to review the swipe card records, which showed that on 16 May 2017 almost all members of the work crew rostered on the day shift on that date had swiped on to the bus travelling to the airport prior to the time that Mr Law claimed that he left the change room. Three employees who had not swiped out at that time were tasked with completing the rubbish run which involves driving a crane and flatbed through the gates without needing to use swipe cards on the way.

[79] The swipe card records tendered by Mr Hill for 16 May 2017 show that Mr Law exited at 18:20. Two other employees are shown to have exited at the same time as Mr Law. The employee named by Mr Law in his oral evidence as having raised the issue of union membership with Mr Law is shown as exiting at 18:07. That employee is also shown on the flight manifest tendered by Ms Isaac as having travelled to Cairns on the same flight as Mr Law. 32 The employee nominated by Mr Law’s support person Mr Messenger as having been in the change room, was spoken to again and maintained he had seen nothing unusual and had not seen a bag left unattended. Ms Hill also spoke to Ms Isaac and confirmed the time line of events prepared by her.

[80] On or about 24 June 2017, Mr Hill informed Mr Wright that unless Mr Law had provided further information that he was not aware of it was appropriate to terminate Mr Law’s employment for the following reasons:

● The investigation concluded that there was no other plausible explanation for the GEMCO property being in Mr Law’s bag besides Mr Law putting it there;
● The actions of Mr Law were not in line with GEMCO’s values; and
● Allowing Mr Law back on the site would not set a good example for the rest of the workforce.

[81] The decision to terminate Mr Law’s employment was taken to a further peer review and the recommendation from that review was that termination was appropriate in the circumstances. Thereafter the request for further information was received from Mr Law on 25 June 2017 and the response provided on 27 June 2017. 33 On 28 June 2017 Mr Wright wrote to Mr Law informing him that his employment was terminated due to theft of Company property. In relation to matters raised by Mr Law in his responses to the allegations and his witness statement, Mr Hill said that he disagreed that Mr Law’s statement that he did not understand that his bag would be searched and said that at the meeting in Cairns on 19 June 2017 the reasons for opening his bag were clearly explained to Mr Law and Mr Law responded by stating that he understood why his bag was opened and that it was for identification reasons.

[82] Mr Hill also disagreed with Mr Law’s statement that he did not understand the requirements of the Code of Business Conduct in relation to theft or misappropriation of GEMCO property and tendered training records evidencing that Mr Law completed annual training on the Code on 16 May 2017 at 6.49 am. Mr Hill also said that the training includes a scenario involving misappropriation of Company property.

[83] Under cross-examination, Mr Hill agreed that up until the date of the event that led to his dismissal, Mr Hill considered Mr Law an honest and hardworking employee.

[84] Mr Hill agreed that there are indigenous communities on Groote Eylandt and that in the past there had been housing projects undertaken by contractors in those communities. Electrical contractors may have worked on those projects but in Mr Hill’s view most of the time they had worked for GEMCO. Mr Hill was not aware of whether any such projects were being undertaken at the time the items were found in Mr Law’s bag. In response to the proposition that the items could have belonged to electrical contractors external to GEMCO, Mr Hill said:

“Not likely. Those – so the square LED lights are specific security lights….Which are used throughout our village and the mine site, so I haven’t seen those sites – sort of lights in the communities anywhere. They don’t generally have security lights in the communities.”

[85] Mr Hill was also asked whether the golf club or police station had such lights and he said that he did not know. Mr Hill said that he had not had any reports about bags being interfered with at the airport and did not know whether it was possible for this to occur. In relation to the weight of Mr Law’s bag, Mr Hill agreed that the Alliance process is to round to the nearest kilogram and if the bag weighed 4.5 kg it would have been rounded to 5 kg. The LED spotlights found in Mr Law’s bag have a battery so that the lights continue to work when the power goes out. The spotlights come in a box with a battery pack to which they are attached by a cord. Mr Hill agreed that the battery pack and the box were not found in Mr Law’s luggage and that the LED spotlights found in Mr Law’s luggage would have had to be disconnected from the battery pack and the box to which they are usually attached.

[86] Mr Hill also pointed to the documentation showing that range hood lights were purchased in March 2017 and were required to be replaced because there was no stock in the store. Mr Hill agreed that there is no receipting of items in or out of the electrical shed. Mr Hill also maintained that the job requiring the range hood lights was scheduled for the week that they were found in Mr Law’s bag. The range hood lights come in a box of four and two lights were found in Mr Law’s bag. In response to the proposition that he could not be 100% sure that they were the property of GEMCO, Mr Hill said that he was: “pretty damn close to 100%” because the lights are quite particular. Mr Hill said that he had not explored who else could have taken the items but looked at when Mr Law would have had an opportunity to do so by reference to his roster. Mr Hill did not interview other persons on Mr Law’s team around the time of the shutdown.

[87] Mr Hill said that he was not asserting that everyone with items in their bag is guilty of theft, but maintained that if you have GEMCO property in your bag that you are not allowed to have, it would be stealing. In response to the proposition that he had treated Mr Law’s assertion that his bag had been tampered with as irrelevant, Mr Hill said that this had been investigated and that he was satisfied that the bag was not interfered with in the change room or at the airport. Mr Hill saw no need to interview the baggage handlers and said he did not do so because they are professionals and he did not think he was dealing with “Schapelle Corby baggage handlers”. 34

[88] Mr Hill also accepted that there may be legitimate reasons why an employee would have a bag weighing less on arrival at Groote Eylandt than on departure. Mr Hill agreed that Mr Law told him that he had additional items in his bag but maintained that when first asked about what was in his bag in a telephone conversation of 18 May 2017, Mr Law made no mention of the toiletry bag and listed various items of clothing. In relation to the electrical items found in Mr Law’s luggage, Mr Hill said he showed photos of the items to the electrical supervisor and in addition the electrical supervisor visited Mr Hill’s office and looked at the items. Mr Hill agreed that he had not shown Mr Law the actual items in his bag said to have been stolen but had shown him photographs of those items. Mr Hill was shown a document downloaded from amazon.com setting out prices for down lights for range hoods priced at $10.00. Mr Hill said that the price paid by the Company from its supplier was $89.50 per light. Mr Hill also agreed that he did not attach documentation about the LED spotlights, such as purchase orders, to his statement and said that this was an oversight but that he had looked at that documentation during the investigation.

