DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Ferry
v
GHS Regional WA Pty Ltd T/A GHS Solutions
(U2014/14619)

Termination of employment.

[1] This decision concerns an application made by Mr Colin Ferry (Mr Ferry) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is GHS Regional WA Pty Ltd T/A GHS Solutions (GHS or the respondent).

Background

[2] GHS, formally Geraldton Hire and Scaffolding, operates a business in Geraldton which hires items to the construction and mining industry including scaffolding and provides services assembling and disassembling scaffolding.

[3] Mr Ferry was employed as the Yard Manager for GHS. On 13 October 2014 the respondent dismissed Mr Ferry for having entered the company’s yard on Saturday, 4 October 2014 out of hours and without permission and for having then removed items without authorisation from the GHS yard which belonged to GHS.

Evidence and factual findings

[4] Mr Ferry gave evidence and also called Mr Neil Ashton (Mr Ashton) and Mr Jim Taylor (Mr Taylor) to give evidence. Mr Ashton had worked for GHS as a Supervisor until August 2013. Mr Taylor had worked for a GHS as a Supervisor until June 2014.

[5] The respondent called Mr Andrew Pitcher (Mr Pitcher), the respondent’s Managing Director, Mr Viv Groesslinger (Mr Groesslinger), a Manager of GHS who at the time of the hearing was no longer employed, Mr Darryl Sims (Mr Sims), who was employed by GHS for various periods including 4 October 2014 and Mr Christopher Dewar (Mr Dewar) who was employed at GHS as a Scaffolder from June 2014 to November 2014.

[6] Mr Ferry’s evidence under cross examination was often given in an argumentative and smart aleck manner and he was often resistant to accepting straightforward propositions whereas Mr Pitcher’s evidence was given in a reasonable and open manner when cross examined by Mr Ferry. Where there was a direct conflict between their evidence, as will be seen below, I have preferred the evidence of Mr Pitcher.

[7] Having considered the evidence of the witnesses I make the following factual findings.

[8] The business trades as GHS Solutions. Mr Pitcher has been involved with the business since January 2012 and is the sole Director. The business is essentially a family owned business, Mr Pitcher’s wife assists in the business undertaking various administrative tasks and Mr Pitcher is intimately involved in all aspects of the business.

[9] In February 2012 the business expanded with the acquisition of the assets of another business, Power Scaffolding and Rigging. Mr Ferry commenced employment with GHS after the purchase of this business’s assets on 20 February 2012 initially as a Scaffolder/Yardman.

[10] In June 2012 Mr Ferry was promoted to the position of Yard Manager.

[11] Mr Ferry was provided with a set of keys for the GHS yard to enable him to open and close the yard at the beginning and end of each working day. The yard was not usually open on Saturdays and Saturday was not a normal working day.

[12] All of the witnesses gave some evidence as to whether employees accessing GHS premises after hours required authorisation and in particular whether Mr Ferry required authorisation to access the GHS yard out of working hours.

[13] Notwithstanding Mr Ferry’s denials of this event I am satisfied that sometime in March 2012 Mr Pitcher became aware that Mr Ferry had entered the GHS yard on a weekend and removed a truck belonging to GHS which Mr Ferry used for his own private purposes and then returned. The evidence which I accept is that Mr Pitcher verbally warned Mr Ferry he was not to take items out of the yard without permission.

[14] I am satisfied that at a series of toolbox meetings in around July 2014, one of which Mr Ferry attended, Mr Pitcher discussed a number of matters including the requirement for full compliance by employees with the company’s policies and procedures. This was stressed because GHS had recently gained ISO (International Organisation for Standardisation) Accreditation which was necessary to meet the requirements of some more sophisticated clients such as large mining companies. Notwithstanding Mr Ferry’s denial of this 1 I am satisfied based on the evidence of the other witnesses that it was specifically discussed at these toolbox meetings that employees were not permitted to enter GHS premises after hours without authorisation and were not allowed to take items from GHS premises without authorisation.

[15] Mr Sims gave evidence that he for varying periods on and off had worked for GHS. On some occasions when he was working for GHS Mr Pitcher had agreed that he could live in accommodation within the GHS yard. Mr Sims evidence was that when he was living there he understood he was required to, and did, ring Mr Pitcher every time he entered or exited the premises after hours. I accept Mr Sims evidence on this.

