Abdullah Al-Shennag v Bankstown City Council Civic Services Group

Industrial Relations Commission (NSW)|2004-07-01|Before: Walton J, Boland J, Ms J, Mr J

CITATION : Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 APPELLANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES : RESPONDENT Macquarie Generation FILE NUMBER: IRC 1085 of 2003 CORAM: Walton J Vice-President; Boland J; Macdonald C CATCHWORDS : Appeal - Misconduct - Disciplinary Suspension of Employment - Validity of Suspension - Statutory Power - Contractual Power - Employee unable to be located whilst on duty - Leaving work without being released from duty - Refusal to meet with management - Review where Formal Charges - Rights and Obligations of Trade Union delegate - Error re charges - No Intervention on Appeal - Appeal Dismissed. Electricity Commission Act 1950 Electricity (Pacific Power) Act 1950 LEGISLATION CITED : Energy Services Corporation Act 1995 Industrial Relations Act 1996 Interpretation Act 1987 Subordinate Legislation Act 1989 Abdullah Al-Shennag v Bankstown City Council Civic Services Group (1999) 92 IR 32 Beneficial Finance Corporation v Karavas & Ors (1991) 23 NSWLR 256 Box Valley Pty Limited v Price (2000) 97 IR 484 Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 Concrete Constructions v Nelson (1990) 92 ALR 1993 Crown Employees (Teachers, Locality Allowance, &C) Award, Re [1981] AR NSW 1017 Downey v Pryor (1960) 103 CLR 353 Fox v Percy (2003) 197 ALR 201 Gala v State Bank of New South Wales (1998) 84 IR 216 Gibb v FCT (1966) 118 CLR 628 CASES CITED : Hornsby Shire Council v Hunt (2002) 115 IR 461 House v The King (1936) 55 CLR 499 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Mathieson v Burton (1971) 124 CLR 1 Mitchforce v Starkey (2002) 117 IR 122 NSW Public Service Professional Officers Association v Forestry Commission (NSW) (1990) 39 IR 46 O'Brien v Linfox Limited (unreported, Connor C, IRC 6240 of 1999, 25 July 2001) Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Macquarie Generation re suspension of PSA delegate [2003] NSWIRComm 9 Public Service Association of New South Wales and Public Service Board Re Ristau (No 2) (1979) AR 357 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Weisser v Spur Group Pty Ltd (2003) 121 IR 89 HEARING DATES: 06/03/2003; 08/15/2003 DATE OF JUDGMENT: 03/12/2004

APPELLANT Mr S Crawshaw of senior counsel Mr D Chin of counsel SOLICITOR Ms J Wright Jones Staff & Co LEGAL REPRESENTATIVES: RESPONDENT Mr M Kimber of senior counsel Mr J Phillips of counsel (now senior counsel) SOLICITOR Mr G M Flowers Sparke Helmore

JUDGMENT: - 58 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice-President BOLAND J MACDONALD C

RE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES AND MACQUARIE GENERATION

Application by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for leave to appeal and appeal against a decision of Deputy President Harrison given on 7 February 2003 in Matter No. IRC257 of 2002.

1 This matter concerns an application for leave to appeal pursuant to s187 of the Industrial Relations Act 1996 ("the Act"), and if granted, appeal from a decision of Harrison DP of 7 February 2003, in which his Honour dealt with a dispute between the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the Union") and Macquarie Generation, and refused the Union's application for relief made pursuant to s380 of the Act: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Macquarie Generation re suspension of PSA delegate [2003] NSWIRComm 9.

2 The matter first came before the Commission following notification by the Union of a dispute pursuant to s130 of the Act. The dispute related to a decision by Macquarie Generation to suspend the employment of an employee, Mr Shane Delforce, without pay for 2 days on 17 and 18 January 2002, which decision was made following a determination by Macquarie Generation that Mr Delforce was guilty of misconduct as a result of events which occurred at the Bayswater power station on 16 November 2001. Subsequent to the dispute notification, the Union filed a Small Claim pursuant to s380 of the Act, seeking payment from Macquarie Generation to Mr Delforce of $793.20, being the amount the Union alleged Mr Delforce was entitled to receive pursuant to the Macquarie Generation Employees (State) Award ("the Award") in respect of two 10-hour shifts falling on the days his employment was suspended.

3 The facts relating to the respective circumstances of the parties on 16 November 2001, the events on that day, and the subsequent decision to suspend Mr Delforce's employment are set out in some length in the decision of Harrison DP. It is useful at this point to set out briefly some of that background.

4 Macquarie Generation operated a power station at Bayswater, New South Wales. Mr Shane Delforce was at the relevant times employed by Macquarie Generation as an Engineering Officer, Power Station Technician ("PST") at the Bayswater power station pursuant to the Award. The work of a PST involved repairing defects in both operational units and units being returned to service, and involved responding to urgent calls to repair such defects. There were ongoing disputes between the PST's and the management of Macquarie Generation regarding salary and working conditions. Mr Delforce was also a workplace delegate of the Union at the Bayswater power station.

5 On Friday 16 November 2001, Mr Delforce was rostered to work the evening shift on Unit 1 at the Bayswater plant, which had been out of service and was being readied for return to service on Monday 19 November 2001. At about 8pm on 16 November 2001, Mr Delforce informed the Shift Manager, Mr Tillitzki, purportedly on behalf of all PSTs, that the PST's had applied bans to all work on Unit 1 and all overtime work.

6 Mr Tillitzki notified Mr Sewell, the Production Manager, of the bans, who in turn notified Mr Stubbs, the Performance and Plant Engineer. Mr Sewell and Mr Stubbs were not on site at the time, and immediately returned to the site upon hearing of the bans and limitations. Mr Sewell asked Mr Tillitzki to inform Mr Delforce that they would like to meet with him. They arrived at about 10.50pm, however Mr Tillitzki had been unable to locate Mr Delforce at that time.

7 Evidence was adduced from Mr Sewell, Mr Stubbs and Mr Tillitzki that between 10.50pm and 12.15am they searched for Mr Delforce but were unable to locate him. Specifically:

a Mr Tillitzki called the Units 1 and 2 control room. He spoke to Mr Palfrey, who said Mr Delforce wasn't there, and he did not know where he was.

b Mr Tillitzki rang the Technicians' Workshop, however there was no answer.

c Mr Tillitzki went to the Technicians' Workshop. Mr Delforce was not there, and Mr Holman (who was there) did not know where he was.

d At 11.30pm, Mr Tillitzki again attended the Technicians' Workshop with Mr Stubbs.

e Mr Tillitzki and Mr Stubbs checked the upstairs meal room. f Mr Tillitzki looked in the immediate area of the Technician's Workshop.

g Mr Tillitzki searched for Mr Delforce around the Units 3 and 4 end of the station, being the burners of Units 3 and 4 on all 4 levels; in the Unit 3/4 Equipment Room; and around the basement area of the boiler and turbine.

h Mr Stubbs searched for Mr Delforce around the Units 1 and 2 end of the station, being along the basement level via the boiler house lifts; the 1/2 control room; the Unit 2 equipment room; the 1/2 PST workshop; and the technician storage area.