[89] Mr Hill maintained that the range hood downlights were purchased for a particular job and the LED spotlights came in for a number of projects where lights were upgraded or installed. Mr Hill agreed that there is a process for scanning and checking the bags of contractors during a shutdown but that this was not in place on 16 May 2017 as there was no shutdown. Such searches are conducted at the airport where a scanner picks up tags on GEMCO tools that may be hidden in bags. Mr Hill also agreed that there may have been core contractors in the change room when Mr Law was preparing to depart on 16 May 2017. Mr Hill said that he checked movements of the entire crew including contractors in or around the change room at the time that Mr Law was there.

[90] In response to a proposition that someone opened Mr Law’s bag, removed his toiletry bag and burgundy towel and replaced them with the electrical equipment and the purple GEMCO towel, Mr Hill said that the investigation considered this possibility and that was the reason for interviewing Mr Bonney who was nominated by Mr Law’s support person as being in the change room at the relevant time. No other persons were identified by Mr Law. Mr Hill said that this proposition was dismissed as being implausible. Mr Hill also agreed that he concentrated on the change room because the chain of custody for the bag was known after it was checked in at the airport. It was not considered that the bag was interfered with after check in because it weighed 5 kg at check in. Mr Hill did not go to the airport or question the bus drivers. Ms Isaac questioned the bus drivers.

[91] In relation to union membership, Mr Hill said that it is mixed and some areas of the mine are more heavily unionised than others. There have been no strikes or disputes that Mr Hill could recall although some grievances have been raised.

[92] In re-examination Mr Hill was shown invoices and purchase orders for LED spotlights and range hood lights evidencing that the LED spotlights are priced at $468 per unit and the range hood downlights at $89.50 per unit. Mr Hill said that the LED spotlights are sold as a unit with two lights and a battery and an enclosure to hold the battery. The lights are detachable from the battery. Mr Hill did not know the value of the lights without the battery. The lights could be wired so that they could operate other than with the battery or operated by any battery. Mr Hill said that he obtained the purchase orders prior to Mr Law’s dismissal but did not show those documents to Mr Law at any stage of the investigation of the allegations.

CONSIDERATION

Admissibility of evidence

[93] In an outline of submissions dated 24 November 2014, Mr Law contended that the evidence of Ms Isaac and Mr Hill should be excluded pursuant to s. 138 of the Evidence Act 1995 (Cth) (the Evidence Act) on the basis that the evidence concerning the contents of his bag on 16 May 2017 was unlawfully or improperly obtained. Mr Law’s legal representative sought to deal with the application for exclusion of the evidence after Ms Isaac and Mr Hill gave evidence and after they had been cross-examined. I refused this course of action and required the parties to put their submissions as to why the evidence should not be admitted in advance of the witnesses giving their evidence and being subject to cross-examination. After hearing the submissions and considering the statements in which the disputed evidence was set out, I decided that the evidence would not be excluded for the following reasons.

[94] The Commission is not bound as a matter of law to follow the rules of evidence but often does so in the interests of fairness. A key consideration in relation to the admissibility of evidence is its relevance. The evidence of Ms Isaac and Mr Hill in relation to the contents of Mr Law’s bag is central to the issues in dispute in this case. GEMCO’s case would not be sustainable if the evidence was not admitted. While there might be public policy reasons for excluding illegally or improperly obtained evidence from an unfair dismissal case, notwithstanding its centrality, this is not a case where exclusion is appropriate. I do not accept that the evidence was improperly or illegally obtained.

[95] Mr Law worked on a fly in fly out basis and as such was required to travel by air to and from Groote Eylandt. Mr Law travelled on charter flights arranged by GEMCO. Where Mr Law chose to take baggage with him on flights and to check that baggage in, he handed it to Alliance Airlines, the charter operator contracted by GEMCO. Alliance Airlines staff handed the bag to Ms Isaac when it was accidentally loaded onto the luggage trolley for an incorrect flight. When the bag was not claimed, Ms Isaac opened it to establish who owned the bag and in particular, if the owner had slept in at the Pole 13 camp and had been left behind.

[96] There was no other method by which Ms Isaac could have established the ownership of the bag. Contrary to the submissions on behalf of Mr Law, Alliance Airlines could not have identified the owner of the bag absent Mr Law coming forward with the other half of the tag attached to the bag. I accept that if Mr Law provided the number on the tag to an Alliance staff member in Cairns and left his contact details with that staff member, then he could have been identified by as the owner of the bag if it arrived in Cairns. However, Mr Law would still have been required to present the half of the bag tag bearing the same number as the tag on the bag, in order to claim it. The bag did not arrive in Cairns and remained on Groote Eylandt. There was no intention to deprive Mr Law of the bag or its contents. To the contrary, Ms Isaac’s actions were intended to return the bag to its rightful owner and were the only reasonable method by which this could have occurred. In the circumstances, it was reasonable and appropriate for Ms Isaac to open the bag. When Ms Isaac did so, she observed a GEMCO towel which she was entitled to remove, given it was company property. It was only on removing the towel that Ms Isaac noted the electrical items.

[97] Mr Law does not dispute that the purple GEMCO towel and the electrical items were found in his bag. Mr Law’s dispute centres on how the items came to be in his bag. Further, Mr Law doesn’t claim ownership of the purple GEMCO towel or the electrical items or that he obtained them from some other source. Rather he asserts that he has never seen them before. Mr Law also claims that GEMCO cannot establish that the items are Company property.

[98] The facts in this case can be contrasted with those in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz 35 cited by Mr Law’s representative in support of the contention that the evidence about the contents of Mr Law’s bag should be excluded. In that case, the employer removed a sample from an oil drum on the back of a vehicle owned by an employee parked on the employer’s premises. The purpose of removing the sample was to test the oil and by doing so it could not be returned to the employee. Further, in that case, the test conducted on the sample did not establish that the oil was the same type as that owned by the employee who asserted ownership of the oil. In those circumstances Thatcher C concluded that there was a trespass to goods and theft on the part of the employer in obtaining the sample.

[99] In the present case, the bag was returned to Mr Law – albeit after a delay. Mr Law maintains that his burgundy towel and toiletry bag were in the Puma bag when he last zipped it up in the change room and that those items are now missing. There is a question as to whether those items were ever in the black Puma bag. In any event, Mr Law does not assert that Ms Isaac or Mr Hill stole the toiletry bag or burgundy towel that he claims were in the bag when he packed it. I do not accept the submission on behalf of Mr Law that Ms Isaac and Mr Hill have engaged in trespass or larceny with respect to their handling of Mr Law’s bag. It is also the case that during the investigation Mr Law acknowledged that his bag had been opened and accepted that there were legitimate reasons for this to have occurred.

