Abboud v The State of New South Wales

APPLICANT: Mr S Friend (Solicitor), Friend & Co, Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr J McConnell, Local Government Associaton of New South Wales

JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 10 November 2004 Matter No IRC03/5237 Bede Clare and Botany Bay City Council Application by Bede Clare re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 339

1 This is an application for relief from alleged unfair dismissal filed by Mr Bede Clare ('the applicant'). The application is brought pursuant to the provisions of Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). The applicant was dismissed by Botany Bay City Council ('the respondent') on 3 September 2003. The reasons for his dismissal relate to numerous disciplinary issues and unauthorised absences.

2 This s84 application was first listed on 15 October 2003. The applicant was represented by Employment Help Services. Conciliation of the applicant's claim at that time was unsuccessful and the matter was set for arbitration. Employment Help Services subsequently ceased to act for the applicant.

3 As a consequence of the applicant's failure to comply with the Commission's directions and his failure to attend a relisting of a directions hearing, it was necessary to re-list the arbitration in July and August 2004. Mr S Friend (Solicitor), represented the applicant at the hearing and Mr J McConnell from the Local Government Association of New South Wales represented the respondent.

4 The applicant is 57 years old and had been employed by the respondent from 1983 until his dismissal on 3 September 2003. The applicant worked in various labouring positions. From 1996 - 2002 he worked on the green waste collection as a truck offsider. In April 2002 he was demoted to a street sweeper following allegations (which he denied) that he had left the work site without permission, incorrectly used a council vehicle and called Mr Cook, his manager, a "black cunt."

5 As to the first of these allegations, the applicant claimed that he told a person called George that he had injured his finger and was going home. He was subsequently on light duties for nine months.

6 As to the second allegation, the incorrect use of a Council vehicle, the applicant conceded that he had used the vehicle to deliver a pot plant to a friend of his, who lived close to where he was working.

7 As to the incident with Mr Cook, the applicant said that on 14 march 2002 he had gone to the payroll office to sort out his health club contributions. He claimed to have had permission to do so from his supervisor, Mr John MacKenzie. When he went to the office, Mr Cook started abusing him and shoved his fingers into his chest. The applicant left and went back to the Depot. He said he was upset by the incident and had gone home to calm down.

8 Following this incident, the applicant called in sick on Friday and returned to work the following Wednesday. He had provided a doctor's certificate. When he returned to work, he was suspended for three days. The applicant had attended a meeting with Mr Cook and Mr Perry. It was alleged that he was standing over fellow workers and intimidating them and that he was seen talking to a former employee of Council for an hour at Mascot Park.

9 Arising from this meeting, the applicant was demoted with a pay cut of $13.00 a week. His new job as street sweeper commenced at 6.00am. He believed this job had been invented for him. The applicant claimed he was upset and ashamed when he was demoted and began to drink heavily. He believed he became an alcoholic around this time. He agreed he was sick on a number of occasions, but he always had a doctor's certificate. He said Council was aware of his alcohol problem and had directed him to go to counselling at Rozelle Hospital. He had attended one session during his holiday entitlements.

10 As to the applicant's termination of employment, he deposed that he still did not know the reasons why he was dismissed and had not seen the file note of the minutes of a disciplinary meeting held on 25 August 2003. This meeting dealt with an allegation of leaving work early for lunch on 5 August 2003.

11 The applicant strenuously denied this allegation. He said he had always left work from Lord Street at 11.55am on Tuesdays. He had an arrangement to leave his trolley with the owner of a business while he went home for lunch.

12 The applicant denied that he had done anything which warranted his termination. He believed it was personal and Mr Cook and another supervisor, Mr Sutton had held a long time animosity towards him. He said, other employees, who he named, had done far worse things than he had and not been dismissed.

13 The applicant has remained unemployed and unable to secure any alternative employment. He found it difficult at his age. Attached to his affidavit were annual staff assessments for various years between 1989 and 2001.