8 Mr Delforce gave evidence that between 11pm and 12.15am he went about his duties in the usual manner (other than the duties subject to the bans and limitations), and did not make himself unavailable. Mr Delforce suggested numerous possibilities which could have interfered with management's attempts to contact him, mostly relating to equipment failures. Considerable evidence was adduced regarding the use and operation of the communication systems in place at the Bayswater power station, including the two-way radio system. In any event, there was limited evidence of the attempts that were actually made to contact Mr Delforce by radio.

9 At 12.15, Mr Stubbs saw Mr Delforce going into the Technician's Workshop. Mr Stubbs gave evidence that he asked Mr Delforce to attend a meeting. Mr Stubbs suggested Mr Delforce bring either Mr Shaw, his Technician Assistant, or Mr Holman as a witness. Mr Delforce insisted that another PST attend as a witness, such as Mr Palfrey, however that request was denied. Mr Delforce refused to attend a meeting by himself.

10 At about 12.42am, Mr Stubbs again directed Mr Delforce to attend a meeting with Mr Sewell. Mr Delforce refused, and told Mr Stubbs that he could "shove his meeting", and went home.

11 Mr Stubbs claimed that Mr Delforce's behaviour was insubordinate and that he was offensive in his tone of voice, the language he used and the aggressive nature in which he spoke. Mr Delforce acknowledged that his temper had been raised and that he raised his voice to Mr Stubbs, but claimed he spoke assertively rather than aggressively.

12 An investigation into Mr Delforce's conduct followed. There were two relevant and significant consequences for Mr Delforce arising from the incidents on 16 November 2001. Firstly, Mr Delforce was charged with two counts of misconduct as follows: · You were unable to be located or contacted while on duty during the hours of 11.00pm and 12.15am with no acceptable explanation; and · You acted in an aggressive and insubordinate manner and refused to meet with Station Management when requested to do so on that evening.

13 Macquarie Generation found Mr Delforce guilty of misconduct with respect to both charges, resulting in the disciplinary suspension on 17 and 18 January 2002.

14 Secondly, Mr Delforce was charged with a third count of misconduct, that is, that he "left the power station site contrary to a lawful directive from the Performance and Plant Engineer that [he was] not released from duty". He was found guilty of this charge. In this respect, Macquarie Generation issued him with an official warning that his actions were a breach of his contract of employment.

15 The three allegations of misconduct were set out in a memo to Mr Delforce dated 22 November 2001. Following the investigation, Mr Delforce was notified by a further memo, signed on 15 January 2002, that he had been found guilty of each count.

16 In addition to denying the allegations of misconduct and seeking payment in respect of the two shifts (that the Union alleged Mr Delforce should have worked on 17 and 18 January 2002), the Union sought the removal of the written warning from Mr Delforce's employment record.

17 The matter was heard by Deputy President Harrison who found in favour of Macquarie Generation on all counts.

18 It is well established that leave to appeal will not be granted lightly, or automatically be granted. The principles applicable to the granting of leave were settled by the Commission in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 where it was stated (at 381-382):

We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter.

Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265 , leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2) . These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle.

Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal.

In Caltex Petroleum Pty Ltd v Harmer [(1999) 92 IR 264] the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same...

Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application

19 That passage has been frequently cited and relied upon by Full Benches of the Commission as identifying the class of cases for which leave may be granted and representing a concise statement of the principles relevant to the granting of that leave: Mitchforce v Starkey (2002) 117 IR 122 at [23]; Abdullah Al-Shennag v Bankstown City Council Civic Services Group; King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 (at [52]); Weisser v Spur Group Pty Ltd (2003) 121 IR 89 at [14].

20 The Commission in Box Valley Pty Limited v Price (2000) 97 IR 484 (at [4]) emphasised the need for a matter to raise important considerations in order for leave to appeal to be granted:

In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave.

See also Gala v State Bank of New South Wales (1998) 84 IR 216 at 225.

21 We are satisfied that the issues raised on appeal were squarely raised at first instance: Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 269; Knowles at 381.

22 There was no real contest between the parties as to whether leave to appeal should be granted with respect to the question of the validity of the suspension. In those circumstances, and having regard to the nature of the question, we are satisfied that the statutory test in s188(2) of the Act is met; that a significant question of law has been raised which warrants intervention; and consequently that leave to appeal this aspect of Harrison DP's decision should be granted.

23 More generally, the Union submitted that "the reasons for decision of Harrison DP manifest a number of serious and fundamental errors that, as a matter of public interest, warrant leave being granted" and that the appeal also raises "important issues concerning the legitimate function and role of trade union delegates in the course of, and subsequent to, the taking of industrial action". Conversely, and not surprisingly, Macquarie Generation submitted that leave should not be granted in respect of the "second limb" of the appeal, being the appeal as to the finding of misconduct - on the merits as to the two day suspension and on a lack of sufficient importance as to the warning.

24 On balance, we do not consider that this matter requires us to address any issues regarding the legitimate function and role of trade union delegates. However, as will emerge, there are significant issues as to the extent to which, if at all, an employer may sanction an employee for the employee's trade union activities. In addition to this consideration, we are conscious also of the "general industrial principle that "the interests of employees are an important aspect of public interest" (Re Crown Employees (Teachers, Locality Allowance, &C) Award [1981] AR NSW 1017; Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325). There was evidence that Mr Delforce has restricted opportunities for promotion as a result of the disciplinary action taken against him.

25 Given that the questions of misconduct were intermingled with questions as to the validity of the suspension by Macquarie Generation and Mr Delforce's involvement in trade union activities, we consider that the combination of these factors warrants the grant of leave to appeal. Further, whilst we note that a question such as whether or not a warning should be removed from an employee's record would not ordinarily, by itself, be a matter of public interest sufficient to attract the attention of the Commission on appeal, in our view, the issues raised by the third charge (which gave rise to the warning) are interrelated with those arising from the more serious second charge. In the circumstances, the totality of the issues raised by this matter have sufficient public interest to warrant overall appellate consideration.

26 The Union's application for leave to appeal and appeal identified twenty grounds of appeal, which can be reduced to the following essential questions:

1 Whether there was a statutory power to suspend Mr Delforce's employment;

2 Whether there was a contractual right to suspend Mr Delforce's employment; and

3 Whether there was sufficient evidence to establish that Mr Delforce was guilty of misconduct as charged.

27 The grounds posed by the Union require us to determine questions of both fact and law (and in some respects mixed questions of fact and law). We note that the decision appealed from did not involve the exercise of a discretion (as in House v The King (1936) 55 CLR 499), and as such this appeal is an appeal in stricto sensu. The relevant principles to be applied in those circumstances are well established and are set out in the decision of a Full Bench of this Commission in Burge v NSW BHP Steel (at [7]):

The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). See also Weisser v Spur Group Pty Ltd (2003) 121 IR 89 at [33].

