Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of Tony Ferrato) v Auburn Council

Auburn City Council (Respondent) File Number(s): IRC 1033 of 2010

Introduction 1The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("the Union"), lodged an application on behalf of Mr Tony Ferrato for relief from unfair dismissal under section 84 of the Industrial Relations Act 1996 ("the Act") on 16 September 2010. 2The application was made against Auburn City Council ("the Council") in relation to its dismissal of Mr Ferrato on 31 August 2010. The Union's application sought reinstatement for Mr Ferrato in relation to the dismissal. 3A conciliation conference was conducted by MacDonald C on 13 October 2010. The parties did not settle the matter and the standard directions were made to prepare and list the application for hearing. 4The application was heard in Sydney on 15 and 16 December 2010. At the hearing the Union was represented by Mr A Walkaden, Legal Officer with the Union, and the Council was represented by Mr R Crow, of counsel. At the completion of the hearing the Commission reserved its decision. 5The Commission listed the matter for decision on 6 April 2011. Due to an technical problem with the electronic copy of the decision, the written decision was unable to be published on that date. The Commission, with the agreement of the parties, handed down its orders made in relation to this application on 6 April 2011 as scheduled and indicated the reasons for its decision would follow. Those reasons, with the orders made on 6 April 2011, are now published by way of this written decision. Background 6Mr Ferrato has been an employee of the Council since 22 August 1999. Throughout his service with the Council he was employed as a mechanic in a work shop responsible for servicing and maintaining Council vehicles and other equipment. 7Prior to his dismissal on 31 August 2010, Mr Ferrato's employment with the Council was not without incident. There were a number of issues, contentions and/or disagreements involving Mr Ferrato and other Council employees, supervisors and managers dating from early 2005 onwards. The various details are discussed later in this decision. Additionally, the Council issued two formal, written warnings to Mr Ferrato. 8First Formal Warning . In brief, in October 2008 Mr Ferrato (and a colleague) informed their supervisor that they would not be signing an On-line Agreement to become registered to use the RTA's on-line registration system. A disciplinary meeting was held with Mr Ferrato on 8 July 2009. On 20 July 2009, Mr Ferrato indicated that he would not be registering on the RTA site. 9A Formal Warning letter was issued to Mr Ferrato on 21 July 2009 in relation to his 'refusal to obey a reasonable and lawful request in relation to your duties'. He was given seven days to become registered on the RTA site. On 28 July 2009 Mr Ferrato advised his supervisor that he would become registered on the RTA site. 10Second Formal Warning . In brief, on 24 August 2010 an investigative interview was held between Mr Ferrato, Ms Wilson, Mr Grace and Mr Tzoukos in relation to his attendance at a union meeting / additional time for lunch on 14 July 2010; his response to a supervisor who questioned his lunch break that day; his attitude / timekeeping; and his response to proposed changes to the start time. At around 3pm on 30 August 2010 Mr Ferrato was informed he had to attend a disciplinary meeting at 4pm the same day with Mr Wearne, Mr Grace and Mr Tzoukos. The disciplinary meeting was in relation to his: tape recording of meetings without consent; refusal of reasonable and lawful directive by supervisor to return to work on 14 July 2010; extended morning tea break on 14 July 2010; and not at designated area start of duties at 8:00am on 14 and 15 July 2010. 11By letter dated 30 August 2010 Mr Ferrato was issued with a Second Formal Warning in relation to his 'refusal to obey a reasonable lawful request, unsatisfactory conduct and attitude in relation to your work performance whilst at work'. The Council reinforced its expectation that Mr Ferrato, as an employee, would '... follow any reasonable and lawful directions in the performance of your duties whilst at work'. The Second Formal Warning letter was handed to Mr Ferrato at the meeting held on 31 August 2010. 1231 August 2010 . Mr Ferrato was required to attend the meeting on 31 August 2010 with Mr Donovan, Mr Grace, Mr Wearne and Mr Tzoukos to discuss his refusal to comply with a new call out roster that altered his starting time. The meeting commenced at approximately 8:15am. At about 8:25am the meeting was paused while Mr Donovan, Mr Grace, Mr Wearne and Mr Tzoukos considered Mr Ferrato's responses at the meeting. The meeting resumed briefly around 8:33am and Mr Ferrato was informed his employment would be terminated. 