Sam Chisholm v Coates Hire Operations Pty Limited T/A Coates Hire [2016] FWC 3653, (U2015/15205). KOVACIC, DP. 6 JUNE 2016

 

The applicant in this matter, Mr Chisholm, was dismissed by Coates following a Mr Chisholm’s company provided vehicle being crashed into a tree. Mr Chisholm denied driving the vehicle. This matter is of interest because of the lack of direct evidence that the applicant was the driver, and DP analysing the case by “inference”; providing a High court “checklist” to follow in such circumstances.

 

Noting “the balance of probabilities” is not mentioned once within this matter.

 

Mr Chisholm commenced employment with Coates on 24 August 2011 and at the time of his dismissal was working as Assistant Branch Manager at Coates Queanbeyan (NSW) Branch. At about 9.00 pm on 21 October 2015 the company vehicle allocated to Mr Chisholm was involved in a single vehicle accident.

 

Coates stood Mr Chisholm down on full pay pending receipt of a police report regarding the incident. Later that day, Mr Chisholm sent an email to Coates stating:

 

“Hello all, after discussions with my lawyer he wants a written reference to what I am stood down and a referral with evidence win [sic] what policy I’ve breached. I’m clearly denying all accusations and will need to seek compensation if a proven answer cannot be given. Further more [sic] my lawyer wants an indication of finalising the situation as police investigations with Coates as police investigations can go on and never end without a decision.”

 

Coates then telephoned Mr Chisholm and discussed Coates undertaking its own investigation into the incident rather than awaiting finalisation of the police investigation. Mr Chisholm was amenable to that approach and attended an interview on 3 November 2015 with his mother as his support person.

 

Following the investigation (in which Mr Chisholm attended with his mother as support person), Coates sent Mr Coates a “{show cause” letter and subsequently terminated his employment with payment of one month’s notice.

 

Mr Chisholm’s defence was that the keys for the company vehicle where lost or stolen and he was not the driver at the time of accident. He argued that he had been dismissed as a result of assumptions with no actual evidence that proved anything to be true.

 

Coates submission was:

 

  • Mr Chisholm had shown reckless lack of care for its property, breaching its policies and consequently creating a risk to his safety and that of third parties.
  • Mr Chisholm had advanced no logical reason why he would place takeaway food and trays of raw meat in the vehicle, then return to the Golf Club prior to making the decision to not drive.
  • There was no evidence of any items being stolen from the vehicle (consistent with theft).
  • When Mr Chisholm telephoned Mr Cheney at the accident scene he unnecessarily put his mother on the phone and avoided further discussion.

 

 

  • Mr Chisholm’s mother, without being asked or prompted, volunteered “he’s been with me all night”.
  • This contradicted Mr Chisholm’s evidence that he had only been with his mother after she picked him up from about 8.00 to 8:30 pm that evening.
  • The accident scene was on the most direct route between the Golf Club and Mr Chisholm’s home address.
  • The policeman stated that he:

 

  • Had picked up Mr Chisholm and his mother to take them to the Queanbeyan police station to be interviewed he observed that Mr Chisholm had been drinking fairly heavily. observed that Mr Chisholm had been drinking heavily;
  • At the accident scene he saw no signs of the car having been broken into;
  • There was quite a lot of blood and bits and pieces on the vehicle’s airbags [although] when he picked Mr Chisholm up he did not notice any visible signs of bruises or cuts;
  • A witness had advised that a person matching Mr Chisholm’s appearance had been running away through the bushes and was later seen at a nearby service station on the telephone in tears talking to his mother.

 

The DP, considered Selvachandran v Peteron Plastics Pty Ltd which states (in part):

 

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)

 

The DP drew upon a number of citations, in matters where there was no clear factual evidence (ie “guilt by inference” (my words), the principles in such maters being:

 

  • An inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;
  • The drawing of an inference is part of the process of fact finding;
  • An inference can be drawn if it is reasonably open on the basis of agreed or proved facts;
  • The question whether a particular inference can be drawn from the facts found or agreed is a question of law;
  • Where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;
  • The circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;
  • Matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;
  • Generally it is not lawful to take into account moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;
  • The degree of probability required to found the necessary inference will depend on the nature of the proceeding:
    • In a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence, in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;
    • A party’s failure to give evidence on some issue in cases where it is within that party’s power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.” (Underlining added)

 

In dismissing the application, the DP found:

 

“While I acknowledge that based on the material before the Commission it is not possible to be absolutely certain that Mr Chisholm was driving the vehicle on 21 October 2015 when it crashed, drawing on the decision in Smith, I believe that the material points to Mr Chisholm having been the driver at the time of the accident.”

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
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  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.