14 In cross examination, the applicant was shown a number of disciplinary letters dating back to 1985. He denied receiving most of them and, in any event, claimed they were all lies. Eventually, the applicant agreed that he had received all the letters in his personal file following his dismissal after the Union had requested them.

15 The applicant could not recall a number of discussions with Mr Cook and the Union delegate concerning his performance. However, the applicant could recall that in 2003, he received a letter concerning excessive absenteeism, non-compliance with workers' compensation procedures and alcohol assistance. He could not recollect making abusive phone calls to council staff on 1 May 2003. He explained that he had accidentally taken a pill which had been prescribed for his mother in law, and as a result he felt giddy, as if he had been drinking.

16 On 7 May 2003 he met with Mr Perry and with the Union present, he was told to seek help for his alcohol problem. As a result of this meeting, the applicant was suspended without pay for a week. This was converted to annual leave after the Union made representations that he would be without income. On 22 May the applicant was placed on probation. A disciplinary meeting was held on 25 August concerning the allegation that the applicant had left the job early for lunch on 5 August.

17 In further evidence, the applicant could not recall an earlier memo addressed to all staff concerning the hours of work. In any event, he had an arrangement with his supervisor, Mr Polson to leave his barrow at Lord Street. The applicant could not recall if he had advised Mr Polson that he had left his barrow at Booralee Park that day.

18 A further meeting was held on 3 September at which the conflict with Mr Polson's version of events was put to the applicant. Mr Polson denied that he had an arrangement with the applicant to leave the barrow at Lord Street. Furthermore, he had no authority to make such an arrangement.

19 The applicant recalled that management had asked whether there were other matters he wished Council to consider. He didn't do so because he said he "knew it was a kangaroo court."

20 In re examination the applicant said that every time he was sick he had obtained a doctor's certificate. When he went to Rozelle Hospital, he did so in his own time.

21 The applicant said that on the day he was accused of going home early for lunch, no one stopped him or approached him. It wasn't until three weeks later that he was questioned about it. Council officers had been aware that he went home for lunch.

22 The applicant said that as a street sweeper he had only a ten minute break in six hours after commencing at 6.00am and going to lunch at five minutes to twelve.

23 The applicant said he was not a sophisticated reader and tended to lose memos because he "just didn't want to read them." He said he was never asked to write down his version of events or sign anything that he agreed with.

24 The following Council officers gave evidence: Mr Martyn Perry - Manager, Human Resources Mr John MacKenzie - Supervisor, Parks and Gardens Mr Bryan Polson - Supervisor, Parks and Gardens Ms Marcelle Hickel - Operations Administration Supervisor Mr Les McMahon - Director, Operational Services

25 Mr Perry's affidavit traced the history of the applicant's disciplinary record. Various letters sent to the applicant were attached. This history was recorded as follows: 19 April 1985 Unauthorised absence

31 July 1995 Unauthorised absence 3 June 1996 Unauthorised absence, incorrect use of council vehicle 8 July 1999 Failure to follow work instructions and unauthorised absence 30 August 1999 Failure to follow work instructions and unauthorised absence and unacceptable attitude towards supervisor 30 August 1999 Issued with Final Warning for Leaving the worksite without permission Disobeying supervisors instructions Disputing supervisors instructions 27 July 2001 Transferred to different truck for disrupting the work of others Complaints by other staff Leaving the worksite without permission

2 April 2002 Final Warning and demoted Leaving the worksite without permission Not applying self to work Incorrect use of Council vehicle Not following work instructions Non-compliance with Worker Compensation procedures

5 August 2002 Workers Comp warning Non compliance with WC Procedure

26 August 2002 Sick leave Warning Gave undertaking to Allan Veney MEU organiser that attendance would improve. Reminded of final warning

17 April 2003 Workers Comp Warning Non compliance with WC Procedure

7 May 2003 Probation Period Rude and abusive to staff Incorrect reporting of sick leave Pressuring other staff to cover for him Working under the influence of alcohol and medication

3 September 2003 Employment terminated Numerous disciplinary matters and unauthorised absence from work.

26 Mr Perry deposed that while the applicant now sought to contest these matters, he had already acknowledged and agreed with them in the presence of Union representatives.