28 Similarly, in addition to considering appeals from discretionary decisions involving credibility of witnesses, the decision of Wright and Walton JJ in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 discussed the principles relevant to appeals from factual findings at 42-43:

The principles to be applied by the Full Bench reviewing findings of fact made by a trial judge below are clear. An appeal brought under Part 7 of Chapter 4 of the Act will generally attract the normal principles which apply to appeals stricto sensu on questions of fact and/or law: see Re Solicitors (State) Award (No 3) (1996) 72 IR 225 at 234 and Stone Microsystems (Australia) Pty Ltd v Kwong (1997) 42 NSWLR 160 at 163. In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or are not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999):

The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

This has been the position generally adopted by this Court and its predecessors: Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI & D Manufacturing Pty Limited (1995) 60 IR 149 at 154.

29 The current authorities were recently discussed by a Full Bench of the Commission in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 at [82]-[84]:

82 It should be noted at the outset that the decision of Deputy President Sams to which this appeal relates was not one of a discretionary nature of the kind considered in House v The King . The question which his Honour determined was whether the dismissal was harsh, unreasonable or unjust in the circumstances. The determination of that question involved mixed issues of fact and law, rather than the exercise of discretion per se (see Burge v NSW BHP Steel at 4, citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182 and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59). As such, the appeal is an appeal in stricto sensu (see King v State Bank at [65]). As cited in King v State Bank at [70], the relevant principles to be applied on appeal are those set out in the joint decision of Hungerford J and Murphy C (with respect to which Peterson J agreed, at 240) in Re Solicitors State Award (1997) 72 IR 225 (citing Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149):

It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J sitting on appeal in this Court in Hussmann Australia Pty Ltd v Walker ((1993) 48 IR 396 at 406) to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence.

83 The relevant principles to be applied on appeal in such circumstances may conveniently be adopted from the decision of the Full Bench in Burge v NSW BHP Steel (at [7]):

84 These principles were also articulated in Wilson v Department of Education and Training [2000] NSWIRComm 120 (at [61]-[62]):

The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: ( Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

This Commission and its predecessors have adopted the above view: ( Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154).

30 We turn then to consider firstly the validity of Macquarie Generation's decision to suspend Mr Delforce's employment.

31 Harrison DP determined that the 2 day suspension of Mr Delforce's employment was valid, stating (at [140]-[147]:

There is a clear legislative intention in s66 of the Pacific Power Act that access to disciplinary suspension as an alternative to dismissal be available. There can be no doubt that this legislative provision is extended to Macquarie Generation by operation of the Energy Services Corporation Act .

There is no substance in my opinion to the argument advanced by Mr Chin seeking to distinguish between the legislative use of "power", "authority" or "function". It is clear from the provisions of ss65 and 66 of the Pacific Power Act that there is a need to access to the "power", "authority" or "function" to impose disciplinary stand down "for and in relation to the control and governance of employees" (s65); and "for an in relation to any other matter or thing necessary or convenient to ensure maintenance of discipline and efficiency in the service of the Commission".

There is unarguably significant convenience for all parties in the access to disciplinary suspension of the type available here, limited as it is to three days, by the Power of Sub-Attorney executed in favour of the Manager of Bayswater Power Station; as opposed to the ultimate sanction of termination of employment or the absence of any sanction in circumstances so warranting.

The provisions of the Pacific Power Act were supported by specific regulation made pursuant to s65 of that Act, found in Government Gazette No 48 of 19 March 1954. This regulatory support for s66 of the Pacific Power Act was further supported by detailed procedures found in MOPPS.

Mr Delforce commenced employment with Elcom at a time when the Pacific Power Act , the regulations thereto, and the procedures detailed in the Manual of Personnel Policy and Procedures are not challenged. He has since enjoyed continuous employment with Elcom and its successor entities, and as a consequence of that continuous employment, has enjoyed continuity of service for accrual and maintenance of such rights as annual leave, long service leave, sick leave, and superannuation.

I cannot accept that Mr Delforce's employment has been subject to separate and fresh contracts of employment divisible and distinguishable in their terms.

This contract of employment is subject to the Electricity Commission Act 1950 as amended and the regulations and by-laws thereunder. The critical issue then turns upon the repeal of the regulations made pursuant to s65 of the Pacific Power Act and the effect thereon upon the contract of employment and the operation of s66.

I find in favour of the arguments advanced by Mr Phillips that the effect and force of s66 of the Pacific Power Act remains within the contract of employment of Mr Delforce and is not diminished by the repeal of the 1954 Regulations by the Subordinate Legislation Act 1989.

32 It is clear that Harrison DP considered that Macquarie Generation had power to suspend Mr Delforce's employment. It is somewhat less clear as to whether the source of that power was held to be statutory or contractual, or both. The relevant findings as to validity of the suspension are set out earlier in this decision, and we do not restate them here.

33 The Union challenged the findings as to the statutory power to suspend Mr Delforce's employment due to misconduct on the following five grounds: (1) His Honour erred in deciding that the respondent had a statutory power to suspend without pay (or at all) the employment of Mr Delforce for alleged misconduct, namely, pursuant to section 66 of the Electricity (Pacific Power) Act 1950, in the absence of any regulation in accordance with such a power must be exercised. (2) His Honour erred in failing to apply the principles in Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 with respect to the absence of any regulations in accordance with which the power of suspension under section 66 of the Electricity (Pacific Power) Act 1950 must be exercised; (3) His Honour erred in deciding that the repeal of regulations made under the Electricity Commission Act 1950 (Government Gazette No 48 of 19 March 1954) by the enactment of the Subordinate Legislation Act 1989 did not diminish the respondent's alleged contractual power of suspension, and/or pursuant to section 66 of the Electricity (Pacific Power) Act 1950; and in failing to provide reasons therefor. (4) In particular as to the said repeal of the regulation, his Honour erred in failing to find that s30(1)(c) of the Interpretation Act 1987 (NSW) (which provides, relevantly, that the repeal of regulations does not affect any right acquired or accrued under the said regulations) has no application because:

(a) the respondent never acquired a relevant contractual right (to suspend Mr Delforce) that might have been preserved by s30; (b) even if such a contractual right existed, s30 does not operate to preserve any contractual (as distinct from statutory) rights; (c) s30 does not operate to preserve any such statutory right to suspend in that s30 does not preserve a power to take advantage of an enactment or mere abstract right in accordance with authority such as Mathieson v Burton (1971) 124 CLR 1 at 23-34; and (d) in any case, there has been no repeal of s66 of the Electricity (Pacific Power) Act 1950 being the only statutory provision under which any right of suspension could have been acquired and relevantly preserved by s30. (5) His Honour erred in deciding that section 4 of the Electricity (Pacific Power) Act 1950 which, together with the Energy Services Corporations Act 1995, inter alia, empowers the respondent to exercise the functions (as distinct from the powers, authorities or duties) conferred on Pacific Power by the Electricity (Pacific Power) Act 1950, nonetheless conferred upon the respondent the power of suspension under section 66 of the Electricity (Pacific Power) Act 1950.

