Antonakopoulos v State Bank [2016] NSWIRComm 1010 | Case summary

Antonakopoulos v State Bank [2016] NSWIRComm 1010 | Case summary | Zoe

[4]

Allegation 2 - Incorrect notation on M2 Service Report: 1. On M2 and M3, you were tasked with Ellipse work order No. 00282680 to carry out an M2 inspection on bus MO1196. 2. During your inspection you failed to check or secure the road wheels. 3. When completing the M2 service report (Ellipse work order 00282680) following your inspection, you recorded "NR" in the status box for Item 31, check wheel nut tension (Refer WI 26.04.40). 4. Your actions as outlined in particular No 3 were inappropriate, demonstrated a lack of diligence and constitute a failure on your part to carry out your duties and responsibilities to the required competency level of your position, to stay up to date with policy relating to your position and to follow reasonable and lawful instructions. 5. Your actions as outlined in particular No. 3 constitute a failure on your part to follow a reasonable and lawful instruction, specifically WI 26.04.51 in completing the M2 service report.

State Transit contended Mr Dissanayake was given specific instructions on how to carry out the required inspections, which required him to check wheel nut tension. His failure to undertake the required check was a serious breach of safety procedures. State Transit also relied upon a final warning given to Mr Dissanayake in 2013 in response to his failure to follow safety procedures.
Mr Dissanayake's case relied on the fact that following the completion of his inspection, the vehicle was subsequently inspected by another mechanic and an external government authority. No issue with the wheel nuts was identified. Moreover, the ultimate cause of the wheel coming off the bus was the fact that the wheel bolts snapped. In that regard, Mr Dissanayake contended the safety check that he was required to perform would not have disclosed any particular bolt weakness. Accordingly, there was no valid reason for his dismissal. The dismissal was also harsh as he was summarily dismissed and forfeited accrued pro rata Long Service Leave.
State Transit considers Mr Dissanayake was afforded procedural fairness during the disciplinary process. Dismissal was an appropriate punishment given the seriousness of the breach of safety procedures and a final warning in 2013 for a serious safety breach. That particular safety breach occurred when he was required to move a bus that he was working on. When Mr Dissanayake attempted to move the bus, he was unable to stop it rolling forward because there was insufficient air pressure in the brake system. Mr Dissanayake was suspended at the time without pay for three weeks and a reduction in salary for a period of six months.

[7]

Allegation 2 - Incorrect notation on M2 Service Report

Mr Dissanayake stated that on 16 August 2014, he conducted the required M2 mechanical service inspection on bus 1196, a Mercedes Benz vehicle, using the M2 job card as a guide. Mr Dissanayake ticked off the relevant items within the job card and wrote "N/A" on the job card checklist concerning the requirement to check wheel nut tension because the bus had retaining clips fitted to the wheel nuts. He also marked "N/A" on that part of the required inspection relating to the need to check the emergency brake release switch seal as this particular component was not fitted to the vehicle.
Following completion of the inspection, Mr Dissanayake's supervisor, Mr Hedley reviewed and signed off the M2 service job card consistent with normal practice.
On 22 October 2014, the Regional Fleet Manager, Mr Craig Brown approached Mr Dissanayake and showed him a job card stating words to the effect: Hi Sunil, I've got a completed job card of yours. I see that you've written down "not applicable" for the wheel nut tension check? Can you tell me you wrote this? Mr Dissanayake stated he replied to the following effect: I wrote that because the retainer clips were fitted to the wheel nuts. I never check the tension of the wheel nuts when clips are fitted. Mr Brown did not give Mr Dissanayake any particulars concerning the job card.
Shortly after his discussion with Mr Brown, Mr Dissanayake became aware that there had been an incident where a wheel(s) had separated from a State Transit bus. However, he was unaware at that time which bus was involved and whether he had serviced it.
On 3 November 2014, the Workshop Manager, Mr Mills handed Mr Dissanayake a copy of an April 2014 Maintenance Alert that stated mechanics were required to check the tension of wheel nuts irrespective of whether or not retaining clips had been fitted to the vehicle wheels. Mr Dissanayake recalled the Maintenance Alert also stated that job cards would be amended to reflect this requirement and a table outlining the new wheel nut inspection requirements would be added to the May 2012 Maintenance Instruction.
It was Mr Dissanayake's evidence that prior to 3 November 2014, he had never been shown or given a copy of the revised Maintenance Alert. Nor had is supervisor alerted him to the change.
On 6 November 2014, Mr Dissanayake met with Mr Mills, who confirmed the wheel separation incident that occurred on 22 October 2014 involved bus 1196. Mr Dissanayake had undertaken an M2 Inspection on this vehicle. Mr Mills subsequently suspended him from work without pay pending a formal investigation on the grounds that he had made the notation, "N/A" concerning the requirement to check wheel nut tension as part of the M2 Inspection.
Mr Dissanayake said that at the time of his suspension, Mr Mills had also provided information that bus 1196 had received an M6 service on 28 September 2014 - a more substantial service than the earlier M2 service. A "shaker test" was also undertaken by RMS on 8 October 2014.
On 7 November 2014, Mr Dissanayake was provided with an E1 letter which alleged that he was responsible for the 22 October 2014 incident and invited him to respond to the allegation within seven days. On 10 November 2014, Mr Dissanayake conferred with his Union representative, Mr Warna Perera. He later discovered Mr Perera was the mechanic who performed the M6 service on 28 September 2014. Mr Perera was also suspended from work.
Mr Dissanayake provided his response to the allegations on 12 November 2014. Shortly stated, Mr Dissanayake denied the allegations and contended it had been established "that the studs broke off inside the hub, causing them to fall out". Moreover, when Mr Perera conducted the M6 service on bus 1196, he did not identify any error or fault that may have been caused by Mr Dissanayake's earlier M2 Inspection.
Mr Dissanayake was subsequently terminated summarily for misconduct on 12 December 2014. Accordingly, he received no payments in lieu of notice or in recognition of his nine years' service with State Transit. He had also been suspended without pay for five weeks.
In or around the time of his dismissal, Mr Perera told him that he had received a final warning concerning the M6 service undertaken in September 2014.
Following his dismissal, Mr Dissanayake stated he had applied for two motor mechanic positions and had been unsuccessful. He had registered with Drake International for temporary work and had also applied for six other positions. The stigma of summary dismissal was making job finding difficult.
Mr Dissanayake contended the independent inspection undertaken on 8 October 2014 required RMS "to check wheel security and integrity of any heavy vehicle and…check the integrity of any wheel fasteners". Mr Dissanayake also stated he had not been provided with the Metallurgical Investigation Report prepared by Mr John Gray, dated 20 November 2014, prior to his "show cause" interview with State Transit. The Investigation Report was attached to Mr Gray's Statement filed in these proceedings.
In cross-examination, Mr Dissanayake confirmed it was his practice that where a bus was fitted with wheel nut locks, he did not check the wheel nut tension when servicing that particular vehicle. However, he subsequently agreed that the relevant job card at Item 31 stated, "Check wheel nut tension". He further agreed there was no qualification concerning a wheel fitted with lock nuts. It was Mr Dissanayake's evidence that the instruction "Check wheel nut tension" was very clear.
Mr Dissanayake stated that when other mechanics at the Ryde Depot conducted an M2 service, they did not, to the best of his knowledge, check wheel nut tension. However, they do "put the tick" on the relevant job sheet. Mr Dissanayake also maintained that it was standard practice within the Ryde Depot not to check wheel nut tension despite the fact that Work Procedure WI.26.04 specifically required wheel nut tension to be checked every six weeks.
Mr Dissanayake agreed that locking clips had been fitted to all State Transit buses in 2003. In that regard, Mr Dissanayake was shown Work Order 1208 where he had re-tensioned the wheel nuts of a bus because that that particular vehicle did not have lock nuts fitted to the wheel. He could not provide an answer to the question, "Why didn't (you) note that fact on the job sheet as a defect". In re-examination, Mr Dissanayake maintained his evidence that he was not required to check wheel nut tension where lock nuts had been attached to the vehicle's wheels.

[8]

Mr Ian Satchell

Mr Satchell's position with State Transit is Manager, Fleet Operations.
It was Mr Satchell's evidence that State Transit maintenance instructions required wheel nuts to be checked and tightened every 6-8 weeks. He further that all motor mechanic tradesmen would be aware of this requirement because it had been part of State Transit's maintenance routine for many years. On 23 May 2013, Maintenance Instruction WI.26.04.53 was issued to staff including motor mechanics. The Instruction required the fitting of wheel nut retainers to all buses. As a consequence, the retainers were required to be checked as part of all vehicle services. However, the Instruction was silent concerning the re-tensioning of wheel nuts.
On 4 April 2014, Maintenance Alert 26.01.34 was issued to staff, including motor mechanics, advising them that wheel nut tension checks were being implemented immediately in respect of M2 and M3 services. That check was required to be undertaken irrespective of whether or not wheel nut retaining clips had been fitted to the vehicle.
Following the wheel separation incident on 22 October 2014, Mr Satchell was instructed by the General Manager, Fleet Operations and Infrastructure, Mr Michael Reardon, to conduct a technical investigation concerning the incident. As part of that investigation, Mr Satchell reviewed service and inspection histories for bus 1196. That history revealed Mr Dissanayake had worked on the nearside rear wheel and wheel nuts during M2 mechanical inspection performed on 16 August 2014. An RMS visual inspection of the vehicle was also undertaken on 8 October 2014.
On 6 November 2014, Mr Reardon asked Mr Paul Welzel, Manager, Revenue Protection Unit and himself to undertake a formal disciplinary investigation concerning the incident. The allegations were subsequently put formally to Mr Dissanayake and his written response to those allegations was received on 12 November 2014.
A technical investigation report prepared by Mr Stephen Andriske, Project Manager, Fleet Policy Standards, had determined the wheel separation was a result of incorrect wheel tensioning. He and Mr Welzel subsequently determined the allegations against Mr Dissanayake had been proven. On 12 December 2014, Mr Reardon decided dismissal was an appropriate penalty in view of Mr Dissanayake's past conduct.
It was Mr Satchell's evidence that in four of the seven M2 and M3 service work orders completed by Mr Dissanayake between 1 and 16 August 2014, he had indicated "with a tick that he had completed the wheel nut tensioning". Moreover, Mr Satchell also contended there was sufficient evidence in Mr Andriske's investigation report to support the conclusion that wheel separation was caused by the wheel nuts becoming loose due to incorrect tensioning
Mr Satchell also contended that the review of Mr Dissanayake's M2 and M3 service work orders did not identify any services or inspections indicating that wheel nut retaining clips had been missing, replaced or fitted. In the event a clip required attention, Mr Dissanayake should have place a notation on the service order that a repair was required or had been undertaken. Wheel nut tensioning was required every six weeks in accordance with the relevant State Transit maintenance instruction.
Mr Satchell stated Mr Dissanayake's assertion that the wheel separation was not a result of his actions was contrary to the findings of the Technical Investigation conducted by Mr Andriske. Those findings were also supported by the consulting metallurgist's report prepared by Mr Gray: 2. In order for any wheel stud to initiate fatigue cracking, the clamping forces associated with the tightened nut must be overcome such that relative movement occurs and the stud stretches. Unless there are design issues associated with the clamping system, this type of failure is invariably associated with poor tightening procedures.
Mr Satchell stated the RMS "shaker test" could not be relied upon to identify a lack of wheel nut tension unless "the wheel was loose enough to be visibly noticeable". The only correct method to test wheel nut tension was to check the wheel nuts with a torque wrench consistent with State Transit's Maintenance Instructions.
Mr Satchell examined approximately 30 M2 and M3 service work orders completed by 16 individual mechanics at the Ryde Depot between 1 and 18 August 2014 to test Mr Dissanayake's claim that it was not a common practice to check nut tension where lock nuts had been installed on the vehicle. Mr Satchell explained 27 of those work orders were compliant with a tick indicating completion of the tensioning requirements. Of the three non-compliant work orders, two had been completed by Mr Dissanayake. Accordingly, he considered it was common practice at the Ryde Depot to check wheel nut tension at all times during vehicle services and Mr Dissanayake's claim to the contrary was incorrect.
It was also Mr Satchell's evidence that prior to 4 April 2014, the relevant maintenance instruction was "re-tension wheel nuts (if lock nut clips not fitted)" and subsequent to 4 April 2014, the instructions was changed to, "check wheel nut tension (refer to work instruction 26.01.40)".
In cross-examination, Mr Satchell confirmed the requirement to check the tensioning of wheel nuts was a standard requirement of the M2 and M6 services. He also confirmed it was the role of the Regional Fleet Manager to bring any variations to work orders or maintenance instructions to the attention of relevant staff. Mr Satchell denied the suggestion that at the time of the bus 1196 incident on 22 October 2014, he had some doubts that other buses within the Ryde Depot fleet may not have had their wheel nuts checked.
Mr Satchell confirmed that an investigation into the conduct of Mr Perera was also underway at the time of Mr Dissanayake's disciplinary investigation. He was also involved in that investigation which ultimately recommended Mr Perara be given a final warning.
With reference to Mr Dissanayake's contention that he was unaware of the change effective 4 April 2014 requiring mechanics to check wheel nut tension, Mr Satchell stated the requirement was clearly stated on the revised service order check sheet.
Mr Satchell confirmed he was involved in the August 2014 investigation concerning Mr Hedley, the leading hand supervisor who had signed off Mr Dissanayake's M2 bus 1196 service conducted on 18 August 2014.

