[2017] FWC 553

The attached document replaces the document previously issued with the above code on 16 February 2017.

The replacement document makes the following corrections:

● At paragraph [3], the date “October 2004” is replaced with “July 2002”.

● At paragraph [14], the acronym “RBTU” is replaced with “RTBU”.

● At paragraph [31], the word “applicant’s” is replaced with “passenger’s”.

Associate to Commissioner McKenna

Dated 20 February 2017

Fair Work Act 2009
s.394—Unfair dismissal

Harpreet Dhillon
v
Sydney Trains
(U2016/11589)

Application for relief from unfair dismissal.

[1] Harpreet Dhillon (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act (2009) for an unfair dismissal remedy. The applicant primarily seeks relief by way of reinstatement to his former position with Sydney Trains (“the respondent”).

[2] As to preliminary matters, there was no issue, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer, so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal was not a case of genuine redundancy.

Background

[3] The applicant was formerly employed by the respondent in the period July 2002 until September 2016, most recently as a train guard; he had an unblemished disciplinary employment record. The dismissal turned on what was concluded by the respondent to have occurred on the night of 7/8 October 2015. Put at its lowest, the respondent contends that the applicant took a mobile telephone a passenger had accidently left on a train. This is denied by the applicant.

[4] In short form, on the night of 7 October 2015 a passenger boarded a train at Gordon (Sydney, New South Wales) and then changed trains at Central station for Padstow station. The passenger had been managing a butcher’s shop that day over the course of a long shift of 6.00am to 9.00pm. The passenger was later to describe that he had with him a bottle of beer (some of which he consumed) which was inside a brown paper bag and, relevantly, a mobile telephone encased in a bright green cover. The passenger recalled playing games on the mobile telephone and believes he fell asleep around Wolli Creek station; he missed his intended stop of Padstow station. Upon waking at Leumeah station (much further down the line from Padstow station and even further from Wolli Creek), not long before midnight, and just as the train doors were about to close, the passenger “jumped up” and alighted. As the passenger stepped on the station platform, he moved to the window and saw his mobile telephone on the floor where he had previously been seated. The passenger also reported certain other matters, which were recorded in an investigation report prepared by a consultancy engaged by the respondent. A statement by the passenger dated 22 December 2016 was in evidence as Exhibit 4. It is apposite to note, however, given the matters before the respondent in the investigation report (including at para 4.7) in connection with the decision to dismiss, that certain parts of the passenger’s evidence as to the matters to which the investigation report referred were, in fact, not read/struck out in these proceedings. With the omission by consent of the relevant paragraphs from Exhibit 4, the passenger was neither called nor required for cross-examination.

[5] After realising he had left his mobile phone on the train the passenger made immediate attempts to contact Campbelltown train station about the telephone on a pay-phone on the station platform at Leumeah. The passenger “eventually” spoke to an (unidentified) male; the passenger explained what had happened and was told the train had already gone through Campbelltown station to Macarthur station. The passenger then boarded the next train to Campbelltown station. The passenger spoke to an (unidentified) employee of the respondent at that station about what had happened. The passenger was informed he would need to report matters to the police, as the CCTV footage could not be checked without a police report. The passenger then walked to Campbelltown police station and made a report. The police officer asked the passenger to obtain the IMEI (International Mobile Equipment Identity) number for the mobile telephone. (The passenger apparently did not obtain the IMEI number until he was subsequently interviewed in connection with an investigation by Sydney Trains.) After making his report to the police, the passenger then caught a nightrider bus home.

[6] An incident report prepared by an unidentified employee or employees of the respondent was in evidence. The incident report had its first entry 12.34am on 8 October 2015, i.e., less than an hour after the passenger had alighted at Leumeah. The report noted that a police officer from Campbelltown police station had advised the respondent a male attended the police station setting out certain matters about his telephone.

[7] The final stop on the train network for this particular train service was Macarthur station. The applicant, in the performance of his role as train guard, conducted a “sweep” of the train at Macarthur, i.e., to check there were, for example, no passengers remaining on the train or items, apart from rubbish. The train then returned to Campbelltown. The applicant is recorded as having finished his shift at 1.04am on 8 October 2015 at the Campbelltown crew depot.

[8] After what appears to have involved some toing and froing about which train the passenger had been on, the police officer was informed at 2.37am on 8 October 2015 that CCTV footage would be requested to “see what that reveals.”

