Abboud v The State of New South Wale - [2004] NSWIRComm 101 - NSWIRComm 2004 case summary — Zoe

NSWNSWIRComm

Abboud v The State of New South Wale

[2004] NSWIRComm 101

Industrial Relations Commission (NSW)|2004-07-01|Before: Sams DP

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Sams DP

Catchwords

11/10/2004
11/11/2003
11/12/2003
11/13/2003 DATE OF JUDGMENT: 04/22/2004

Source

Original judgment source is linked above.

Catchwords

11/10/200411/11/200311/12/200311/13/2003 DATE OF JUDGMENT: 04/22/2004

Judgment (263 paragraphs)

[1]

CITATION : Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101 APPLICANT: PARTIES : Toni Najdov RESPONDENT: Macedonian Australian Welfare Association of Sydney Inc FILE NUMBER: 7115 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - community welfare worker - allegations of misconduct - allegations of poor work performance - credit of witnesses - procedural fairness - employment contract - unrepresented parties - whether dismissal harsh, unreasonable or unjust - principles considered - compensation sought - conduct of proceedings. CATCHWORDS : Held, much of the evidence irrelevent and repetitive - applicant a witness of credit - respondent's evidence unhelpful - similarity of evidence - argumentative and aggressive representative - ex post facto allegations of poor work performance - issues of poor work performance not proven - one written warning twelve months earlier - no breach of confidentiality - allegations of disloyalty and aggressive behaviour not proven - allegation of interference in investigation not proven - allegation of intimidation not proven - failure of respondent to properly investigate allegations - bias of decision makers - vagueness of allegations - insufficient time to respond - postponement of disciplinary meeting not unreasonable - failure to apply earlier procedures - applicant not given specific reason for dismissal - applicant's explanation not considered - dismissal procedurally and substantively unfair - reinstatement impractical - compensation ordered - costs reserved. LEGISLATION CITED : Industrial Relations Act 1996 Anti-Discrimination Act 1977 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bigg & Anor v NSW Police Service (1998) 80 IR 434 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne and Anor v Australian Airlines (1995) 61 IR 32 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 Foster v Woolworths [2000] NSWIRComm 208 CASES CITED : Franklins Ltd v Webb (1996) 72 IR 257 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Little v Commissioner of Police (No.2) (2002) 112 IR 212 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Hill v Department of Juvenile Justice [2000] NSWIRComm 128 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 North v Television Corporation Ltd (1976) 11 ALR 599 Oswald v NSW Police Service (1999) 90 IR 42 Outboard World v Muir (1993) 51 IR 167 Police Association of New South Wales on behalf of Adam Tregonning, and New South Wales Police Service [2000] NSWIRComm 14 Price v Box Valley Pty Ltd (1999) 90 IR 480 Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 HEARING DATES: 11/06/2003; 11/10/2004; 11/11/2003; 11/12/2003; 11/13/2003 DATE OF JUDGMENT: 04/22/2004

[21]

17 Mr Ristevski was the applicant's direct supervisor. He held regular meetings with the applicant every two weeks which were described as "supervision sessions." Mr Ristevski deposed that he had spent considerable time with the applicant discussing his work performance, conduct and disciplinary action in respect to: (a) Toni's repeated failure to attend planned supervision sessions. These failures left the Management Committee without any, or any adequate, feedback on the CSS program and Toni's work performance. (b) Toni's repeated failure to account for his work time and submit time-sheets and weekly plans by their required dates. These failures left the Management Committee without any, or any adequate, feedback for reporting, budgeting and funding purposes in respect of the CSS program. (c) Toni's repeated failure to 'repay' MAWA the 100 plus work hours he owed it on account of having worked, without MAWA's knowledge or authority, as an interpreter for private clients during MAWA time. As at 21 November 2002, Toni still owed MAWA in excess of approximately 80 work hours. (d) Toni's repeated failure to prepare and submit complete and timely reports to funding bodies and to commence, complete and report on "milestones" to those bodies (eg Commonwealth Department of Immigration and Multicultural and Indigenous Affairs). These failures jeopardised future funding for and the existence of the CSS Worker role. (e) Toni's repeated failure to register as a Migration Agent despite having completed the necessary training at MAWA's expense. Without such registration, Toni was unable to offer or give any migration advice and assistance to the very clients that were meant to be serviced by him as a CSS Worker. (f) Toni's repeated failure to lobby for the translation into the Macedonian language of, for example, the RTA Drivers Test Booklet and associated educational material and DIMIA Migrant Services Settlement booklet. These failures deprived MAWA clients of appropriate representation in essential community services. (g) Toni's repeated failure to address other areas including, but not limited to: punctuality for work and other commitments; work performance; complaints from Management, staff and clients; unaccounted absences from work of varying lengths; general record keeping; and the taking of time-in-lieu without prior notice and authority.

[186]

181 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at p302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106.

[194]

The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express and Hunt v Hornsby Shire Council [2001] NSWIRComm 242.

[198]

190 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 191 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

Abboud v The State of New South Wale

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (263 paragraphs)

Parties

Cases Cited (38)