[100] Even if the Evidence Act applied, the factors set out in s. 138 of the Evidence Act would weigh in favour of the evidence being admitted, in particular the probative value and importance of the evidence, the nature of the allegations against Mr Law, the fact that Ms Isaac’s actions in dealing with the bag were reasonable and honest and the fact that the evidence could not have been obtained but for Ms Isaac’s actions in opening the bag.

[101] Mr Law’s representative waited until one business day before the start of the hearing to submit that the evidence should be excluded, when the nature of GEMCO’s evidentiary case, and its reliance on the evidence of Ms Isaac and Mr Hill was known from the outset. In all of the circumstances it would be unfair to exclude the evidence and for those reasons I determined to admit the evidence.

Was there a valid reason for dismissal – s. 387(a)

[102] GEMCO bears the onus for establishing that there was a valid reason for the dismissal of Mr Law. However, Mr Law bears the onus of showing that his dismissal was unfair. In considering whether there is a valid reason for dismissal, the Commission is not restricted to the reason relied on by GEMCO. GEMCO asserts that Mr Law has engaged in theft and this misconduct was amplified by his decision not to engage honestly with GEMCO’s investigation by continuing to deny his actions. The Commission is required to be satisfied on the balance of probabilities that Mr Law engaged in the alleged misconduct and that this is a valid reason for dismissal.

[103] Mr Law does not dispute that the items were found in his bag. There was no suggestion that Ms Isaac who discovered the items, placed them there herself. If Mr Law placed items of Company property in his luggage and attempted to remove them from Groote Eylandt, such conduct would be a valid reason for dismissal. There is no contention to the contrary from Mr Law. Mr Law does not assert that he acquired the items by some other means than is alleged or that they are his property or that he was under some misapprehension that taking them and placing them in his bag was permitted or condoned. Rather Mr Law asserts that he has no knowledge of the items or how they came to be in his bag and that GEMCO cannot prove ownership of the items in any event.

[104] In considering whether there is a valid reason for Mr Law’s dismissal, I am required to be satisfied on the balance of probabilities that Mr Law engaged in the alleged misconduct notwithstanding that the allegations involve theft. In considering the evidence I must be conscious of the gravity of the allegations and the ramifications for Mr Law if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that Mr Law engaged in the conduct alleged against him. The case advanced by GEMCO is inferential and in such cases, the cumulative effect of evidence must be considered. Proof of any fact on the balance of probabilities can be established by circumstantial evidence – that is by proof of primary or intermediate facts from which a further fact can be inferred. 36

[105] In United Group Resources Pty Ltd and Others v Calabro and Others (No 5) 37 McKerracher J set out the principles in civil cases in relation to finding facts by inference, as follows:

“A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible and is not required. All that is necessary is that circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought. For the purpose of considering whether this test is met, the Court must consider the accumulation of the evidence. It is appropriate not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence, by considering the weight which is to be given to the united force of all of the circumstances together. The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference.” 38 (citations omitted).

[106] The case conducted on behalf of Mr Law has been directed at identifying other possible explanations for the fact that the GEMCO towel and the electrical items were found in his bag. Mr Law contends that the existence of those possibilities means that GEMCO has not made out its case – that he took Company property and placed the items in his bag for the purpose of stealing them – to the requisite standard of proof. As previously noted, Mr Law’s case was also directed at asserting that GEMCO has not established ownership of the property found in his bag so that he cannot be guilty of theft notwithstanding his inability to explain the presence of the items in his bag.

[107] The fact that there are other possible explanations is not of itself a sufficient basis for concluding that GEMCO has not made out its case on the balance of probabilities. GEMCO has set out the evidentiary basis for its conclusion that Mr Law engaged in theft and was not honest in his engagement with the investigation. I must consider whether, on the balance of probabilities, that Mr Law did engage in the conduct alleged by GEMCO. In doing so I must consider all of the evidence in relation to each of the explanations canvassed in the hearing. If there is evidence advanced by GEMCO that establishes, on the balance of probabilities, that the allegations are substantiated, then it is not sufficient to counter that evidence for Mr Law to simply identify the existence of other possible explanations for the presence of the items in his bag. What is required is evidence to support a finding on the balance of probabilities that Mr Law placed the items in his bag or that he did not. Accordingly I have considered each of the scenarios advanced by Mr Law on that basis.

[108] I turn first to consider whether, on the balance of probabilities, the items found in Mr Law’s bag were the property of GEMCO. In considering this issue, I note that there is an inconsistency in Mr Law’s argument asserting that on the one hand, he has never seen the items and has no knowledge of how they came to be in his bag, and on the other hand asserting that GEMCO has not proved that they are the property of the Company. Putting to one side that inconsistency, the evidence placed before the Commission by GEMCO is that range hood down lights and LED spotlights which are the same make and brand as was found in Mr Law’s bag, are items that are purchased and stored in its ABM shed. The range hood lights are used in Company supplied houses and the LED spotlights are security lights that are used throughout the GEMCO village. There was evidence that a project requiring the down lights was not able to be completed on 24 May 2017 because of a lack of supply of the down lights. It was also established that the other electrical components found in Mr Law’s bag are the same as those used by GEMCO and kept in the ABM store. I accept that evidence. It was essentially not contested. I also accept that there are no outlets on Groote Eylandt where the items found in Mr Law’s bag could be purchased.

[109] Initially, the basis for Mr Law’s contention that GEMCO could not establish what his legal representative described as “the provenance” of the electrical items, as set out in Mr Law’s response to the show cause letter dated 1 June 2017, was an assertion that there was no evidence connecting Mr Law to the storage area from which GEMCO alleged the items were removed. It was not until the hearing of Mr Law’s unfair dismissal application that the proposition was put to Mr Hill in cross-examination that there are contractors working on Groote Eylandt other than for GEMCO, who may use down lights for range hoods while performing work on housing in Aboriginal communities or that LED spotlights of the kind found in Mr Law’s bag may be installed at the golf club or the police station. No evidence of these matters was put to the Commission. If Mr Law wished to assert that GEMCO did not own the items on this basis, he should have either raised it at the time the allegations were being investigated or in his evidence to the Commission or brought some evidence to support the assertion.

[110] In all of the circumstances I find that it is more probable than not that the electrical items found in Mr Law’s bag were the property of GEMCO and that it is improbable that they are the property of a contractor doing work on Groote Eylandt.

