Dated 18 April 2008, Vol. 187, No. 14, pages 230-265] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Vocational Education, Training and Employment Act 2000 - s. 230 - appeal to industrial commission against council
Ergon Energy Corporation Limited AND Training and Employment Recognition Council
11 April 2008
Appeal against decision of Training and Employment Recognition Council refusing to cancel training contract - Nature of appeal - s. 74(11) Serious misconduct - s. 70 Misconduct - Apprentice convicted on serious criminal charges - Conduct outside working hours - Finding that conduct justifying cancellation of a training contract must touch or impact on the employment relationship - Finding that there is not a sufficient relationship between the apprentice's conduct outside working hours and employment to justify cancellation of the training contract - Appeal dismissed.
On 10 January 2006 a registered training contract between Ergon Energy Corporation Limited (Ergon) and Timothy John Perry commenced. On 26 January 2006, Mr Perry and a number of his friends, using an air rifle, shot at a number of Aboriginal people and people they believed to be of Aboriginal descent. Two of these people suffered physical injury and others were severely traumatised.
On or around 10 February 2006, Ergon became aware of Mr Perry's involvement and after corresponding with Mr Perry and meeting with him and his parents, a decision was made that Mr Perry's employment would not be terminated, and that the outcome of Court proceedings would be awaited. However, Mr Perry was warned that if his involvement in the incident was substantiated, it would be relied upon by Ergon as grounds to cancel his training contract and terminate his employment. Mr Perry subsequently pleaded guilty to and was convicted of a number of serious offences, and on 26 October 2007, was sentenced to nine months' imprisonment, to be served under an Intensive Correction Order.
On 16 November 2007, after further correspondence and meetings with Mr Perry, Ergon gave Mr Perry a Suspension Notice under s. 64(2) of the Vocational Education, Training and Employment Act 2000 (the Act) and forwarded a letter seeking the cancellation of Mr Perry's training contract to the Director-General of the Department of Education, Training and the Arts. In that letter, Ergon contended that now that it had the full facts of the incident of 26 January 2006, it had decided that it could not reasonably continue Mr Perry's training or engagement. The grounds upon which Ergon sought cancellation were that Mr Perry had committed serious misconduct such that his training contract should be cancelled under s. 64 of the Act or that Mr Perry had committed misconduct and that his training contract should be cancelled under s. 71 of the Act.
Ergon's application for cancellation of Mr Perry's training contract was dealt with by the Training and Employment Recognition Council (the Training Council). After causing interviews to be conducted with Mr Perry and a number of representatives of Ergon, and considering material put to it by the parties to the training contract, on 5 December 2007 the Training Council issued a Show Cause Notice under s. 25 of the Vocational Education, Training and Employment Regulation 2000, stating that its proposed action was not to cancel Mr Perry's training contract, and inviting the parties to provide any further information or documents or oral submissions as to why that action should not be taken. Ergon corresponded with the Training Council on 20 December 2007, maintaining its position that the contract should be cancelled and setting out its arguments in this regard. In a decision of 24 December 2007, the Training Council decided not to cancel Mr Perry's training contract.
On 3 January 2008, Ergon appealed to the Queensland Industrial Relations Commission (QIRC) against the decision of the Training Council under s. 230 of the Act. The grounds of the appeal were that the Training Council incorrectly formed the view that Mr Perry's conduct did not constitute grounds for the cancellation of his training contract and that the Training Council incorrectly formed the view that it was not unreasonable in the circumstances for Ergon to continue to train Mr Perry and that the Training Council incorrectly exercised its discretion under the Act not to cancel the contract. Ergon sought the setting aside of the decision not to cancel the contract and that the contract be cancelled with effect from 16 November 2007.
2. Nature of an appeal under s. 230 of the Act In the appeal proceedings before the QIRC, Ergon sought to bring evidence from a number of witnesses which had not been put before the Training Council at first instance or which sought to elaborate upon material put to the Training Council. This was opposed by the first respondent in the appeal, the Training Council, and the second respondent, The Electrical Trades Union of Employees, Queensland Branch (ETU) on behalf of Mr Perry. Those parties argued that the QIRC in the appeal should not receive evidence which could reasonably have been put before the Training Council at first instance, and that if this evidence was received, it should be given less weight than evidence on the original record as considered by the Training Council.
It was contended for Ergon that there was no restriction on the ability of the QIRC to receive new or further evidence, and an appeal under s. 230 of the Act was essentially a fresh hearing, where the QIRC is required to consider the record of evidence before the Training Council and any additional evidence brought by the parties in the appeal. It was also submitted that there should be no prejudice to a party on the grounds that new or further evidence could reasonably have been put before the Training Council at first instance. Further, it was submitted for Ergon that there was no requirement for the QIRC to find error in the decision of the Training Council before deciding to exercise any of the powers on the appeal in s. 233 of the Act.
I accept the submission for Ergon on both points. In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 222-223 Justice Kirby said that:
"Appeal, as such, was unknown to the common law. It was a creature of statute. It is not possible to adopt any hard and fast or universal approach to the process called 'appeal' in a particular statute.".