27 One particular letter was very instructive. After a meeting on 26 August 2002, the applicant received this letter: Dear Bede Re: Sick Leave Thank you for attending the meeting today where we discussed the high level of sick leave that you are taking. You advised us that you have an ongoing chest/bronchial condition which causes you breathing difficulties and that this was the primary reason for your sick leave. I asked you if you could explain why a large proportion of your sick leave occurs on a Friday. You advised that you like to go to the club on a Thursday night where there is a lot of smoke. The smoke aggravates your breathing condition to the point that you cannot attend work the next day. You further advised that you were going to stop going to the club because this week your breathing problem has been so bad you have required several days of sick leave. I advised you that we would review your attendance in 3 months time and that I would expect to see a significant improvement. If there was not a clear improvement then disciplinary action will be taken. In response you gave an undertaking to Mr Veeny (sic) MEU organiser and myself that your attendance at work would significantly improve. Bede, I must remind you that you were issued with your Final Disciplinary Warning under clause 28ciii of the Award in April 2002.

28 In oral evidence, Mr Perry confirmed the contents of this letter. He added that there was a pattern of sick days occurring on Fridays and Mr Veney had spoken quite sternly to the applicant about his employment obligations.

29 Mr Perry said that at the meeting of 7 May 2003 the applicant was questioned concerning alleged rude and abusive phone calls to several members of staff. The applicant admitted to drinking two cans of beer and taking medication for his asthma and a tablet prescribed for his mother in law. The applicant said he could not remember making any phone calls, but Council records indicated that he made three calls from his home number. The staff had reported that the applicant appeared to be under the influence of drugs and/or alcohol.

30 Arising from this, Mr Perry advised the applicant to seek help for his alcohol problem. During the week of suspension, Mr Perry contacted the applicant to ask about his progress. He was reluctant to accept assistance. He was placed on a probationary period until 25 August 2003 to emphasize the seriousness of the situation. This letter was couched in the following terms: Dear Bede Re: Probation Period This letter is to advise you that, as a result of your behaviour on Thursday 1 May 2003 and previous poor work and attendance record, your employment with Council until Monday 25 August 2003 will be on a probationary period. Your employment beyond this date will be subject to your satisfactory attendance and work performance during that period. In particular, I will highlight below the areas of specific concern where improvement is necessary: i. Excessive absenteeism ii. Reporting sick leave iii. Non compliance with workers compensation procedures iv. Alcohol assistance Bede, a probation period means that your employment can be terminated immediately if any part of your employment is unsatisfactory.

31 Mr Perry was involved in the meetings concerning the applicant leaving early for lunch on 5 August. Both Mr Polson and Mr Sutton denied any arrangement for the applicant to leave his barrow in Lord Street. They would not have agreed to this as there was nowhere to secure the barrow.

32 At the final meeting on 3 September 2003, Mr Perry had asked if there was anything the applicant or the Union wished to raise. This opportunity was declined. Council officers then considered the matter and resolved to terminate the applicant's employment for the following reasons: i. His explanation of the above events was not accepted in view of what has been said by his supervisors and his previous work record. ii. We could no longer trust Mr. Clare to work in this position and transfer was not an option due to his previous work record. iii. Mr. Clare has received numerous disciplinary warnings latest issued 22 May 2003. The disciplinary provisions of the Award have been adhered to and Mr. Clare has been offered every assistance to improve his work performance.

33 In oral evidence, Mr Perry said that when the applicant left the meeting he was quite hostile. He had said that "it's all bullshit, you're picking on me, it's a bunch of lies." Mr Perry said that the applicant had accepted responsibility for his actions at the time and was given every opportunity and support to improve. He was represented by his Union Organiser/Delegate at all relevant meetings.