34 The questions that arise for determination in relation to whether there was a statutory power to suspend are effectively twofold: firstly, whether the power in s66 of the Electricity (Pacific Power) Act to suspend an employee's employment due to misconduct was conferred on Macquarie Generation; and secondly whether that power remained operative notwithstanding the repeal of the relevant regulations made under s66. In our view, both questions should be answered in the affirmative.

35 In this respect we concur generally with the findings made by Harrison DP as to the validity of the suspension. We note that, in our view, there is some blurring in his Honour's findings as to whether the power to suspend Mr Delforce's employment derived from statutory or contractual origins. However, irrespective of Harrison DP's findings as to the implications of any contractual provisions (with which, if made, we do not necessarily agree), and irrespective also of the imprecision in the language in the decision below, it is apparent to us that the Deputy President did in fact arrive at the correct conclusion as to the existence of a statutory power.

36 Our reasons for such findings follow, commencing with an outline of the relevant statutory history.

37 Mr Delforce's employment commenced in November 1979 with the then Electricity Commission of New South Wales pursuant to, inter alia, the provisions of the Electricity Commission Act.

38 The Electricity Commission of New South Wales became known as Pacific Power by virtue of Schedule 7 of the Electricity (Pacific Power) Act which contains the following at Part 2:

(1) The Electricity Commission of New South Wales is abolished.

(2) Pacific Power is a continuation of, and the same legal entity as, the Electricity Commission of New South Wales.

39 Macquarie Generation is an "electricity generator" within the meaning of s3 of the Energy Services Corporations Act 1995. It was created by virtue of that Act.

40 Section 15 of the Energy Services Corporations Act gave the Minister power to, inter alia, transfer staff from Pacific Power to another electricity generator. Section 15 states:

15 Transfer of staff, assets, rights and liabilities of dissolved energy services corporations

(1) The Minister may direct, by order in writing, that any specified staff, assets, rights or liabilities of an energy services corporation that has been dissolved by this Act be transferred to such other energy services corporation, or to such other person or body acting on behalf of the Crown, as is specified in the order.

(2) Such an order may be made on such terms and conditions as are specified in the order.

(3) Schedule 3 applies to the transfer of staff, assets, rights or liabilities under this section.

41 Mr Delforce's employment was transferred from Pacific Power to Macquarie Generation by virtue of the Energy Services Corporations (Transfer of Pacific Power's Assets) Order 1996, made pursuant to s15 of the Energy Services Corporations Act 1995.

42 By virtue of Section 2 of Schedule 3 to the Energy Services Corporations Act, the Electricity (Pacific Power) Act continued to have application to Mr Delforce's employment. That provision was in the following terms: 2 Transfer of staff A member of staff who is transferred by a transfer to which this Schedule applies is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person not been transferred but remained a member of staff of the transferor.

43 The Energy Services Corporations Act does not contain a provision for the suspension of an employee per se. However, some specific powers and functions are conferred on Macquarie Generation by the Electricity (Pacific Power) Act. Section 4 of that Act states: 4 Application of Act to electricity generators An electricity generator within the meaning of the Energy Services Corporations Act 1995 , for the purpose only of enabling it to exercise its functions under that Act, may exercise the functions conferred or imposed on Pacific Power by this Act (except section 8B) and, for that purpose, a reference in this Act to Pacific Power extends to an electricity generator within the meaning of that Act. (emphasis added)

44 The power to suspend an employee's employment due to misconduct resided in s66 of the Electricity (Pacific Power) Act which was in the following terms: 66 Employees guilty of Misconduct

(1) Where an employee of the Commission is guilty of misconduct or of contravening any regulation made under this Act, or any rule or direction of the Commission, the employee may in accordance with the regulations: (a) be dismissed or suspended, (b) be fined a sum not exceeding 0.1 penalty unit, (c) be reduced in rank, position, or grade and pay, but every such employee so dealt with shall be notified in writing of the nature of the misconduct charged or of the breach of regulation, rule or direction alleged to have been committed.

45 Regulations were subsequently published in Government Gazette No. 48 of 19 March 1954 to the Electricity Commission Act in similar terms to s66 of the Electricity (Pacific Power) Act: 1 In these Regulations, unless the context or subject matter otherwise requires: "Act" means the Electricity Commission Act, 1950. "Commission" means The Electricity Commission of New South Wales.

2 Where the Commission has decided that a servant - (a) be dismissed or suspended; (b) be fined a sum of money; (c) be reduced in rank, position or grade and pay; it shall give such servant notice thereof in or to the effect of the form in the Schedule hereto.

3 The notice shall be given as soon as practicable after the decision has been made and may be given by delivering the same to the servant personally or by leaving the same at his last-known place of abode or by sending the same thereto by registered post.

46 Sections 10(1) and (2) of the Subordinate Legislation Act 1989 had the effect of repealing these regulations as of 1 September 1992.

47 In the Union's case, much hinged on the use of the word "function" in s4 of the Electricity (Pacific Power) Act, particularly having regard to s3(2) of that Act which stated: (2) In Part 2 and Schedules 6 and 7, a reference to: (a) a function includes a reference to a power, authority and duty, and (b) the exercise of a function includes, where that function is a duty, a reference to the performance of that duty.

Notably, s4 of the Electricity (Pacific Power) Act, which conferred functions on electricity generators such as Macquarie Generation, fell within Part 2 of that Act. Accordingly, on the face of the legislation, the expansive definition of function contained in s3(2) did not apply to s4.

48 The Union argued that by defining "function" to include "power, authority and duty" only in respect of Part 2 and Schedules 6 and 7 of the Electricity (Pacific Power) Act, it must be inferred that any reference to a function in any part of that Act other than Part 2 and Schedules 6 and 7 did not include a reference to a "power, authority and duty". In support of this argument the Union relied on Gibb v FCT (1966) 118 CLR 628, where Barwick CJ, McTiernan and Taylor JJ held (at 635):

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found to be understood in the defined sense or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.

49 According to the Union, therefore, the power conferred by s66 was not a "function" as defined in s3 of the Electricity (Pacific Power) Act, and accordingly it was not a function exercisable by Macquarie Generation as an electricity generator pursuant to s4 of that Act. Further, such an interpretation is consistent with the ordinary meaning of the word "function".