13Around 4pm on 31 August 2010 Mr Tzoukos hand delivered a letter to Mr Ferrato at his home. The letter dated 31 August 2010, signed by Mr John Burgess, the General Manager, informed him that his employment was terminated with immediate effect and that he would receive 5 weeks pay in lieu of notice. The letter stated (in part): " SUBJECT: TERMINATION OF EMPLOYMENT I refer to the meeting held on 31st August 2010 in the presence of Paul Donovan (Director Works & Services), Phil Grace (Acting Operations Manager), Peter Tzoukos (Human Resources Manager) and Ron Wearne (Supervisor) and your support person Francis Sandaman. At this meeting you were advised that following a second formal warning, you have continued to refuse a reasonable and lawful directive to commence the call out roster and have continually shown in the past by your disruptive behaviour and conduct that you are not prepared to work with Council in improving and providing efficient workshop services. It is evident from the formal warnings that you have an historical pattern of continually refusing directives from management, supervisor's (sic), team leader and have resisted all efforts to turn the situation around. Furthermore your actions demonstrate poor attitude and unsatisfactory conduct given Council's expectations and sufficient warnings knowing what the issues are and reasonable timeframes to improve your situation. Given that Council has taken into consideration all of the above Council has no other reasonable option but to terminate your employment. ..." Union's Case 14The Union tendered written statements from Mr Francis Sandanam dated 5 November 2010, including attachments (exhibit 1); Mr Sean Morgan dated 10 November 2010 (exhibit 2); Mr Tony Ferrato dated 5 November 2010, including attachments (exhibit 3); and Mr Tony Ferrato dated 11 December 2010, including attachments (exhibit 4). 15Mr Ferrato was required for cross examination. 16Included with the statements of Mr Ferrato were 2 CDs containing recordings of meetings between Mr Ferrato and other officers of the Council. The CD (the "first CD") attached to the statement of 15 November 2010 - labelled 'Recordings Workplace Change 2010' - records meetings on 20 August 2010, 23 August 2010, 24 August 2010, 30 August 2010 and 31 August 2010. The CD (the "second CD") attached to the statement of 11 December 2010 - labelled 'Second Set Recordings' - records a meeting on an unspecified, but recent, date. 17In summary, the Union submitted that under the Local Government (State) Award 2007 ("the Award") Mr Ferrato's agreement was required to change his starting times and the Council's direction that he do so was not a lawful and reasonable direction. It was, on the face of it, unfair to dismiss him for refusing to obey a direction that was not lawful and reasonable because it was contrary to the Award. Additionally, Mr Ferrato had been denied procedural fairness in the process followed by the Council leading up to his dismissal and his overall employment record did not justify his dismissal in any event. Evidence of Mr Sandanam 18In his statement of 5 November 2010 Mr Sandanam says he has been employed at the Council since 30 July 1989 and is employed as a mechanic in the workshop. Shortly after he commenced employment with the Council he joined the United Services Union ("the USU") but resigned as a member in May 2003. He joined the Union (AMWU) on 20 July 2006. 19Since 1 June 2007 his ordinary hours of work have been from 8:00am to 4:38pm and he understands the other permanent workers in the workshop have the same hours. He participates in a call out roster that was for two weeks out of eight and since Mr Ferrato's dismissal is for two weeks out of six. 20On the afternoon of 12 August 2010 he attended a meeting with Mr Wearne, Mr Ferrato and the casual mechanics, Mr Vince Diotato and Mr Le. Mr Wearne told them that from Monday everyone has to start work at 6:00am; Mr Ferrato said there had been no consultation and his family commitments meant that he could not start at 6:00am; and he said he could not start at 6:00am either. 21Shortly afterwards he attended another meeting with Mr Wearne, Mr Grace, Mr Mitchell and Mr Ferrato. A conversation took place in which Mr Grace indicated they wanted a mechanic to start at 6:00am; Mr Ferrato basically repeated that he could not start work at 6:00am due to family commitments; Mr Grace asked if he had some other place to go or another job to go to; Mr Ferrato asked if he was being threatened, going to be sacked; Mr Grace indicated he just wanted one mechanic to start at 6:00am, to which Mr Ferrato replied that could be arranged if he wanted one mechanic to start at 6:00am. After the meeting he was present when Mr Ferrato spoke to Mr Le and Mr Diotato and Mr Le said he could do 6:00am starts on a permanent basis and Mr Diotato said he could start early. On 26 August 2010 Mr Wearne handed him a memo from Mr Grace (exhibit 1, FS-1), dated 25 August 2010, concerning the new early opening arrangements. 22Around 8:30am on 31 August 2010 he was called to a meeting with Mr Donovan, Mr Tzoukos, Mr Grace, Mr Wearne and Mr Ferrato where Mr Ferrato was handed a second formal warning. There was then a break of 15 to 20 minutes and when the meeting resumed Mr Ferrato was advised he had been dismissed. 23He has attached (exhibit 1, FS-2, 3 and 4) letters he has received since Mr Ferrato's dismissal concerning the ordinary hours of work and the earlier 6:00am opening time. 24He states he went to the rally on 14 July 2010 with Mr Wearne and Mr Ferrato. He did not bundy off / on when leaving / returning to the workshop. He started his lunch on his return and around 12:40pm Mr Cluff approached him and Mr Ferrato and told them they were not supposed to have lunch today as they were at the rally. Mr Ferrato replied it was too late, they had already started to eat their lunch. About five minutes later Mr Wearne arrived and told them they were not supposed to be having lunch today and Mr Ferrato replied it was too late, they were already having their lunch. In the next pay week he was docked 30 minutes pay. He did not receive a warning about the incident. 