[10]

Mr Paul Welzel

Mr Welzel is State Transit's Revenue Protection Manager. Mr Welzel was appointed an investigating officer with Mr Satchell to undertake the investigation concerning the allegations against Mr Dissanayake.
Mr Welzel's evidence comprised the Investigation Report and a series of annexures, including the relevant M2 Service Work Order completed by Mr Dissanayake on 16 August 2014, Maintenance Instructions concerning the securing of road wheels, the investigation form, the metallurgical investigation report prepared by Mr Gray, records of interviews and various correspondence.
In cross examination, Mr WelzeIt stated he had no experience in the maintenance of buses per se. However, It was his understanding that wheel nut tension was required to be checked whether the wheel nuts had clips attached or not. He later qualified that statement as follows: No, as I said, I'm not a mechanic but my personal view would be that if one of the requirements is to check the wheel nuts to make sure they're secure, whether they've got clips on or not, I'd just be making sure they're locked on because I wouldn't want to assume that whoever put the clip on has done the right job. I mean, it would be - if I was working on my own car and I knew what I'd done to it, then I could make assumptions. But if I'm looking at different buses coming through, I don't know who put the clip on and I don't know whether it was put on properly. So, I wouldn't be assuming that that clip is on there and that the nut's been tensioned properly.
Mr Welzel confirmed that during the course of the investigation, Mr Dissanayake stated he was not aware of the requirement to check wheel nut tension where the wheel nuts had clips on them. He could not recall whether he had raised Mr Dissanayake's response with his supervisor or leading hand.
In support of his proposition that Mr Dissanayake was aware of the requirement to check wheel nut tension, Mr Welzel stated the Work Order at Item 31 required the motor mechanic to tick that they had "checked wheel nut tension". He further stated that in his view, the Work Order clearly stated what Mr Dissanayake was required to do. Mr Welzel said that work instructions stated that every six to eight weeks, the wheel nuts were to be checked irrespective of whether or not the wheel had been removed during that service interval.

[11]

Mr Michael Reardon

Mr Reardon holds the position, General Manager, Fleet Operations and Infrastructure. Mr Reardon was first employed with State Transit in 1980 and has subsequently held senior management positions in operations and engineering since 1991. The focus of his current position is engineering and bus maintenance.
Mr Reardon stated that on 6 June 2013, an incident occurred at Ryde Depot where a bus under repair by Mr Dissanayake, "ran away" and collided with the workshop roller door. A preliminary investigation found that Mr Dissanayake had been working on the bus and had attempted to move it within the workshop area. It was subsequently determined that Mr Dissanayake had failed to ensure there was sufficient air pressure in the braking system which resulted in an uncontrollable runaway situation.
A subsequent disciplinary investigation found that Mr Dissanayake was solely responsible for that incident. Mr Reardon also stated that he was the reviewing officer in that matter and his role was to determine an appropriate punishment.
Following Mr Dissanayake's response to the allegations concerning this particular incident and representations from his Union, the punishment of dismissal was reduced to a final warning, a four week suspension without pay and a regression in grade for a period of six months. Mr Reardon stated the allegations and findings against Mr Dissanayake were serious breach of basic safety principles.
In relation to the 22 October 2014 incident, it was Mr Reardon's evidence that the wheel separation had occurred because the wheel nuts had not been properly tensioned. Mr Dissanayake had failed to re-tension the wheel nuts as part of the routine service on the vehicle. Accordingly, Mr Reardon initiated a formal disciplinary process against Mr Dissanayake. He was subsequently stood down without pay pending the outcome of the investigation.
Mr Reardon stated that Mr Satchell and Mr Welzel were appointed to investigate the incident. At the same time, two other employees were suspended without pay pending the outcome of a disciplinary investigation on the grounds that they were also involved in the wheel separation incident.
On 12 December 2014, the investigation report was provided to Mr Reardon. Mr Reardon subsequently reviewed the report and its findings. He noted that the allegations against Mr Dissanayake had been proven. It was also Mr Reardon's view that the investigation process had been conducted in accordance with State Transit procedures and Mr Dissanayake had been afforded procedural fairness.
Mr Reardon subsequently determined the appropriate punishment for Mr Dissanayake was summary dismissal. In determining that punishment, Mr Reardon considered Mr Dissanayake's length of service and employment history. He did not consider that Mr Dissanayake's nine years of service was sufficient to override the serious nature of the safety breach given the previous final warning issued to him in July 2013.
In relation to the two employees also subject to an investigation, Mr Reardon stated one employee had been permanently removed from a supervisory role, demoted to a tradesperson position and transferred to another depot. The other employee was suspended without pay for a period of 22 days and placed on a final warning. They were not dismissed because they were not on a final warning for any safety related incidents as was the position of Mr Dissanayake.
It was Mr Reardon's evidence that the bus subject to the rolling incident was fitted with a primary safety feature that prevented the bus from moving if there was insufficient air pressure in the braking system. Shortly stated, the park brake should not be released in the event there was insufficient air pressure in the breaking system. Accordingly, Mr Dissanayake should have been fully aware of the risks associated with moving a bus given both the park brake and the emergency low air braking system had been disconnected.
Mr Reardon subsequently determined Mr Dissanayake had failed to ensure there was sufficient air pressure in the braking system before moving the bus. He had also ignored an audible safety warning buzzer that sounds in the event of low pressure being detected in the air breaking system when a bus is moved.
Mr Reardon further stated Mr Perera had admitted that he did not conduct the nut tensioning procedure as required on the M6 Maintenance Worksheet and had been disciplined for that breach of procedure.
In cross-examination, Mr Reardon stated that when considering the allegations against Mr Dissanayake, he had relied upon the report prepared by Mr Satchell and Mr Welzel. He also considered Mr Dissanayake's employment record.
It was Mr Reardon's evidence that he had worked for State Transit for over 35 years and it was his opinion that wheel nut tension had been checked at every bus service over that period. It was also his view that wheel nuts should be checked for tension irrespective of whether they had clips attached or not. Mr Reardon stated that the Work Order clearly stated "check wheel tension" and Mr Dissanayake had placed "N/R" next to that required check. Accordingly, Mr Dissanayake had failed to follow documented procedures.
Mr Reardon considered it was not necessary for him to be satisfied that Mr Dissanayake had been issued with any revised working instructions under the global heading of "Maintenance Alerts" on the grounds that the Work Order clearly states, "Check wheel nut tension". In his view that was a very clear direction and requirement.

[12]

Applicant

Mr O'Sullivan submitted that Mr Dissanayake's summary dismissal was harsh, unreasonable and unjust.
It was Mr Dissanayake's case that prior to 26 May 2013, tension checks were not required to be carried out on the wheel nuts of buses where retaining clips had been fitted. On or around 4 April 2014, State Transit made a decision to change that procedure and in that regard, issued a maintenance alert that required wheel nuts to be tensioned whether or not retaining clips had been fitted. It was Mr Dissanayake's evidence that he was not made aware of the maintenance alert until November 2014.
Mr Dissanayake was not afforded any payment in lieu of notice or pro rata long service leave. In that regard, Mr O'Sullivan submitted that State Transit was required to prove that on 16 August 2014, Mr Dissanayake was unaware that he was required to check the tension of wheel nuts on Bus 1196 as required by the relevant Work Order.
Mr O'Sullivan submitted that Mr Dissanayake's summary dismissal was unfair because no period in lieu of notice was paid nor was he afforded the benefit of accrued pro-rata long service leave. In submitting that Mr Dissanayake's summary dismissal was harsh, unreasonable and unjust, Mr O'Sullivan referred to a line of authorities including Outboard World Pty Ltd v Muir (1993) 51 IR 167 , Byrne & Anor v Australian Airlines Limited [1995] HCA 24; (1995) 61 IR 32 and Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101.
It was Mr Dissanayake's evidence that motor mechanics would be advised of any updated or changed work instructions through toolbox type meetings or the provision of a "Maintenance Alert" or the provision of the actual revised or updated work instruction. Mr O'Sullivan considered State Transit had not provided any evidence to show how Mr Dissanayake would have been made aware or should have been aware of those changed procedures. There was simply no evidence that the revised "Maintenance Alert" had been provided to Mr Dissanayake.
Mr O'Sullivan submitted that there was no evidence before the Commission to support the fact that the relevant maintenance alert was in fact distributed to staff at the Ryde Depot, including Mr Dissanayake. Accordingly, Mr Dissanayake was entitled to form the view that the alleged misconduct has not been proven by State Transit to the requisite standards.
In the alternative, if the Commission finds that the misconduct has been proven, then Mr Dissanayake's dismissal was harsh, unreasonable and unjust given the conduct relied upon essentially amounted to a minor breach of procedure. In that regard, Mr O'Sullivan stated that between 26 May 2013 and 4 April 2014, there was no requirement for State Transit mechanics to check wheel nut tension whatsoever.
In support of the proposition that Mr Dissanayake's dismissal was harsh, Mr O'Sullivan submitted Mr Hedley, the leading hand who approved Mr Dissanayake's M2 Service Report, was given a final warning on 24 November 2014. The fact that Mr Hedley received a lesser punishment to Mr Dissanayake for similar conduct renders the dismissal unjust.
Mr O'Sullivan submitted that Mr Dissanayake's conduct did not constitute a fundamental and wilful repudiation of his contract of employment. The overwhelming evidence before the Commission was that Mr Dissanayake was not aware of the revised procedures concerning the tensioning of wheel nuts because State Transit had failed, or could not provide evidence, that staff at the coal face, such as Mr Dissanayake, had in fact been formally advised of the change.
Mr O'Sullivan submitted that there was no impediment to the Commission considering reinstatement as the proper remedy in this case. In the alternative, Mr O'Sullivan submitted that the Commission should order maximum compensation, particularly in view of the fact that State Transit did not pay Mr Dissanayake notice or his pro-rata Long Service Leave following nearly 10 years of service.

[13]

Respondent

Mr McLean submitted that State Transit's disciplinary action against Mr Dissanayake was based on two allegations, namely, the failure to conduct the proof re-tensioning of the wheel nuts on State Transit Bus 1196 and second his failure to record the correct details on the relevant Work Order document.
Mr McLean submitted that Mr Dissanayake had not denied the allegations and had put forward a series of explanations in an attempt to explain why the breaches occurred. While Mr Dissanayake contends that he was unaware of the requirement to carry out re-tensioning, the M2 Service Work Order was very clear and the instruction was "Check wheel nut tension". In that regard, Mr Dissanayake also conceded that he was aware that the previous Work Order had stated "Check wheel nut tension (if wheel lock nuts not fitted)".
It was State Transit's submission that Mr Dissanayake should have been aware of the changed requirements concerning wheel nut tension by the plain reading of the instruction set out in the Work Order. Mr McLean submitted that it seemed incredible that Mr Dissanayake could not remember or recall a change had been made, despite his admission that he dealt with M2 Service Work Orders quite regularly, but had not noticed the change that had taken place between April and August 2014.
State Transit considered Mr Dissanayake had ignored the Work Order instruction to carry out the wheel nut tension check and how that check was to be undertaken. Mr Dissanayake's explanation that wheel tensioning was only required when new wheels were fitted to a vehicle was nonsense and was disputed by Mr Satchell.
Mr McLean submitted that the proposition advanced by Mr Dissanayake that it was a Ryde Depot wide practice not to check wheel nut tension where nut locks were fitted could not made out on the evidence. Rather, the evidence confirmed there was widespread compliance by the 30 mechanics at Ryde Depot with the exception of Mr Dissanayake and one other employee.
State Transit accepted that Mr Hedley should have detected Mr Dissanayake's errors and subsequent to the incident, he was disciplined. Similarly, Mr Perera, who failed to undertake the re-tension check as part of that M6 Service in September 2014, had also been disciplined. Further, the RMS inspection undertaken on 8 October 2014 would not, on the evidence of Mr Satchell and Mr Andriske, have identified Mr Dissanayake's service errors.

[16]

Relevant principles

Part 6 of Chapter 2 of the Act requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. The exercise of the Commission's powers in relation to unfair dismissal requires a determination as to whether a particular dismissal was harsh, unreasonable or unjust or all three.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.
In circumstances where the Commission finds that the dismissal of an employee was in all the circumstances of the particular case, "harsh, unreasonable or unjust", the Act provides remedy.
In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32].)
Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct or poor performance prior to dismissal. It also requires that where an employee has been warned that their conduct or performance is less than satisfactory or the employee is asked to give an explanation regarding an allegations concerning conduct or performance, the employee must first be given sufficiently detailed information about the nature of the allegations and an adequate opportunity to refute those allegations or remedy the deficiencies alleged by the employer.
Successive Full Benches of the Commission have stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to, and including, the dismissal. The decision of the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211 at [118] reflects that view: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.
Section 88 of the Act provides the statutory basis for considering procedural issues: 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant.
In Antonakopoulos v State Bank (1999) 91 IR 385, 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 and 390: 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. … 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.
In Buckman v Burdekin (1998) 85 IR 415 referred to in Antonakopoulos the Full Bench said at 418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter, which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.

[17]

Was the dismissal of the respondent unreasonable or unjust?