50 Finally, the Union contended that the power to suspend an employee's employment cannot be said to be necessary "for the purpose of enabling [Macquarie Generation] to exercise its functions under the [Energy Services Corporations Act]" as stipulated in s4 of the Electricity (Pacific Power) Act. The functions of an electricity generator are set out in s6 of the Energy Services Corporations Act as follows: 6 Functions of electricity generators (1) An electricity generator has the functions conferred or imposed on it by or under this or any other Act or law. (2) The principal functions of an electricity generator are: (a) to establish, maintain and operate facilities for the generation of electricity and other forms of energy, and (b) to supply electricity and other forms of energy to other persons and bodies. (3) An electricity generator: (a) may also provide facilities or services that are ancillary or incidental to its principal functions, and (b) may also conduct any business (whether or not related to its principal functions) that it considers will further its objectives. (3A) An electricity generator may acquire, hold, sell or otherwise deal with or trade in carbon sequestration rights within the meaning of section 87A of the Conveyancing Act 1919. (4) This section does not limit the functions of an electricity generator apart from this section, but is subject to the provisions of this Act, the State Owned Corporations Act 1989 and any other Act or law.

51 According to the Union, whilst the power to discipline an employee for misconduct may have been required by an electricity generator in order to exercise its functions, that is not to say that the power to suspend an employee's employment as a disciplinary measure was similarly required. In this respect the Union pointed out that s64 of the Electricity (Pacific Power) Act contained the functions of appointing and employing employees, which functions were clearly conferred on Macquarie Generation by virtue of s4 of the Energy Services Corporations Act 1995.

52 We note that there was no dispute from either party that the matters dealt with in s66 were to be regarded as "powers".

53 Macquarie Generation argued that the power in s66 of the Electricity (Pacific Power) Act to suspend an employee's employment was conferred on Macquarie Generation by virtue of s4 of that Act. In support of this contention, Macquarie Generation submitted:

a In interpreting s4 of the Electricity (Pacific Power) Act, the Commission may have regard to the heading to that section- "Application of Act to electricity generators". In doing so, and having regard to principles of statutory interpretation and the decision in Concrete Constructions v Nelson (1990) 92 ALR 1993, it is open to the Commission to interpret parliament's intention as conferring or imposing on electricity generators (such as Macquarie Generation) the same powers and duties conferred or imposed on Pacific Power.

b Such an intention is obvious from the context in which the legislation was enacted, that is, the desegregation of the single electricity generator in New South Wales - Pacific Power - into three electricity generators. The wording of both the Second Reading Speech and the Energy Services Corporations (Transfer of Pacific Power's Assets) Order 1996 support the contention that the powers and functions of all electricity generators should be the same. Specifically, there is no suggestion in those documents that Pacific Power should retain certain powers (such as the power to suspend an employee's employment due to misconduct) which were not also intended to be conferred on all other electricity generators.

c The exception to this proposition relates to s8B of the Electricity (Pacific Power) Act, which conferred the power to establish subsidiary corporations. The powers in s8B were expressly excluded in s4 of the Electricity (Pacific Power) Act from the functions conferred on all other electricity generators (including Macquarie Generation). According to Macquarie Generation, if parliament had intended to restrict the power of electricity generators to suspend an employee's employment pursuant to s66 of the Electricity (Pacific Power) Act, an express exclusion to that effect would have been included in s4, as was the case with the s8B exclusion.

d There is no "sensible or logical reason" for interpreting the word "function" in s4 as not including a reference to "a power, authority and duty". According to Macquarie Generation: The obvious logic behind and purpose of section 4 suggests that the section could and perhaps should have been the first section in part 2 of the Act rather than the last section of part 1 of the Act.

54 We agree with the submissions of Macquarie Generation, and with Harrison DP's findings that:

140 There is a clear legislative intention in s66 of the Pacific Power Act that access to disciplinary suspension as an alternative to dismissal be available. There can be no doubt that this legislative provision is extended to Macquarie Generation by operation of the Energy Services Act .

141 There is no substance in my opinion to the argument advanced by Mr Chin seeking to distinguish between the legislative use of "power", "authority" or "function" …

55 We note that such findings are consistent with the Second Reading Speech given by the Assistant Minister for Energy which stated (at 3971):

It is the Government's intention, in introducing the Energy Services Corporations Bill, to ensure that distribution and generation corporations are established in a manner which encourages competition and promotes responsible innovation in the management of the corporations.

56 We further agree with the submission put by Macquarie Generation that it is difficult if not impossible to understand what intention there could be in conferring the "functions" but not the "powers" of Pacific Power to other electricity generators, in circumstances where the functions of those electricity generators were already established (in ss5 and 6 of the Energy Services Corporations Act). In our view, it is plainly the powers of Pacific Power that were required by Macquarie Generation to properly exercise its functions as an electricity generator, not merely the functions of Pacific Power.

57 We turn then to the second question: whether any power conferred by s66 of the Electricity (Pacific Power) Act remained operative notwithstanding the repeal of the relevant regulations made under s66. As earlier stated, we consider that that power does remain so operative.

58 The Union submitted that the present case is one to which Browne v Commissioner for Railways (1935) 36 SR(NSW) 21 applies, that is, that the statement "in accordance with the regulations" in s66 of the Electricity (Pacific Power) Act represents the essence of the authority to suspend an employee's employment, and that no such authority exists in the absence of any such regulations. However, we prefer the submission put by Macquarie Generation that the reference to a suspension occurring "in accordance with the regulations" is to be read as meaning "in accordance with the regulations (if any)".

59 We note the decision of Windeyer J in Downey v Pryor (1960) 103 CLR 353 in relation to the use of the words "as prescribed" in s215 of the Local Government Act 1919 (NSW). His Honour stated (at 364):

The question here is whether the legislature of New South Wales intended to give electors of local governing bodies in the State a right to inspect their accounts; or whether it intended only that the Government might permit them to do so if it chose.

In my view the words "as prescribed" that appear, somewhat clumsily, in s.215 of the Local Government Act 1919 do not make that section depend for its effectual operation on something being prescribed. This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed ( Browne v. Commissioner for Railways (1935) 36 SR (NSW) 21; 53 WN 1; Cameron v. Deputy Federal Commissioner of Taxation (Tas.) (1924) 34 CLR 8). In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed - for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed. There are several provisions of the Local Government Act in which the words "as prescribed" have that result - for example s. 90 (1), which requires a council to appoint an engineer, "who shall hold a certificate as prescribed". But that does not mean that wherever the words "as prescribed" appear in the Act in connexion [sic] with a right or duty, no right is created or duty imposed until something be prescribed.

60 Further, in determining the intention of the statutory provision, and whether the prescription was "of the essence of the authority", Kitto J had regard to "the words themselves, the context, and the nature of the provision". In our view, having regard to similar considerations, the present matter is not one in which the words "in accordance with the regulations" form the essence of the authority, nor are they necessary to give life and vigour to the Electricity (Pacific Power) Act.