25On 31 August 2010 he wrote to the General Manager complaining about a disciplinary meeting he had attended on 24 August 2010 concerning allegations he was late on duty on 12, 13 and 14 July 2010 and had a 20 minute tea break on 14 July 2010. By letter dated 3 September 2010 Mr Sandanam was advised by Council that a file note would be placed on his record for unsatisfactory time keeping and failing to commence duty at 8:00am at his work station and that there must be an immediate and sustained improvement in his behaviour over the next 3 months. The letters are attached (exhibit 1, FS-5 and 6) 26He maintains he took his normal tea break on 14 July 2010 and started at 8:00am on 12, 13 and 14 July 2010. Evidence of Mr Morgan 27In his statement of 5 November 2010 Mr Morgan says he has been an official of the AMWU since July 2004. On or about 3 September 2010 he had a meeting with Mr Ferrato about his dismissal by Council and shortly after the meeting telephoned Mr Tzoukos. He recalls Mr Tzoukos putting the position that it was not permissible for the AMWU to represent Mr Ferrato. Mr Morgan indicated the AMWU would be representing Mr Ferrato. Evidence of Mr Ferrato 28In his statement of 5 November 2010 Mr Ferrato says he was born in 1961, obtained his trade qualifications in 1982 and has consistently worked as a mechanic since that date. He was employed by the Council on 22 August 1999. 29He was employed in Council's workshop with four other mechanics and a welder. At the time of his dismissal Mr Mitchell was his team leader and Mr Wearne was the workshop supervisor. 30He has received positive comments on his work performance from Mr Wearne and attached a copy of his performance review for the period 1 July 2009 to 30 June 2010 (exhibit 3, TF1). He says he has received positive comments on his work performance from his colleagues. 31When he first started at the workshop the ordinary hours of work were 7:00am to 3:29pm. Sometime in 2004, by agreement between the Council and the workshop employees, the ordinary hours of work were divided into two shifts. The first shift was from 6:00am to 2:30pm and the second shift from 11:00am to 7:00pm. Employees worked under a two week rotating roster and were paid an additional shift allowance. 32Around 2006 the Council sought to change the shift arrangements for the ordinary hours of work. Mr Ferrato was opposed to the change as it would result in a loss of the shift allowance. At the time he was a member of the USU but later in 2006 he resigned and joined the AMWU. 33The dispute concerning the change to ordinary hours was referred to the Commission and the matter was settled between the Council and the USU (see exhibit 3, TF2). The ordinary hours of work for existing employees such as Mr Ferrato were as of 1 June 2007 from 8:00am to 4:38pm. Workshop employees also were required to participate in an on call roster. 34Around 2:25pm on 12 August 2010 (Thursday) Mr Wearne called the workshop employees to a meeting. Mr Wearne informed them that Council management had decided to make changes to the workshop and they were required to commence work at 6:00am from Monday (16 August 2010) morning. Mr Ferrato recalls that both he and Mr Sandanam said they could not attend work at that time on Monday. 35About 20 minutes after that meeting ended Mr Ferrato was called into another meeting with Mr Wearne, Mr Grace, the Acting Operations Manager, Mr Mitchell, also the USU delegate (as well as workshop team leader) and Mr Sandanam. Mr Grace said he needed the workshop open from 6am. Mr Ferrato said he was unable to start work at 6am due to family commitments and asked, in response to a comment from Mr Grace about whether he had somewhere else to go or had another job, if he was going to be sacked. Mr Grace replied he just needed a mechanic on duty from 6:00am. Mr Ferrato said there is a mechanic available to start at 6am on a permanent basis. 36About 15 minutes after that meeting, he spoke to Mr Tu Anh Le, a mechanic employed on a casual basis in the workshop. He says Mr Le said, in response to his comment that Phil (Grace) wants the workshop open from 6am and needs one mechanic to start at 6am on a permanent basis, he could start each day at 6am. 37About 10 minutes later Mr Wearne called a meeting of all the workshop mechanics in his office. Mr Wearne said Phil Grace had changed his mind and now wanted the mechanic rostered on call to start work at 6am. Mr Ferrato said, again, that he could not start work at 6am due to family commitments. He has attached his diary entry of the day (exhibit 3, TF3). 38His recollection and understanding is that Mr Le was rostered on call from midnight on Friday 13 August 2010 to Monday 23 August 2010, and that Mr Le started work at 6am from Monday 16 August 2010 to Monday 23 August 2010. 39On Friday 20 August 2010 Mr Ferrato was told by Mr Mitchell that he had to meet with Mr Grace. He attended the meeting with Mr Grace and Mr Mitchell. Mr Ferrato recorded the meeting (track 1 of the first CD) except for the early part of the meeting. 