[9] Various developments followed the police contacting the respondent about the passenger’s report in the early hours of 8 October 2015. Shortly stated, within a few days following, representatives of the respondent came to the view the applicant had taken the passenger’s mobile telephone in his sweep of a carriage and did not hand-in the telephone as lost property. This view was formed against the background of matters including a review of CCTV footage of the passenger alighting at Leumeah; CCTV footage shot from two angles of the interior of train carriage in question; and an examination of the Lost Property Register.

[10] I should note that the CCTV footage of the interior of the train carriage involving the applicant is not of high-quality resolution and the segments specifically relevant to this case, being segments which were recorded roughly near the cusp of midnight on 7/8 October 2015, run only to a matter of seconds in time. It must also be said that what was is set-out in records of interviews and/or in the investigative report considered by the respondent mis-described or otherwise overstated what was said to be shown or demonstrably evident on the CCTV footage.

[11] The CCTV footage shot from two different angles within the carriage records the following:

• A bright green mobile telephone cover with what appears to be a typical camera hole was situated on the carriage floor near a bottle in a brown paper bag. It is not possible to discern whether the green cover contained a mobile telephone because the face of the mobile telephone itself (if any) would be on the underside and the quality of the CCTV footage is such that it cannot be discerned whether there is a camera lens beneath the camera hole.



• After descending the stairs to the lower carriage, the applicant bent-down towards where the bagged bottle and mobile telephone cover were located on the carriage floor. It is not possible to discern from either angle of the CCTV footage what the applicant did when he was bent-over towards those two items.



• In the course of standing from his previous bending position, the applicant made some type of movement with his left arm or left hand, or both. The respondent contends the movement involved the applicant placing something in a pocket; the applicant contends the movement involved him repositioning the bag he was wearing which had moved slightly in connection with the bending.



• After the applicant standing, momentarily pausing, and then walking the length of the carriage, the bagged bottle is left remaining in the same location as it was before the applicant bent-down and made the movement involving his left arm/hand as he was standing-up.

[12] The footage does not otherwise show the mobile telephone cover. This allows only two conclusions: either the applicant removed the green item from the carriage floor or, alternatively, he moved the item further under the seat such that it was, by one means or another, then positioned where it was no longer in the line of vision for the CCTV camera to capture as part of the footage. It may be noted, also, that the evidence indicates employees are well-aware that this type of train carriage is equipped with CCTV cameras.

[13] The matter of what occurred on the night of 7/8 October 2015 was the subject of interview, investigative and review processes by or on behalf of the respondent. While not a complete catalogue, some relevant matters included:

• By letter dated 15 October 2015, the respondent informed the applicant that he was required to attend a meeting, and that the purpose of the meeting was “confidential and remains so until we meet”. In the ensuing meeting on 22 October 2015, the applicant did not bring a support person although he had been advised he could do so. At the outset of the meeting, the applicant was informed the matter was serious and could have serious consequences, and was repeatedly asked if he wanted a support person with him before the meeting continued. The applicant declined the offer to have a support person.



• The applicant was asked whether he had found any mobile telephones on 8 October 2015. The applicant indicated he had not found any telephones and that he always hands-in anything he may find at the next suitable location. The applicant added that he had previously found women’s cream/make-up in a bag with a receipt, and this had been handed-in by him. Upon being informed there was police involvement (i.e. the passenger’s report to the police) in the context of again being asked whether he had found any mobile telephones, the applicant reiterated he had not found a mobile telephone in the past month.



• The day after, on 23 October 2015, a further meeting was held, during which the date in question was clarified by the respondent’s representative as being 7 (not 8) October 2015. The applicant was provided with minutes of the meeting of 22 October 2015, which the applicant acknowledged and signed. The applicant was again asked whether he had found any mobile telephones in the past month and the applicant again stated he had not. The applicant was then handed a letter informing him he was being suspended with base pay, and the suspension would be reviewed periodically. Matters were also referred to the respondent’s Workplace Conduct Unit.



• On 9 November 2015, Nemesis Consultancy Group Pty Ltd (“Nemesis”) was engaged to undertake an investigation.



• For reasons which are unclear concerning purported difficulties in service by a process server, a letter dated 15 December 2015 setting out certain allegations was eventually forwarded to the applicant under cover of email correspondence weeks later - namely on 4 January 2016. The applicant was asked in the covering email to provide a written response to Nemesis by no later than 18 January 2016.