His Honour went on to note that the term "appeal" encompasses different litigious processes and that no fewer than six forms of a procedure called an "appeal" have been identified: Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 at 297 Per Glass JA. Further, his Honour said (at 223) that:
"In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies.".
In Turnbull (supra) Glass JA noted that the various forms of appeal have few unifying characteristics. Among those forms are what his Honour described (at 297-298) as appeals from a judge by way of a rehearing and appeals involving a hearing de novo.
"In the former type of appeal a power to hear fresh evidence is often expressly conferred and may also be implied in the absence of an express provision. If errors of law or wrong findings of fact have occurred below, the appellant court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since the appeal will be decided in the light of the circumstances that then exist, changes in the law will be regarded. In the latter type of appeal all the issues must be retried. The party succeeding below enjoys no advantage, and must, if it can, win the case a second time.".
His Honour also noted that in the case of Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1975) 2 NSWLR 174, it had been held that an appeal to the District Court from a decision of the Board was a hearing de novo notwithstanding that the legislation providing for the appeal stated that it was an appeal by way of rehearing. His Honour went on to state (at 299) that:
"The canon of construction prevailed over the statutory description. I take it, therefore, to be settled doctrine, which this court ought to apply, that, when an appeal is brought to a court against an administrative decision, it conducts a hearing de novo.".
In Allesch v Maunz (2000) 203 CLR 172 at 180, in their joint judgement Justices Gaudron, McHugh, Gummow and Hayne, observed that a critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: CDJ v VAJ (1998) 197 CLR 172 at 201-202. Their Honours went on to state that this was so unless in the case of an appeal by way of rehearing, there was a statutory provision indicating that the powers may be exercised regardless of whether or not there is such an error: Re Coldham; Ex parte Brideson [No. 2] (1990) 170 CLR 267.
In that case, Justices Deane, Gaudron and McHugh considered the nature of an appeal under s. 88F of the then Conciliation and Arbitration Act 1904, noting that the section in question empowered the Australian Industrial Relations Commission on an appeal from a decision of the Industrial Registrar, to make such order as it thinks fit and to take further evidence for the purposes of an appeal under the section. These provisions were said to be strong indications that the appeal given by s. 88F was by way of rehearing, and that there was nothing to suggest that evidence which might be received was limited to events which occurred at the date of the Registrar's decision. Their Honours concluded that:
"[t]he Commission was bound to make its own decision on the evidence before it, including evidence of events which occurred after the Registrar's decision.".
Further, it was held that the QIRC was not required to find an error on the part of the Registrar, but could reach its own decision on the basis of evidence, including evidence of events which had occurred after the Registrar's decision. It should also be noted that CDJ v VAJ (supra) dealt with the admission of evidence in an appeal when there had been a hearing in a court below at which such evidence could reasonably have been called.
In the case presently before the QIRC the relevant provisions are found in Chapter 8 Part 2 of the Act. By virtue of s. 230 a person aggrieved by certain decisions may appeal to the QIRC. Relevantly those decisions include a decision of the Training Council to cancel or refuse to cancel a registered training contract under section 63, 64 or 66. Section 232 of the Act provides as follows:
"Nature of appeal (1) An appeal to the industrial commission is by way of rehearing on the record.
(2) However, the commission may hear evidence afresh, or hear additional evidence, if the commission considers it appropriate to effectively dispose of the appeal.".
In the Explanatory Memorandum to the Training and Employment Bill2000 in relation to s. 232, the following appears:
"Nature of appeal
Clause 232 provides that an appeal to the Industrial Relations Commission is heard by way of rehearing. In addition the Commission must keep a record of the rehearing.
If the Industrial Relations Commission considers it appropriate, it may hear the evidence on the decision afresh and hear new evidence not previously considered by the Training Recognition Council.".
An appeal to the QIRC from a decision of the Training Council is not an appeal from a decision of an administrative body, to an administrative tribunal. Neither is it an appeal from a decision of an administrative body to a court. However by s. 255 of the Industrial Relations Act 1999 the QIRC is a court of record. In an appeal under s. 230, the QIRC has similar powers to those considered in Re Coldham (supra). There is nothing to indicate that the QIRC is required to find that there is an error in the decision of the Training Council subject to appeal, before deciding to exercise any of the powers under s. 233. While those powers do not include the power to make any decision that the QIRC thinks fit, the QIRC does have broad powers including the power to impose a new decision or to amend the decision of the Training Council. Thus while s. 232 refers to an appeal being by way of rehearing, it is strongly arguable that such an appeal is more in the nature of a hearing de novo than a rehearing in the strict sense.