40On Monday 23 August 2010 around 1:00pm Mr Ferrato was told by Mr Mitchell that he had to meet with Mr Grace. He attended the meeting with Mr Grace and Mr Mitchell. Mr Ferrato recorded the meeting (track 2 of the first CD). 41His recollection is that he was rostered on call from midnight on Monday 23 August 2010 for a period of two weeks. He worked the on call roster per custom without incident. On Tuesday 24 August 2010 he commenced work at 8:00am and worked until 4:38pm. He continued to work those hours until his dismissal on Tuesday 31 August 2010. 42On Tuesday 24 August 2010, just after 8:00am, he spoke to Mr Mitchell about an upcoming meeting with Mr Grace and Mr Tzoukos. Mr Mitchell told him that he could not have the AMWU at the meeting as they were not a party to the Award. Around 2:25pm Mr Mitchell told Mr Ferrato the meeting was at 3:00pm. At 3:00pm Mr Ferrato attended a meeting with Mr Grace, Mr Tzoukos and Ms Marie Wilson, Human Resources Officer. Mr Ferrato recorded the meeting (track 3 of the first CD). He also attached his diary entries for 20, 23 and 24 August 2010 (exhibit 3, TF4). 43On Wednesday 25 August 2010 he saw the minutes of a consultative committee meeting of 4 August 2010 on the notice board in the lunchroom. He recalls that the minutes stated a meeting had been held between the Council and the USU concerning recommendations adopted by management for implementation in the workshop. The same day he e-mailed Mr Tzoukos requesting details of the workplace change Council intended to implement to on call rosters and workshop hours. The e-mail, and his diary entry for 25 August 2010 are attached (exhibit 3, TF6 and 7). 44On Wednesday 25 August 2010 he received an e-mail from Mr Tzoukos headed 'Recording of yesterday's meeting' and it noted that he had refused Mr Tzoukos' 'reasonable lawful request' and continued using a recorder. The e-mail stated 'Council has no other option now but to request a copy of the recorded meeting. Failure to provide a copy of the recorded meeting to all present is in breach of the [Surveillance Devices] Act [2007] ... You are required in future to adhere to Council's expectation when asked to attend any meeting that recording devices are not to be used without the consent of all present. ... We have been notified ... that you have previously used recording devices at past meetings ... you will need to provide ... a transcript ... Please provide transcripts and copies of the tapes by Friday 3rd September 2010' (exhibit 3, TF5). 45On Thursday 26 August 2010 Mr Sandanam handed him a copy of a memo received from Mr Grace. He recalls a copy of the memo was placed on the notice board as well. The memo, headed 'Auburn City Council, Mechanical Workshop Roster, Callouts and Early Opening' states '... management proposes to introduce a new workplace arrangement which will involve changes to the callout and starting times of workshop employees. The changes have been discussed with all personnel and are in accordance with the Award. ...we will be introducing a Roster which will cover callouts and the requirement for one person to open the workshop at 6:00am each day. The current arrangement ... requires one workshop employee to be on call for a period of two weeks every eight weeks. It is proposed that the person on call out will start early, 6:00am, for that period of time ... The current roster will remain in place with the early opening arrangements to be implemented immediately. Staff are advised that the roster may change from time to time ...'. On Friday 27 August 2010 Mr Tzoukos replied to Mr Ferrato's e-mail of 25 August 2010 and enclosed a copy of this memo (exhibit 3, TF8 and 9). 46On Monday 30 August 2010 at 3:20pm Mr Ferrato was handed a letter by Mr Tzoukos requiring him to attend a meeting at 4:00pm. After reading the letter he complained to Mr Tzoukos about the amount of notice given, Mr Tzoukos said it could be changed to 4:10pm, he said that was insufficient and Mr Tzoukos said it would be at 4:15pm. He attended the meeting with Mr Tzoukos, Mr Grace and Mr Wearne. Mr Ferrato recorded the meeting (track 4 of the first CD). 47On Tuesday 31 August 2010 around 8:00am Mr Ferrato was told by Mr Wearne that he had to meet with Mr Grace. The start of the meeting was slightly delayed when Mr Wearne indicated that Mr Sandanam, Mr Ferrato's support person, was needed. Mr Ferrato, Mr Sandanam, Mr Grace, Mr Wearne, Mr Tzoukos and Mr Donovan, the Director of Works and Services, were present at the meeting. During this meeting Mr Ferrato was handed the letter headed 'Second Formal Warning' as discussed above (exhibit 3, TF10). There was a break in the meeting around 8:15am which resumed again at 8:33am. Mr Ferrato recorded the meeting (track 5 of the first CD). 48On the afternoon of 31 August 2010 Mr Tzoukos hand delivered a letter (exhibit 3, TF11) to Mr Ferrato dismissing him from his employment at the Council as discussed above. He also attached his diary entries of 30 and 31 August 2010 (exhibit 3, TF12). 49Mr Ferrato states he was unable to commence ordinary time at 6:00am for a period of two weeks on an eight week cycle due to family responsibilities including caring (together with his brother) for his elderly mother who has a range of health issues, is on various medications and requires care and assistance (exhibit 3, TF13). He finds the 8:00am starts since 1 June 2007 made his family responsibilities more manageable. 