PR932102 PR932102 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief re termination of employment Clive William Phillips and Department of Justice (U2002/5629) COMMISSIONER TOLLEY MELBOURNE, 27 MAY 2003 Alleged unlawful termination [1] This decision, with the reasons for decision, is about an application for relief made pursuant to s.170CE of the Workplace Relations Act 1996 (the Act), by Mr Clive Phillips, (the applicant), against his former employer, the Department of Justice, Victoria, (the respondent). [2] The applicant alleges that his dismissal from his position of Senior Sheriffs Officer in the Enforcement Management Branch of the respondent, was harsh, unjust and unreasonable. [3] He seeks reinstatement as a remedy. [4] Mr R Richardson, Industrial Officer, Community and Public Sector Union appeared for the applicant. [5] Mr C O'Grady, Barrister at Law, with Ms C Pollard of the respondent, appeared for the respondent. [6] Mr Richardson made a brief opening submission and called the applicant to give evidence on his own behalf. [7] The applicant attested that this witness statement was true and correct when it was tendered through him by Mr Richardson. [8] Mr O'Grady in cross examining the applicant, queried the veracity of the contents of the statement, in particular the accuracy of the start and finish times of the work day, the locations recorded during the workday, and the times at which it was claimed that attempts were made to execute enforcement instruments and whether, in fact the premises listed had been visited at all, as claimed in work sheets. [9] In short, Mr O'Grady put it directly to the applicant that the vast majority of the times, dates and locations recorded were not properly recorded and were gross inaccuracies. [10] The applicant was questioned about the truthfulness or otherwise of his answers put to him during the taped record of interview with departmental officers, and about the difference in locations on mobile telephone records and on his written work sheets. [11] The applicant's reply to the question put to him about these issues ranged from, in his words ... "they are only little lies" to "the Telstra records are incorrect" and that in any event, ... "he suffered from a depressive illness which caused him to record inaccuracies. [12] The Commission notes at this juncture that the medical evidence tendered, although supporting the witnesses statement about suffering from a depressive illness, it did not go so far as to state that the illness would cause the sufferer to record inaccuracies, or tell what appear to be a continuing stream of untruths. [13] The applicant, in his answers to Counsel for the respondent during cross-examination was continually evasive and at times aggressive in replying to simple questions about alleged facts in his witness statement. [14] The Commission does not intend to make further comment at this juncture about the applicant's evidence. [15] Mr O'Grady in opening for the respondent, outlined the fact that the applicant was an officer of the department in a position of trust and responsibility with a major component of his duties being the execution of warrants in the community, warrants which were issued to enforce decisions of the various courts within the judicial system of Victoria. [16] The fact that Sheriffs Officers are appointed pursuant to the Supreme Court Act of Victoria, is a measure of the responsibility of the position. [17] Mr O'Grady's outline also went to the discrepancy, not only between locations recorded on worksheets and mobile telephone records, but also to discrepancies between worksheet locations and the dates, times and locations shown on the fuel purchase receipts. [18] It was put to the witness, and to the Commission as part of submissions, that during a 4 and 1/2 month period, there were 41 instances where daily worksheets could not be reconciled with the applicants petrol receipts, his telephone records and the observations of other Sheriffs Officers, and that these inconsistencies showed that his claims to be in certain areas or suburbs, serving or attempting to serve warrants, were untrue, as the telephone, petrol receipts and personal observations showed he was elsewhere. [19] The Commission, as a result of evidence given in person by officers of Telstra in another matter, does not accept the applicant's assertion that Telstra's mobile telephone records are wrong; further, the allegation that fuel records issued at petrol stations are incorrect show that the applicant has a bent to put whatever he thinks will support his position. [20] It is a fact that petrol and other vehicle fuels are subject to price fluctuations throughout the day and week. It is also a fact that excise is levied on fuels when they leave the pump to refill vehicle fuel tanks. As a consequence, there is a stringent requirement for excise collection purposes among others, that the receipt records be kept accurate by electronic means. [21] The fact that the applicant has recorded that persons, the subject of warrants, were either not at home or had left the address shown, when he attempted to serve warrants or summons, and that when other officers made attempts to serve the same documents, they surprisingly did not meet with the same difficulties, puts a different light on the applicant about these matters. [22] Mr Phillips clearly admits in PN388 of transcript, that he had fabricated run sheets. [23] The whole of the cross examination by Mr O'Grady of the applicant, points out glaring discrepancies about the applicants movements, his failure to properly complete worksheets as required, and to fulfil his duties as an officer of the respondent department. [24] The applicants replies to Mr O'Gradys questions, were either evasive or fabrications: something which can only lead the Commission to one conclusion, which is that the applicant dishonestly dealt with his employer, something which brought about the decision made to dismiss him from employment. [25] The evidence drawn from the respondent's witnesses was given openly, without prevarication, and is assessed as being honest by the Commission, and did not support any of the contentions of the applicant or argument put on his behalf by Mr Richardson. DECISION 1. Mr Phillips actions, his clear fabrication of worksheets and other work records, clearly show that he is a person whose lack of honesty makes him a person not properly able to discharge the duties required by his employment position. 2. The provisions of s.170CG 3(a), (b), (c) and (d) were properly considered and applied by the respondent employer before making the decision to terminate the employment of the applicant. 3. Having heard evidence from the parties in this matter and closely perused the case history tendered, the Commission has for the reasons contained herein reached the conclusion that the applicant, Mr Clive Phillips, was not harshly, unfairly or unreasonably terminated from his employment as a Senior Sheriffs Officer of the Department of Justice - Enforcement Branch - Victoria. 4. As a consequence, the application before the Commission is dismissed. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer