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In the words of the Commission in this matter:
“I have taken into account Mr Zhang’s language skills, his health condition, including the fact that his medication may have impacted his responses and that he was sleep deprived. In my view, these matters may explain some of his conduct but do not excuse it. Particularly in light of his conduct representing an extreme departure from the norm”.
The nub of this matter is that the applicant, being a security technician, finished his duties before expected and returned to the depot to collect spare parts for the next day’s work. On arriving at the depot, he was advised that here was no supervisors that could allocate the spare parts. The applicant tried to contact his supervisor by email and phone, but after waiting 30 minutes with no response, he took the spare parts and left a message to that effect.
It is important to note that this is the issue and the applicant’s conduct during the warning process, that led to the dismissal, as it is company policy that no spare parts be taken without supervision present.
By way of background, the applicant:
- Is aged 53, was born in China, and migrated to Australia in 1991. English is his second language.
- Was employed as a Security Technician and his role involved installing and repairing home alarm systems.
- On 14 March 2019 he had an interaction with his supervisor concerning working overtime. As a result, he felt stressed, anxious, worked up and depressed. He consulted a Doctor and began taking medication which had some side effects and slowed him down. He stopped taking the medication two weeks before the hearing.
- Attended a team meeting on 15 March 2019 where a new procedure to obtain spare parts was discussed. He said that the process when no one was available was not discussed, though later stating that he could not really remember this meeting, but on the other hand argued that the minutes did not accurately reflect the matters discussed at the team meeting. He also later accepted that he was told at the meeting that no stock was to be taken from the stores unless it was authorised by one of the three persons named and if they were not available in person, he should contact them by phone.
- The applicant gave his evidence with the assistance of an interpreter.
It was contended (by the respondent) that the applicant:
- Failed to comply with a work procedure which resulted in a warning being issued.
- During the process of issuing that warning, he acted in a manner inconsistent with the respondent’s code of conduct.
- Post dismissal, the respondent found out that the applicant had secretly recorded the meeting on 5 April 2019. And in doing so
- Fatally damaged the employment relationship.
The Commissioner formed a view
The Commissioner noted that the applicant’s:
- First language is not English which may result in him constructing his sentences in a manner that could be perceived as direct or abrupt or be misconstrued. Notwithstanding that he had worked successfully in the work environment for over 8 years interacting with employees and customers predominantly in English.
- Appeared to have difficulty during cross-examination (and re-examination) listening to questions, possibly impacted by the stress that the proceedings placed on him. In cross-examination, he had to be repeatedly reminded to listen to the question and directly answer it. On many occasions his answers appeared out of context, on some occasions rather than answer the question, he would advocate his position; and appeared reluctant to make concessions.
- Once upset (or stressed) tended to become belligerent, at times making his responses in cross-examination were inconsistent and/or confusing.
The Commissioner noting:
“[The applicant’s] capacity to argue that the table in the…meeting room was not round was nothing short of astounding, particularly in light that the shape of the table was irrelevant other than as to credit. [The applicant] contended the table in the meeting room was not round, having been shown Exhibit R17 (which clearly shows a round table), he then contended this was not the room in which the interview took place, before reluctantly accepting that the table was round and finally returning to his position that it was a different room. During these exchanges Mr Zhang asserted that he was a detail person and never wrong. The next day [the applicant] repeated that according to his memory it was a square table and postulated that someone changed the table in the room. These exchanges (amongst others in his cross-examination) provides insight as to how [the applicant] may have conducted himself during the 5 April 2019 interview”.
Most telling was the Commissioner’s finding that:
“I have concluded that [the applicant] is not a reliable witness and is driven by matters other than fact. I have treated his evidence, where it conflicts with evidence given by others, with caution”.
Admissibility of covert recording of meeting of 5 April 2019
The applicant used his mobile telephone to secretly record the meeting between himself, and two company representatives. He advised that he made the recording as his English was no good, for his own protection and to allow a written account of the meeting to be made which is easier for him to understand.
It was put to the Commissioner that the applicant’s questions were influenced by the fact the meeting was recorded – and as a result the recording should not be used in evidence.
On the one hand, the applicant argued that the Commissioner should receive the secret recording and the transcript as there was no breach of the Surveillance Devices Act 2016 (SA) and contended that the conversation was not a private conversation, because persons at the meeting were taking notes, and persons outside the room could hear the conversation.
On the other hand, the respondent argued the recording was made in breach of section 6 of the Surveillance Devices Act 2016 (SA), that the recording was unlawful, and that the exception of consent and to protect the lawful interests of the person did not apply.
The Commissioner determined not to receive the recording for the following reasons:
- The meeting was held behind closed doors and was of a disciplinary nature and therefore not a private meeting.; also rejecting the contention that the taking of handwritten notes comprises of the ‘recording’ of the meeting.
- Referencing a decision by Deputy President Sams in Kelly Walker (No.2), agreeing in, determining whether to exercise the Commissioner’s discretion to receive the recording, the Commission must weigh up those considerations and determine if the prejudicial value is outweighed by the probative value.
- And that the decision Thomas v Nash supported the rejection of the secret recording. This was a wills and probate case before Chief Justice Doyle. Mr Nash had made some secret recordings in case he forgot things. It was found that the recordings were made as it might prove to be advantageous. The admission of the recordings was contested. Chief Justice Doyle held that the term ‘private’ does not mean secret or confidential but simply ‘not public.’ The Chief Justice noted that ‘I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage.’ The Commissioner finding that the evidence in this matter suggests that the recordings were made in the hope that they would assist the applicant.
But the secret recordings only came to light AFTER the dismissal
To recap, the respondent relied upon the conduct of the applicant at the meeting of 5 April 2019 (and shortly after), and the secret recording of that meeting.
Whilst it was only after the dismissal the respondent became aware of the secret recording of the meeting, it is open to the respondent to rely on the applicant’s misconduct as a valid reason for the dismissal. As stated by the High Court, “if there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances…”
The Commissioner also took notice of a number of case precedents which stated he saw ‘no room to doubt that it is an impropriety to make a secret recording of a conversation bearing on some business interest or other important interest…’ and that ‘In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that in any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate’; determining that such conduct was an ‘extreme impropriety.’
The Commissioner concluding
That the applicant acted in the manner that was a significant breach of the respondent’s code of conduct. Adding:
“I have also found that [the applicant] was untruthful during the investigation and that [the applicant’s] secret recording of the meeting on 5 April 2019 fatally damaged the employment relationship. Each of those findings represents a valid reason in respect of [the applicant’s] conduct.
Also reinforcing that:
“There is no positive obligation on an employer to offer an employee the opportunity to have a support person. This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
Ultimately dismissing the application as the dismissal was not harsh, unjust or unreasonable, and therefore the applicant was not unfairly dismissed.