In taking the decision to dismiss Mr Dissanayake, State Transit relied on the fact that he was a qualified motor mechanic whose duties included the service and inspection of State Transit bus fleet. State Transit also relied on the fact that a final warning was given to him in 2013 as a result of his failure to follow safety procedures.
State Transit submitted the M2 Work Order provided Mr Dissanayake with specific instructions on how to carry out the various inspections and services required on vehicles within the bus fleet generally and specifically, how to carry out the required wheel nut tension check.
The overwhelming evidence in this matter supports the proposition that Mr Dissanayake's conduct between August and October 2014 was below expectations. The position of motor mechanic is critical to the safe performance of State Transit's bus fleet. Mr Dissanayake had an obligation to work as directed, including the undertaking all vehicle services according to the relevant work order. The work order instructions are written in simple language. That said and despite his evidence that he was unaware of the revised work order at the time he conducted the M2 service on 18 August 2014, the language of the work order provides a very clear and unambiguous instruction to motor mechanics.
In cross-examination, Mr Dissanayake agreed that the M2 service relevant job card at Item 31 stated and provided the instruction, "check wheel nut tension". He further agreed there was no qualification concerning a wheel fitted with lock nuts. Shortly stated, Mr Dissanayake was required to tick that he had "checked wheel nut tension". That instruction applied irrespective of whether the revised "Maintenance Alert" had been formally provided to him. It was certainly acted upon by the majority of motor mechanics employed at the Ryde Depot.
On 18 August 2014, Mr Dissanayake was required to carry out a wheel tension check on bus 1196 at the Ryde depot. It was State Transit's case that the failure by Mr Dissanayake to conduct the wheel tension check as directed, resulted in two wheels subsequently separating from the bus, was a serious breach of vehicle maintenance and safety procedures. The suggestion that Mr Dissanayake's conduct was a minor breach of procedure is absolute nonsense.
As part of the investigation, Mr Dissanayake was given a period of time to consider the Form E1 allegations report and was afforded an opportunity to respond to the allegations that he had failed to comply with the full terms of the M2 Work order. He was also given an opportunity to argue why he should not be dismissed.
State Transit considers Mr Dissanayake was afforded procedural fairness following the incident and during the investigation that followed. The penalty of summary dismissal was deemed appropriate given the seriousness of the safety breach and his previous warning.
In determining misconduct, State transit sought to rely on the fact that Mr Dissanayake used the notations, NR (not required) and NA (not applicable) when filling out the M2 service work order check list section concerning the requirement to carry out the required tension checks. In cross-examination, he contended that "NR" should be read as "NA" in his handwriting.
Mr Dissanayake could not explain why on occasions he had use "ticks" on the earlier M2 service check list to show that tensioning had been carried out despite the relevant vehicle being fitted with wheel lock nuts. Nor could Mr Dissanayake explain the inconsistency whereby he had placed a tick to indicate tensioning had been completed in circumstances where wheel nuts were no locks had been fitted.
State Transit submitted Mr Dissanayake did not make a notation on the work order check list in circumstances where the lock nut was missing, despite the normal practice that a mechanic would make a note concerning a missing part or fault and initiate steps to have the part replaced or rectified.
State Transit further contended that Mr Dissanayake had refused to accept that he made any mistakes when servicing State Transit vehicles and had shown no contrition for his actions. In short, State Transit relies on the proposition that as a qualified mechanic, Mr Dissanayake should have been aware of the required service obligations as they were clearly set out on the M2 work order instructions.
In the event he did not understand the work instruction, Mr Dissanayake should have sought clarification. There was no depot wide practice not to check wheel nut tension where nut locks were fitted as asserted by Mr Dissanayake.
I do not consider State Transit's decision to summarily dismiss Mr Dissanayake was a disproportionate response taking into account his service and work history. With more than nine years' service, Mr Dissanayake should have known better and been aware that State Transit's work procedures. workplace and public safety policies are paramount. Those policies provide mandatory obligations. The requirements concerning wheel nut tension is evident on the plain reading of the work order instruction.
The final warning given to Mr Dissanayake in July 2013 for the bus rolling safety breach squarely put him on notice that: …any future breaches …of (the) State Transit Code of Conduct or policies may lead to the termination of your employment.
Clearly, any deviation from the job requirements put in place by State Transit, including the procedure implemented to ensure the safe movement of buses within the depot environment or, to undertake what the plain and ordinary meaning of the work order instructs a motor mechanic to do, poses serious risks to the workplace and the public at large.
On the material before the Commission, it cannot be said that Mr Dissanayake responded positively to the safety warning that followed his conduct in August 2014.
Employees must obey all lawful commands that fall within the scope within the employment relationship and that are reasonable: R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan 142 [1938] HCA 44; (1938) 60 CLR 601. It follows that this duty encompasses all matters that are connected with the job performed by an employee pursuant to his or her employment contract and any of its incidents.
Moreover, State Transit has statutory and common law duties to prevent accidents in the workplace and in terms of accident prevention, it must have an ability to remove from the workplace someone who has seriously breached or undermined policies designed to ensure a safe system of work: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306. At [12], Mason, Wilson, Brennan and Dawson JJ stated: The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system... ...in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.
The Full Bench decision in Franklins Ltd v Webb (1996) 72 IR 257 dealt with summary dismissal for serious misconduct. In that regard, the Full Bench at 262 observed that employers: ...need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.
The Full Bench observation in Franklins Ltd v Webb confirm the onus upon an employer to ensure that allegations concerning an employee's performance are investigated in a proper and procedurally fair manner. On the material before the Commission, that onus has been met by State Transit.
Mr Dissanayake was placed on a final warning in 2013 for a serious breach of safety. The principal purpose of issuing a "warning" is to advise the employee that their conduct or work performance is inadequate and in the event they do not raise their level of performance to the required standard, dismissal may follow.
The 2013 final warning put Mr Dissanayake squarely on notice that his non-compliance with State Transit's policies or procedures may lead to his dismissal. The evidence in this case was that the final warning was clear and unambiguous.
Against the backdrop of the final warning and in the absence of any remorse or contrition, State Transit's decision to dismiss was not a disproportionate response taking into account his service and work history. Mr Dissanayake's conduct effectively disenfranchised him from any alternative penalty to dismissal without notice, such as a further warning or reprimand, as was the case with Mr Hedley and Mr Perera.
It would be harsh, unjust and unreasonable for an employer to dismiss an employee summarily on the ground of serious misconduct without taking reasonable steps to investigate those allegations and give the employee a fair chance of answering them. I am satisfied that a proper investigation was undertaken and the opportunity given to Mr Dissanayake to respond to the allegations was adequate.
Workplace safety is of paramount importance. State Transit is obliged to take reasonable care to provide all employees with a safe place of work and safe systems of work at all times. A mirror obligation applies to its customers and the public at large.
Mr Dissanayake's conduct concerning the work requirements of the M2 Service set out in the work order check list was inconsistent with a clearly expressed instruction. The Commission finds that on the balance of probabilities, the allegations that gave rise to Mr Dissanayake's dismissal are proven to the requisite standard.
State Transit's decision to dismiss Mr Dissanayake was not a disproportionate response taking into account his service and work history. It is open to an employer following an investigation into allegations of serious misconduct made against an employee to accept, on the balance of probabilities that the allegations are substantiated. The outcome for the employee in such circumstances is usually dismissal as was the case here.
The Commission finds Mr Dissanayake was afforded an opportunity to respond to the reasons relied upon for his dismissal.
The dismissal was neither unreasonable nor unjust in all the circumstances of the case.