34 Mr Perry said it was not correct to imply that the applicant had to take annual leave to attend alcohol counselling. Rather, the applicant was on paid suspension, after requesting to be paid because of financial commitments.

35 In oral evidence, Mr Perry clarified the hours of work for the street sweepers. It had been agreed that the team would start at 6.00am and finish an hour earlier, retaining the same morning tea and lunch break.

36 Mr Perry said that in respect to the workers' compensation issue, the applicant had not fulfilled his obligations and responsibilities which made it difficult for Council to action his claim.

37 It was Mr Perry's evidence that during meetings with the applicant the issues had been explained to him. Council had allowed a period for the Union to discuss the matter with the applicant. The issues would then be recorded in a letter to the applicant. Mr Perry said that initially the applicant denied all the issues, although he finally agreed when presented with memos from his supervisors.

38 Mr Perry was asked about a letter from a respiratory physician, Dr Brian Jarvie dated 23 May 2003. The letter revealed that the applicant had a moderately severe chest infection. There were earlier letters advising that the applicant was receiving treatment for a chest complaint. Mr Perry agreed that he had no reason to disbelieve the doctor's diagnosis. However, there had been many other absences, unrelated to his breathing problems, and not supported by medical certificates. Mr Perry accepted that an older employee working outdoors, in a physical job, is more prone to sickness than younger workers.

39 Mr Perry referred to an instance in which the applicant had attended two different doctors for two different complaints. He had been twice issued with backdated medical certificates.

40 It was Mr Perry's evidence that the applicant's work record was the worst he had ever seen.

41 Mr Perry was asked the reasons why the applicant was demoted to street sweeper in 2002. He said there had been complaints from his colleagues, about how difficult it was to supervise him and there wasn't another truck crew which would take him on. He had disobeyed instructions, used the Council truck for personal errands and had extended conversations with residents. These matters were reported by the staff to the manager, Mr Cook, who had prepared a report. Mr Perry and Mr Cook made the decision to demote the applicant. In any event, at the time, the applicant agreed that the allegations were correct.

42 Mr Perry was asked about the last allegation of misconduct, concerning leaving work for lunch early and leaving his equipment in an unauthorised location. Mr Perry said that he relied on the information from a supervisor, Mr Polson who knew the area well.

43 Mr Perry agreed he had never dismissed an employee with the applicant's length of service. However, there was a combination of factors which resulted in the dismissal. All aspects of the applicant's record were taken into account, including the positive staff assessments and comments from various supervisors. Mr Perry agreed that when the applicant applied himself, he did a good job.

44 In re examination, Mr Perry confirmed that Council had reviewed the applicant's personal file and there were occasions of sick leave where no doctor's certificates were provided.

45 Mr John MacKenzie's affidavit dealt with the incident on 14 March 2002, in which the applicant attended the pay office without permission. Mr MacKenzie had specifically told him not to go until an arrangement had been made for him to do so. The applicant had asked another employee, Rod Frew to drive him to the office. Mr Frew had said that the applicant told him he had permission to do so.

46 In oral evidence, Mr MacKenzie said it was standard procedure to make an appointment with the pay office, as employees had been leaving the job and going there without approval or appointments. The pay office did not open until 8.45am. The applicant had told him that he had spoken to the pay officer the previous day.

47 Mr MacKenzie said that he had never had much to do with the applicant and apart from this incident, he had no trouble with him. He had been his supervisor for nine months.

48 Mr Bryan Polson was the applicant's supervisor from April 2002. Mr Polson confirmed the applicant's hours of work and the emphasis placed on start and finish times outlined in a memo issued by the Director of Operations Services on 12 March 2003. Mr Polson himself started work at 6.00am and had been doing so for twenty years. He had no knowledge of employees leaving for lunch at 11.55am.