• In a meeting the applicant and a union representative attended on 18 January 2016, the applicant was shown the CCTV footage of the interior of the carriage for the first time. The footage was run two or three times on a laptop with a screen size of approximately 11 inches. The union representative asked for a copy of the CCTV footage, but Nemesis declined that request. (The evidence indicated it is a matter of policy not to provide such material.)



• In correspondence dated 22 January 2016, the applicant provided a written response the effect of which constituted a denial of the allegations (relating to a mobile telephone and his responses in denying knowledge of a telephone).



• In correspondence dated 28 January 2016, Nemesis advised that, having considered the response, the applicant was requested to attend an interview on 9 February 2016.



• In correspondence dated 2 February 2016, the Rail, Tram & Bus Union (“RTBU”) advised Nemesis it was representing the applicant. The RTBU advised Nemesis that the applicant “politely declines the invitation for an interview”, and if there were any further questions they may be put in writing and the applicant would address them. Thus, despite suggestions in the applicant’s case that Nemesis had not held discussions with him, it was the applicant who declined to hold discussions/be interviewed. It is unclear whether this was on the basis of advice from the RTBU to the applicant or, alternatively, on the basis of instructions to the RTBU from the applicant; albeit it was plainly the applicant’s prerogative to decline to participate in the interview he was invited to attend and indicate he instead would provide written responses.



• Nemesis interviewed and obtained a signed statement on 5 February 2016 from the passenger who had made his report to the police. The passenger identified the (correct) make of his mobile telephone, namely a Samsung Galaxy 6 - albeit the subsequent investigation report prepared by Nemesis and correspondence from the respondent related to the dismissal erroneously referred to an Apple iPhone.



• In correspondence dated 8 February 2016 to the RTBU, Nemesis noted the applicant had been shown CCTV footage (on 18 January 2016) and asked the RTBU that the applicant respond to the following query: “1. Does he recall what item he picked up off the train floor on the night in question? And, if so, what was it and what did he do with it?”



• In correspondence dated 11 February 2016, the applicant’s response to the query from Nemesis was: “In response to the additional question 1, I do not recall what item was on the floor. After viewing the CCTV footage all I recall is inspecting that item and leaving it there as rubbish for the cleaners [sic] disposal.”



• An 11-page investigation report (plus annexures), apparently completed on 26 February 2016, was subsequently produced by Nemesis with certain analyses and findings, and a recommendation that the report be referred to the respondent’s Investigations, Fraud & Corruption Investigations Unit. (The investigation report was first seen by the applicant when it was filed and served as part of the respondent’s case, albeit the applicant was earlier provided with certain annexures to that report.)



• By letter dated 16 March 2016, the applicant was advised by a manager of the respondent that the allegations were considered to have been substantiated and the manager’s preliminary view was that the appropriate disciplinary outcome was dismissal. The applicant was further advised that he had the opportunity to make a submission in regard to the proposed outcome.



• For reasons described in the evidence, the applicant decided to engage private solicitors to correspond with the respondent about his response. By letter dated 22 March 2016, the applicant’s solicitors wrote to the respondent seeking various materials, including a copy of the CCTV footage, so as to provide the applicant’s response. The applicant’s solicitors also sought an extension of time in which to provide the applicant’s response.



• The respondent did not reply to the letter dated 22 March 2016 from the applicant’s solicitors until 31 May 2016. In the respondent’s delayed response, the respondent indicated that the matter had been “reconsidered”. Relevantly, the respondent advised the applicant that the make of the mobile telephone the subject of the allegations had been changed (from an Apple iPhone to a Samsung Galaxy 6). Further, the allegations had been escalated to include that the applicant “stole” a Galaxy 6, being a matter which had not previously been put to the applicant and nor was this addressed in the investigation report. The respondent provided only certain documents to the applicant’s solicitors, and declined to provide a copy of the CCTV footage. The applicant was given a further seven days to respond.



• On 17 June 2016, the applicant sent a response noting his disappointment about the mistakes that had been made in investigating the matter and/or in failing properly to investigate the matter before the allegations were put to him. The applicant otherwise responded to the additional allegation by denying that he had stolen the Samsung Galaxy 6 mobile telephone.



• In correspondence dated 11 July 2016, the respondent advised it had reviewed matters including the applicant’s response of 17 June 2016 and was satisfied the applicant had engaged in conduct as earlier outlined and, due to the seriousness of the matter, the final view was that the appropriate disciplinary outcome was dismissal with a payment in lieu of notice. The respondent also informed the applicant of the availability of certain review processes concerning that decision.



• On a date which is not clear from the evidence, the RTBU filed an application for a review – indicating reasons of lack of procedural fairness and that the dismissal would be harsh and unreasonable.



• On 22 July 2016, the RTBU made a written submission on behalf of the applicant to the Transport for NSW Disciplinary Panel (“Transport Panel”). In addition to the previous submissions, the RTBU adverted to a number of procedural fairness issues, including:

- The applicant was not given access to the complete information relied on by the respondent, thereby preventing him from forming a complete response and disadvantaging him.

- The respondent was reliant on “inconsistent and false evidence”, particularly in relation to matters concerning the misidentification of the make of the mobile telephone and matters such as consideration of using telephone locator services.

- The length of time involved was unreasonable and breached the applicant’s right to procedural fairness, and was prejudicial.

- The applicant had not realised the seriousness of what was to be discussed at the meeting on 22 October 2015, and hence had not organised a support person.

[14] The RTBU also made submissions as to why the proposed penalty was harsh and unreasonable, including, but not limited to, by reference to the applicant’s period of service, the length of the investigation, the impact of the suspension, and the effects of such matters on the applicant. Among other matters, the RTBU contended for consideration of options other than dismissal.

[15] By letter dated 12 August 2016 (handed to the applicant on 2 September 2016), the Transport Panel advised of its decision that the respondent’s disciplinary decision was not harsh, unfair or unreasonable; it affirmed the respondent’s disciplinary outcome. The applicant was not given any reasons for the decision of the Transport Panel.

[16] On that same day of 2 September 2016 when the applicant was given the decision of the Transport Panel, the applicant was also given a letter (dated 25 August 2016) terminating his employment. It is common ground the mechanisms concerning the interaction of the original advice concerning the termination of employment coupled with the review by the Transport Panel meant that the dismissal involved a dismissal with notice rather than a summary dismissal.

[17] The applicant subsequently decided to retain his solicitors to act on his behalf in relation to an application for an unfair dismissal remedy even though the RTBU had indicated its willingness to continue to act for him. The unfair dismissal application was lodged on 20 September 2016.

[18] A copy of the CCTV footage was provided to the applicant’s counsel, in connection with a mediation conducted on 28 October 2016 by a private mediator – after the application for an unfair dismissal remedy was lodged and before I issued directions concerning the filing and service of materials in anticipation of the hearing of this application. For reasons explained in the evidence and submissions, the applicant did not address the CCTV footage in his evidence-in-chief. Submissions were also advanced for the applicant in the proceedings before me that the CCTV footage should not be received in evidence in these proceedings, essentially because the footage had been provided by the respondent in connection with a private mediation, and was thereby subject to usual conditions applying to mediations. However, I allowed the CCTV footage into evidence.

The substantive allegation

[19] The applicant denies having taken a passenger’s mobile telephone and has been consistent in those denials. As a corollary, the applicant denies that he misled anyone in the responses he provided about not having taken the telephone. As noted in the applicant’s submissions, the applicant says he did not at any time engage in conduct contrary to the duties owed by him to the respondent as his employer. In the proceedings, part of the applicant’s evidence in this regard was:

“17. I say that it is not unusual for mobile phone covers to be left on trains having been discarded as rubbish. This would in my view be well known to the Respondent and in particular to the cleaners.

18. I do not deny that the item shown as the green item is, or may be, a mobile phone cover. Any item like that would need to be investigated by me as part of my “sweep” through the train. In contrast, the bottle in the brown paper bag is clearly rubbish. We are instructed to look at items which are identified as “Hidden, Obvious or Typical”. These items are generally described or known as “HOT” items.

19. I say that had the “green cover” contained a mobile telephone I would have dealt with it in the manner required by my then employer, Sydney Trains, and it would have been handed in by me, recorded as “lost property” and notated appropriately. As it did not contain any mobile telephone I would have quite simply left it as rubbish for the cleaners. Whether it was merely an abandoned cover or one in which a mobile phone was encased would have been readily ascertained by me by its weight either by touching or tapping of or lifting of the cover.”

[20] Moreover, the applicant submitted the CCTV footage is inconclusive and an issue arises over contested facts concerning his actual conduct - which falls to be determined substantially as a credit issue concerning both the alleged conduct and the responses given subsequently by the applicant to the respondent’s representatives.

