Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano

Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano - [2006] NSWIRComm 1143 - NSWIRComm 1999 case summary — Zoe

[157]

115 Mr Wilkinson said it was clear that Ms Wade had acted in a most provocative manner towards the applicant. She was abusive, contemptuous and insulting to him. There was no proper investigation of these events and while Mr Burchell had accepted the word of Ms Wade, it was still not clear exactly what Ms Wade had told him. There was no discussion with the applicant about the incident and he was not afforded an opportunity to put his version of events. According to Ms Wade's evidence, the incident was isolated and she could not recall any previous occasion where she had heard the applicant use abusive language or show any form of intimidation. 116 With regard to the discussion about rates of pay with Mr Burchell immediately prior to the applicant taking leave without pay, Mr Wilkinson submitted everyone involved at the time agreed that the applicant was stressed, his own belief being that he was suffering stress due to work related problems. On his return to work on 5 October 2005, there was a meeting between the applicant and Mr Burchell where without having conducted any proper investigation into the alleged incidents involving Ms Wade in September, Mr Burchell indicated to the applicant, by inference at least, that he had formed the view that his conduct was unacceptable. He confronted the applicant and told him that he wanted an apology from him. At the time, he knew the applicant had just returned from some form of stress leave when he confronted and accused him of intimidating other employees. 117 Mr Wilkinson submitted there was no evidence of intimidation. In cross-examination, Mr Burchell said there was evidence of intimidation because people who overheard what the applicant said were themselves intimidated. Mr Wilkinson said that although a number of witnesses for the respondent gave evidence, none of them was able to say they had been intimidated. Accordingly, Mr Wilkinson submitted that Mr Burchell was demanding an apology from a man who had, by his evidence become stressed because of the confrontation with Ms Wade during which he was told to "fuck off". It was obviously a heated conversation and she agreed that she had screamed at him. He was then told to apologise for something that he believed he had not done. The applicant's evidence was that he was calm and reasonable throughout. However, he admitted that he was persistent. 118 Mr Wilkinson said that after being confronted by Mr Burchell and told he was intimidating employees and, that he should apologise, it appeared that Mr Burchell envisaged some type of general apology to everyone. However, Mr Wilkinson said this was not clear as there was no evidence as to whether the apology sought was going to be a public apology or something equally humiliating to the applicant. Notwithstanding the applicant having returned from stress leave, Mr Burchell pressed the point. The applicant said he was not going to apologise and although there is disagreement as to what was actually said, the gist of it was that the applicant refused to apologise. Mr Wilkinson said Mr Burchell then pressed the point by the enigmatic statement "if that's the way you're going to deal with things, that's your choice, but it's not the way I would deal with it". 119 Mr Wilkinson submitted that Mr Burchell's resort to that type of enigmatic statement at that juncture was not the best way of settling the situation. He said that quite clearly, the applicant, a man with an unblemished record in the company who, instead of taking paid leave, was by his own evidence, so distressed by the fact of his own stress that he took leave without pay and that at this point, the applicant was driven to breaking point. 120 Mr Wilkinson submitted that even driven to that point, the applicant did not respond with violence or with threats. He said words that indicated that if he were not in an employee/employer situation, he would strike the man. He made no attempt to strike him and clearly stated that he didn't intend to strike him. The applicant said as fast as his anger had arisen, it subsided and he immediately regretted the statement and apologised. Mr Wilkinson said it is a common position between the parties that he said words to the effect of "shit, mate, I shouldn't have said that, I am sorry" and extended his hand to his boss, with whom he felt he had a pretty good relationship. He deposed he actually said, "Oh shit, Grant, I'm sorry" and Mr Burchell did not deny that that was said, nor that they shook hands. 121 Mr Wilkinson said the applicant left the office at this point and the parties met again shortly thereafter. When the applicant left the office he was not warned in any way that his behaviour was unacceptable nor was told he was going to be dismissed. Mr Burchell told the Commission that when he said in reply to the applicant's statement, "shall I call you next Monday?", "No, just leave" he thought that they both understood that the applicant had been dismissed. 122 Mr Wilkinson submitted that the applicant did not understand that he had been dismissed by the respondent and submitted that reliance upon him handing back keys was not sufficient in any way to indicate that the applicant thought he was going to be dismissed. In fact the applicant retained a set of keys and denies that he handed any key back to Mr Burchell. 123 Mr Wilkinson further submitted that with respect to the incident involving Ms Wade, the applicant's dismissal was unjust. He had no opportunity to defend her version of events against his and he was thereby denied natural justice. Mr Wilkinson submitted that Mr Burchell's reliance on the word of one very acrimonious party to the altercation, who never mentioned to him the abuse and derision that she had heaped upon the applicant was harsh, in that the applicant claims that what he was accused of in the first incident did not take place. 124 It was Mr Wilkinson's submission that the applicant at no stage threatened or intimidated Ms Wade and he claimed that if there was any unintentional intimidation, it was insufficient to warrant summary dismissal. He also claimed that dismissal in terms of that first incident was unreasonable because there was no investigation. In respect of the incident with Mr Burchell, the applicant claims that was unjust as he was never allowed to explain the stress he was under and what actually caused his outburst. 125 Mr Wilkinson said the applicant had no opportunity to defend himself, no opportunity to bring in mitigating factors and was denied natural justice. On the evidence, this was the first time that he had acted in any way contrary to the obligations of a good employee. He had received no warning or counselling despite the fact that he had apologised immediately after the incident . 126 Mr Wilkinson submitted that the onus of proving misconduct leading to summary dismissal lies upon the employer and cited Knott v Carlton United Breweries Limited (1958) 13 IIB 212 where Gamble J said: Turning now to the composite expression 'serious and wilful misconduct', it is impossible to frame an exhaustive definition of the meaning of the phrase. We have to consider that it's possible to describe with reasonable particularity certain elements or facets of the meaning. Now, the basic word is, of course, misconduct. The word is not apt to describe a breach of contract and is more appropriate to describe generally some reprehensible or culpable activity. However, it is quite clear on analysis that the word used in the Act solely in relation to conduct which constitutes a breach of contract of service. It is clear therefore that the word is intended to describe a particular type of breach of contract, namely, one which according to the current and generally accepted moral standards of the community would be regarded as reprehensible and deserving of censure in the circumstances

