PHILLIP SILVER REPRESENTS OUR CLIENT (AN EMPLOYEE) AND WINS IN THE COURT OF APPEAL SUPREME COURT NEW SOUTH WALES AGAINST STATE TRANSIT AUTHORITY (EMPLOYER) ON 24 OCTOBER 2017
Our client, Mr Jamal Marroun worked for the State Transit Authority (“STA”) for some 38 years. On 19 May 2015, he was dismissed from his employment.
- Mr Marroun appealed against that decision to dismiss him pursuant to the Industrial Relations Act 1996 (‘the Act’).
- Mr Marrounwas dismissed on the basis of a finding that he had committed misconduct in relation to an allegation framed as follows:
‘On Saturday 11 April 2015 you breached of the State Transit code of conduct and the State Transit bus operations lost property procedure when you removed lost property.
- Following an inquiry conducted by an employee of the STA, it was found as a matter of fact against Mr Marrounthat he removed lost property items from the Kingsgrove revenue room without authority.
- The matter then went to assessment by a reviewing officer. She endorsed the finding of fact, although she did not make any finding that Mr Marroun’s conduct constituted misconduct, and recommended dismissal.
- As a result of this conduct, disciplinary proceedings were commenced by his employer ,STA, against Mr Marroun, who dismissed him from his position on 20 May 2015.
APPEAL TO THE INDUSTRIAL RELATIONS COMMISSION
- Mr Maroun appealed against his dismissal to the Industrial Relations Commission. The appeal brought by Mr Marroun from the dismissal decision was heard by a Commissioner Newell of the Industrial Relations Commission, pursuant the Industrial Relations Act 1996 (NSW).
- Commissioner Newell summarised the evidence as follows –
- Mr Marroun worked as a Duty Officer. In that role he was required from time to time to be in the Revenue Room, a locked, secure room, at the STA’s Kingsgrove depot.
- On 10 April 2015 Mr Marroun was requested by a colleague to dispose of certain lost property that was, she said, in the Revenue Room. This request was not made in the Revenue Room itself and the lost property to be disposed of was not visible to Mr Marroun when the request was made. Nor was the lost property and its location in the room identified with any precision or detail.
- The disposal of the lost property was to be effected by putting the items in a charity bin. This was a regular procedure adopted in relation to unclaimed lost property of a low value.
- The next day, 11 April 2015, Mr Marrountook two plastic bins full of property items that were standing on a desk in the Revenue Room and placed the items in his car.
- At all times the Revenue Room was filmed by a CCTV camera and Mr Marroun knew this.
- Mr Marroun carried two plastic bins full of property, one by one to his car that he tipped the contents of the bins into his car boot loose.
- Mr Marroun’s evidence was that when, at the end of his shift, he went home, he had forgotten about the items to be disposed of and simply left them in the boot of his car.
- His evidence was that only later that night did he remember the items; he mentioned their presence in the boot of his car to his wife, who undertook to him that she would deal with the items the next morning. His evidence was that he did not describe or identify any of the items to his wife in any way at all.
- As the evidence of Mr and Mrs Marroun then unfolded, the next morning Mrs Marroun took the items from the boot of Mr Marroun’s car while he was asleep. While Mr Marroun gave evidence that the items were all loose in the boot, Mrs Marroun – the next person to see the items – said that the majority were in fact inside plastic bags.
- After Mr Marroun had gone to work, she returned to the items and transferred them from where they were, already inside bags, into her car. At that point she noticed certain things among the items, including some chocolates. She says that she then went through the bags more carefully ‘so as to dispose of perishables since they weren’t to be disposed of at the bins’.
- While doing this, she said, Mrs Marroun found two mobile phones amongst the items, including an iPhone.
- The chocolates, Mrs Marroun decided, should not be put in a charity bin as they would go bad, so she elected to give them to her sister-in-law. She also said that she knew that mobile phones did not go to a charity bin but to a ‘separate mobile phone recycling bin that I have seen at mobile phone shops’. For that reason, she said, she extracted the phones from the items she had already put into bags and took the phones into the family home. She then ‘out of curiosity’ put the iPhone on a charger in the family lounge room.
- She also decided that the lost property slips and tags on the items should be removed. She tore them all off and put them in a separate plastic bag because, she said in cross-examination, ‘I didn’t have a shredder.’