49 Mr Polson agreed that he had approved of the applicant knocking off for lunch on a Tuesday from the Booralee Park Depot. The applicant went home for lunch, provided his barrow was secure. This arrangement was satisfactory. Mr Polson had obtained Mr Sutton's approval for this arrangement.

50 On 7 August 2003, Mr Polson asked the applicant where he had left his barrow on Tuesday 5 August. He had replied that he had left it at Booralee Park Depot. Mr Polson believed that if the applicant had been seen at 11.55am at Botany Road near the Mill Pond Road Bridge, it would have taken at least ten minutes to walk down Lord Street from Booralee Park; i.e. he would have had to have left work at 11.45am. In oral evidence, Mr Polson agreed he had not walked the distance; ten minutes had been his estimate.

51 At a meeting on 3 September with the applicant and involving Mr Perry, Mr McMahon, Mr Sutton and the Union, the applicant told Mr Perry that he had an arrangement to leave his barrow in Lord Street at lunchtime on Tuesdays. Mr Polson said this was not true and indeed, not what the applicant had told him on 7 August. The arrangement had always been to leave the barrow secured at Booralee Park on Council property.

52 Mr Polson said he had worked with the applicant over the years and had no problems with him. He described him as a fair worker. However, he believed the applicant preferred working on his own. He had not witnessed the applicant intimidating other workers. Mr Polson did not believe street sweeping was a humiliating job - overall the employees seemed to enjoy it.

53 Ms Marcelle Hickel received a phone call from the applicant at 2.30pm on 1 May 2003. She claimed that the applicant had said, "tell Ray I'm buggered, I am tired and that I knocked off at 2pm," She said his speech was rambling and slurred.

54 Ms Hickel said the applicant phoned back ten minutes later and said he felt better and was returning to work. He had said, "I hope you didn't tell anyone I went home." When Ms Hickel told him that she had told his supervisor, the applicant became rude and abusive. He had also abused the receptionist. His words were slurred and he sounded very drunk.

55 In oral evidence, Ms Hickel said that the applicant was normally very polite and she never had any other problems with him.

56 Mr Les McMahon attended the meeting on 7 May 2003 to discuss the phone calls made by the applicant to staff members on 1 May, in which it was alleged he was rude and abusive. The applicant admitted he drank two cans of beer and took medication for his asthma and another tablet, prescribed for his mother in law. He had said that when he returned to work he continued to feel unwell and went home. He made a doctor's appointment but did not attend and was later found by his wife after having collapsed. During the meeting, the applicant advised that he could not remember making any phone calls.

57 At this meeting the applicant was reluctant to admit that he had an alcohol problem or to accept assistance. He was advised he had to voluntarily attend for assistance and Council would be sympathetic and supportive.

58 On 5 August 2003, Mr McMahon observed the applicant at 11.55am at Mill Pond Bridge. At the time he wasn't aware of the arrangement the applicant had for lunch on Tuesdays. He asked Mr Polson to approach the applicant and ask where he had left his barrow on that day. Mr McMahon believed he would have had to leave work at around 11.40am to reach Mill Pond Bridge from Booralee Park. In oral evidence, Mr McMahon said he had walked from Lord Street to Mill Pond Bridge. He described the distance "as a good 1.2 kilometres"; although he hadn't actually measured it.

59 A meeting to discuss this matter was arranged for 25 August and 3 September (the second meeting was because Mr Polson was unable to attend the first). Both Mr Sutton and Mr Polson denied approving any arrangement for the applicant to knock off for lunch at Lord Street.

60 The applicant and the Union were invited to raise any other issues prior to Council considering the applicant's future. Nothing was volunteered, Council then determined to dismiss the applicant. The applicant was paid five weeks pay in lieu of notice. Mr McMahon said that he was rude and abusive as he left the premises.

61 Mr McMahon said that all street sweepers start at 6.00am and finish at 2.45pm. Mr McMahon said the issue for him was that the applicant was on probation and had been found to have left for lunch early. Mr McMahon had seen him when he was driving with the General Manager. He said, they could not stop and question him, because it was impossible to stop in the traffic. Mr McMahon agreed that Mr Polson had never told him that the applicant did a bad job.