[158]

With reference to the terms " serious and wilful" His Honour states: This misconduct if further particularised by the addition of the two objectives - as Lord Robertson calls them - two epithets - "serious and wilful". The word "serious" is the measuring rod for the gravity of the misconduct. All the elements of the conduct called in question must be taken into account including the probable effect of the conduct upon the safety and well-being of the employer's business, his property and other employees, the fact that the conduct is in breach of a regulation, an award or determination and also the subjective elements such as the knowledge and skills which the worker ought reasonably to have possessed and the motivation and general state of mind of the worker at the time. The word "wilful" has many shades of meaning varying from perverse and stubborn to "done or suffered of his own free will or choice". (See Shorter Oxford English Dictionary, 3rd Edition). In the context in which the word is used in the Act and particularly having regard to the fact that it is part of a clause which is to operate as a forfeiture of rights and as a disqualification the word in our view postulates existence of some reasonable area of freedom of choice. The Oxford Dictionary meaning "done or suffered of one's own free will and choice" seems to us to express the essential character of the word "wilful" as it is used in this section of the Act." 127 Mr Wilkinson submitted there was no evidence that the respondent assessed the "motivation and general state of mind of the worker at the time" of the incidents. He also referred to His Honour's reference to the word "wilful" where he states, "wilful has many shades of meaning, varying from 'perverse and stubborn' to 'done or suffered of his own free will or choice'". 128 Mr Wilkinson also cited Howarth and Linfox Armaguard Pty Limited, [2005] NSWIRComm 1170 where Cambridge C provided a general definition where summary dismissal occurs: 1.Summary dismissal usually only occurs when an employer has properly established that there has been some act of gross and wilful misconduct of a nature incompatible with the continuation of employment for one moment more. Established acts of misconduct, such as theft, embezzlement, physical assault in the workplace or reckless and deliberate destruction of employees' property are examples of gross and wilful misconduct.

[164]

137 Mr Evans submitted that a lot of what was said during the hearing and in evidence was not substantiated in any way. He said the applicant had the opportunity to call evidence from other persons who may have abused him or WorkCover "who may have told him this or that", but he did not do anything about it. 138 Mr Evans referred specifically to the incidents, the applicant's comments regarding WorkCover and the state of the factory and said the applicant and his representatives had the opportunity to call evidence from the WorkCover Inspector, but did not do so. Mr Evans said that throughout the applicant's evidence there were a significant number of unsupported comments and statements, which were simply unsubstantiated assertions. It was Mr Evans' submission "that Michael Moad, the applicant in this case, is a liar, a calculated liar who was and continues to look for an easy dollar". 139 Mr Evans questioned the fact that on 21 September 2005, the applicant was put on sick leave for two days, yet apart from one other day, did not return to work until 4 October 2005. He said this was sick leave, not workers' compensation and because the applicant requested that he not be paid, it was unpaid sick leave. Mr Evans questioned why, if the applicant was suffering from work related stress or humiliation arising from the incident with Ms Wade, he did not claim workers' compensation from the start and suggested the reason for this was that it was clearly untrue. 140 Mr Evans said that on the applicant's own evidence his elevated stress started occurring in July 2005 when he thought the factory was unsafe and reported the respondent to WorkCover for investigation. WorkCover subsequently found nothing wrong. Mr Evans said there was nothing in the applicant's evidence that said he was called "a big guy", nothing about him being abused, nothing about the company taking a "profound" case against him. He could not explain in his evidence why he did nothing about it at that time nor could he explain why he did not take sick leave or go to a doctor, he simply said he was "too embarrassed" to go to a doctor. Mr Evans submitted that on the applicant's own evidence, his own doctor did not know what had caused the problem and did not state it was stress. Mr Evans said the respondent was aware of one WorkCover certificate that had work related stress or stress reaction. He said it was interesting that the previous doctor's certificate stated "stress reaction" and not "work related stress". In any event, it was not a workers' compensation certificate but rather, simply a sick leave certificate giving him two days off and it had "stress reaction" written on it. 141 Mr Evans submitted the matters relating to stress and workers' compensation were a means of "making an easy dollar" and said that the respondent viewed this application in the same way. He questioned why, if the applicant's claim was a genuine Workers' Compensation matter, the applicant did not file an application under s 92 of the Act which deals with the protection of injured workers, where the primary remedy is reinstatement to the former position without disadvantage. It was Mr Evans' submission that there was no s 92 application because the only remedy the applicant sought was monetary compensation. 142 Mr Evans submitted that the applicant did not file a s 92 application because he did not have a legitimate workers' compensation claim. He said "if the applicant's condition was work related stress, it has been going on for a long time and he never gave any evidence of whether or not he was treated successfully". 143 Mr Evans queried who had abused the applicant to cause him to go on workers' compensation. He said it was certainly not Mr Burchell and certainly not Ms Wade who had a disagreement with him some weeks beforehand. Mr Evans pointed out there was no dispute about what was said between the applicant and Ms Wade and, Mr Burchell. The language used was also not in dispute. He also submitted that none of the employees who had "observed his tantrums and his overall reaction and his profanity" would support him. Mr Evans drew an inference that the other employees he claimed to be friends with would not support him despite the fact the applicant had phoned some of them continuously to get their support. Mr Evans asked if they were friends and knew he was right, why then did they turn against him? 144 Mr Evans submitted that when the ACTU advised the applicant to go to the doctor and go off on stress leave, "he forgot that he was supposedly already on stress leave and already supposedly on workers' compensation". The applicant had already told Mr Burchell that he had a doctor's certificate and he would use it. This was not contested at all by Mr Burchell.

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145 Mr Evans submitted the major thrust of the applicant's affidavit evidence concerned his resort to profanity. He used it continuously in his affidavit of 28 November 2005 and then again in his rehashed affidavit dated 15 February 2006. Mr Evans said that while Ms Wade had used profane language once and once only which she had admitted to, the applicant said "everyone used it" but brought no evidence to support his comment and not one of the witnesses had endorsed that view. No witness gave evidence that profane language was continually used in the factory itself or in the office or anywhere else. It was out of character. 146 Mr Evans said only the applicant used profane language and apart from the one statement by Ms Wade, "it was all in the applicant's mind". Mr Evans pointed out that the applicant had the opportunity to rebut all the witness statements, but he merely rehashed his first affidavit with more profanity. He reiterated his submission that the applicant's case was a fabrication and said that when questioned about the rebuttal or lack of rebuttal of those statements, the applicant could only reply that it was based on advice from his legal representatives. 147 It was Mr Evans' submission that the fabrication of the applicant's case commenced when he filed the s 84 application for relief and stated his position with the respondent was direct marketing manager or telemarketing supervisor. Mr Evans said the applicant was an overseer who did some supervisory work. He was sent an email by Mr Burchell arising out of a discussion held about his work performance and that was the basis for the email sent to him about his wages. The applicant was to be put back to telemarketing because the company believed he would be better off in that job rather than a supervisory or overseeing role. Mr Evans asked the Commission to reflect upon the evidence where the respondent says he was put back because he was not performing and by making his wages more incentive based, management believed his performance would improve. 148 Mr Evans submitted that the applicant "terminated his own employment" when he stood over the manager Mr Burchell, and in his own words said "if you weren't sitting in your own office right now, I would beat the fucking shit out of you". Mr Evans said as this exchange took place within an employer/employee relationship, not outside the gates, not after work and not in a bar room, but in the workplace, he breached his own contract of employment irreparably and he breached the trust and confidence of his employer. 149 Mr Evans questioned why the applicant overreacted and said he believed it was because he had been "caught out". He said the applicant's reaction was that he became stressed because he was asked to apologise to Ms Wade. 150 Mr Evans acknowledged that whilst policies and procedures are helpful as a management tool and as instruments for the good running of a business, they are not mandatory. He said that an investigation was warranted in most cases, particularly where serious misconduct or misconduct was alleged. Rhetorically, he asked "is an investigation going to stop the fact that an employee leans over a desk to his manager and threatens violence and then says, hey, but you didn't investigate what happened?". In Mr Evans' submission, Mr Burchell investigated the incident at the time because he was the recipient of the applicant's threat of violence and that was the reason the applicant was terminated despite what was written on the separation certificate. Mr Evans reiterated the separation certificate was not completed by Mr Burchell and whilst he did talk to Ms Wade, he did not instruct her what to put on that form. Rather Mr Burchell simply told her what had occurred and she used her own words. 151 In relation to the keys, Mr Evans submitted that the applicant did give back the factory key and by giving back the key, he acknowledged that he would not be coming back.

[167]

154 Mr Evans submitted that the Commission should reject the evidence of the applicant as unreliable. His statements and evidence were little more than fabrication. In regard to the contention that the applicant's dismissal was harsh, unjust and unreasonable, Mr Evans asked when is it harsh for a senior manager of a company to terminate an employee who threatens violence and has glibly talked about it in the past? When is it unjust that the employee was not given an opportunity to defend the fact that he had threatened the manager with violence? When is it unreasonable for a manager in the face of a threat of violence to not investigate the same and prove misconduct? Mr Evans said the applicant's misconduct and threats were staring him in the face and Mr Burchell was aware of the circumstances and could and did act on that basis. 155 Mr Evans submitted that the lack of evidence adduced by the applicant "are no more than a flight of fancy" and referred the Commission to Jones v Dunkel (1958-1959) 101 CLR 298. He said the applicant could have summonsed a WorkCover inspector because he said what led to his stress right from the very start was that the factory premises were unsafe. He had made a complaint to WorkCover but he produced no evidence. 156 Mr Evans said that one of the more fanciful comments the applicant had made was that an employee was taken away in an ambulance possibly suffering from the dry cleaning chemicals stored under the office. Again, no evidence was brought from WorkCover. Mr Evans said the applicant alleged he was commonly abused in the workplace by people, one of them being the storeperson, but again he did not summons them. He said that the applicant's lack of evidence or supporting evidence for any of the matters that he has alleged or has said to have occurred is striking. Mr Evans submitted the fact that the applicant makes an allegation does not make it a fact or a truth and the evidence is insufficient to support the allegation of unfair dismissal. 157 Mr Evans referred the Commission to a book written by Mark Baragwanath published by The Law Book Company in 1999, titled "Unfair dismissals in New South Wales", and in particular section 9, page 163, "Breach of Confidence" where he states: At common law, a term is implied in all contracts of employment to the effect that "neither party will, without reasonable and proper excuse, engage in conduct that is calculated and likely to destroy or seriously damage the relationship of trust and confidence" between the employer and employee. The implied term highlights the special relationship between employers and their employees. The relationship is one of trust and confidence. The duty of trust and confidence may be breached in several ways. These can include, inter alia: making derogatory statements about the employer; working elsewhere while employed by the employer; and misusing the employer's confidential information.

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Mr Evans referred to the cases of Gorman v Players Biscuit Pty Limited (unreported, IRC 1313 of 1993, Shields CC) and Payne and Newcastle Building Society (unreported, IRC 341 of 1993, McKenna C) cited in that publication. In Payne , McKenna C noted: Whatever his health or state of mind at the time, if an employee acts in a manner which he knows, or reasonably should know, would cause damage to the business of his employer, unquestionably he could have breached his contract of employment to that extent. Conduct by an employee which in respect to important matters is incompatible with fulfilment of his duties for his employer or which is destructive of the necessary confidence between employer and employee, constitutes grounds for dismissal: Blythe Chemicals Limited and Bushnell (1933) 49 CLR 66 at 81. 158 Mr Evans submitted that the act or threat of violence, the act of standing up over the employer who was sitting at his desk and threatening physical violence, is more than sufficient grounds to terminate the employment for wilful and serious misconduct. He submitted that no warning and/or investigation was necessary because "one could really look very long and hard at this thing and still come to the same conclusion". Mr Evans submitted that threatening your employer with physical violence breached the relationship of trust and confidence and, therefore the contract of employment. Mr Evans said there was not a lot of case history regarding such threats as most related to physical violence. However, the Commission and Courts have ruled extensively on what does and does not constitute misconduct. He posed the question that if the applicant's threats of violence are deemed insufficient to breach the contract of employment, then what would? 159 Mr Evans' submission in relation to the applicant's claim for maximum compensation was that the applicant had not been disadvantaged as he had been on workers' compensation since his dismissal. Mr Evans said there has been no loss of earnings by the employee in any way, shape or form. He submitted that the applicant had been paid regularly and continuously and, these payment will continue while he is on workers' compensation. 160 Mr Evans' submitted, however, that if the Commission finds that the applicant has been unfairly dismissed, the primary remedy should be in terms of s92, that the applicant be reinstated to his former position. Mr Evans said he had had discussions with the respondent and there was no animosity towards the applicant on their part. He said the respondent's size would not cause any conflict. Mr Evans said that he was unsure what impact monetary compensation would have on his workers' compensation payments and submitted that this is a point to be taken into consideration. 161 In response to Mr Wilkinson's submissions, Mr Evans contended if a threat of physical violence to an employer does not repudiate the contract of employment, then "somebody has it wrong". He said that in terms of s 88 of the Act, the respondent believes that circumstances of the termination were sufficient to satisfy the matters to be taken into consideration by the Commission in determining the applicant's claim. In reply