[16] On 11 July 2014 GHS dismissed another employee Mr Kingdom because he had entered GHS premises on a Sunday without authorisation and removed property without authorisation.

[17] Under cross-examination Mr Ferry agreed there was discussion amongst the workforce about Mr Kingdom’s dismissal at the time he was dismissed but Mr Ferry denied he was aware of these particular reasons for Mr Kingdom being dismissed. Contrary to this Mr Groesslinger stated in his witness statement, which had been provided to Mr Ferry in advance of the hearing, that the reasons for Mr Kingdom’s dismissal were well known amongst the workforce and he repeated this in his oral evidence. Mr Groesslinger was not challenged on this evidence in cross-examination.

[18] Mr Pitcher also in his witness statement states that the reasons for Mr Kingdom’s dismissal were well known amongst the relatively small workforce. During cross-examination by Mr Ferry there was this exchange:

“Mr Ferry I do not recall it being a civil conversation. I recall a very loud conversation. At one stage there you accused me of doing exactly what Ox had done. Is that correct? Is that the way you remember it? You accused me of taking property without permission, entering the yard without permission and you - - -?

Mr Pitcher I’ll correct what you just said. If you take the first part of that question out of that statement, that you think it was a cross - you don't think it was civil. If we park that to one side, I may well have said to you during that meeting you’re aware that you’re not to enter the yard after hours without consent and you were aware that you weren’t to remove items without consent, and that you knew that Brayden Kingdom had been terminated for the exact same reason. That’s my recollection, Colin. 2 (Emphasis added)

[19] Mr Ferry did not go on to challenge this statement by Mr Pitcher that he had told Mr Ferry; that Mr Ferry knew Mr Kingdom had been terminated for the same reason of entering the yard after hours without authorisation and removing items without authorisation.

[20] On balance I do not accept Mr Ferry’s evidence that he was not aware that Mr Kingdom had been dismissed for entering the yard without authorisation and removing items without authorisation. I find that Mr Ferry shortly after 11 July 2014 was aware that these were the reasons Mr Kingdom was dismissed.

[21] Mr Ferry did not put any instances to Mr Pitcher of examples of him entering the yard out of hours without authorisation other than occasions where he was working overtime, which had been authorised.

[22] Mr Ashton’s evidence was that he thought that because Mr Ferry had keys to the yard he did not require authorisation to enter the yard out of hours. This however was no more than an impression he held. Mr Ashton was not employed at GHS after August 2013 and so he was not present when the toolbox meetings occurred in July 2014 nor when Mr Kingdom was dismissed around the same time.

[23] Mr Taylor’s evidence was that he believed Mr Ferry had free reign to enter the yard out of hours as he wished. Mr Taylor said he had no knowledge of any ISO Accreditation that GHS had gained. Mr Taylor was not employed at GHS after June 2014 so he too was not present when the toolbox meetings occurred in July 2014 nor when Mr Kingdom was dismissed around the same time

[24] Considering all of this evidence on the question of Mr Ferry’s need to seek authorisation before entering the yard out of hours Mr Ashton’s, Mr Taylor’s and Mr Ferry’s evidence has satisfied me that prior to July 2014 this requirement had not been strictly applied to Mr Ferry because of his role as Yard Manager. The evidence of all of the other witnesses however has satisfied me that from July 2014 onwards GHS had expressly made it clear to employees, including Mr Ferry, that employees must seek prior authorisation before entering the premises of GHS, including the yard, out of hours. I am satisfied that Mr Ferry had been made aware of this and new this applied to him.

[25] I find that from 2014 onwards GHS required that employees not enter the company’s premises after hours without authorisation and that this applied to Mr Ferry.

[26] A number of witnesses gave evidence regarding the needs to have authorisation before removing property from GHS’s premises.

[27] The evidence is that from June 2014 Mr Ferry’s employment with GHS was covered by the GHS Regional WA Pty Ltd Enterprise Agreement 2014 [AE408336] (the Agreement).

[28] Mr Ferry’s evidence was that he had read and understood the Agreement around the time it was made. 3

[29] Subclause 7.4 (e) −Employer’s Property of the Agreement provides that:

“Employees are not permitted to remove property from any work location unless directed by the Employer or consent is received from the Employer. Unauthorised removal of equipment or wilful damage to equipment may result in the termination of this Agreement.”