50In relation to the Second Formal Warning and the USU rally on 14 July 2010 he states he received two memos from management on 13 and 14 July 2010 concerning the rally (exhibit 3, TF14 and 15). Around 11:55am on 14 July 2010 Mr Wearne offered him a lift to the rally. Shortly after 12 noon as Mr Ferrato, Mr Wearne and Mr Sandanam were leaving the workshop, he said it was after 12 and they did not need to bundy off, Mr Wearne agreed, and Mr Ferrato did not see anyone bundy off. They returned to the workshop just before 12:30pm and Mr Ferrato said it was before 12:30 so we don't need to bundy on, he did not bundy on and did not observe the others bundy on. At that point he and Mr Sandanam started their lunch break which was normally from 12:30pm to 1:00pm. 51Mr Mick Cluff, a supervisor from another department of the Council, approached Mr Ferrato and Mr Sandanam and told them they could not take their lunch break because they had been at the rally. Mr Ferrato disputed this, said he should talk to Mr Wearne and Mr Cluff left. Mr Wearne arrived shortly after and told Mr Ferrato he was not supposed to have his lunch and Mr Ferrato said he should have been told this before and it was a bit late to let him know now. On his next pay week he was docked 30 minutes pay. 52Mr Ferrato says there are usually two or so USU meetings each year at 7:00am and he understands from conversations with outdoor staff that they attend as paid time, whereas he has always attended in his own time as its before his normal start time. 53He says he normally takes a morning tea break from 10:00am to 10:15am and did so on 14 July 2010. He states he was at his designated work area for the commencement of duties from 8:00am on 14 and 15 July 2010. 54In relation to the First Formal Warning he has attached his initial position description and the revised position description supplied to him around January 2008 (exhibit 3,TF16 and 17). 55He objected to the revised position description because it contained additional tasks he had not been trained in nor provided adequate resources, as well as a lack of consultation. He requested basic computer training and a computer. It was not provided by Council and he was directed to the RTA's online registration site and he maintained he lacked the training and resources to do the additional tasks. 56On 21 July 2009 the Council issues him with a formal warning (exhibit 3, TF18). 57In May 2010 Council provided him with basic computer training and paid for his participation in a TAFE course dealing with the registration and inspection of vehicles. He was also provided with a computer. After completing the training and being supplied with the computer he commenced the additional tasks. 58He detailed the impact of the dismissal. He has been unable to find alternative employment. He is a member of the Army Reserve and has received some payment for services to the Army Reserve since his dismissal. He has provided details of his gross weekly wage at Council; the pay out he received from Council on termination; details of his weekly financial commitments; and his credit card debt. He says being unemployed and without a regular source of income makes it extremely difficult, if not impossible, to meet his commitments and places him in risk of hardship. 59In his statement of 11 December 2010 Mr Ferrato replied to the statements filed on behalf of the Council. 60In relation to the statement of Phillip Grace, he agrees he sought to be consulted on most decisions regarding the functioning of the workshop and sees nothing improper in wanting to be consulted about decisions impacting on his work environment. He agrees he sent the e-mail of 15 July 2010 and maintains his view that there was insufficient consultation regarding the introduction of the sick leave policy. 61He disagrees that he attempted to elevate every Occupational Health and Safety ("OHS") matter, however minor, to Council's OHS Committee and maintains only genuine safety concerns were raised with the Committee. He says he makes no apologies for seeking to ensure his and his workmates worked in a safe environment. 62He disagrees that he was usually dissatisfied with the eventual findings of the OHS Committee. He was an OHS elected representative in the 12 months before his dismissal. During that period he attended most if not all Committee meetings and does not recall seeing Mr Grace there. 63He also maintains that on every occasion he raised a safety issue with the Committee he first raised it with Mr Wearne. He recalls Mr Grace outlining a procedure to follow for raising workplace safety issues. After the process was explained to him he had no occasion to raise a safety issue and rejects any suggestion he failed to follow such a process. 64He disagreed that his attitude at work generated disruption amongst other workshop employees. 65In relation to the statement of Roy Mitchell he states that he believes that on signing the mediation agreement he has honoured all his commitments under that agreement. He agrees that after the mediation his working relationship with Mr Mitchell improved and described their relationship as 'we are not mates, but we get the job done'. 