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162 Mr Wilkinson submitted that Mr Evans went to considerable lengths to talk about stress. He said this is not a case about stress; it is about two incidents and wrongful dismissal. It has nothing to do with whether the applicant alerted WorkCover to anything. It is simply a matter of whether the dismissal comes within s 84 of the Act or whether he was validly summarily dismissed. The case has nothing to do with WorkCover. Mr Wilkinson said in relation to the Jones v Dunkel reference, the Commission should realise that case merely states that if you do not call evidence that is relevant to the matter, it is assumed or can be inferred that that evidence will not be of assistance. He said the reason why the WorkCover Authority was not called was because there was no assistance that it could have given the Commission as to whether or not an incident took place. He said that in relation to the critical incident, there were only two people present, so nobody else could have assisted in that regard. 163 Mr Wilkinson further submitted that in relation to the email to Mr Paul Burchell, there was no evidence that he carried out any investigation or took a part in this matter at all. Accordingly, is the Commission to assume that Mr Paul Burchell deliberately sat on this incident report or that he simply glossed over it. There was no evidence concerning Mr Paul Burchell's investigation if there was one and in Mr Wilkinson's submission, that makes the employer's case doubly doubtful insofar as Mr Evans has acknowledged that the respondent was aware of the applicant's point of view, but made no attempt to discuss the matter further. The operations manager of the company did not seem to know anything about the incident report which clearly highlights a gross failure of communication within the company. 164 In response to Mr Evans' submissions concerning breach of confidence, Mr Wilkinson submitted that has nothing to do with this case and the authorities that Mr Evans referred to do not deal with the subject matter of this case at all. 165 Regarding Mr Evans submission that reinstatement pursuant to s 92 of the Act would be a suitable outcome in this matter, Mr Wilkinson submitted that this is probably the least likely case for reinstatement, in view of the fact that the company's own evidence was that staff were intimidated by the applicant and clearly there has been a complete breakdown in the employment relationship. 166 In relation to whether the applicant did or did not repudiate his contract of employment by his actions that day, Mr Wilkinson submitted that clearly this is quite crucial to this issue and said the authorities he had cited suggest that you simply cannot look at the incident and say this happened, without looking at why it happened. Clearly, there was a moment where like Ms Wade, he lost it. Mr Wilkinson said she admitted it and she wasn't sacked. The applicant lost it for a moment. If he had wanted to, he could have struck Mr Burchell but he did not and within seconds, he had apologised. The applicant realised that something had gone wrong. Mr Wilkinson submitted this happens every day in every workplace. People lose their tempers and in a heated moment sometimes say, "if it weren't for the fact that you're my boss", or words to that effect, "I'd hit you". This is not a repudiation of the contract at all. 167 With regard to Mr Evans' submissions on the use of profanities, including profanities contained in his affidavits, Mr Wilkinson said the applicant simply reported certain things. In his submissions, Mr Evans asked where were all these workers to support the applicant and inferred the applicant must be guilty because there are no workers here to support him. Mr Wilkinson submitted that that is not a sustainable argument and in relation to the altercation with Ms Wade, Mr Wilkinson said that whichever way anybody looks at this matter, the applicant went to that office and he left that office. It takes two people to make an altercation and if Ms Wade had considered the matter as a manager should she would have concluded the situation was out of hand. There was no need for what she did and there was no need to follow him down onto the factory floor or take the pay slips across to his office.

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170 The burden of proof in cases of serious misconduct justifying summary dismissal lies with the employer: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White [No3] (1990) 35 IR 70. 171 The applicant has vigorously challenged the respondent's decision to dismiss him summarily on a number of grounds: First, he contends that apart from the accusation that he raised his voice, Ms Wade made no further claims against him concerning any other forms of aggression. Second, he contended Ms Wade pursued him across the factory floor and confronted him regarding the accusations that he had made concerning his pay slips. Third, there was no evidence from Ms Wade at this stage that the applicant was aggressive or threatening towards her. Rather, she made a series of provocative and sarcastic remarks to him, including an insulting remark about his work performance which was not in question. Shortly thereafter, Ms Wade completely " lost it ", launched into a vitriolic tirade telling him to " fuck off out of my face ". He objected to her language objection and subsequently she uttered " Well, in that case piss off out of my face ". Fourth, the respondent had ignored a detailed Incident Report forwarded to Mr Paul Burchell. Fifth, on the evidence, Ms Wade had not given full and proper details of the incident to Mr Burchell, other than during a brief 60 second discussion, which on the evidence, appears to form the substantive basis of the respondent's "full" investigation Sixth, in the absence of a proper investigation to elicit all the facts, the applicant was pressured by Mr Burchell to apologise to Ms Wade and other staff when he believed she should apologise to him for her behaviour. In his stressed state, the applicant freely admitted he made a threatening statement to Mr Burchell and explained that as fast as his anger rose, it subsided. He immediately regretted his actions, apologised and shook hands with Mr Burchell. Seventh, he was denied natural justice and not afforded an opportunity to defend Ms Wade's version of events against his own.

[175]

173 The Commission is required to determine whether or not the applicant's dismissal was harsh as well as whether it was disproportionate to the gravity of the alleged misconduct. The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was, in all the circumstances of the case, too severe. At 302-303, the Full Bench stated: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to bee too harsh a consequence. (Our italics) 174 The applicant received no warning of his dismissal. There was no termination letter. He received a separation certificate which set out the reasons for his summary dismissal stating "...alleged intimidation of staff members and threatening staff with violence". In submissions, Mr Evans said the respondent's case was that it did not rely on the reasons stated in the separation certificate as grounds for the summary dismissal of the applicant. Rather, the Operations Manager, who made the decision after a full investigation, relied solely on the applicant's threat of violence put to him during a meeting in his office on 5 October 2005. Mr Burchell, the "receiver" of the alleged threat of violence from the applicant also had carriage of the investigation.

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182 In cases of dismissal without notice for misconduct, the conduct alleged by the employer must be such that it constitutes a repudiation of the contract of employment by the employee. The onus rests with the employer to show a wilful and deliberate intention on the part of the employee. In New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440, Sams DP stated at paragraph 225: The allegations against the applicant were described as misconduct - the additional adjectives " wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship. 183 Misconduct justifying summary dismissal has been variously described. Whether the conduct of the employee justifies summary dismissal was considered in North v Television Corporation Limited (1976) 11 ALR 599. In the judgment of Smithers and Evatt JJ, their Honours set out their conclusions on the kind of conduct that would justify dismissal at common law at 608-609: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. ...

[187]

For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:- To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. ... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is `wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions .(Italics added) 184 The decisions in North v Television Corporation Limited, Laws v London Chronicle (Indicator Newspapers) Ltd and Natoli are authorities for the proposition that the conduct must be serious, in that it can be said to be inconsistent with the fulfilment of the express or implied conditions of the contract of employment and, it must be wilful, in that it involves a deliberate or intentional flouting of essential contractual conditions. It is reasonably clear on the evidence that the applicant's perseverance to have his pay issue addressed expeditiously, the raising of his voice with Ms Wade and a "heat of the moment threatening outburst", given the stressed state of his mind at the time he met with Mr Burchell, does not conveniently fall within the plain and ordinary meaning of the words "wilful" and "deliberate".

[193]

f) such other matters as the Commission considers relevant. 186 Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct prior to dismissal. In this regard, The Law of Employment by Macken, McCarry and Sappideen, 3rd Edition, states at pages 277-278: Procedural fairness requires that where an employee has been warned that her or his work performance is unsatisfactory or the employee is asked to give an explanation regarding an allegation of misconduct, the employee must first be given sufficiently detailed information about the nature of the allegations and then given adequate opportunity to refute those allegations. 187 Where the misconduct alleged by the employer is grounded, the Commission must consider whether termination is too severe a penalty. In Byrne & Anor v Australian Airlines Ltd, the High Court dealt with an award provision that prohibited "harsh, unreasonable or unjust dismissal". The joint judgment of McHugh and Gummow JJ observed at 72: ... one termination of employment may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. Their Honours continued at 74: Procedures adopted in carrying out the termination might properley be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. 188 Their Honours' joint judgement is authority for the proposition that a termination may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. Additionally, where the findings of an employer's inquiry and investigation are reasonable, the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the gravity of the misconduct. 189 The relevant test is not whether the employer believed, on reasonable grounds and after sufficient inquiry, that that employee was guilty of the conduct alleged. The employer's findings will be relevant to the Commission's determination provided it is established that the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances and the employer gave the employee every reasonable opportunity to respond to allegations. 190 In Antonakopoulos v State Bank, the Full Bench considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal. The Full Bench said at 389: 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.