[21] As to these matters, the applicant’s submissions were that although the CCTV footage shows there was a mobile telephone cover on the floor of the carriage before the applicant bent-down towards that item, he did not remove the item even though it was no longer visible on the CCTV footage after his actions in bending-down/walking away. The applicant’s evidence in this regard was:

“21. …My jacket and the bag are both made of synthetic material and when I bent down I had keys in my right hand and reached to inspect the item with my left leaning to the left side. I say my bag slipped to the left and I appear to be straightening the bag on my back on my rising.

22. As I know I did not take the item or put it in my pocket the only explanation for the green item being no longer in shot that I can offer is that it has been moved by me further under the seat during my coming into contact with it and is now out of shot.”

[22] Thus the applicant submitted it is open to conclude there was an empty telephone cover on the carriage floor, which was treated by him as rubbish to be left for the cleaners to remove; and was an empty telephone cover that had been moved out of the line of vision of one of the CCTV cameras, as opposed to having been removed from the carriage floor by the applicant.

[23] The respondent contended the CCTV footage shows that a physical movement by the applicant was him placing the mobile telephone in a pocket, whereas the applicant’s case contended, for example, it was not even established the applicant had a pocket into which he could place a mobile telephone.

[24] The submissions for the respondent put that, although the applicant denied taking the passenger’s mobile telephone, the denial was not accepted or believed.

Procedural and other issues

[25] The applicant contended the investigation and review processes lacked procedural fairness in that the applicant and his representatives were denied access to the totality of the material on which the respondent made its decisions. Added to this, the applicant was given no warning the matter had been referred to police (i.e. by the passenger) before his attendance at the initial meeting on 22 October 2016. The submissions for the applicant continued by contending that in denying documentation in a timely fashion, or at least advising the applicant of the existence of material including the CCTV footage, the respondent denied access to and withheld knowledge of material that might have assisted the applicant in defending the allegations made against him.

[26] The submissions for the applicant further contended that the decision to dismiss was also harsh in the requisite sense. In particular, the applicant relied upon his exemplary conduct in the employment at all times prior to the allegations arising. In such circumstances, the denial of procedural fairness adverted to in the applicant’s submissions would also, it was submitted, make the termination intrinsically unjust. Given the seriousness of the allegations made, particulars of which were provided almost two months after the initial decision to suspend the applicant and then subsequently further amended, the delay and lack of precision may have compromised adversely the applicant’s ability to defend properly and otherwise protect his position. Depending on the findings of the Commission, a further or alternative basis for intervention may also arise based on the identified lack of procedural fairness or harshness, or both.

[27] For its part, the respondent submitted there is a single question in the proceedings: did the applicant take a mobile telephone from the carriage on the night in question? If so, the respondent’s submissions continued, there is undoubtedly a valid reason for dismissal.

Consideration

[28] Before turning more particularly to the statute-specified matters that must be considered in determining whether the dismissal was harsh, unjust or unreasonable, it is appropriate to note I have considered the submissions for the applicant and the respondent as to the familiar principles to be applied, given the seriousness of the allegations concerning the applicant’s conduct and the fact that the allegations are denied.

[29] Despite the submissions for the respondent that matters may be resolved by reference to a single piece of evidence, namely the CCTV footage, and that the Commission “would comfortably and quickly conclude the applicant committed the misconduct alleged against him”, I have not approached the matter in this way. I have considered and reviewed all the evidence and submissions in arriving at my conclusions, not just the CCTV footage itself.

[30] I have, for example, considered the matters put in submissions for the applicant as to the different scenarios which may be available, including that the applicant quickly inspected an empty telephone cover and left it as rubbish for the cleaners to collect, and in so doing the cover was manually moved further beneath the seat and thereby “out of shot” of the CCTV camera. I have considered what was described in the applicant’s submissions (without any contest from the respondent) as the applicant’s “prior good character and conduct in his employment over a period of approximately 13 years without any adverse incident arising or any doubts held concerning his performance and trustworthiness or truthfulness”. I note also the applicant had earlier handed-in some type of women’s cosmetics he found on a train. Importantly, I note that what is shown on the CCTV footage as to the asserted placement of an item into a pocket is not as clear as was contended in the respondent’s case (albeit my own consideration of the CCTV footage accords with what counsel for the respondent propositioned by way of description, despite the submissions for the applicant that “no determinative view one way or another can affix” to the applicant and there were two competing and plausible versions.). While there was criticism of the manner in which the applicant’s evidence was adduced (in reply) in respect of the CCTV footage, I draw no inferences adverse to the applicant’s approach in this regard. I have also observed the applicant’s demeanour in the witness box. I am bound to observe the applicant presented as to-the-point and resolute in his denial of the conduct alleged (albeit perhaps less resolute in cross-examination when challenged about his evidence which was to the effect that mobile telephone cases are, for example, frequently left on trains as rubbish or as discarded/abandoned items, essentially valueless to the applicant at least, and treated as rubbish for cleaners to dispose of.