[30] Mr Ferry agrees that he read a copy of the Agreement that had been given to him 4 and that he made a number of notations on this copy including a notation adjacent to this subclause 7.4 (e). Mr Ferry also agrees he specifically read this subclause and understood it5 and so that he knew the company’s policy when he started employment.

[31] Under cross-examination however Mr Ferry argued that the practice in the workplace was not consistent with this provision. On its face this proposition of Mr Ferry’s is somewhat surprising given this would mean that employees were permitted to remove property without GHS’s consent and that unauthorised removal of property by an employee would not have any consequences.

[32] Mr Pitcher’s evidence was that in March 2012 he warned Mr Ferry for having removed a truck belonging to GHS from the yard on a weekend and using it without authorisation. Mr Ferry denied this was the case. 6 I prefer the evidence of Mr Pitcher on this point.

[33] I am also satisfied that in the toolbox meetings in around July 2014 mentioned above, one of which Mr Ferry attended, Mr Pitcher mentioned the requirement to have authorisation before removing any property from GHS premises.

[34] Mr Ferry’s evidence was that he was aware that the best practice before borrowing, as distinct from removing, any company equipment from the company’s premises was to ask beforehand. 7

[35] Mr Ferry’s evidence was that he would always ask for permission before taking an item that he was going to return but he would not always ask permission to take an item that he had no intention of returning if it’s was either of no commercial value or was to be discarded. 8

[36] I note that on Mr Ferry’s own evidence some of the items he took from the yard on 4 October 2014 had some commercial value and so he should even on his evidence have sought permission before he removed them.

[37] Mr Ferry’s evidence was that he does recall it being discussed at the toolbox meeting that employees were not allowed to take items from the premises without authorisation. 9

[38] Mr Ferry states he was involved in the ISO Accreditation that GHS achieved around July 2014 and agrees that as part of the accreditation complying with policies and procedures was given increased emphasis and this was discussed in the toolbox meetings around this time. 10

[39] Considering all this evidence I am satisfied that Mr Ferry was aware that he was not allowed to take any property from GHS’s premises without prior authorisation.

[40] Turning then to the events of Saturday, 4 October 2014. The evidence is that Mr Ferry, without seeking prior authorisation from Mr Pitcher, entered GHS’s yard with his vehicle and a trailer.

[41] Mr Sims was already present at the premises at that time.

[42] Mr Ferry did not seek prior authorisation from Mr Pitcher to remove anything from the premises on that day.

[43] In his witness statement Mr Ferry says that on this day he loaded “...some scrap and salvaged steel…” onto his trailer. 11

[44] Under cross-examination Mr Ferry gave evidence that he spoke to Mr Sims and then proceeded to place items in his vehicle and on his trailer. He agrees he put some items into the front of his car and he put some items in his trailer. 12 He then moved his vehicle and trailer to another part of the yard and placed a large rear rack bar onto his trailer having asked Mr Sims for some assistance to move this.13 Mr Ferry agrees that this rear rack bar was the one he discussed with Mr Pitcher some days later on 13 October 2014 and is referred to in the letter of termination of employment he received and is shown in photographs attached to that letter of termination.14

[45] Mr Ferry agrees he also placed an L-shaped bar with a wheel at one end of it, which Mr Ferry refers to as the “strong arm” onto his trailer. 15

[46] Mr Ferry agrees he also placed another item onto his trailer which is a small winch with an adjacent rusty handle “the little boat winch”. 16

[47] Mr Ferry acknowledges that he did not have authorisation to remove these items and he did not use the GHS system for recording borrowed equipment to log these items. 17

[48] With respect to the rear rack bar Mr Ferry agrees that it was removed some time earlier from a GHS truck. 18 Under cross-examination Mr Ferry initially agreed it was not his property but he then sought to explain that somebody, he was not sure whom but it may have been Mr Pitcher’s former business partner, had given him permission a year earlier to take it.19

[49] I accept the evidence of Mr Pitcher that the rear rack bar had been removed from a GHS truck purchased in January 2013 from another business GNC Concrete. Following its purchase GHS replaced the tray floor of the truck, fitted a small hiab crane so that it could be used as a servicing truck for portable toilets. The rear rack bar was removed from the vehicle when the new tray floor was fitted and the rear rack bar was stored in the yard.