62 The normal procedure was followed, in that Mr McMahon asked the supervisor to investigate the matter. He had noted the time in the car and immediately rang the supervisor, Mr Sutton. It took two weeks to interview the applicant because he was off sick for a period of time.

63 Mr McMahon agreed that the applicant's probationary period had expired (25 August) at the time he was dismissed. However in re examination, Mr McMahon said that the incident had occurred on 5 August - during the probationary period.

64 In reply, the applicant said he was never questioned about his barrow, by Mr Polson on 7 August 2003. The applicant claimed that the walk from Lord Street to Mill Pond Road was no longer than five minutes.

65 The applicant denied that he had "doctor shopped" or that he had abused four staff members on the telephone.

66 The applicant said the only assistance Council ever gave him was a phone number of a lady at Callan Park. He never told anyone he had joined AA. He said he was working with his doctor to keep his alcohol consumption down.

67 Mr Friend acknowledged that the applicant was "no angel." However, he had a long employment history with Council which included a few instances of warnings going back many years. His was an unforgiving job which started at 6.00am. The applicant's recent assessment reports demonstrated good results and, it would seem, he was a good worker who always turned up and did his share. There were a number of disciplinary issues and a recent problem with alcohol. However those persons who could give direct evidence of the applicant's performance were not called.

68 Mr Friend said the only work blemish was the allegation of 5 August 2003. However, viewed correctly, the applicant was actually saving the respondent time and money. The applicant had said that he had an arrangement to leave his barrow in Lord Street but either way it appears his barrow was not secured. Mr McMahon did not own the car and couldn't be sure the car clock was right when he observed the applicant at Mill Pond Road at 11.55am..

69 Mr Friend criticised the hours of work which did not provide for a lunch break until after 6 hours. He said it would not been seen as unreasonable to knock off a little earlier in such circumstances.

70 As to sick leave, Mr Friend submitted that the highest the evidence got was that the applicant went to two doctors. His sick leave was supported by medical certificates. Having worked many years of physical work, one would expect illness to "creep in."

71 The evidence was that the applicant kept to himself and did a good job. In these circumstances, reinstatement would not be a problem.

72 Mr McConnell submitted that the applicant had been given every opportunity to defend himself and received the assistance of the Union. He knew the basis of the allegations against him and, in fact, accepted them at the time. He now disputed the basis of all the warnings received over a long period.

73 The applicant's dismissal was not unjust because the incidents did occur; it was not unreasonable because the conclusion of dismissal was reasonably able to be drawn by the respondent; and it was not harsh because the dismissal was not disproportionate to the applicant's entire employment record.

74 Mr McConnell highlighted the applicant's long history of transgressions which led to his demotion and probationary employment. This long history was taken into account by the respondent when making its decision to dismiss. The respondent took into account both the "good and the bad." See Robert Lawrence and Attorney General's Department [2004] NSWIRComm 59.

75 The applicant had said he had permission to leave his barrow on Lord Street. Mr Polson denied this. Even so, Mr McConnell said that whether it was five minutes, ten minutes or fifteen minutes, this incident demonstrated a pattern of behaviour of the applicant absenting himself from the workplace without permission.

76 Mr McConnell put that the unfair dismissal application should be dismissed.

CONSIDERATION General Principles Meaning of harsh, unreasonable and unjust

77 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 Limited (1995) 185 CLR 410 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. 78 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'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

79 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

80 More recently, the Full Bench in Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268 said at para 19: The phrase "harsh, unreasonable or unjust" is an important key to the jurisdiction and requires some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply. In Bankstown City Council v Paris (1999) 100 IR 363 at 371 Wright J President, Peterson J, Bishop C noted at 373: We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

81 I turn now to discuss the issues of procedural fairness in the context of an unfair dismissal.

82 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 the Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. To my mind, these observations are unremarkable. They merely reflect the statutory instruction found at s88 of the Act and the long held authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether, (i) a reason for dismissal was given.