[31] I have also considered what may be more tangential scenarios, including that the passenger’s mobile telephone may have been removed from its case by another person on the train while the passenger was asleep between Wolli Creek and Leumeah (and, one supposes on this scenario, the empty mobile telephone case was then repositioned by the thief towards the rear of the bottle in the brown bag and presumptively near or behind the passenger’s legs). I have also considered that the cleaners for the train may have either discarded an empty mobile telephone case and/or not handed-in the item.

[32] Counsel for each party made detailed submissions against the backdrop of Briginshaw v Briginshaw 1 and the decision of the Australian Industrial Relations Commission in King v Freshmore (Vic) Pty Ltd2; and a recent consideration in Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores3 (See also, as an example involving consideration by a Full Bench of the Fair Work Commission, Singh v Metro T/A Metro Trains Melbourne4). I have considered those cases and the requisite standards, particularly in the context of the different hypotheses described or adverted to in the closing submissions and, in such respects, the submissions for the respondent analysing why such scenarios ought not be accepted by the Commission.

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)

[33] Applying the requisite standards described in the authorities, I am led to a conclusion for which the respondent contends, and in relation to which I have also formed my own concluded view, about the applicant’s conduct - rather than the alternative conclusion for which the applicant’s case principally contends. I have concluded that the applicant has, on the balance of probabilities, dissembled about what is shown in the CCTV footage. Having considered the evidence and submissions as a whole, I am satisfied there was a valid reason for the dismissal of the applicant related to his conduct.

Whether the person was notified of that reason

[34] The applicant was notified in writing of the reason for the dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[35] The applicant was afforded various opportunities to respond to matters concerning the mobile telephone. In this regard, it may be noted that allegations were put in writing to the applicant on 4 January 2016, albeit they were later “reconsidered” and recast. The applicant viewed the CCTV footage on 18 January 2016. The applicant through his union declined to be interviewed, but he did provide responses in writing. There were various other written exchanges and communications over the ensuing months to the date the dismissal took effect.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[36] There was no unreasonable refusal by the respondent to allow the applicant to have a support person to assist at any discussions relating to the dismissal.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[37] The dismissal did not relate to unsatisfactory performance. As noted earlier, the applicant had an unblemished employment record.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[38] The respondent employed approximately 10,000 employees at the time of the dismissal. It has in-house human resource management and expertise, and external resources. The procedures were characterised by avoidable error (such as in relation to the initial mis-identification of the make/model of the mobile telephone in question).

[39] The procedures were also protracted and there were unexplained or unsatisfactorily explained discrepancies in, for example, the dates on correspondence and the dates on which the applicant was actually given such correspondence. Given its resources, it might reasonably have been expected that the respondent and/or its contracted investigator would have dealt with matters more correctly and time-efficiently, rather being attended by error and then by changes to allegations in a period spanning over the better part of a year. In the end, however, I accept the submissions for the respondent that there was an inevitability the applicant would have been dismissed, regardless of the procedure adopted.

Any other matters that the Commission considers relevant

[40] Other relevant matters, which I have considered, include (but are not limited to) the applicant’s lengthy and good employment record and some of the clear procedural issues in relation to the way the dismissal was effected by the respondent. There is nothing arising from my consideration of these matters that would lead me to a conclusion that would in some way counterbalance the finding as to there being a valid reason for the dismissal such as to allow a finding the dismissal was harsh, unjust or unreasonable for other reasons.

Conclusion

[41] I am not satisfied this was a case of harsh, unjust or unreasonable dismissal. Having regard to the foregoing conclusions, the application is dismissed. An order in this regard issues with these reasons.

COMMISSIONER

Appearances:

R. Moore of counsel for the applicant.

O. Fagir of counsel for the respondent.

Hearing details:

2017.

Sydney:

January 24.

 1   (1938) 60 CLR 336, [1938] ALR 334

 2   Unreported decision of the AIRC per Ross VP, Williams SDP and Hingley C; 17 March 2000; Print S4213.

 3   [2017] FWC 32

 4   [2015] FWCFB 6711

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