[111] I turn next to the issue of when the items were placed into Mr Law’s bag. GEMCO asserts that it is more probable than not that the electrical items and the purple towel, the property of GEMCO, were placed in the bag by Mr Law before it was checked in to the Alliance flight. This assertion is based on the fact that Ms Isaac weighed the bag while it was in her possession using post office scales. Ms Isaac asserts that the bag and its contents including the electrical equipment weighed 5.18 kg. The bag and its contents without the electrical equipment in it weighed 2.78 kg. Accordingly, the weight of the electrical equipment, based on Ms Isaac’s evidence, was 2.4 kg.

[112] The weights noted by Ms Isaac were not disputed. Ms Isaac does not assert that she removed and replaced the GEMCO towel while weighing the bag. Ms Isaac was not cross-examined on this point. Accordingly the 2.4 kg difference reported by Ms Isaac represents only the weight of the electrical equipment – 2 x 10W spotlights, 2 x range hood downlights and a bag of PVC conduit fittings. It is probable that on the basis that Alliance check-in staff had a practice of rounding to the nearest kilogram, the total weight of a 5.18 kg bag would have been recorded as 5 kg, and this is consistent with the weight of Mr Law’s checked bag as recorded on the Alliance passenger manifest for the PM1 charter flight from Groote Eylandt to Cairns on 16 May 2017. It is therefore contended by GEMCO that the weight of the bag supports an inference that the electrical equipment was in it when it was checked in at the Alliance counter by Mr Law.

[113] It is not in dispute that Mr Law swiped out of the GEMCO site at 6.20 pm on 16 May 2017 and that he took with him a backpack and the black Puma bag in which the items were found. Mr Law states that he checked his black Puma bag in at the Alliance check-in counter at or around 6.30 pm. Ms Isaac also states that the Alliance passenger manifest indicates that Mr Law checked in for the PM1 flight at approximately 6.30 pm. It is also not in dispute that the Alliance check-in staff weighed the bag and recorded it as weighing 5 kg. On the evidence relating to the rounding process adopted by Alliance staff with respect to baggage weight, it is probable that the actual weight of the bag was more than 4.5 kg and less than 5.5 kg.

[114] There does not appear to be a dispute about the items of clothing and personal wear that were in the bag. Mr Hill listed those items in his witness statement and the accuracy of the list set out by Mr Hill in his witness statement was not disputed by Mr Law. The only uncertainty about the list of clothing in Mr Hill’s statement is that there were “four to five pairs of jocks” in the bag. Mr Law did not dispute that the items of clothing and personal wear listed in Mr Hill’s witness statement were returned to him and states that those items included five pairs of jocks. The discrepancy in the number of pairs of underwear that were in the bag does not appear to be material, no issue was raised in relation to it at the hearing and it is unlikely to have had any bearing on the weight of the bag.

[115] Mr Law asserts that the items were placed in his bag by an unknown person or persons, and that this could have happened in the change room or at a later time. Mr Law maintains that the last occasion that he looked at the contents of his bag in the change room at approximately 6.00 pm was when he zipped up the bag before rushing to the toilet. According to Mr Law at that time, the bag contained clothing and personal wear which Mr Law agreed was as listed in Mr Hill’s witness statement. In addition, Mr Law maintains that the bag contained a wet (but not soaking wet) burgundy towel and a black zippered toilet bag containing soap, toothpaste, toothbrush, disposable razor, contact lenses in a left and right lens container and an old army stainless steel shaving mirror. According to Mr Law the toilet bag and its contents and the burgundy towel are missing. Mr Law also maintains that when he zipped the bag in the change room it did not contain the purple GEMCO towel or the electrical equipment.

[116] After considering the evidence about the weigh in process for checked luggage and the weight of the bag, I have concluded that it is improbable that the toiletry bag and the burgundy towel (which Mr Law maintains were in his bag when he zipped it up) were in the bag at the same time as the electrical components and the purple GEMCO towel. As previously noted, Ms Isaac weighed the bag with contents that included the purple GEMCO towel that she found in the bag. Whether the towel was the purple GEMCO towel found by Ms Isaac in the bag or the burgundy towel that Mr Law asserts he placed in the bag, it is doubtful that this affected the overall weight of the bag. This is particularly so given that Mr Law’s evidence was that the burgundy towel was wet but not soaking because he only used it to dry his face and chest which he washed in the sink as he did not have time to shower.

[117] It is probable that Mr Law’s bag weighed over 4.5 kg and less than 5.5 kg at the time it was checked in on the basis that Alliance check in staff recorded the weight as 5 kg. As established by Ms Isaac’s evidence, without the electrical equipment, the bag weighed 2.78 kg and the electrical equipment weighed 2.4 kg. In order to be recorded as 5 kg at check in it is probable that the bag contained an additional item or items weighing between 1.72 kg and 2.72 kg give or take a few grams. From this evidence I conclude that the difference between the 2.78 kg weight recorded by Ms Isaac and the weight recorded by the Alliance check in staff can only be explained by the presence of an object or objects additional to the items of clothing and personal wear and a towel (regardless of its colour). That object or objects can only have been either the toiletry bag or the electrical equipment.

[118] If the toiletry bag and the burgundy towel were in the bag at the same time as the purple towel and the electrical items, the bag would have weighed over 7 kg at check in and at very least would have been rounded to that weight by Alliance Staff. As previously noted, it is not in dispute that Mr Law checked in for the PM1 flight and handed over his bag to Alliance staff at or around 6.30 pm. If follows that if the GEMCO towel and the electrical components were placed into Mr Law’s bag by a person or persons unknown, and the bag contained a burgundy towel and a toilet bag as asserted by Mr Law, then the latter items were substituted for the former.

[119] In relation to Mr Law’s assertion that the electrical equipment and the purple GEMCO towel may have been placed into his bag while it was in the change room, Mr Law states that his bag was unattended for fifteen or twenty minutes between the time he zipped it after washing his face and chest and returning from the toilet after suffering a bout of diarrhoea, and that those items could have been placed into his bag in that period.

[120] Mr Law does not assert that the items were placed in the bag in the period after he left the change room and before he checked it in at the airport. There is also no evidence about where the bag was in that period and I consider it highly improbable given Mr Law’s evidence that he left the change room with a back pack and the bag he checked in. The swipe card records tendered by Mr Hill establish that Mr Law swiped out of the Mine premises at 6.20 pm and his own evidence is that he checked in his bag at or around 6.30 pm. It is therefore unlikely that the bag was interfered with in the period between Mr Law leaving the change room and checking the bag in.