In my view the following considerations apply to an appeal under s. 232 of the Act:
the QIRC must make its own decision on the basis of the evidence before it;
before making its own decision the QIRC is not required to find that there was any error on the part of the Training Council in the decision subject to appeal or the processes by which that decision was made;
evidence to be considered by the QIRC in deciding an appeal includes the material which was considered by the Training Council at first instance or new evidence of events or circumstances which occurred after the decision of the Training Council or evidence which could have been put to the Training Council but was not;
the QIRC may also hear afresh, evidence which was before the Training Council;
the question of whether the QIRC hears evidence on the decision afresh or hears new evidence not previously considered by the Training Council is a discretionary matter;
in any decision about whether that discretion should be exercised, case law dealing with leave being granted by a court on appeal, to adduce evidence which could reasonably have been put before a court at first instance, is not relevant because the proceedings at first instance are administrative in nature.
3. The evidence before the Training Council The record of evidence before the Training Council was extensive and comprised 14 documents, many with attachments. I have considered all of this material in reaching my decision on this appeal.
3.1 The training contract Timothy John Perry was born on 29 April 1988. Mr Perry was employed by Ergon under a registered training contract (Registration Number 200636052) in the apprenticeship of Electrotechnology Systems Electrician. The contract commenced on 10 January 2006 and had a nominal completion date of 8 January 2010. Mr Perry was enrolled in the qualification of UTE31199 Certificate III in Electrotechnology Systems. Under that contract Ergon agreed to a number of matters, including that it would employ and train Mr Perry as an apprentice Electrotechnology (ET) Systems Electrician. Mr Perry agreed to a number of matters including that he would attend work, follow Ergon's lawful instructions and work towards achieving that qualification. (Refer Document 1).
Upon commencing employment Mr Perry received induction training on 10 and 11 January 2006, and in particular was given presentations and information on the following Ergon policies and procedures:
1. Code of Conduct and Out of Hours Conduct;
2. Workplace Health and Safety and ZIP Training;
3. Culture, Values and Behaviours; and
4. Equal Employment Opportunity Policy.
Ergon maintained that Mr Perry had confirmed at a meeting with Ergon on 14 February 2006, that he had received this training and that at 26 January 2006 he had a broad understanding of Ergon's expectations of employees both within and outside working hours.
Ergon's Out of Hours Conduct Policy was tendered without objection (Exhibit 8) and relevantly provides as follows:
"While all Ergon Energy employees have a right to privacy, criminal or otherwise inappropriate conduct occurring outside of the workplace and negatively impacting on Ergon Energy may result in disciplinary action or a requirement that the particular private conduct cease.
Examples of such conduct include, but are not limited to:
Criminal offences involving stealing, or other dishonesty regarding cash or goods;
Violence, harassment or discrimination towards other Ergon Energy employees that occurs outside of the workplace and not during working hours.
Disciplinary action may be taken where the conduct of the employee outside the workplace:
Brings Ergon Energy into disrepute;
Damages the interests of Ergon Energy;
Is incompatible with the employee's duty of good faith to Ergon Energy;
Damages the relationship between Ergon Energy and the employee or other employees.".
At 26 January 2006 13 working days had elapsed since the commencement of Mr Perry's training contract.
3.2 The events of 26 January 2006
The appellant and the first and second respondent provided numerous summaries of the events of 26 January 2006. In my view, the best sources of evidence in relation to the events are Mr Perry's police statement (Document 3) given on that date and the sentencing remarks of His Honour Judge Searles in the District Court on 26 October 2007 (Document 7). Relevant points emerging from Mr Perry's police statement may be summarised as follows:
On 21 January 2006 Mr Perry borrowed a "slug gun" from a friend with whom he had been staying and took it to his father's home, who locked the gun in a cupboard. On 25 January 2006, Mr Perry put the gun into his car and took it to the beach house of the person he had borrowed it from. Mr Perry and his friends took turns shooting the gun at a coke can and a plastic chair. On the morning of 26 January 2006 Mr Perry put the gun into his car and drove with a friend to Yeppoon. After meeting with more friends, the group returned to Rockhampton. After dropping some of the group to a home in Rockhampton, Mr Perry took the gun from the boot of his car and got into the front passenger seat of his car, placing the gun down the side of the seat. There was a steel container holding slugs in the centre console of the car. A male friend drove Mr Perry's car with Mr Perry remaining in the front passenger seat.
Another male friend, Mr Nitz, drove a second car with two males and one female as passengers. The two cars were driven around Rockhampton for about fifteen minutes, before stopping near a park in Alma Street. Mr Nitz said to Mr Perry: "What do you reckon", to which Mr Perry responded by saying: "I will have a go". As the car drove slowly past a group of Aboriginal persons sitting in the park, Mr Perry aimed the gun above the group and fired it. The two cars pulled up in the same place in Alma Street, and Mr Nitz asked whether he could have a go. Mr Perry told him he could have the gun and handed it to Mr Nitz along with the container of slugs for the gun. The two cars then drove past the park again. Mr Perry was not sure whether Mr Nitz fired the gun at the group of Aboriginal persons again, but they came running at Mr Nitz's car throwing rocks. The two cars continued to drive around with Mr Nitz firing the gun at two Aboriginal girls walking their push bikes along the street, and a male riding a push bike. Mr Perry said that he heard a slug hit the male person's bike and Mr Nitz yelled at the male person: "you black cunt.".