[50] With respect to the strong arm Mr Ferry under cross examination stated that this was his property and it was not to GHS property. There is no explanation proffered as to why it was located on GHS’s premises. Mr Ferry had no good explanation as to why days later when challenged about the removal of these items by Mr Pitcher he returned both the rear rack bar and the strong arm if indeed they were his property and not GHS’s property. 20

[51] Mr Ferry’s evidence that the rear rack bar had been given to him and so was his property and that the strong arm was his property was not at all convincing. Mr Pitcher’s evidence is to the contrary and I am satisfied that neither the rear rack bar nor the strong arm were Mr Ferry’s property and in fact they were the property of GHS.

[52] With respect to the little boat winch Mr Ferry’s explanation, in some detail, was that on a work trip to Carnarvon and Shark Bay he removed this from a boat trailer which was located next door to the work site he was working on, after speaking to the trailer’s owner. Mr Ferry recalls that job being for a community centre approximately a year ago. He then used the GHS vehicle he was using for work purposes to transport this little boat winch back to the GHS yard where it had remained until he removed it from the yard on 4 October 2014.

[53] With respect to this little boat winch I accept Mr Ferry’s evidence as to how the item was obtained and came to be in the GHS yard. The question then is whether this should be viewed as having been Mr Ferry’s property to do with as he wished.

[54] The evidence is that this item was taken by Mr Ferry whilst he was working for GHS and he then used GHS’s vehicle to transport it to GHS’s yard where it remained for approximately a year. Mr Ferry had not sought approval from the respondent to use the GHS vehicle nor had he sought approval from GHS to leave it at the yard.

[55] In these circumstances I accept as submitted by the respondent that an employee who receives property during the course of their employment as occurred in this instance is accountable for that property to the employer. Mr Ferry was not entitled to treat the little boat winch as his own property.

[56] The evidence is also that on Saturday, 4 October 2014 Mr Ferry took a number of other items from the yard. Under cross-examination he says that these were items he used for his own private gardening business but had kept at the GHS yard and I accept this to be correct.

[57] Mr Ferry agrees that all three items, being the rear rack bar, the strong arm and the little boat winch, are of value to him because he can do them up and use them.

[58] Mr Ferry does not acknowledge that each of these items are also of value to GHS because they similarly could reuse them in the future nor did he accept that there is any significant scrap metal value in the items.

[59] I accept the evidence of Mr Groesslinger that the rear rack bar new would cost between $600 and $800 and even as scrap metal would be worth between $50 and $120. The little boat winch at replacement cost would be worth $300 and as scrap would be worth somewhere between $50 and $100.

[60] Some days later Mr Simms contacted Mr Pitcher and advised him that Mr Ferry had entered the yard on 4 October 2014 and removed a number of items.

[61] Mr Pitcher rather than directly confronting Mr Ferry with the information Mr Sims had passed on to him sought to protect the identity of Mr Sims as the source of Mr Pitcher’s knowledge of Mr Ferry’s activities by querying with Mr Ferry the whereabouts of a number of items in the yard. This discussion occurred early on the morning of Friday, 10 October 2014 and was witnessed by three other employees.

[62] Mr Ferry’s evidence is that during that meeting Mr Pitcher was aggressive, bullying and harassing towards him and shouted at him in an abusive manner which was totally over the top. None of the other witnesses present however at that meeting agreed with this evidence and considering all of the evidence 21 I am not satisfied that Mr Pitcher behaved in this manner described by Mr Ferry at all.

[63] Considering all the evidence I am satisfied that Mr Ferry in that meeting agreed he was in the yard on the Saturday, 4 October 2014 and had taken something but only mentioned the little boat winch he had brought back from the working trip to Canarvon and Shark Bay which he said was his property. He did not mention any other items. Mr Pitcher raised the fact that he should have not been entering the yard after hours without authorisation and Mr Ferry argued that this was not applicable to him.

[64] After some discussion I accept that Mr Pitcher told Mr Ferry he would be stood down pending an investigation and that he should return all items he had removed from the GHS yard.

[65] Mr Ferry responded by saying words to the effect that there seems to have been a break down in trust and perhaps GHS should just terminate his employment immediately. Mr Pitcher replied that he was not going to do this but reiterated that all GHS property should be returned and there would be a further meeting the following week.