- The items she did not keep or give to her sister-in-law she took in her car to some charity bins outside a supermarket immediately down the road from the Marroun house (but which bins she said were unknown to Mr Marroun) and, as the five charity bins there were full, she left the bags containing the items next to the bins.
- At no time did she tell Mr Marroun that she had taken the items from the boot of his car; according to his evidence and hers, Mr Marroun drove the car back to work the next day without knowing or even asking whether the items were still in the car boot or not.
- The next morning Mr Marroun received a call from an officer of the STA to say that the items he had taken were not to be disposed of, and should be returned to the depot.
- On being told that, Mr Marroun then brought back to the STA the bulk of the items. His evidence was that he told his wife that the items must be collected and taken back. Mrs Marroun then told him about the chocolates; the Marrouns drove to Mrs Marroun’s sister-in-law’s house and retrieved them. Mrs Marroun also told Mr Marroun – again for the first time on their evidence – that two phones, including an iPhone, were in the family lounge room. They were also returned.
- There were some items not returned to the STA; both Mr and Mrs Marroun’s account was that they had been taken by persons unknown from the plastic bags left by the charity bins by Mrs Marroun. The items not returned were of negligible or no value.
- The reason that Mr Marroun was asked by his employer to return the items he took to his car was that they were not items that were to be disposed of at that time, but items that had yet to be cleared for disposal.
- So far as the items included mobile telephones and wallets containing credit cards, as on all the evidence they did, the written policy directive by STA was very clear: those items were to be locked in a safe, not just kept in the Revenue Room, even though that room was locked.
- The STA officer, Miss Corsham, who on her own evidence had ‘the lead role in the handling of lost property conceded that in failing to place the items of value in a safe but rather leaving the items on the desk in the Revenue Room, she was in breach of her obligations under the STA’s written procedures.
- Miss Corsham did not suffer any disciplinary sanction at all for having breached the STA’s written policy with respect to the items, even though the items were in her charge and it was, on her evidence, part of her job to deal with the items.
FINDINGS BY COMMISSIONER NEWELL
- On inquiry Commission Newell held two things were apparent.
- First, Mr Marroun did not himself effect a breach of his obligations under the STA’s lost property procedures, as alleged against him, by his action of actually removing the lost property from the revenue room of the Kingsgrove bus depot. He removed what he thought were items that were to be disposed of according to the established local procedure. He took the wrong items; the overall result was that the procedure was breached.
- He removed the items in the following circumstances: that he was asked to remove unspecified and unidentified lost property items from the Revenue Room by a colleague; that there was only one body of lost property in the room when he went there; that the disposal of unwanted lost property was not a task that he regarded as a primary task, and was not his usual work at all, and that the material he actually took should not, if other officers, and specifically Miss Corsham, had done their job in accordance with the STA procedures, have been left there to be taken in the first place.
- Nobody was harmed by his conduct; no public complaints were made to the STA about any of the property; the STA’s reputation was not harmed, and so far as the property had value, most of the items were returned to the STA to do with as it saw fit.
- So far as Mr Marroun’s conduct was assessed against STA procedures he was, it might be said, careless in not checking the materials more thoroughly.
- For this he may have deserved some form of disciplinary sanction; something perhaps in the order of a reprimand for not taking better care to check on the property of which he disposed, but a sanction well short of dismissal.
- For him to be dismissed for his conduct in removing the wrong items – which is all that he was accused of and all he was found to have done – was disproportionate and inappropriate.
- It was disproportionate and inappropriate in its own right, and it was doubly so when one considers that Miss Corsham, whose responsibility the proper care of the property actually was, and who had, in direct breach of STA procedures known to her, left the property in a place where it was (as events proved) at risk of being mistaken for disposable property, was given no disciplinary sanction at all.
- However, a gross incongruity between the approaches to two different employees invites a suggestion that the punishment is inappropriate.
- No reasonable person could have found that the allegation that was actually put against Mr Marroun and the facts the STA actually found proven warranted termination.
- The STA’s conduct in this matter invited the conclusion that the officers tasked with making a decision on Mr Marroun’s employment believed that Mr Marroun had in reality taken the property deliberately for his own purposes in the knowledge that it was not property to be disposed of, but that the STA lacked the courage of its convictions to put that as an allegation to Mr Marroun.