Mr Perry stayed in his vehicle with another person driving, and followed Mr Nitz's car. There were three young persons whom Mr Perry described as "kids" riding push bikes. Mr Perry saw Mr Nitz's car slow down and when he looked back one of the "kids" was holding his ribs. About ten minutes later, Mr Nitz told Mr Perry and other persons who had been in the vehicles, that he thought that he had hit the "kid". Mr Perry said that because of what had happened to the kid, he had told the group that he was taking the gun back to his friend's house. Mr Perry did this and then returned to Mr Nitz's house where police were waiting.
On 15 October 2006 (according to an article on the front page of "The Morning Bulletin" of 16 October attached to Document 3), Mr Perry and others involved in the incident pleaded guilty to the following charges:
two counts of going armed in public so as to cause fear;
attempted unlawful wounding; and
two counts of assault occasioning bodily harm with circumstances of aggravation (See also Document 7).
On 26 October 2007 Mr Perry was sentenced to two periods of nine months and one period of six months' imprisonment, to be served concurrently, with all terms to be served under an Intensive Correction Order.
In his sentencing remarks on 26 October 2007 (Document 7), Judge Searles made the following remarks to all of the convicted persons:
"Your conduct took place on the 26th of January 2006, Australia Day, and involved premeditated planning of an abhorrent scheme to drive around Rockhampton to find Aboriginal people to shoot at with a dangerous weapon, namely an air rifle. No-one familiar with weapons would doubt the injuries that such a weapon could cause and is capable of inflicting. The fact that it was of a lower calibre than other weapons does not, to my mind, lessen its capacity to harm.
Whatever may have been your disposition prior to the offences and since the offences, it is beyond doubt in my mind that you were a party to a racially motivated 35 to 40 minute campaign of aggression against innocent victims chosen by reference to their racial origin. Two were shot and another narrowly missed being shot, due only to Mr Nitz's inaccurate shooting.
But for the fact that there were no Aboriginal people in two other parks, that is Central Park and Bencke Park. I am quite satisfied more people would have been victims that day.
Your first victim was a group of 10 Aboriginal people enjoying themselves, as they are entitled to do, in a park and that group included a baby. Perry pointed the rifle in the air towards them and fired. One can well imagine the horror and fear felt by the group and the fact that rifle was pointed above their heads and not at them does not, in my view, lessen the trauma of seeing someone with a weapon pointed in their direction. Having said that I accept that there was no intention to shoot them.
The next act in this cowardly saga was to shoot at a young Aboriginal boy who had alighted from his bicycle to care for an injured bird on the road. He was [shot] at by Nitz but the slug missed and hit his bike, with the ping being heard in the car. The departing gesture for that innocent boy was a finger from Nitz and the abuse, 'fucking coons.'
Your next victim, Brenton Brown, who with two of his other friends was going about his business with his BMX bike. He suffered a serious injury requiring surgery and four days in hospital. The wound required 14 staples to close it and he now carries a scar which he will carry forever. The fact that it transpired that Brenton was not an Aboriginal boy does not, to my mind, moderate the racial motivation of the conduct.
The rampage continued then when you passed two young Aboriginal girls walking along Richardson Road. You drove past them and then did a U-turn to return to shoot one of them. Nitz shot one Christina Query in the back, in her left shoulder blade, which resulted, thankfully in a minor physical injury only. However, her trauma of being shot in a Rockhampton street whilst going about her business cannot be overstated. Her spontaneous reaction was to yell an obscenity to the shooter, to be met again by Mr Nitz saying, 'black cunts' and the occupants of his car, McPherson, Warwick-Day and Nitz then drove off laughing.
We can be thankful that neither Brenton nor Christina were hit in the eye which could have resulted in permanent injury to them. That then gives a brief account of this sorry affair. It frankly beggars belief that such conduct could occur on a Rockhampton street in 2007. It is more reminiscent of Selma Alabama in the USA in the 1950s and 1960s when dark people were hounded like animals.
It has a particular abhorrent feature further in that it occurred on our national day when Australians pause to reflect on the achievements made by the nation. This conduct is and was the antithesis of what Australia Day stands for. The other unfathomable feature of this revolting conduct is that all of you come from good homes whose families are decent law abiding people and loving parents. Further there is no suggestion of alcohol or illicit drugs which may have driven this conduct. So to my mind it is truly a mind-boggling scenario.".
His Honour Judge Searles made the following remarks in sentencing Mr Perry:
"Mr Perry, stand up. Mr Perry, you were the person who supplied the firearm for this saga and you had been firing it a few days previously, so you again, as with Mr Nitz, were aware of its potential for harm. You fired the first shot into the air. I accept there was no intention to physically harm the people in the park, but I have spoken already of the shock they must have experienced in having anyone shoot anywhere near them.
You gave the gun to Nitz, well knowing the capacity of that weapon, and you kept driving, positioning, following Nitz's car during the whole episode.