[194]

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. 191 The applicant has vigorously challenged his dismissal on a number of grounds. Apart from the accusation and admission that he raised his voice, it was Ms Wade who pursued him across the factory floor, confronted him and made a number of disparaging remarks before launching her vitriolic tirade against him. With respect to the incident relied upon by Mr Burchell to summarily dismiss him, the applicant said that as fast as his anger rose, it subsided. He apologised and believed this gesture was accepted. He heard about his dismissal by chance from another employee following certain statements made within the office by Ms Wade. According to the evidence, at no time did the respondent inform him, either orally or in writing, that it was imminent that he was to be summarily dismissed. He was denied any opportunity to defend himself. 192 In the absence of a full and proper investigation, Mr Burchell was not armed with all the facts, including the conduct of Ms Wade, to form an opinion that there were valid grounds to support taking the ultimate sanction of summary dismissal. Accordingly, the applicant contends there were insufficient grounds for the respondent to form a reasonable belief that he committed the gravity of the misconduct alleged. Rather, the applicant admits he was persistent in initially pursuing Ms Wade and on the day, they both "lost it" momentarily.

[197]

196 Mr Evans pressed upon me a Jones v Dunkel (1959) 101 CLR 298 inference that WorkCover was not brought to give evidence to support the application. On the evidence before the Commission, I do not see any causal connection between the applicant's occupational, health and safety concerns and his summary dismissal. As Cross on Evidence (5th Aust ed (1996) at [215] states: The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. 197 Similarly, there is no evidence to suggest that the applicant's dismissal was due in any part to him contacting "Industrial Relations" to obtain advice concerning pay issues put to him by Mr Burchell. Mr Wilkinson did not press this matter. 198 Having considered all the evidence and submissions of the parties put before the Commission, I find the applicant's dismissal was procedurally unfair and in all the circumstances harsh, unreasonable and unjust. 199 Notwithstanding Mr Evans' submission that despite the applicant's summary dismissal, if the Commission found the dismissal harsh, unreasonable or unjust, rather than award compensation the Commission should reinstate the applicant as "there was no animosity towards the applicant on their part". I have formed the view that on the material before the Commission reinstatement would be impracticable as the evidence was that the employment relationship was incapable of restoration. 200 During the hearing, the Commission became aware that the applicant had commenced a period of workers' compensation on or about the date of his dismissal. In submitting that the respondent would not oppose reinstatement, Mr Evans stated that the amount of compensation that had been paid to the applicant was broadly equal to the amount that the applicant was earning at the date of termination. He submitted the amount was $600 per week. Mr Wilkinson asserted the amount was about $650 per week and indicated that he would seek further instruction from the applicant. No further submission was made. 201 Section 89 of the Act deals with orders for compensation. Sections 89(5) and (6) relevantly state: (5) Compensation. If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of six months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. 202 Section 89(6) requires the Commission to consider the alternative income available to the applicant during the six months following termination of employment. In this case the applicant was paid workers' compensation. Because of his incapacity, on the evidence it appears he was unable to otherwise seek alternative employment nor did he seek it. However, the applicant has received workers' compensation payments, and on Mr Evans' submissions, equal to the amount that he would had received prior to dismissal. It was on that basis that he submitted no compensation should be ordered. Mr Wilkinson submitted that the maximum compensation of six months pay should be ordered. 203 In Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano [2006] NSWIRComm 1077, McLeay C acknowledged the limitation imposed by s89(6): 21 In Banning v Great Lakes Council [2002] NSWIRComm 47, his Honour Deputy President Harrison found that a termination of employment in breach of the provisions of s 99 was unlawful, rendering the dismissal harsh, unreasonable and unjust. In ordering reinstatement of Mr Banning, his Honour found that "compensation is not an appropriate or adequate remedy" since in the circumstances of workers' compensation payments being paid, "the limit of the Commission's jurisdiction in the circumstances of this case would result in a small if not negligible payment". 204 This is also a case where the limit of the Commission's jurisdiction in the circumstances must result in a small compensatory payment as any order for compensation must take into account the workers' compensation benefit received by the applicant. However, in determining the order, it is also proper that the Commission take into consideration the range of losses which the applicant has sustained and will continue to sustain because of the unjust termination of his employment: Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano at paragraph 30. 205 For these reasons, it is appropriate to consider the applicant's personal hardship, humiliation, loss of leave and other entitlements together with any diminution of his income as a result of him being on workers' compensation. I make the following orders.

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