[18]

Was the dismissal of the respondent harsh?

Mr Dissanayake submitted his summary dismissal was particularly harsh as he has lost an entitlement to accrued long service leave. Moreover, he understood that his is leading hand supervisor, Mr Hedley, who ultimately approved the service report that gave rise to his dismissal, was not disciplined by State Transit.
State transit submitted that both Mr Hedley, Mr Dissanayake's supervisor and Mr Perera, the mechanic who performed the M6 service on bus 1196 in September 2014 had been disciplined.
I have also had regard to Mr Dissanayake's period of employment, his personal circumstances and all of the other circumstances raised by Mr O'Sullivan during proceedings.
State Transit is entitled to expect compliance with lawful work directions given to employees and its express workplace policies and procedures. Not all breaches of such policies will result in dismissal.
The Commission is required to consider whether in the circumstances if this particular case, the penalty of dismissal was harsh, having regard to the mitigating factors concerning Mr Dissanayake's age and difficulty in obtaining alternative employment. The Commission is also required to consider procedural factors. As stated above, the Commission considers Mr Dissanayake was afforded procedural fairness.
The position Mr Dissanayake now find himself is essentially no different to the circumstances facing other persons who have been dismissed from their employment. However, by being dismissed summarily, he has also suffered the loss of pro rata long service leave and payment in lieu of notice.
In the circumstances of this case and having regard to the need to afford a "fair go all round" to both Mr Dissanayake and State Transit, I am satisfied that the dismissal was harsh. The Commission finds the dismissal was harsh, particularly given his length of service, age and the evidence concerning his difficulty in obtaining alternative employment.
The primary remedy under the Act is reinstatement. It is only where the Commission determines reinstatement is impracticable that the other remedies available under s 89 of the Act may be applied: Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. In Plummer v Stannard Bros Launch Service [2005] NSWIRComm 301, the Full Bench reinforced that position at paragraph [115]: Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453.
Moreover, in Little (No 2) the Full Bench considered the test to be applied as to the practicability of reinstatement of re-employment at paragraph [91]: It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342).
I have also given consideration to Mr Dissanayake's evidence and the seriousness of his conduct. Whether that conducts constituted a deliberate act and whether it can characterised as carelessness does not deter my view that it was serious misconduct with very serious and possible fatal consequences.
Reinstatement in the circumstances of this particular case and the nature of the two safety breaches that gave rise to Mr Dissanayake dismissal render reinstatement impracticable.
I have considered the provisions of s 89(5) and (6) of the Act. I have also considered all the evidence and submissions put to the Commission by the parties and have determined that in all the circumstances of this case, it is appropriate to order the respondent to pay the applicant an amount of six weeks' ordinary pay as compensation less appropriate taxation, payable within 21 days.

Antonakopoulos v State Bank

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