(iii) an applicant was given an opportunity to make out a defense or give an explanation of his or her behavior.

(iv) any warning of unsatisfactory performance was given.

(v) the applicant sought but was refused reinstatement or reemployment.

It is significant to observe that the Commission may take other matters into account which it considers relevant (s88(f)).

83 In Byrne & Anor v Australian Airlines, the High Court, concluded that it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, the Full Bench said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

84 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

85 I turn now to the particular facts and circumstances of this case. In my opinion this is an application for relief from alleged unfair dismissal which is utterly without merit. It should never have been filed in the first place; let alone proceed to arbitration. I can well understand why the Union, did not continue representing the applicant or file his s84 application in the first instance.

86 However, viewed sympathetically, the applicant's predicament is a very sad example of an employee who has "gone off the rails." He is a man close to retirement with obvious chronic health problems and an acknowledged alcohol addiction. His likelihood of obtaining future employment is limited by his age, employment history and medical condition. One cannot but feel a sense of pity for him.

87 I have discussed a not dissimilar set of circumstances in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of Gary Patrick Mealey) and the Council of the City of Sydney [2004] NSWIRComm 306 at para 131 - 133: During two and a half years the applicant had 45 days absent on 24 occasions. He received eight written warnings about his attendance record. He was placed on a Behaviour Agreement which he failed to honour less than two months later. The question must then arise, at what point can an employer's tolerance of an employee's poor work attendance and his broken promises to improve and seek counselling, be exhausted? In my judgment, no strict or rigid test can, or should be applied. Factors to be taken into account include inter alia , the reasons for the absences, the employee's record and length of service, whether a notable (and, I emphasise, notable) improvement has occurred and the personal and family circumstances of the employee. In my assessment, the respondent displayed commendable patience and tolerance in respect to the applicant's attendance record. Despite continued promises to notify Council of his absences, attend medical assessments and counselling, he simply failed to keep his side of the bargain. The respondent understood he had an alcohol problem and offered him assistance through the EAP. By giving him eight written warnings, the respondent was, in my view, demonstrating a more than sympathetic approach to the matter.

88 In this case, however, I am profoundly troubled by the fact that Mr Clare was firmly of the view that he had done absolutely nothing wrong. He claimed that every allegation made against him was lies made up by his supervisors who were hostile towards him. He said the investigation and meetings involving the Union were a "kangaroo court," and believed the Union was powerless to help him.

89 During the proceedings the applicant was both indignant and argumentative. Much of his evidence was unbelievable. He seemed incapable of appreciating that his employment record was a disgrace. He was able to rationalise, in his own mind, that he had not, and could not have done anything wrong. Notwithstanding this observation, I believe that the applicant did not deliberately seek to give incorrect evidence. Even in the face of unequivocal and incontrovertible evidence to the contrary, I think he genuinely believed his own version of events. Perhaps this has something to do with his alcohol problem.

90 While I am no medical expert, it would seem reasonable to assume, and giving him the benefit of the doubt, that his failure to remember receiving letters or attending meetings was perfectly understandable. On the other hand, it was rather curious that the applicant vividly remembered his performance appraisals but could not recall receiving any of the nine disciplinary letters tendered by the respondent. It is difficult to rationalise the applicant's clear recollection of certain events supportive of his position, with his inability to remember disciplinary meetings of recent times.

91 The applicant claimed that all of the issues in the many disciplinary letters dating back to 1985 were lies. This is nonsense. It would mean that the Council constructed numerous incidents over many years in order to justify terminating the applicant's employment. Such a proposition is ludicrous and unsustainable. Moreover, if the applicant genuinely challenged the validity of the allegations and meetings related thereto, there is no record of him, or his Union, doing so until these proceedings. The applicant was demoted and then placed on probation. His future employment was plainly in jeopardy. Nothing could be clearer, and yet now he claims that all of the allegations were lies.