By way of mitigation, you are still a man of young age. You entered an early plea and cooperated with the authorities. You have no previous [offences] and you have no subsequent offences since these events. You are in employment, and as I have said, I accept that you were there, you shot the rifle on the day to scare the people in the park rather than to hit them.
I also acknowledge that at some point towards the end of the debacle, you expressed the view that Nitz had taken things too far.
You come from a decent family. You have had a good upbringing, as have all of your co-defendants, which makes it all the more difficult for me and all the more mysterious. I accept that you are remorseful.
You have the benefit of references, first of all from Mr Anstey of Ergon who expresses your testament to your willingness to learn and your good rapport with other employees. Mr Scott Cage, deputy principal of Glenmore High, said you were an exemplary student, and I have read the many awards that you accomplished during school.".
In relation to the sentences imposed on the group, his Honour said:
"I have found it particularly difficult overnight and this morning from early hours to impose the sentences on young people that I have been duty bound to do, whether or not an ICO is imposed. The sentences were warranted by the conduct. As I have said throughout the sentencing, all of you come from decent law-abiding families and all you yourselves are otherwise of unblemished character.
The true test of character will now be how you accept your punishment, and thereafter get on with your lives. I hope this interlude will, in years to come, be seen as an aberration in an otherwise unblemished life you will lead, and I just leave you with these words: Most problems in life are opportunities in disguise. Thank you.".
The sentences imposed were as follows (in the order they appear in the sentencing remarks):
Mr Nitz the "main offender" was sentenced to six months' imprisonment on count one, six months' imprisonment on count two, eighteen months' imprisonment on count three and two years' imprisonment on each of counts four and five, with all sentences to be served concurrently. Mr Nitz is to be released on parole on 19 June 2008.
The "least culpable" offender was sentenced to six months' imprisonment to be served by Intensive Correction Order.
The driver of Mr Nitz's vehicle was sentenced to six months' imprisonment on each of counts one, two and three, and nine months on each of counts four and five, to be served concurrently and under an Intensive Correction Order.
As previously stated, Mr Perry was sentenced to nine months' imprisonment on count one, six months' imprisonment on count two and nine months' imprisonment on counts three, four and five, to be served concurrently and under an Intensive Correction Order.
The driver of Mr Perry's vehicle was sentenced to six months' imprisonment on each of counts one, two and three and nine months' imprisonment on each of counts four and five, to be served concurrently and under an Intensive Correction Order.
3.3 Actions taken by Ergon in relation to Mr Perry's involvement in the incident
Mr Perry's father wrote to Ergon advising that Mr Perry would not be available for work until 1 February 2006 (Exhibit 3). The letter is undated, but I assume that it was received before 1 February 2006. The letter states that Mr Perry was a member of a group of young people who performed a stupid prank, which had gone terribly wrong. It also states that Mr Perry had been charged by the police but had not been alleged to have hurt anybody and was in the wrong place at the wrong time.
According to a letter written to the Director-General, Department of Education, Training and the Arts on 17 November 2007 (Document 3), Ergon became aware of Mr Perry's involvement in this matter, on 10 February 2006. On that date, a letter was forwarded to Mr Perry outlining the allegations and Ergon's concerns about them, and requesting that Mr Perry attend a meeting with representatives of the Company to respond to the allegations (Attachment to Document 3). The letter warned Mr Perry that a potential outcome was disciplinary action including the possible termination of his employment.
Mr Perry attended a meeting with representatives of Ergon on 14 February 2006. Mr Perry did not make any statement at the meeting on the grounds that he had been advised not to do so by his solicitor. Mr Perry also declined to provide a copy of his police statement, again on advice from his solicitor. Mr Perry's parents also attended the meeting and made a number of statements relating to Mr Perry's involvement in the shootings, to the effect that Mr Perry was not a ringleader and had good defences to the charges.
Following that meeting Mr Perry received a first and final warning letter dated 17 March 2006 (Exhibit 2) stating that Ergon viewed the matter seriously and that Mr Perry's alleged conduct, if substantiated, was a breach of Ergon's policies and procedures (particularly its Code of Conduct) and serious misconduct justifying the cancellation of Mr Perry's training contract and termination of his employment. Further, Ergon drew Mr Perry's attention to its view that his involvement in the incident would cast into question his ability to work with Aboriginal colleagues and provide service to Aboriginal clients, particularly considering the publicity the matter had received and was likely to continue to receive.
The letter went on to state that while Ergon would be within its rights to terminate his employment immediately, judgment would be reserved while the Court process proceeded. The letter also stated that if evidence came out during or prior to the hearing which substantiated Mr Perry's involvement in the incident, Ergon reserved its rights to rely upon it as grounds for cancellation of Mr Perry's training contract and termination of his employment. Further, the letter stated that at the meeting of 14 February 2006, Mr Perry's parents had maintained that Mr Perry was not one of the ringleaders and that he had strong arguments to put before the court in relation to criminal proceedings. This letter was countersigned by Mr Perry and his father.