66He agrees that he would down tools on the dot at breaks, he did so whatever work he was performing not just on waste collection vehicles, he believes most workers at the Council have a similar approach and he never received a warning from Council for such a work practice. He disagreed that that he did not like waste management workers. 67He disagreed that he and Kevin Collins frequently argued about delays in the completion of maintenance and repairs on waste trucks. He disagreed that he rarely informed Mr Mitchell when he had completed jobs, saying he provided such information by completed work order left on Mr Mitchell's desk; would also tell Mr Mitchell if he was in his office; and he understood this to be the appropriate procedure at Council; and Mr Mitchell never instructed him to tell him he had completed jobs by any method. 68He agreed that he raised issues concerning the new smoking policy but was unaware it had been raised at the Joint Consultative Committee ("JCC"). 69He disagreed with Mr Mitchell's version of events of an incident between him and Mr Harber. He agrees the volume of the radio was loud, but was more or less at the volume he had heard in the workshop on many previous occasions. Mr Harber swore at him about the radio volume; he told Mr Harber he was not the only one in the workshop; Mr Harber walked away and smashed the radio; he disagrees that he then turned up the volume on a truck radio. 70He says the work practice for the daily maintenance of waste trucks made the truck driver responsible for washing a truck before inspection by a mechanic and attached memos to that effect (exhibit 4, TF19 and 20). If a truck arrived in an unwashed state he would notify his supervisor. The incident on 26 August 2010 involved a loader that had not been washed per the work practice; he recalls the loader was dirty and covered in mud and dust; he approached Mr Mitchell about the matter and was told to wash it himself; he did so; and then carried out the service on the loader. 71He disagrees that he recruited the support of other employees in the workshop, particularly the smokers, to complain about deficiencies in OHS procedures. He agrees that he discussed OHS issues with his work mates and, again, makes no apologies for seeking a safe workplace. 72He disagreed that the problems he and Mr Mitchell had were ongoing, once the mediation was carried out. He disagreed that he was difficult to work with, had unpredictable moods or sometimes was very angry. 73In relation to the statement of Jeff Roese he disagreed that he: arrived in the lunch room after 8:00am on 14 July 2010; entered the lunch room at 9:55am and left at 10:15am on 14 July 2010; and left the lunch room after 8:00am on 15 July 2010. 74He understood the work practice was to require a worker to be bundied on, in their overalls and on their way to their work station at their normal start time. His usual practice was to arrive 10 - 15 minutes early, bundy on, change into his overalls, have a cup of tea and when the clock struck the normal start time, make his way to his work station. He knows the morning tea break is 15 minutes and to the best of his ability adhered to the 15 minute break. He states that the lunch room clock was 5 minutes fast in July 2010 and attached an e-mail he sent to Mr Wearne on the matter on 25 August 2010 (exhibit 4, TF20). 75In relation to the statement of Ronald Wearne he: disagreed that after a few years his attitude began to sour; disagreed he took issue with matters that did not concern him, as he only raised issues that concerned him or safety issues on behalf of his work mates; and says that the only issues he raised at the toolbox meetings that were not relevant to the day to day running of the workshop were safety issues and, again, makes no apologies for seeking a safe workplace. 76He disagreed with Mr Wearne's version of events of an incident in April 2005. He was asked by Mr Wearne to look at the lifter arm of a truck; because it was wet he asked if the truck could be driven into the workshop; shortly afterwards Mr Wearne told him Mark Shaw said if he doesn't go out to the truck it is a refusal of duty; Mr Ferrato replied if he wanted him to inspect the truck he would do so; he did and got wet; he spoke to Mr Shaw and told him he had suggested because of the weather that the truck be driven into the workshop; he says Mr Shaw said that was not unreasonable; he followed up the incident by reporting it to the OHS Committee; and he says he received no warning in relation to this incident. 77He says he reported Kevin Collins for driving a truck while talking on his mobile phone. He considered it unsafe, knew it was against the law and contrary to Council instructions. He recalls that two months before at a toolbox meeting the issue had been raised. 78He disagrees with Mr Wearne's version of a recent incident involving the removal of pins from a truck during maintenance for an inspection. He was allocated to work on the truck prior to its RTA inspection; the tasks involved included removing the pins prior to repair work, after which the pins are replaced; part way through the job he was given a job considered a bigger priority without being told who was to continue work on the truck; he had already removed the pins and assumed as a matter of course the next mechanic would become aware the pins had been removed. A week or so later Mr Wearne approached him and asked if he had removed the pins on the truck. He replied that he had started to work on the truck but 'Marshal' had done the repairs on the truck. 