[121] Accordingly it is necessary to consider whether, on the balance of probabilities, a person or persons unknown removed a burgundy towel and a toiletry bag from Mr Law’s bag while it was unattended in front of his locker in the change room for a period of fifteen to 20 minutes prior to Mr Law departing from the change room at or around 6.20 pm, and replaced those items with a purple GEMCO towel and the electrical components. I note that the locker had Mr Law’s name on it and it is possible that at the point it was sitting in front of the locker, the bag could have been identified as belonging to Mr Law.

[122] Weighing against the possibility of the items being planted in Mr Law’s bag while it was unattended in the change room is the fact that the vast majority of the members of his crew who were also leaving Groote Eylandt at the same time swiped out of the Mine before 6.07 pm. Only Mr Law and two other employees swiped out at 6.20 pm. An employee nominated by Mr Law as a union member with whom he had recently held a discussion about membership, and who was suggested by Mr Law under cross-examination as possibly being involved in planting the GEMCO towel and the electrical items in his bag, was among the bulk of employees who swiped out at 6.07 pm.

[123] Also weighing against this possibility is the fact that the Company conducted a reasonably thorough investigation of what occurred in the change room. Persons nominated by Mr Law’s support person as being in the change room at the relevant time were spoken to. In the meeting of 23 June 2017 Mr Law’s support person named two other persons who were allegedly in the change room at or around the time that Mr Law was there. One of those persons said that he had seen nothing to suggest that a bag was being interfered with and had not noticed an unattended bag. The other person had left Groote Eylandt earlier that day and was not in the change room at the relevant time. Mr Hill spoke to members of Mr Law’s crew who were working the same roster and ascertained that none of them had seen anything of relevance to the investigation. A union member with whom Mr Law alleges he had a conversation during which Mr Law declined to join the union, swiped out at 6.07 pm and it is unlikely that this person could have placed anything into Mr Law’s bag. Quite simply there is no evidence to establish that there was any person in the change room who had motive or opportunity to remove Mr Law’s burgundy towel and toiletry bag from the bag he intended to check onto the Alliance flight and replace those items with a purple GEMCO towel and electrical items. After carefully considering all of the evidence in relation to this assertion, I find that the proposition that a person or persons unknown placed the purple GEMCO towel and the electrical items in Mr Law’s bag while it was unattended in the change room is improbable.

[124] Mr Law also raises the possibility that the Purple GEMCO towel and the electrical items were placed into his bag after it was checked in and while it was on an Alliance baggage trolley. I turn now to consider the so called “chain of custody” issues raised by Mr Law’s representative with respect to the bag. It is not in dispute that Mr Law’s bag was accidentally placed on a baggage trolley for the PM2 flight to Darwin, rather than the PM1 flight to Cairns which Mr Law departed on. The evidence is that there were two baggage trolleys – one trolley designated for baggage for the PM1 flight and another trolley designated for baggage for the PM2 flight. The trolleys are in a fenced gated area behind the check in counter. Each incoming flight is turned around and the plane becomes an outgoing flight. Two trolleys are taken to each incoming flight, an empty trolley onto which the bags of incoming passengers are unloaded and a full trolley containing the bags of outgoing passengers who are boarding the plane which are loaded onto the plane. Once the trolley containing the bags of incoming passengers is taken to the fenced baggage area, passengers disembarking from the incoming flight are allowed to go to the trolley to take their bags. Those passengers then leave the area and the baggage for the outgoing flight is loaded onto the plane. Incoming and outgoing passengers are not in the fenced baggage area at the same time.

[125] When a bag is checked in it is tagged by Alliance check in staff with a numbered tag. The tag is in two parts with the same number on each part. A part of the tag is torn off and given to the person who checked the bag in. That person then retains the ticket. Bags are not otherwise labelled by check in staff. Mr Law does not assert that he had labelled his bag with a tag bearing his name. The bag was a black bag and other than that the brand “Puma” was printed on the side of the bag it does not appear to have had any distinguishing features. Once the bag was checked in, it is improbable that another passenger could have identified the bag as belonging to Mr Law with the possible exception of a person who saw him carrying it to the check in counter; the person or persons at the counter who checked it in or saw it being checked in; or the baggage handling staff who may have witnessed the bag being handed to check in staff by Mr Law before placing it on the trolley.

[126] It is improbable that Mr Law’s bag was tampered with by another outgoing passenger booked on the PM1 charter flight after Mr Law checked the bag in. Once the bag was checked in it went into a fenced area. The incoming aircraft that was to become the PM2 flight had not landed before the PM1 flight departed. Any passenger behind the fenced area tampering with a bag would have been noted and there would have been no need for such a person to be in the fenced area. It is also improbable that the check in staff or baggage handlers employed by Alliance tampered with Mr Law’s bag. For reasons set out above, when the bag was weighed in it could only have contained either the purple GEMCO towel and the electrical items or Mr Law’s burgundy towel and the toiletry bag.

[127] If the tampering happened after the bag was checked in and while it was in the Alliance baggage area, then the person who placed the purple towel and the electrical items in the bag would have needed to remove Mr Law’s burgundy towel and toiletry bag. At the risk of descending to the level of a detective novelist, I do not consider that there is any possibility that the bag was tampered with twice after it was checked in and that Mr Law’s items were removed at a different time than the point at which the purple GEMCO towel and the electrical items were placed in the bag and I have not considered this matter further.

[128] It would have been difficult for an Alliance staff member or baggage handler to have opened the bag when it was checked in and placed the GEMCO items in it and even more difficult for such a person to have removed Mr Law’s items and replaced them with the GEMCO items. There is no reason why an Alliance staff member or baggage handler would have had such items at the airport for the purpose of placing them in the bag of a random passenger or into Mr Law’s bag. In the unlikely event that this occurred, if an Alliance staff member or baggage handler wanted to plant items in a bag it would have been easier to simply put them in the bag without removing any other item given that the bag had already been weighed and checked in. It is equally unlikely that a bag placed on the wrong luggage trolley would have been interfered with in the way that would have had to have occurred to provide an explanation for the GEMCO items being in the bag and Mr Law’s items being removed from the bag.