A document entitled Contract Detail Report with Notes (Document 2 at page 35) indicates that on 27 February 2006 Mr Toomey on behalf of Ergon, contacted the Department of Education, Training and the Arts seeking advice about Mr Perry's contract as Mr Perry had been charged with a criminal offence. That Report (at page 36) also indicates that on 6 April 2006 Mr Harris from Ergon contacted the Department, and advised a Field Officer that Ergon wanted to extend Mr Perry's probationary period by 180 days as Mr Perry had been charged with a criminal offence and may be jailed. On the same day an application was filed by Ergon seeking such an extension. The Report further indicates (at page 35) that on 19 April 2006 a Field Officer on behalf of the Department advised Mr Harris that an extension of 87 days, until 5 May 2006 had been approved. The notes also record that Mr Harris was told that Ergon could apply for a further extension but would need to provide detailed reasons and options for the extension. There is no indication that a further extension was sought by Ergon. The name of the contact person for the workplace in which Mr Perry was employed, as indicated at point 37 on Mr Perry's training contract (Document 1) is Peter Harris.
Mr Perry continued to work for Ergon. A reference was provided for Mr Perry dated 15 October 2007 by Mr Anstey, Substations Operations Supervisor, in the following terms:
"To Whom it May Concern
I have known Tim Perry since he started his Electrical Apprenticeship on the 10 January 2006. During this time he has been dependable, arrives at work on time and always willing to lend a hand.
Tim is organised, willing to learn and has a good rapport with other employees of all ages. His communication skills both written and verbal are of high quality.
I am aware of Tim's circumstances, but I can say that we have had no issues or problems with him during the periods he has worked in our section.
Substations Operations Supervisor
The reference was provided on Ergon's letterhead and was referred to by his Honour Judge Searles in his sentencing remarks. On 16 October 2007, at the time Mr Perry and others involved in the incident were sentenced, their photographs and names were published on the front page of a Rockhampton newspaper "The Morning Bulletin". The article which ran over to page 3, was headlined "Guilty: Racist shooters own up" and stated that:
"Almost two years ago five teens set out on a drive-by shooting spree across Rockhampton. They allegedly hatched a plan to 'go shoot niggers in the park' and drove around in two cars with an air-rifle on Australia Day last year.
Yesterday they owned up to their actions. They will know their fate within two weeks.
During yesterday's proceedings in Rockhampton District Court the five teenagers sat quietly in the court room dock.
Their only requirement was to utter the plea of guilty.
Hayden John Nitz, Scott Warwick-Day, Troy Zornig, Shane Matthew McPherson and Timothy John Perry, all 18, pleaded guilty to one count of unlawful attempted wounding, two of assault occasioning bodily harm with circumstances of aggravation and two of going armed in public to cause fear.
The charges had been downgraded from four counts of intent to cause grievous bodily harm and two of unlawful wounding.
A court previously heard the day started out as a day at the beach for eight friends.
It ended when a number of people were shot at including a 13 year old mixed race boy and a 15 year old Aboriginal girl.
One of the injuries resulted in broken skin. Surgery was required to extract the pellet.
The friends allegedly drove to the southside park, surrounded by Alma/Bolsover/Williams streets, pointed the gun out the window and shot.
They then drove to North Rockhampton after failing to locate people in city parks, and shot at the girl in Alexandra Street before shooting the girl in Wilmington Street.
The Court previously heard that they then planned a 'cover-up story' and stashed the gun at Gracemere.
Judge David Searles adjourned legal submissions and sentencing to a date to be set but within the next two weeks.".
The photograph of Mr Perry appearing in the newspaper is a head shot, approximately the size of photographs which appear on passports. In the photograph Mr Perry is wearing sunglasses of a wraparound style, and his clothing does not bear Ergon's logo.
On 7 November 2007, a further letter was sent to Mr Perry under the signature of Mr John Cass, General Manager, Operating Support Services for Ergon, setting out a number of allegations about Mr Perry's sentence, his guilty plea and the issues of racism involved in his conduct. The letter stated Mr Perry's conduct, in light of the concluded Court processes, was of serious concern to Ergon, and seriously cast into question Mr Perry's ability to work with Aboriginal colleagues and to provide service to Aboriginal clients, particularly in light of the media publication of Mr Perry's identity. Mr Perry was required to attend a meeting on 9 November 2007 with Mr Cass and Ms Janene Hutchinson, Regional Human Resources Manager, to respond to the allegations and was informed that a potential outcome was the cancellation of his training contract and the termination of his employment. Mr Perry was also required to provide copies of statements he had made to police or to the Court to Ms Hutchison at or prior to that meeting.