79Following on from this he attended a meeting with Mr Wearne and Mr Roese. Mr Ferrato recorded the meeting (track 1 of the second CD). 80He disagreed with Mr Wearne's statements about the incident in December 2008 with Mr Harber, see paragraph 69 above. He disagreed with Mr Wearne's statements about the incident on 26 August 2010 with the unwashed truck, see paragraph 70 above. 81He disagreed with Mr Wearne's view that he has no respect for Council management, and maintains he only reported safety issues that were of genuine concern. He disagreed that he was hostile to Council management nor actively sought to undermine it. 82In relation to the statement of Mr Tzoukos he states he raised concerns about call outs in 2006 when he and Mr Mitchell were the only mechanics on call and Mr Mitchell appeared to be getting more call outs than him. 83In February 2009 he was on duty when Mr Collins drove and parked a waste truck requiring repairs to the workshop contrary to a work practice that required the driver to contact the mechanic on call. He considered this a safety issue as the nature of the problem would have required the truck to be driven on the wrong side of the road. He reported the matter by way of e-mail intended for the General Manager but by mistake sent it to the General Manager's mailing list. 84He disagreed with Mr Tzouko's statements about the incident on 26 August 2010 with the unwashed truck, see paragraph 70 above. 85He says he raised the issue of Union Picnic day in 2009 because, after resigning from the USU in 2006, he believes he still received a paid picnic day off in one or both of 2007 and 2008. 86He agrees he raised the sick leave policy, see paragraph 60 above, and maintains one of his main concerns was lack of information being provided on workplace changes. The employee representatives on the JCC did not report back on discussions held at the JCC. 87In examination in chief he confirmed the contents of his statement of 5 November 2010 and the attached first CD consisting of 5 recorded tracks. He confirmed, with one amendment, the contents of his statement of 11 December 2010. 88In cross examination he said he had earned from $700 to $1000 from the Army Reserve since his termination. 89He said he believed Mr Grace was a member of the OHS Committee but was not sure; confirmed Mr Grace had told him the correct procedure for raising OHS issues was to first raise it with his supervisor, if not satisfied raise it with his manager and if still not satisfied raise it with the OHS Committee; and agreed he had always been aware that the first thing to do was report an OHS issue to his supervisor. 90He agreed he worked in the workshop, performing mechanical repairs on Council vehicles. He recalled that approximately two years ago a procedure was introduced where jobs were given out on written work orders. He denied that, prior to the introduction of written work orders, it was his practice not to inform Mr Mitchell when he finished a job. He could not recall a particular example of when he did so but maintained in was the normal procedure for him to be informed of a job, carry out the work, and on completion park the vehicle away and inform Mr Mitchell the job was completed. The only exception would be if Mr Mitchell was not in his office. 91He recalled the incident with Mr Harber and the radio. He agreed the radio was loud, said the workshop was a noisy environment, and denied the radio was louder than normal. He knew Mr Harber had some problem with his hearing. He rejected the proposition he turned up the volume to irritate Mr Harber or that he turned it up unusually loudly. He maintained the workshop was a noisy environment needing a loud volume but agreed it was not continuously loud and there are breaks. 92When it was put to him he had a practice of refusing to do work on trucks if any part of the truck was not clean, he said he 'wouldn't say I would refuse'. He maintained that the trucks were meant to be cleaned to a certain standard and if the trucks were not clean he would report it to Mr Mitchell. He agreed that sometimes the trucks had been cleaned but some corner or part was not to his satisfaction and said he would have either Mr Wearne or Mr Mitchell look at it and if they agreed, and he could not recall them disagreeing, they would have the truck washed again. He rejected the suggestion that it was his requirement that the whole truck be spotlessly clean before he worked on it. He also rejected the suggestion that he could be mistaken about what Mr Mitchell said (about him washing the Loader) in paragraph 22 of his second statement. 93He confirmed that he disagreed with Mr Roese evidence that he arrived in the Works Depot lunch room after 8am on 14 July 2010. He said he arrived at 8am; he knew the time because he was always on time; agreed he was relying on his custom and practice in assuming he arrived at 8am; and confirmed he had no independent recollection of arriving on that day over any other. He also said it was his custom to start at 8am in his work clothes and relied on custom that he did so that day. He agreed there could be events that could cause a departure from custom. 