[129] On the basis of the evidence about the check in and luggage handling procedures, it is improbable that an outgoing passenger on the same flight as Mr Law interfered with the bag after it was checked in. The bag was on a trolley behind a fenced and gated area and an outgoing passenger would not have been in that area. It is equally improbable that an incoming passenger would have placed the purple GEMCO towel and electrical items in what would have appeared to be an anonymous black bag, and removed the burgundy towel and Mr Law’s toiletry bag at the same time. It would be passing strange that an incoming passenger would have in his or her possession a purple GEMCO towel and the electrical items much less that such a person would seize on an opportunity to put those items in a bag that was on a trolley in the baggage area while taking his or her luggage off either that trolley or another trolley.

[130] According to Ms Isaac’s evidence, the PM1 flight departed at 7.00 pm. The aircraft that was to be used for the PM2 flight struck at bat on approach to Groote Eylandt at 7.20 pm. That flight was not scheduled to depart until 7.50 pm. It is unlikely that any passengers for the PM2 flight would have been at the airport as early as 6.30 pm when Mr Law checked in. Even if a PM2 passenger did see Mr Law check in his bag that passenger could not have known that:

● The bag would be placed on the wrong trolley;
● The incoming aircraft that was to be used for the PM2 flight would hit a bat;
● The PM2 aircraft would not depart that night; and
● Mr Law’s bag would be among the PM2 bags left at the Pole 13 mess for the night.

[131] It is equally improbable that the bag was interfered with after it left the airport and was transported to the Pole 13 camp. I can see no reason why bus drivers engaged by a service contractor would interfere with Mr Law’s still anonymous black bag and place the purple GEMCO towel and electrical items in it while removing Mr Law’s burgundy towel and toiletry bag. Similarly there is no reason why a group of employees who were due to fly out on the PM2 flight and were not able to depart due to a bat strike would interfere with Mr Law’s bag. That group of passengers travelled separately back to the main camp where they ate a meal. When it became apparent that the PM2 flight would not be able to depart that evening, the PM2 passengers were transported to the Pole 13 camp, where they were to be accommodated that night. Their bags (among which Mr Law’s bag had been included) were also taken to the Pole 13 camp and placed in the mess. Some passengers took their bags with them to their accommodation at the Pole 13 camp while others left their bags where they had been placed in the Pole 13 mess. The mess was then locked for the night.

[132] These matters make it highly improbable that a bus driver, an Alliance staff member or an outgoing PM2 passenger would be waiting at the airport or at the Pole 13 camp with the purple GEMCO towel and the electrical items for the purpose of planting them in Mr Law’s bag and removing the burgundy towel and Mr Law’s toiletry bag, to bring about a circumstance where he would be charged with theft. It is equally improbable that the substitution was accidental, given that on Mr Law’s evidence of the contents of his bag, his toiletry bag and burgundy towel must have been removed from his Puma bag before the GEMCO items were put into it. Furthermore, if an outgoing PM2 passenger intended to use Mr Law’s bag to smuggle the items off Groote Eylandt, that person would probably have taken the bag and rechecked it rather than allowing it to sit unattended at the Pole 13 mess.

[133] The proposition that a PM2 passenger entered the Pole 13 mess during the night and planted items in Mr Law’s bag while removing Mr Law’s items is also improbable. The PM2 passengers were unable to leave on a flight scheduled to depart at 7.50 pm. They had worked the last shift of their swing and were leaving for a week off. By the time the bags were placed in the Pole 13 mess the PM2 passengers had been bussed to the GEMCO village for a meal, presumably informed that it was not possible for them to leave Groote Eylandt that evening and had been bussed to the Pole 13 camp where they were to spend the night before catching a flight early the next day. I do not doubt that those employees had better things to do than sneak into the Pole 13 mess for the purpose of planting items into a bag that could not have been identified as Mr Law’s bag until it was opened. Adding to the improbability of this scenario is the evidence that the mess was locked by the Pole 13 camp manager.

[134] The proposition advanced by Mr Law that he was set up by union members because he declined to join a union is also improbable. The evidence establishes that the workplace is not totally unionised and the area in which Mr Law worked has a mixture of members and non-members. There is nothing in Mr Law’s version of the conversation given in cross-examination to suggest that the discussion was heated or that he was threatened by it. Mr Law did not raise this possibility at the meeting of 23 May 2017 and the notes of the meeting do not reflect his assertion that Mr Messenger named union members who may have done this. In a fifteen page response to the allegations sent by his legal representative on 6 June 2017, reference is made to “confidential instructions” of a “sensitive and industrial nature” which would not be appropriate to be committed to writing but that the legal representative would be prepared “if necessary” to provide details of in a confidential meeting.

[135] Mr Law was being required to show cause as to why his employment should not be terminated on the grounds of alleged theft. It was necessary for him to provide a reasonable explanation for the items being found in his bag. If he had information or evidence to suggest that a member or members of a union had set him up, then his legal representatives could and should have put that information to the Company. There were meetings after the response letter was sent and there is no evidence that any information was provided to GEMCO sufficient to investigate this matter further. Mr Law named one person alleged to have spoken to him about union membership in cross-examination at the hearing into his application and conceded that he had not previously provided any names to the Company. That person swiped out of the site at 6.07 pm on 16 May – some 23 minutes before Mr Law swiped out and was on the same flight as Mr Law.

[136] The paucity of evidence about this matter is surprising given the serious nature of the allegations. I have concluded that the proposition that a union member or members placed the purple GEMCO towel and the electrical items into Mr Law’s bag is improbable. It was also inappropriate for the allegation to have been made at all without any evidence to support it and I have redacted the identifying details accordingly.

[137] Once the bag was in the custody of Ms Isaac, the likelihood of tampering becomes even more improbable. Ms Isaac opened the bag at the airport. It was entirely reasonable for her to do so given the situation that had arisen with the PM2 flight and the possibility that a passenger on that flight could have slept in at the Pole 13 camp and been left behind. On opening the bag, Ms Isaac saw the purple GEMCO towel and Mr Law’s work shirt. After ascertaining from Alliance staff at the airport that Mr Law had already travelled to Cairns the previous night, Ms Isaac took the bag to her office. This was also an entirely reasonable action for Ms Isaac to take. It was not until 11.30 am on 18 May 2017 that Ms Isaac opened Mr Law’s bag again to remove the GEMCO towel. Again this was an entirely reasonable action for Ms Isaac to take given that the towel was Company property. I do not doubt that in the FIFO environment where employees are showering before boarding a flight at the end of their roster swings, that the odd towel is taken and it is unsurprising that GEMCO would simply caution employees in such circumstances and give them the benefit of the doubt, rather than treating the removal of a towel as a disciplinary matter.