Mr Perry responded in a letter received by Ergon on 9 November 2007 (Document 3) expressing his remorse for the incident, agreeing that he had breached Ergon policies and procedures and thanking Ergon for the opportunity to maintain his employment over the past 22 months. Mr Perry stated in his letter that he had never been involved in any conflict with another person whether indigenous or not and that the incident was totally out of character, as he had participated in sporting and social activities with indigenous persons. Mr Perry also stated that he had always followed Ergon's policies and procedures since the incident and had developed numerous friendships and working relationships with all of the colleagues he had worked with. Further, Mr Perry said that he had not had any problems with colleagues or the general public including while performing customer service. Mr Perry said that because his identity had been published in the media he would carry out his duties above and beyond what was expected. In concluding, Mr Perry said:
"The fact that Ergon Energy has given me the opportunity to maintain my employment has been the rock that has kept me going, and during the past 22 months I have come to realise that my job is one of the most important things in my life. It is my greatest wish to continue with my apprenticeship as I believe I am, and always will be an asset to Ergon and you have my assurance that I will be a reliable and trustworthy employee. I would like to thank Ergon Energy for the support I have received to this day and during this period I have tried my best to keep Ergon Energy's name away from media attention.".
On 9 November 2007, Mr Perry also attended a meeting with Mr Cass and Ms Hutchinson. On 15 November 2007 further correspondence was forwarded to Mr Perry requesting his attendance at a meeting on 16 November 2007 and informing him that he would be provided with the outcome of the executive management decision about his response to the "show cause" letter of 7 November 2007. Mr Perry attended a meeting with Ergon representatives on 16 November 2007 and was given a letter setting out the detail and background of his involvement in the incident on 26 January 2006, and informing Mr Perry that:
his employment with Ergon was immediately suspended;
Ergon would apply to the Training Council for cancellation of his employment contract; and
he would remain suspended without pay until the application was determined.
There was some issue as to whether Ergon had correctly notified the Training Council of the suspension of Mr Perry as required by s. 64(b) of the Act. However, the suspension notice was dealt with on the basis that Ergon had intended to comply, but that this would not preclude the matter being raised by any party if there was an appeal to the QIRC. This issue was not raised in the appeal by any party.
3.4 The application for cancellation of Mr Perry's training contract By letter dated 16 November 2007 to the Director-General of the Department of Educating, Training and the Arts (Document 3), Ergon applied to cancel Mr Perry's training contract. In the application for cancellation, Ergon set out its understanding of the background and the events of 26 January 2006 and included a number of matters of which it was satisfied (Document 3 page 2). At points 1 and 4, it is stated that Mr Perry and his friends were involved in an altercation with persons of indigenous descent on New Year's Eve 2005. At point 4 it is also stated that the formation of a common purpose by Mr Perry and his friends to shoot pellets from an air rifle at or near persons of indigenous descent, was motivated by the altercation on New Year's Eve. In point 6 it is stated that: "In his vehicle, Mr Perry followed as Mr Nitz's vehicle drove back to the park, and subsequently around Rockhampton...".
Ergon's application for the cancellation (Document 3) of Mr Perry's training contract was based on the contentions that:
Mr Perry has committed serious misconduct such that his employment should be terminated under s. 64 of the Act; and
Mr Perry has committed misconduct and his employment should be terminated under s. 70 of the Act.
According to Ergon, Mr Perry had committed serious misconduct because he had pleaded guilty to, among other things, two charges of assault occasioning bodily harm with circumstances of aggravation. It was not relevant that the assault did not occur at work, because s. 64 of the Act does not limit assault in this way. It was contended that Mr Perry had engaged in reckless, violent and racist behaviour, and that the shootings were inexcusable to both Ergon and the general public. As a result it was not reasonable for Ergon to continue to train Mr Perry. Further, the nature of the incident and its heavy media coverage was said to pose such a significant risk of damage to Ergon's reputation and standing from further potential publicity, and to severely undermine Mr Perry's ability to work with Aboriginal colleagues and Aboriginal customers, so that Ergon had no choice but to seek the cancellation of his contract and the termination of his employment.
Ergon also submitted to the Training Council that if it was to find that Mr Perry's behaviour did not amount to serious misconduct, it was submitted by Ergon that his behaviour amounts to misconduct. Mr Perry had confirmed that during his induction he had been given presentation of Ergon's policies and procedures including those dealing with Code of Conduct and Out of Hours Conduct and had a broad understanding of Ergon's expectations of employees within and outside working hours. Mr Perry's conduct had breached those policies and procedures by bringing Ergon into disrepute and damaging its interests. Continuing to employ Mr Perry in circumstances where he will have contact with Aboriginal employees and customers, in light of his racially motivated acts and convictions, also carries significant risk of potential further damage to reputation. It was also submitted that the abhorrent nature of the incident is incompatible with Mr Perry's duty of good faith to Ergon and had damaged his relationship with Ergon. Mr Perry's conduct also had the potential to damage his relationship with other employees.
As part of the processes prescribed under the Act and Regulations for considering such an application, officers of the Department conducted interviews with Mr Cass and Ms Hutchinson (Document 10) and with Mr Perry (Document 11). The record of interview with Mr Cass and Ms Hutchinson on 26 November 2007, contains numerous handwritten alterations made by Mr Cass. It is initialled by all parties who were present. That record indicates that Mr Cass was asked questions about what effect Mr Perry's conduct or the publicity about it, had on the workplace. Mr Cass responded by saying that there had been no effect to date, but that Ergon was concerned about possible future issues.