61 In our view the approach in this matter should be similar to that adopted by the Commission in Van Huisstede v Commissioner of Police (2000) 98 IR 57 where it was held:

153 Some difficulties are created by the fact that s181G(1)(f)(i) refers to notice being given "in accordance with the regulations under this Act". Despite this provision, no regulations have been made to prescribe the manner in which such a notice should be given. In Downey v Pryor (1960) 103 CLR 353 at 362, Kitto J expressed the view that provisions requiring an act to be done "in the prescribed manner" or "in accordance with regulations" may be of two different natures. The wording, context and nature of the provision may indicate that the prescribed method is the essence of the authority conferred such that there is no authority capable of being exercised in the absence of a valid prescription of the method. Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 is an example of such an instance. On the other hand, the means may be that the authority or act is to be subject to the power of the Executive to regulate its function, but in relation to the reference to any prescribed method the words "if any" should be implied. 154 In my view, s181G(1)(f)(i) is of that latter type.

62 Accordingly, we consider that Macquarie Generation had power to suspend Mr Delforce's employment by virtue of the operation of the Energy Services Corporations Act and the Electricity (Pacific Power) Act.

63 The Union raised a number of grounds of appeal essentially challenging the findings that Macquarie Generation had a contractual right to suspend Mr Delforce's employment.

64 Macquarie Generation contended that, by virtue of the express words of Mr Delforce's letter of appointment, the provisions of the Electricity Commission Act 1950 (and any regulations and by laws thereunder) were expressly incorporated into Mr Delforce's contract of employment. The letter of appointment stated that Mr Delforce's employment was subject to "the Electricity Commission Act 1950 as amended, and the regulations and by-laws thereunder, and in particular, to the Seniority Code, rules, directions and orders issued by or on behalf of the Commission from time to time…"

65 That proposition appeared to have been accepted by Harrison DP in the following finding:

66 Given that we are satisfied that there was a statutory power to suspend Mr Delforce's employment due to misconduct, we do not need to determine whether there was also a contractual right to do so. We note, however, that we consider the evidence and arguments advanced as to incorporation of statutory provisions into Mr Delforce's contract of employment to be substantially unconvincing.

67 We turn then to consider the final issue relating to misconduct. It is well settled, and undisputed in the present matter, that the onus of proving misconduct, in circumstances such as the present where the allegation of misconduct is made as justification for certain action (such as suspending an employee's employment), rests with the employer, as was stated in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 at 83-84:

However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

68 The Union advanced its appeal as to the finding of misconduct on the following grounds: (1) His Honour erred in finding that the allegations of misconduct against Mr Delforce were made out on the balance of probabilities, contrary to the evidence before His Honour; (2) His Honour took into account irrelevant considerations in making his decision and ignored relevant considerations; (3) His Honour erred in finding that Mr Delforce deliberately misconducted himself contrary to the terms of the respondent's allegations and the weight of the evidence before His Honour; (4) In finding that Mr Delforce intentionally made himself unavailable and avoided contact with management during the relevant period, his Honour failed to take into account the fact that the respondent failed to allege that such conduct was intentional or deliberate.

69 This aspect of the Union's appeal raises two issues for determination. The first is clear on the face of the pleadings: whether there was sufficient evidence to establish that Mr Delforce was guilty of the alleged misconduct, or put differently, whether the finding of misconduct was reasonably open to Harrison DP on the evidence.

70 The second issue is somewhat less clear on the face of the pleadings, but is perhaps the foremost question: whether, in finding Mr Delforce guilty of misconduct, Harrison DP confined himself to a consideration of the actual acts of misconduct alleged by Macquarie Generation. The Union's grounds of appeal addressed this latter issue by asserting firstly that Harrison DP's findings that Mr Delforce's actions were "intentional" or "deliberate" went beyond the scope of the charges, that is, that Harrison DP "failed to take into account the fact that the respondent failed to allege that such conduct was intentional or deliberate", and secondly that Harrison DP's criticism of Mr Delforce's involvement in work bans was irrelevant to the misconduct allegations.

71 Whilst there is no doubt that Harrison DP made findings in the present matter that Mr Delforce was guilty of misconduct as charged justifying a disciplinary suspension, there is some uncertainty in the Deputy President's decision as to the nature of those findings and the extent to which they relate to the charges as laid. The relevant findings made by Harrison DP as to misconduct were as follows:

The appropriate standard of proof is the balance of probabilities. That test applied, no other conclusion is available other than that Mr Delforce deliberately made himself difficult to contact in order to avoid his responsibility as a union representative, in the same or similar manner as he had ignored his obligations to comply with the dispute settlement procedure prescribed by the award; the same procedure in which he took immediate refuge once advised of the instant suspension.

There is no doubt that Mr Delforce's conduct justified sanction.

72 The Deputy President does not appear to have made an explicit finding that Mr Delforce was guilty of the particular acts of misconduct specified in the charges. Accordingly, before considering whether or not there was evidence to support a finding that Mr Delforce was guilty of misconduct, we propose dealing firstly with the question of whether Harrison DP's findings of misconduct were within the scope of the actual misconduct alleged.

73 In our view, Harrison DP was clearly cognisant of the requirement that he consider the nature of the misconduct charges when determining findings of guilt or innocence, having made the following observation:

Mr Chin submits that any right to disciplinary suspension is contingent upon an employee being guilty of misconduct or of contravening any regulation made in the Electricity (Pacific Power) Act 1950 ("the Pacific Power Act") or any rule or direction of the Commission; and until a finding of fact is made that a specific employee is guilty of misconduct or relevant contravention, the right to suspend subsists only in an abstract sense.

This submission is irrefutable, and accordingly it is first appropriate to consider the extent of misconduct prior to that of the authority to suspend also argued in these proceedings.

74 We agree with Harrison DP that the Union's submission, so described, is correct. What must be implied in the Union's submission is that the right to suspend arises only upon a finding that the employee is guilty of misconduct as charged, not merely upon a finding of fact that the employee is guilty of any act of misconduct. In that regard, we note that decision of Dey J in Public Service Association of New South Wales and Public Service Board Re Ristau (No 2) (1979) AR 357 (at 373):

However, the question in this case is not whether Mr Ristau was an unsatisfactory officer, but whether he had been guilty of the particular breach of discipline for which he has been dismissed. Upon the basis that Mr Ristau was an officer permanently employed in the Public Service and was not guilty of the misconduct with which he was charged, it seems to me that the proper course to be followed is to order his reinstatement. To uphold the dismissal when the basis of that action was not established, would be to endorse his having been treated unfairly.

75 Similarly, in NSW Public Service Professional Officers Association v Forestry Commission (NSW) (1990) 39 IR 46 at 51, Cahill VP said:

A final matter which deserves comment is that, while in some reinstatement cases it might be appropriate to consider the practicality of restoring the employment relationship in advance of, and separate from, the question of fairness of the dismissal, it is difficult to conceive of such an approach being properly taken unless all the evidence is in and the submissions completed. Furthermore, such a course would not, in any event, seem appropriate in a type of case, of which the present case is an example, where specific charges have been laid, an enquiry has been held by the employer, the charges have been found proven and the dismissal action has been taken. In a reinstatement case following such a sequence of events the primary matter for the tribunal's consideration is surely whether, on all the evidence, the charges on which the dismissal was based have been made out.