[138] It was only on removing the GEMCO towel that Ms Isaac noted the presence of the electrical items in Mr Law’s bag. The presence of such items in Mr Law’s bag was an entirely different matter than the mere presence of a GEMCO towel. I have previously noted the improbability of the proposition that all of the GEMCO items and Mr Law’s items were in the bag at the same time. This is further evidenced by the fact that Ms Isaac did not notice the burgundy towel and the toiletry bag when she unpacked Mr Law’s bag to weigh it and the GEMCO items. There is no suggestion that Ms Isaac placed the purple GEMCO towel or the electrical items in Mr Law’s bag or that she removed the burgundy towel and the toiletry bag. No such proposition was put to Ms Isaac or contended. I am satisfied that Ms Isaac did not put items into the bag or remove items from the bag other than to identify the owner of the bag and to weigh items that were already in the bag.

[139] Mr Law’s burgundy towel and his toilet bag were not noted by Ms Isaac as being in the bag when it was handed to Mr Hill later at 1.52 pm on 19 May 2017. Given the weight of the bag at check in and my previous findings in this regard, it is highly improbable that the burgundy towel and the toiletry bag were in the bag while it was in the possession of Ms Isaac and even more improbable that they were removed by a person or persons unknown after Ms Isaac opened the bag and before it was handed to Mr Hill. Mr Hill certainly did not put the GEMCO towel and the electrical items into the bag and it is highly improbable that he removed any items from the bag. To the contrary, Mr Hill was concerned with documenting the contents of the bag.

[140] Given the seriousness of the allegations, I have considered every possible explanation raised by Mr Law’s legal representative for the presence of the items in his bag and some that have emerged in my consideration. After weighing all of the evidence I have concluded that the most probable explanation for the presence of the purple GEMCO towel and the electrical items in Mr Law’s bag is that he placed them there himself. Accordingly I am satisfied on the balance of probabilities that Mr Law did engage in the conduct alleged against him.

[141] For the reasons set out above I am satisfied and find that the items in Mr Law’s bag were the property of GEMCO. While the items are not marked or bar coded, the Company is the most probable source of such items on Groote Eylandt and they are items used in its operations. Even if there are other sources where such items could be obtained on Groote Eylandt, the possibility that they would be wrapped in a purple GEMCO towel in order to place them in Mr Law’s bag is in my view, nil. The value of the items or what Mr Law may or may not have been able to do with them does not go to the validity of the reason for dismissal. As GEMCO submits, the value of the items is immaterial and what matters is the dishonesty associated with the theft of the items, which is destructive of the mutual trust and confidence between employer and employee.

[142] The removal of such items is contrary to GEMCO’s Code of Business Conduct. Even if the items were scrap or waste, their removal without permission is in breach of that Code. Mr Law was trained in the Code and does not dispute that he understood it. Mr Law also undertook refresher training in the Code on the morning of 16 May 2017 before he departed Groote Eylandt. The training undertaken by Mr Law includes a scenario involving removal of Company property that is scrap or waste material and makes clear that this is a breach of the Code.

[143] That the items were found in Mr Law’s bag is not disputed. I am satisfied on the balance of probabilities that the items were placed in the bag by Mr Law and he has not established a reasonable alternative explanation for the items being found in his bag. The presence of Company property in Mr Law’s bag is a valid reason for dismissal as is his failure to provide a reasonable explanation for the presence of the items in his bag.

[144] I accept that the investigation conducted by GEMCO was not perfect. However, such an investigation is not required to be perfect. What is required is that GEMCO establish that there was a valid reason for dismissing Mr Law, being a reason that was defensible and well founded. GEMCO was required to conduct an investigation into the alleged misconduct which established the allegations on the balance of probabilities. The Company was not required to conduct an investigation to the standard that would be expected of a police investigation. I do not accept that any of the issues raised on behalf of Mr Law with respect to the investigation and the manner in which GEMCO dealt with Mr Law’s bag and its contents, invalidate the outcome of the investigation.

[145] The Company investigated every possible explanation raised by Mr Law. In relation to the chain of custody issues raised by Mr Law’s legal representative, I do not accept that this is a basis for invalidating the investigation conducted by GEMCO or that there was any issue sufficient to cast doubt on the outcome of the investigation or the conclusions reached by the Company, or to impugn the validity of the reason for dismissing Mr Law.

[146] Mr Law’s bag was not a suspicious item found at the scene of a crime and GEMCO was not required to deal with it as such in order to later establish that items found in the bag constituted a valid reason for dismissing the owner of the bag. When Ms Isaac opened the bag it was reasonable for her to simply view it as a piece of lost luggage with an owner who may have slept in and was in danger of missing a flight following a roster swing. The bag was opened for the purpose of identifying its owner and returning the bag. There was no other method by which the owner of the bag could reasonably have been identified. It was a non-descript black bag without the name of the owner on the outside. When Ms Isaac opened the bag and noted that it contained a GEMCO towel, it was not unreasonable that she determined to simply remove the towel and write a letter to Mr Law cautioning him in relation to removing towels from Groote Eylandt. Immediately upon becoming aware that the bag contained the electrical items Ms Isaac secured it in her office and then handed it over to Mr Hill.

[147] It may have been preferable for the bag to have been transported to Cairns for the meeting on 23 May 2017 with Mr Law, so that he could have viewed the totality of the items in the bag before responding to the allegations. However, Mr Law was provided with a list of the items. Further, Mr Law identified that he believed the bag should have contained his black toiletry bag and the burgundy towel, at that meeting. There was also discussion about these missing items at subsequent meetings. I do not accept that Mr Law was disadvantaged in making his responses by the absence of information about the contents of the bag. To the contrary, Mr Law was asserting at the first meeting on 23 May 2017 that his burgundy towel and toilet bag should have been in the Puma bag. In any event, Mr Law had an opportunity to fully explore the import of the missing items at the hearing of his unfair dismissal application, and has not raised any issue sufficient to outweigh the conclusion that on the balance of probabilities he placed the GEMCO towel and the electrical items into his own bag.

[148] Mr Law does not assert that the items belonged to him or that he obtained them from a source other than GEMCO or that he mistakenly placed them in his bag in the belief that he was entitled to do so. Given that I am satisfied on the balance of probabilities that Mr Law placed the items into his own bag and he has provided no reasonable explanation for doing so, it follows that he did this for the purpose of removing them from Groote Eylandt. Questions about what Mr Law might have done with the items when he got them to Cairns are relevant to considering whether on the balance of probabilities Mr Law did take the items and place them in his bag, but they are not determinative of whether he did so.