When asked about damage Ergon had suffered, the record of interview indicates that Mr Cass said that Rockhampton was a small town, and that it was not unrealistic for people to know that Mr Perry worked for Ergon. Ergon was trying to attract more persons of Aboriginal and Torres Strait Island descent and while there had been no complaint from such persons to date, this did not mean that there would not be issues in the future or that there would be no impact on Ergon's ability to attract such employees. When asked whether Mr Perry's conduct had caused damage to Ergon's business reputation, Mr Cass said that Ergon is an "employer of choice" and a great place to work, and that Mr Perry's conduct may impact on those things. While there had been no cause for Ergon to take disciplinary action against Mr Perry since the shooting events were dealt with, Mr Cass said that this was understandable as the conditions of the first and final warning had been explained to Mr Perry, and he was subject to legal action.
Mr Cass pointed to the comments in Judge Searles' sentencing remarks about Ergon and said that Ergon had been mentioned in the court proceedings. Mr Cass also pointed to Ergon's Code of Conduct and Out of Hours Policy and maintained that Mr Perry's conduct had breached these. Further, Mr Cass maintained that there had been misrepresentation at a meeting with Mr Perry and his parents, about the level of Mr Perry's involvement in the shootings, and that this had damaged the relationship between Mr Perry and the Company. Mr Cass also stated on a number of occasions that if the true extent of Mr Perry's involvement in the shootings had been known at the outset, his employment would have been terminated during the probationary period.
On 29 November 2007 an interview was conducted with Mr Perry. The record of interview of that meeting (Document 11) indicates that Mr Craig Giddins, an organiser with the ETU was also present with Mr Perry for part of the interview. During the interview, Ergon's allegations were put to Mr Perry. In relation to the allegation that Mr Perry and his friends had been involved in an altercation with Aboriginal people on New Year's Eve 2005, Mr Perry denied that this had occurred and the following exchange appears:
"BM [Brad Mufford - Senior Field Officer Rockhampton] - Ergon have claimed that on New Years' Eve 2005, you and your friends were involved in an altercation with people of indigenous descent, however, in your statement to Ergon in response to their letter to you dated 7 November 2007 you claim that at no time in your life have you ever been involved in any conflict against another person whether they are indigenous or not. Could you please explain the apparent contradiction in these statements?
TP [Timothy Perry] - that had nothing to do with it, it wasn't just us. I didn't really have anything to do with it. I told them that, but I thought it would help if anything. Fights broke out, we were just there, I didn't throw any punches.". (Document 11).
Mr Perry conceded that he did have the air rifle and did not have a licence for it, as he did not believe that a licence was required. Mr Perry also conceded that he was aware of the damage the air rifle could cause, having shot at a coke can and a plastic chair the day before. The incident had not been planned, but had just happened. Mr Perry maintained that contrary to the allegation made by Ergon that he had driven his vehicle to the park, he had not been driving. Mr Perry stated that he had fired the air rifle above the heads of people sitting in the park, and had then given the air rifle to Mr Nitz. Mr Perry agreed that he saw Mr Nitz shoot a young Aboriginal boy who had alighted from his bicycle to care for an injured bird, but had not seen Mr Nitz shoot at any other persons. Mr Perry also agreed that he supplied the air rifle and fired the first shot above a group of Aboriginal persons in a park, but denied he had driven the car.
Mr Perry said in response to questions during the interview, that he had worked with clients of Ergon since being charged, including indigenous clients. Mr Perry had not worked with indigenous employees of Ergon. Mr Perry also said that none of the persons shot at during the incident were Ergon employees; he had not been in an Ergon vehicle; or wearing Ergon clothing. Mr Perry also agreed that he had attended a course on 10 January 2006, in relation to Ergon's Code of Conduct. Mr Perry said he had attended this course on the first day he started work for Ergon. In relation to the allegation that Ergon had been misled about the extent of his involvement in the incident, Mr Perry said that he had not told Mr Cass that he was not involved in the incident, but had said that he could not talk about it because he had contacted a solicitor. After the incident, Mr Perry had attended counselling as requested by Ergon. Mr Perry said that there had been no difficulty caused by these events in relation to his ability to perform work for Ergon or to work with or for indigenous persons. In response to a question about what he would do if indigenous persons objected to him working at their houses, Mr Perry said that he would try to sort it out, and agreed that he would contact his supervisor. Mr Perry said that he enjoyed his job and that he would be lost if his training contract was cancelled.
The Contract Detail Report Notes (Document 2 page 29) indicate that on 4 December 2007 a field officer of the Department contacted Queensland Corrective Services in Rockhampton to ask about the flexibility in relation to Mr Perry's Intensive Correction Order. According to the Notes, Mr Yule of Queensland Corrective Services said that if Mr Perry was required to work out of town he could report to a correctional officer wherever he was located. In response to a question about the implications of Mr Perry being required to work overtime on weekends, Mr Yule said that Queensland Corrective Services was very flexible and would allow Mr Perry to do the time when it was easier for him. Mr Yule also said that the main concern was that Mr Perry was working, because he would be less likely to offend again.