76 As earlier stated, the charges were threefold; firstly, that that on 16 November 2001 Mr Delforce was "unable to be located or contacted while on duty during the hours of 11.00pm and 12.15am with no acceptable explanation"; secondly, that Mr Delforce "acted in an aggressive and insubordinate manner and refused to meet with Station Management when requested to do so on that evening"; and thirdly, that Mr Delforce left work without being released from duty.

77 On the case argued by the parties, we should conclude that either Harrison DP misconceived these charges and made findings other than as was required, or alternatively he had proper regard to the charges but embedded his findings in the economic wording of his decision. In our view, and in particular having regard to the focus of the decision, the former is the appropriate conclusion.

78 In approaching the question of whether Harrison DP had sufficient regard to the charges when making his findings, we shall examine the elements of each charge in turn. However, in doing so we do not intend dissecting each phrase and paragraph of the Deputy President's decision in order to identify whether there is any error. Such an exercise would be unproductive, contrary to principle, and would not necessarily assist us in determining whether Harrison DP has in fact fallen into error. Further, whilst the approach adopted by the Deputy President may have encompassed a discussion of matters that are peripheral to the charges which lie at the heart of the matter, that approach is not necessarily conclusive of appellable error.

79 We have found it convenient to analyse his Honour's decision with respect to each charge by considering the elements of each charge. We would wish to emphasise, however, that the conclusions we have reached depend upon, at the end of the day, a consideration of the whole of his Honour's decision in relation to the elements of each charge.

80 Before turning to consider the findings that were made with respect to each of the charges, we wish to make some observations as to the nature of the charges themselves. In our view, the charges are clumsily drafted, and less than we would expect of a modern employer with a considerable workforce and no doubt much experience in workplace relations.

81 For example, there is some uncertainty as to whether Macquarie Generation laid 3 distinct charges, or only 2 charges, the first of which comprised 2 separate (and largely unrelated) elements. Nevertheless, whilst poorly expressed, we have formed the view that there were 3 separate charges of misconduct. Although it may be possible to read the first two charges as one, being linked by a conjunctive "and", we consider them to be separate. In our view, the word "and" was used to refer to an additional matter, rather than stating something upon which the first matter depended. Further, Macquarie Generation imposed three distinct disciplinary sanctions for each count of misconduct, that is, Mr Delforce's employment was suspended for one day for the first charge of misconduct, another day for the second charge, and a warning was issued with respect to the third. We note that the memo prepared by Mr Stubbs (with the assistance of Mr Scott) and signed on 7 January 2002 included the following conclusion:

It is concluded by this Committee that Mr Delforce is guilty of misconduct in relation to each of the three matters and that disciplinary action is appropriate. Therefore, in view of the severity of the matter and Mr Delforce's previous record, a period of one normal shift of suspension would be appropriate for each of Matters 1 and 2 as well as being issued with a written warning in regard to Matter 3.

82 There is an obvious chronological order to the charges - the first charge relating to the period when management were looking for Mr Delforce, the second relating to what happened when they found him, and the third relating to the circumstances surrounding Mr Delforce finishing his shift and leaving work. In this respect we note also that there is no necessary correlation between the first and subsequent charges, and accordingly, they may be considered sequentially. This is the approach we propose adopting. However, while the charges have been laid in way which loosely correlates with the way events unfolded on the night of 16 November 2001, the essence of the misconduct alleged in the second and third charges is more or less the same: Mr Delforce's refusal to attend a meeting with management. Accordingly, we will discuss those charges concurrently.

83 As to the first charge of misconduct - that Mr Delforce was "unable to be located or conducted" with "no acceptable explanation" - Harrison DP held (at [88]-[92]):

There is no doubt that Mr Delforce's conduct justified sanction.

The argument advanced by Mr Chin that Mr Delforce was at all times carrying out the legitimate activities of a trade union official is not sustained on the evidence. The activities undertaken by Mr Delforce purported to be those of a union representative, were not legitimate actions and were contrary to his obligation pursuant to the legislation and award; contrary to the principles of appropriate conduct and fair dealing; and, on any analysis, not in the best interests of the membership he purported to represent.

As stated in BHP v Jones and adopted by a Full Bench in AMWU v Elcom , the role of union delegate provides no magic cloak of immunity or special consideration; if anything, the role of union delegate, whilst providing certain rights by legislation and award, carries with it an obligation of responsible leadership and mature conduct absent in the events of 16 November 2001.

In all of the circumstances I regard the imposition of a two day suspension as lenient, demonstrating commendable restraint and clearly an alternative adopted by management to that of termination of employment.

84 The second part of the charge alleges that Mr Delforce had "no acceptable explanation" for being unable to be located or contacted. In that regard, Harrison DP made the following direct finding:

I am not able to accept the evidence of Mr Delforce as to the fallibility of radio communication at Bayswater or the circumstances which may have inadvertently led to a difficulty in contacting him.

85 Whilst there is no doubt that Mr Delforce was not in fact contacted by management at the Bayswater power station between 11pm and 12.15am, Harrison DP did not directly find that Mr Delforce was "unable to be located or contacted". Rather, he stated that Mr Delforce "made himself difficult to contact". The nature of his Honour's findings as to the first charge was raised with Mr Crawshaw:

Boland J Isn't it implicit though in his Honour's findings that although he said as you rightly point out [at] paragraph 88 of his decision Mr Delforce deliberately made himself difficult to contact, he goes one step further than the charge I suppose which only talks about Mr Delforce being unable to be contacted with no acceptable explanation; his Honour goes a step further and says in effect not only did he do it with no acceptable explanation but he did it deliberately. Do you accept that implicit in his Honour's finding was that Mr Delforce was unable to be located with no acceptable explanation?

Crawshaw Well on the principles your Honour is presumably putting to me something to the effect that the finding of a worse crime includes a lesser crime as it were.

Crawshaw That is probably correct but that is important in terms of this case; firstly in terms of his Honour misconstruing the charges and secondly in terms of the third strand of the argument that if it did happen it didn't justify the sanction because if the charge didn't have any of this element of deliberateness and it was just a strict liability type charge - if I can use the analogy - it would have affected his Honour's consideration for the appropriate penalty or the reconsideration of the employee's appropriate penalty would have been affected by that misconstruction of the charge.

Boland J If the evidence was this and his Honour found that Mr Delforce's motives for making himself uncontactable were as he found wasn't he entitled to do that and therefore come to the conclusion that the penalty was appropriate.

Crawshaw Well with respect, no your Honour. His Honour wasn't entitled to make up his own charge and make a finding in respect of his own charge. His Honour was to consider the charge that was put to Mr Delforce and was the subject of argument in the case before him.