92 For the Council to have tolerated his conduct for as long as it did, demonstrated that, far from being unfair, its decision to dismiss him was perfectly reasonable and perhaps, long overdue. Notwithstanding that the applicant received a final warning and demotion in April 2002, his poor performance resulted in a probationary period being imposed in May 2003. He lasted for a further four months without any change in his behaviour.

93 As I have said earlier, on any view of it, the applicant's employment record was appalling. He seemed to treat his employment as an interruption to his personal life. One extraordinary example is sufficient to demonstrate this point.

94 Mr Perry gave evidence of a meeting with the Union in 2002 to discuss the applicant's pattern of taking Fridays off as sick leave. The applicant justified this sick leave by putting that he liked going to a club on Thursday nights. The smoky atmosphere aggravated his breathing condition to the point that he couldn't attend for work the next day. If this was true one might ask why anyone would voluntarily harm their health to the point of being too ill to go to work. Moreover, it begs the question why the employer should be obliged to tolerate such self destructive conduct.

95 There are many examples of conflicting evidence between the applicant and the respondent's witnesses.

96 The incident involving going to the pay office without permission on 14 March 2002 is an example of this. Mr MacKenzie gave evidence that he had not given permission for the applicant to go to the pay office. The applicant said he had permission to do so. I accept Mr MacKenzie's evidence in this regard. Another example was the applicant's affidavit and oral evidence that whenever he was sick he provided a doctor's certificate. This evidence was later proven to be untrue, as there were a number of occasions of sick leave without doctor's certificates. Further, Mr Polson gave evidence that the applicant was required to leave his barrow on Council's property at Booralee Park. However, the applicant said he was given permission to leave the barrow on Lord Street. I accept Mr Polson's evidence, which I should say, made perfectly practical sense.

97 Mr Friend spent a considerable time analysing the evidence concerning the applicant leaving Booralee Park early on 5 August 2003. There was argument as to where the applicant's barrow was left, how long it would take to walk the distance of Lord Street and whether he had approval to leave his barrow on Council property. After assessing all of the evidence in this regard, I have no doubt that the applicant knocked off early on this day.

98 However this debate was, in my opinion, a complete distraction. This and other matters, such as the 6.00am starting time, were diversions which do not assist the Commission in resolving the issues to be determined in this case.

99 There was criticism that the applicant commenced work at 6.00am contrary to an agreement with the Union and the employees. This was another "red herring." Starting times of 6.00am had existed for years without complaint. Employees finished work at 2.45pm. Their hours of work were not in breach of the Award. The arrangements with the Union and the employees were mutually agreed. It would seem to be a perfectly sensible arrangement that benefited both parties. Mr Friend's reliance on this matter was misplaced and irrelevant.

100 As I said at the outset, this is a sad case. The applicant is 57 years old with serious health problems. I have had regard for his long period of service, his personal and family circumstances and the obvious fact that he will have great difficulty in finding alternative employment. Balanced against these matters however, was the applicant's blind unwillingness to accept that he had done anything wrong. Further, that it was all a result of his supervisors' antagonism towards him. He displayed no contrition and took no responsibility for his actions. It was everybody else's fault. It seems to me, it would be pointless to expect that the applicant's reinstatement would result in any demonstrable change in attitude or behaviour.

101 For completeness, I find that the applicant's dismissal was not procedurally unfair. He was at all relevant times, represented by the Union, he was aware of the allegations against him and given an opportunity to respond. He could have been in no doubt, that he was on notice and his employment was in jeopardy when he was placed on probation.

102 For the aforementioned reasons, I find that the dismissal of the applicant, while regrettable, was neither harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act. I would decline to intervene in the respondent's decision to terminate the applicant's employment. Application IRC03/5237 is dismissed. The proceedings are concluded.

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