FURTHER CONSIDERATIONS TAKEN INTO ACCOUNT BY COMMISSIONER NEWELL
- Mr Marroun’s own conduct in dealing, as an employee, with his employer about the matters raised with him pursuant to his obligations under his employment contract, and his post-employment conduct.
- Commissioner Newell held :
- that Mr Marroun had not been candid. Rather, he provided to the STA a partially fabricated account of what occurred.
- it could properly be inferred that Mr Marroun knew that his wife also gave a partially fabricated account of what occurred to the STA.
- Mrs Marroun also presented unfavourably as a witness and in the cases of both Mr and Mrs Marroun, they were fabricating parts of their evidence.
- Mr Marroun actively sought to deceive his employer, when the employer was making its inquiries about the incident. That act of deception on his part was a fundamental breach of his obligations under his contract of employment. It is destructive of the necessary confidence between employer and employee.
- It stands entirely against the Commission taking any step to restore the employer-employee relationship.
- Mr Marroun has come before the tribunal exercising that discretion and given a fabricated account to cause the tribunal to exercise a discretion in his favour. That is conduct which disentitles the appellant to the discretionary remedy he seeks.
POST-EMPLOYMENT FACEBOOK CONDUCT DEALT WITH BY COMMISSIONER NEWELL
- On 14 July 2015, Mr Marroun made two posts on Facebook which remained publicly visible from that date at least until October 2015 when they were seen by officers of the STA.
- However, Commissioner Newell held that to ask an employer to place trust and confidence in a public servant who has, and not in the heat of the moment, publicly characterised that employer as ‘bastard’ and ‘criminal with stars’ is not within the maximum elasticity even of the employment contract.
- The appeal by Mr Marroun was dismissed by Commissioner Newell who held that the penalty imposed by Mr Marroun’s employer was too severe, but nevertheless upheld the dismissal on the basis of its finding that Mr Marroun had lied in his account of his conduct, and had consequently destroyed the necessary relationship of trust between employee and employer.
MR MARROUN APPEALED THIS DECISION AND LOST
Mr Marroun then appealed to the Industrial Court against the decision of the Commissioner Newell on a question of law. The appeal was heard and determined by His Honour Walton J, who dismissed the appeal.
Mr MARROUN APPEALS AGAIN THE COURT OF APPEAL, SUPREME COURT OF NSW AND WINS ON THE 24TH OCTOBER 2017.
Three Judges of the appeal court (Bathurst CJ, Peazley P and Basten JA) allowed the appeal and held
- An appeal to the Commission from an employer is an appeal by way of fresh hearing, which means that the appellate body “stands in the shoes of” the original decision-maker. Where there is a specific complaint before the employer, it will be necessary for the Commission to consider that complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellate body has the same powers as the original decision-maker.
- The Industrial Relations Act 1996 (NSW) confers powers on the Commission in relation to a disciplinary appeal, which must be exercised by the Commission in deciding the appeal. The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the employer to take specific disciplinary action. There is no basis to expand the jurisdiction of the Commission.
- The finding of the Commissioner that the appellant’s dismissal was not warranted by the conduct of 11 April 2015, which formed the basis of the disciplinary charge, should have led to an order allowing the appeal. In not taking that course, the Commissioner exercised a jurisdiction he did not have and failed to complete his statutory function. The decision of the Commission must be set aside.
- Although the appellant’s credibility was in issue at all stages, he was not put on notice that if findings were to be made against him of the kind in fact made by the Commissioner, his dismissal might be justified on that basis. There was a denial of procedural fairness which, if properly raised, vitiated the order of the Commission.
- In proceeding to dismiss the appeal on the basis of uncharged conduct, the Commissioner implicitly determined that there was no procedural unfairness in taking that step. The appellant was therefore entitled to challenge that decision and to rely on procedural unfairness.
- The question for the Commission was whether, to confirm the order of dismissal or substitute another order. It was not a question of ordering reinstatement for an unfair dismissal. The order made followed from a misconception as to the nature of the proceedings.
The Appeal Court ordered STA to pay both Mr Marroun’s costs of this appeal and the previous appeal.
The full judgment can be downloaded on https://www.caselaw.nsw.gov.au/decision/59ed204de4b074a7c6e19940