[66] Later that day Mr Ferry returned with three items which he left at GHS’s premises being the rear rack bar, the strong arm and the little boat winch.

[67] Mr Pitcher’s evidence which I accept is that following this he considered the situation including the fact that Mr Ferry had entered the company’s premises without authorisation on 4 October 2014 and removed items that he believed were company property without authorisation. That when he had raised this with Mr Ferry on 10 October 2014 he had only mentioned that he had taken one winch. However he had in fact apparently taken three items which were those he had then returned to the premises at Mr Pitcher’s direction.

[68] Mr Pitcher visited the Geraldton police station to discuss the matter and spoke to the sergeant on duty who advised that since the matter was been dealt with civilly they would probably not need to get involved. Mr Pitcher’s evidence was that he was concerned that the central element of trust that he needs to have in his Yard Manager seemed to have been destroyed by Mr Ferry’s actions. Consequently he decided that he would probably have to terminate Mr Ferry.

[69] Mr Ferry then attended another meeting on the morning of Monday, 13 October 2014 with Mr Pitcher and Mr Dewar.

[70] The meeting was held in Mr Pitcher’s office and the door was closed.

[71] Mr Ferry recorded that meeting but did not ask either Mr Pitcher or Mr Dewar whether he could do so or tell them either before or afterwards that he had done so.

[72] Under cross-examination Mr Ferry denied that he went into that meeting with the understanding that his employment was under threat. 22 Indeed he expected there to be a clarification by Mr Pitcher of what occurred and recognition by him that Mr Ferry had done nothing wrong.23

[73] Mr Ferry’s evidence is that during the meeting Mr Pitcher did say that it was a disciplinary meeting. He agrees that Mr Pitcher told him that if he wanted to he could have a further 24 hours to arrange to have an independent witness of his choice present. He agrees he elected not to take up that opportunity.

[74] Mr Ferry’s evidence is that the lawful interest he was seeking to protect by recording this meeting secretly was his rights as an employee to be paid for the time he had worked and to not be abused by his employer or bullied and harassed. 24

[75] Mr Ferry understood Mr Dewar who was a workmate was there as an independent witness. 25

[76] Mr Pitcher provided Mr Ferry with a letter that set out the reasons he was proposing terminating his employment and he gave Mr Ferry an opportunity to read that letter and he then asked Mr Ferry to respond to that letter. 26

[77] Mr Ferry had an opportunity to make notations about a number of things in writing on the letter before he responded and the contents of the letter were discussed.

[78] Mr Pitcher put to him that the explanation Mr Ferry had given at their meeting on the previous Friday morning was incorrect and that the three items taken which were the property of GHS. Mr Ferry replied that the rear rack bar he had taken had come from WS Rolston Engineering and that Mr Pitcher had said he could have it. Mr Pitcher advised him he never said anything of the sort. Mr Ferry then said it must’ve been Mr Pitcher’s ex business partner Mr Poot and Mr Pitcher replied that this could not be correct as the rear rack bar was not from WS Rolston Engineering but rather from the truck GHS had purchased from GNC Concrete. Mr Pitcher told Mr Ferry that the only person with any authority to authorise him to remove the rear rack bar was himself as the sole Director of the business and this had not occurred.

[79] Mr Pitcher then advised Mr Ferry he would be terminated and asked him to collect his gear and leave the premises. 27

[80] I accept Mr Dewar’s evidence as to the sequence of events in the meeting and the manner in which it was conducted. His evidence was that the meeting and the discussion was tense given the issues at hand and there was some bad language and swearing on both sides but nothing extreme given the nature of the workplace. 28

[81] Mr Ferry sought to introduce as evidence a recording of this meeting. Mr Ferry at the time of making the recording did not make the fact he was recording the conversation known to either Mr Pitcher or Mr Dewar. Mr Ferry secretly recorded their conversation.

[82] The respondent objects to the recording being introduced as evidence and submits that Mr Ferry’s actions in secretly recording the conversation is contrary to section 5 of the Surveillance Devices Act 1998 (WA) (the Surveillance Devices Act). The Commission as currently constituted has considered the effect of the Surveillance Devices Act in similar circumstances as have other members of the Commission concerning Western Australia. 29

[83] Section 5 of the Surveillance Devices Act generally prohibits a person using a listening device to record a private conversation, including one to which that person is a party, unless each party to the conversation consents or one party to the conversation consents and it is reasonably necessary for the protection of the lawful interests of that principal party.