86 On balance, we are satisfied that the Deputy President considered the issues raised by the charge (even if those findings are sometimes indirect), namely, whether attempts were made to locate Mr Delforce, whether he was able to be located, and whether there was an acceptable explanation for being unable to be located or contacted.

87 Harrison DP's reasoning is sufficient to demonstrate that he considered that evidence. In our view, in finding that Mr Delforce was difficult to locate or contact for a period of time, and in accepting that he was in fact subsequently located or contacted, the inescapable conclusion must be that Harrison DP determined that Mr Delforce was unable to be located or contacted during the hours specified in the charge.

88 Further, we are satisfied that such a finding was reasonably open to him on the evidence. Harrison DP's decision demonstrates that his conclusions were based at least in part on evidence that:

a Mr Stubbs, Mr Sewell and Mr Tillitzki made real attempts to contact and/or locate Mr Delforce between 11pm on 16 November 2001 and 12.15am on 17 November 2001;

b Those attempts did not bear fruit, in that they did not contact and/or locate Mr Delforce until 12.15am;

c Mr Delforce offered numerous explanations as to why those attempts were unsuccessful, for instance:

i. There were "blackspots" in the power station where his two-way radio may not have operated;

ii. The channel on the radio may have accidentally been set to Channel 2 instead of Channel 1 due to the small controls of the radio being bumped in his pocket;

iii. The volume control on his radio may have been accidentally turned down;

iv. The radio operator may not have properly initiated the call;

v. He may have been in an Equipment Room when the call was made, at which time the radio would have been switched off, as the use of two-way radios is not permitted in Equipment Rooms;

vi. He may have forgotten to turn his radio on after leaving an Equipment Room;

vii. He may have been in a high noise area and not heard the call.

89 Macquarie Generation submitted that "quite apart from the availability of probative evidence to support his conclusions, it would be entirely inappropriate for this Full Bench to interfere with the trial judge's conclusions with respect to misconduct given that those conclusions were based, in large measure, on his own assessment of the witnesses that gave evidence and in particular his assessment of the credit of Mr Delforce". In support of this submission Macquarie Generation relied upon Beneficial Finance Corporation v Karavas & Ors (1991) 23 NSWLR 256 and Fox v Percy (2003) 197 ALR 201.

90 We also note the recent discussion by a Full Bench of the Commission of the review of credit findings on appeal in Humphries v Cootamundra held (at [99]-[101]):

99 In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq ) 160 ALR 588, Gaudron, Gummow and Hayne JJ stated (at [63]): [63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.

100 In relation to the "real advantages" enjoyed by the trial judge with regard to witness credibility, Kirby J stated (at [89] -[90] and [93]) in the same judgment:

[89] None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.

[90] The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. … His Honour then analysed the circumstances under which credit findings may not be conclusive on appellate review as follows:

[93] Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal. Take the following instances which are by no means exhaustive: …

It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions are plainly wrong. For example, they may be based upon expressed or implied assumptions about the evidence (eg that witnesses are in conflict) which careful analysis of the record demonstrates to be incorrect. …

Conversely, in a particular case, a trial judge may make it plain that the conclusion reached does not depend upon credibility considerations or impressions about the demeanour of a witness but upon the judge's assessment of objective facts or inferences to be drawn from the facts as found. Ordinarily, the appellate court will then be in as good a position as the trial judge to make the assessment and draw the inferences. Care must be taken not to exaggerate the significance of such expressed conclusions. A failure specifically to mention a witness's appearance or demeanour does not necessarily exclude that consideration if it is deemed inherent in the conclusion which was reached. Similarly, the fact that a judge may not feel justified in condemning a witness as untruthful is not necessarily equivalent to an affirmative opinion by the judge that the witness has endeavoured to give truthful testimony.

There is also the case, as was accepted in the early Privy Council decisions, where, although a credibility finding has been made which represents an apparent obstacle to appellate review, it is so contrary to the "extreme and overwhelming pressure" resulting from the rest of the evidence, or is so "glaringly improbable" or "contrary to the compelling inferences of the case", that it justifies and authorises appellate interference in the conclusion reached by the trial judge. In this, as in other areas, the law recognises imperfection of its processes and the need to avoid absolute and inflexible rules. It affords to the appellate court the power to intervene so as to prevent the risk of a serious injustice where this is clearly demonstrated. Such jurisdiction, held in reserve, is exercised with a full appreciation of the elusiveness of certainty in any trial process; the value accorded to the interest of finality in litigation; and a realisation of the costs and other disadvantages inherent in appeal and retrial. Full reasons must be given by the appellate court to demonstrate that, notwithstanding the credibility finding, the result of the trial is "palpably", "glaringly" or " compellingly" erroneous when viewed in the light of all of the evidence. If this Court considers that the circumstances are insufficiently exceptional, the reasons unpersuasive and the interference unwarranted, it may say so. It will then restore the trial judge's findings as, from time to time, it has done.

101 We have also had regard to the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 197 ALR 201 (at [25]-[29]). We note, in particular, their Honours' observations (at [28]) that:

[T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings [43]. That this is so is demonstrated in several recent decisions of this Court [44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" [45] or "contrary to compelling inferences" in the case [46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

91 Having regard to these authorities, we do not concur with the Union's submission as to the first charge that we may "discount or accord little weight to any supposed "demeanour" based advantage" on the basis that "his Honour's reasoning does not suggest that the demeanour of any witnesses assumed any critical or event significant importance in arriving at the finding". The Union's submission assumes, incorrectly in our view, that Harrison DP is required to detail each of the steps in his reasoning, including assessments of credit and demeanour, which led to his findings of fact. We note the statement of Mahoney JA in Soulemezis (at 273) that "the weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says". It is open to us to conclude that this is effectively what Harrison DP has done, for instance in his finding that he is "not able to accept the evidence of Mr Delforce as to the fallibility of radio communication at Bayswater".

92 We do not consider it appropriate, having regard to the matters discussed in Humphries v Cootamundra and Fox v Percy, to interfere with Harrison DP's findings as to the veracity of Mr Delforce's evidence regarding the radio equipment and other circumstances contributing to him not being found by management on 16 November 2001. Accordingly, having regard to the credit finding made by Harrison DP and the relevant principles applicable to the review of such findings, there is no proper basis for intervening in Harrison DP's conclusions as to the explanations offered by Mr Delforce for being unable to be located or contacted on the night in question.

93 Accordingly, we are satisfied that Harrison DP properly considered and determined the matter with respect to the first charge and that no error in his decision is evident in that regard. This aspect of the appeal is dismissed.

94 As with the first charge, there were effectively two elements to the second charge, namely:

1 that Mr Delforce was insubordinate and aggressive; and 2 that Mr Delforce refused to attend a meeting with station management when requested to do so.

95 The third charge was that Mr Delforce left work without being released from duty.

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