[149] I have also given consideration to the fact that Mr Law had an unblemished period of over five years’ service with GEMCO. Mr Hill acknowledged that until the present circumstances arose, he considered Mr Law to be an honest and hardworking employee. Mr Law has also served 10 years in the armed services. I accept that the conduct alleged against Mr Law appears to be out of character. However, this consideration does not affect my satisfaction to the required level, that the allegations against Mr Law have been substantiated. I have also given consideration to Mr Law’s evidence that he told Alliance Airlines Staff that he was happy to pick up the bag on his return to Groote Eylandt. Although Ms Isaac stated that she was told by Alliance Staff that Mr Law wanted the bag sent to him on the next flight, this is not a matter that was given any weight by GEMCO in deciding to dismiss Mr Law. I am also of the view that it is not a matter that weighs against the conclusions I have reached in relation to the items that were in Mr Law’s bag and his failure to provide a reasonable explanation for that fact.

[150] In all of the circumstances I am satisfied and find that there was a valid reason for the dismissal of Mr Law in that he took items that were the property of GEMCO with the intent of removing them from Groote Eylandt, and that he failed to provide a reasonable explanation for this conduct.

Notification of the reason for Mr Law’s dismissal – s. 387(b)

[151] It is not in dispute that Mr Law was notified of the reason for his dismissal and I am satisfied that this is so. The reason for dismissal was advised orally to Mr Law and his representative on 28 June 2017 and also set out in a letter to Mr Law sent on that date.

Opportunity to respond to the allegations related to conduct – s. 387(c)

[152] Mr Law was provided with an opportunity to respond to the allegations at a meeting on 23 May 2017 and a further meeting on 9 June 2017. Mr Law was also provided with an opportunity to respond in writing to a show cause letter setting out the allegations. Various requests made by Mr Law and his representative for information to enable a response to be made to the allegations were also responded to by the Company.

[153] I am satisfied that Mr Law had ample opportunity to respond to allegations about his conduct and that his responses were considered.

Presence of support person in discussions relating to dismissal – s. 387(d)

[154] There was no refusal to allow Mr Law to have a support person present at discussions relating to his dismissal. Mr Law had a support person of his choice at all relevant meetings. While there appears to have been an issue about the extent to which Mr Law’s legal representative participated in the meeting on 9 June 2017 it is not asserted that this criteria was not met.

Warnings about unsatisfactory performance – s. 387(e)

[155] Mr Law was not dismissed for unsatisfactory performance and this consideration is not directly relevant. However it is the case that Mr Law was trained in the relevant Code of Conduct and knew the serious repercussions of removing GEMCO property from the workplace without permission.

Impact of size of employer’s enterprise on dismissal procedures – s. 387(f)

[156] The size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal and this is not a relevant consideration in the present case. GEMCO utilised appropriate procedures in investigating the allegations and effecting the dismissal which would be expected of a Company of its size.

Impact of human resource management on dismissal procedures – s 387(g)

[157] GEMCO has human resource management expertise and used this expertise in effecting Mr Law’s dismissal. This is not a relevant consideration in the present case. While there were some deficiencies with the investigation and the process followed by the Company, these are not sufficient to render the dismissal unfair.

Other relevant considerations – s. 387(h)

[158] Mr Law is 59 years of age. I accept that his dismissal has had significant consequences for his personal and economic circumstances and this is particularly so given the reason for his dismissal. I also accept that Mr Law has over five years of unblemished service and planned to stay in employment with GEMCO for the foreseeable future.

[159] However, these matters do not outweigh the fact that Mr Law engaged in misconduct established on the balance of probabilities, and that this misconduct was a valid reason for his dismissal. Further, the dismissal was effected in a manner that on balance was both substantively and procedurally fair.

CONCLUSION

[160] Mr Law’s dismissal was not unfair. Mr Law’s application for an unfair dismissal remedy is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr C. Agnew of Agnew Legal for the Applicant.

Mr A. Pollock of Counsel instructed by Ms J. Brivik of Herbert Smith Freehills for the Respondent.

Hearing details:

2017.

28 & 29 November.

Brisbane.

<PR601562>

 1   Exhibit A1 Statement of Ian John Law dated 3 November 2017; Exhibit A2 Second Statement of Ian John Law dated 24 November 2017.

 2   Exhibit R2 – Statement of Jennifer Ann Isaac; Exhibit R3 – Second Witness Statement of Jennifer Ann Isaac.

 3   Exhibit R4 – Statement of Robert Edward Hill.

4 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

5 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

6 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

7 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 8   Bista v Glad Group Pty Ltd [2016] FWC 3009.

 9   (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

 10   Ibid at 362-363.

 11   (1992) 110 ALR 449.

 12   Ibid at 450.

 13   Ibid at 451.

 14   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 15   Exhibit A1 Annexure “IL3”.

 16   Exhibit A1 Annexure “IL4”.

 17   Ibid.

 18   Exhibit A1 Annexure “IL7”.

 19   Exhibit A1 Annexure “IL8”.

 20   Transcript 28 November 2017 at PN227 to PN231.

 21   Transcript 28 November 2017 at PN432.

 22   Exhibit R4 Statement of Robert Edward Hill Annexure “RH5”.

 23   Ibid at PN582 to PN593

 24   Exhibit R2 Statement of Jennifer Ann Isaac Annexure “JI3”.

 25   Exhibit A1 Annexure “IL4”.

 26   Exhibit R2 Annexure “JI-4”.

 27   Transcript 29 November 2017 PN1078.

 28   Exhibit R4 Witness Statement of Robert Edward Hill Annexure “RH-2”.

 29   Exhibit R2 Witness Statement of Jennifer Ann Isaac Annexure “JI-4”.

 30   Exhibit R4 Witness Statement of Robert Edward Hill Annexure “RH-3”.

 31   Exhibit R4 Witness Statement of Robert Edward Hill Annexure “RH-4”.

 32   Exhibit R4 Witness Statement of Robert Edward Hill Annexure “RH-17”.

 33   Exhibit R4 Witness Statement of Robert Edward Hill Annexure “RH-19”.

 34   Transcript 29 November 2017 at PN1617

 35   [2010] FWA 9440.

 36   Shepherd v The Queen (1990) 170 CLR 573 at 579.

 37   (2011) 198 FCR 514.

 38   Ibid at 541.

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