[84] In this case neither Mr Pitcher nor Mr Dewar consented to the recording of their conversation nor would they have reasonably expected their conversation to be recorded.

[85] There is an exception to the general prohibition in section 5 and that is where one party to the conversation consents to the recording and the recording of the private conversation is reasonably necessary for the protection of the lawful interests of that party.

[86] Mr Ferry who plainly consented to the recording sought to persuade the Commission that he secretly recorded this conversation because this was reasonably necessary for the protection of his lawful interests.

[87] Whether recording a private conversation is reasonably necessary for the protection of one party’s lawful interests is to be judged objectively in the particular circumstances of the case.

[88] The circumstances in this case were that the conversation involved three persons, Mr Ferry, Mr Pitcher and Mr Dewar. Mr Dewar was present as an independent witness. Mr Dewar was not part of the respondent’s management group. The evidence is that during the meeting Mr Pitcher told Mr Ferry that if he wanted the meeting could be postponed so that he could have another person present as a witness but he declined to do this. Mr Ferry’s evidence was that when he went to the meeting he did not think he was going to be dismissed. Under cross-examination Mr Ferry raised as a lawful interest that he should be paid whilst he was stood down and he should not be subject to bullying behaviour.

[89] None of these circumstances indicate that objectively it was reasonably necessary for Mr Ferry to secretly record the private conversation that occurred during the meeting with Mr Pitcher. Mr Dewar was there at that meeting and as has occurred during the hearing of this matter was always able to give evidence as to the conversation if necessary.

[90] In the circumstances then, whilst it is not for the Commission to determine, it appears likely that Mr Ferry’s actions contravened the Surveillance Devices Act. Given that likelihood the Commission should not without very good cause accept evidence gathered in such a manner. Considering the circumstances of this case there is not a sufficiently good reason why the Commission should ignore Mr Ferry’s highly inappropriate behaviour in secretly recording the meeting and exercise its discretion in his favour to allow his secret recording to be admitted into evidence. The secret recording made by Mr Ferry will not be admitted into evidence.

[91] I note for the record that I have not listened to the recording.

Consideration

[92] Section 387 of the Act sets out the matters the Commission must have regard for when determining whether a dismissal was harsh, unjust or unreasonable. This section is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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.”

Valid reason

[93] The evidence is that on 4 October 2014 Mr Ferry entered the premises of GHS after hours without authorisation contrary to the policy of GHS. This conduct of Mr Ferry was a valid reason for his dismissal.

[94] Having entered the premises of GHS on 4 October 2014 Mr Ferry removed the rear rack bar and the strong arm which were the property of GHS without authorisation and he also removed the little boat winch without authorisation This conduct of Mr Ferry was a valid reason for his dismissal.

[95] On 10 October 2014 when Mr Ferry was challenged by Mr Pitcher about allegedly entering the premises of GHS after hours without authorisation and removing GHS property without authorisation Mr Ferry agreed he had entered the premises without authorisation but admitted only to removing one item of GHS property and failed to mention other items. Mr Ferry’s failure to be open and honest about his unauthorised removal of GHS property was a valid reason for his dismissal.

[96] After having dismissed Mr Ferry from employment it has become known that he secretly recorded the conversation he had with Mr Pitcher on 13 October 2014 without the consent of Mr Pitcher or Mr Dewar. In the circumstances this conduct of Mr Ferry was a valid reason for his dismissal.

[97] For the purposes of what follows it should be noted that the respondent at the time of dismissing Mr Ferry was not aware that he had secretly recorded the conversation with Mr Pitcher and so whilst this was also a valid reason for his dismissal it was not a reason relied upon by the employer in its decision to dismiss Mr Ferry. Consequently Mr Ferry was not notified of this reason nor given an opportunity to respond to this reason.

Notification of the reasons for dismissal

[98] Mr Ferry was notified during meetings on 10 October and again on 13 October 2014, including in a letter provided to him at that second meeting, of the reasons the employer ultimately dismissed him for.

Opportunity to respond to the reasons for dismissal

[99] Mr Ferry had an initial opportunity to respond to allegations regarding unauthorised entry to the GHS premises and unauthorised removal of GHS properties during the meeting on Friday, 10 October 2014. He was advised at that time that the allegations against him were serious and he was stood down. He was given an opportunity to respond to those allegations at that time and did so.

[100] At the meeting on Monday, 13 October 2014 Mr Ferry was provided with a letter specifying the reasons the employer was considering dismissing him. He was given an opportunity to read and consider that letter. Mr Ferry read the letter made a number of notations upon it and then discussed with Mr Pitcher the reasons the company was considering dismissing him.

Refusal to allow a support person

[101] There was no refusal by the respondent to allow Mr Ferry to have a support person present during any discussions relating to his dismissal. At the final meeting on 13 October 2014 an independent witness was present and Mr Ferry was given the opportunity of postponing that meeting for 24 hours to allow him to arrange for someone of his choice to attend the meeting with him but he chose not to take up this option.

Warnings about unsatisfactory performance

[102] The dismissal of Mr Ferry was not related to his performance.

The size of the employer’s enterprise

[103] The respondent is a medium sized business and the procedures followed in effecting the dismissal were appropriate in the circumstances.

Dedicated human resource specialists

[104] The respondent does not have dedicated human resource management specialists and the procedures followed in effecting the dismissal were appropriate.

Other matters

[105] Mr Ferry had been employed for a relatively short period being a little over 2 ½ years.

[106] Mr Ferry secretly recorded a conversation with his employer. Members of this Commission and Judges of Courts that have dealt with similar situations have variously described secretly recording a meeting as, an act which strikes at the heart of the employment relationship shattering the trust and confidence necessary to maintain that relationship, an extreme impropriety, sneakiness that is abhorrent to ordinary persons, behaviour that is deceptive and purposefully misleading and finally as an action that displays an intention to entrap the employer. 30 Mr Ferry should not have secretly recorded the meeting with his employer and his having done so weighs against finding that his dismissal was harsh, unjust or unreasonable.

Conclusion

[107] Mr Ferry was aware of the requirements of GHS that he not enter the premises of the business after hours without authorisation and also that he was not entitled to remove property of GHS from the premises without authorisation. Mr Ferry chose to ignore both of these requirements. When he was confronted with the fact that the respondent was aware of his actions he failed to be open and honest as to his actions. When provided with the opportunity to explain Mr Ferry did not provide any satisfactory explanation for his misconduct.

[108] Consequently the respondent’s decision to dismiss Mr Ferry was not harsh, unjust or unreasonable. This application for an unfair dismissal remedy will be dismissed and an order to that effect will now be issued in conjunction with this decision.

COMMISSIONER

Appearances:

C Ferry on his own behalf.

D Parker, representative for the respondent.

Hearing details:

2015.

Geraldton:

August 20.

Final written submissions:

Applicant, 7 September 2015.

Respondent, 31 August 2015.

 1   Transcript at PN647 to PN648.

 2   Ibid., at PN1622.

 3   Exhibit R1.

 4   Exhibit R7, Attachment AP03.

 5   Transcript at PN409 to PN416 and PN641 to PN642.

 6   Ibid., at PN645.

 7   Ibid., at PN633.

 8   Ibid., at PN640.

 9   Ibid., at PN649 to PN651.

 10   Ibid., at PN666 to PN667.

 11   Exhibit A3 at paragraph 27.

 12   Transcript at PN701 and PN704.

 13   Ibid., at PN709 and PN731.

 14   Ibid., at PN714.

 15   Ibid., at PN717, PN733 and PN735.

 16   Ibid., at PN725, PN736 and PN785.

 17   Ibid., at PN746 and PN748 to PN749.

 18   Ibid., at PN753.

 19   Ibid., at PN752 to PN777.

 20   Ibid., at PN778 to PN781.

 21   For example ibid., at PN1068 to PN1083.

 22   Ibid., at PN922.

 23   Ibid., at PN921 and PN923.

 24   Ibid., at PN945.

 25   Ibid., at PN949 to PN954.

 26   Ibid., at PN967 to PN970.

 27   Ibid., at PN1084 to PN1111.

 28   Ibid., at PN1121.

 29   [2012] FWA 10363 and [2013] FWC 4512.

 30   See for example [2013] FWC 8220 at [184] to [190].

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