94When it was put that his tea break was officially 10 minutes he said he believed it was 15 minutes. He denied he took a 20 minute break on 14 July 2010. He agreed: he said in his statement the bundy clock was 5 minutes fast in July 2010; he sent an e-mail to Mr Wearne saying the bundy clock was incorrect by 5 minutes in July 2010; the e-mail was sent on 25 August 2010; and he did not mention it during the meeting on 30 August 2010. He explained he waited until 25 August to mention it because that was when he was informed there was a problem with his times, it was not to bolster his position, it was just to make his supervisor aware of the situation. He agreed he did not know whether the bundy clock was already fast on 14 July 2010. 95He maintained there was quite heavy rain when he was asked to examine the problem on a garbage truck. He agreed Mr Wearne asked him to go and watch what was happening and look at the job; agreed that there was a spare seat in the cabin you could sit in without getting wet; said prior to doing that he needed to examine the arm; said he was being thorough in doing so; and said he took the tools in case he needed to fix a minor problem as part of his normal practice. When asked if he agree there were no safety issues in just sitting in the cab and watching the operation of the arm of the truck he said there were safety issues just driving in that weather condition. He rejected the suggestion he was over-servicing. 96He recalled the incident concerning the brake pins removed from a truck. He said he commenced work on the truck and had removed the pins. He agreed he had been asked several times at the recorded (second CD) meeting if he removed the pins and had answered that he had started work on the truck. He disagreed that he repeatedly refused to answer the question on the pins because he knew he had done the wrong thing. Asked if it was dangerous to remove the pins and not tell anyone, he said he told the supervisor at the time he had started work and was asked to leave that truck and work on another truck urgently and he did so. He disagreed that, as far as Mr Wearne was concerned, he had denied starting work on the truck. He agreed, eventually, that its prudent work practice, if you do work on a truck which leaves it unsafe for driving, to tell someone that it is unsafe and what you have done. He said he was not aware the truck went to the RTA without the pins. 97He was asked about the amendment to his statement (exhibit 3, paragraph 54) and agreed he now realised when he sent the e-mail that the sick leave policy had been discussed at the JCC. He said he sent the e-mail because the JCC minutes did not explain things. He agreed he knew: what the JCC was; that it had employer and employee representatives; it was a creature of the Award; it was there to review and consider matters including new policies; and the JCC had approved the new sick leave policy at the time he sent his e-mail. So what was the utility in raising the issues he did? He said they were not issues they were questions and some of the questions concerned how the policy would operate. He was asked, in light of the first question on the e-mail about why there was no consultation, despite going through the JCC, if he could see why some people perceived him to be difficult. He said he was not sure what people perceived him to be. He did not intend his e-mail to be challenging, it was just asking questions. He denied he saw it as his role or duty to challenge every decision or policy the Council introduced. After lengthy questioning on the role of the JCC employee representatives and their reporting of information, he stood by the last sentence of his statement (exhibit 4) that those representatives would not report back on discussions held at the JCC. Council's Case 98The Council tendered written statements from Mr Peter Tzoukos, Manager Human Resources, dated 3 December 2010, including attachments (exhibit 5); Mr Ronald Wearne, Plant Supervisor, dated 3 December 2010, including attachments (exhibit 6); Mr John Burgess, General Manager, dated 3 December 2010 (exhibit 7); Mr Roy Mitchell, Team Leader, dated 3 December 2010, including attachments (exhibit 8); Mr Jeff Roese, OHS Officer, dated 3 December 2010 (exhibit 9); and Mr Philip Grace, Acting Operations Manager, dated 3 December 2010, including attachments (exhibit 10). 99Mr Tzoukos, Mr Wearne, Mr Burgess, Mr Mitchell, Mr Roese and Mr Grace were required for cross examination. 100In summary, the Council submitted that at the time the relevant managers were not aware that under the Award Mr Ferrato's agreement was necessary to change his rostered starting hours in August 2010 and that his refusal to do so, of itself, could not be used as a reason to terminate his employment. However, his overall employment record was relied upon by the Council to justify his dismissal. Evidence of Mr Tzoukos 101In his statement of 3 December 2010 Mr Tzoukos says he is employed as the Council's Human Resources Manager and commenced on 25 January 2000. 102He does not recall anything in particular about Mr Ferrato until he instituted proceedings in the Commission in 2006. Otherwise he recalls he often complained to Human Resources and Council management about procedures at the workshop and grouped the matters under several headings. 103Callout / Workshop Disputes . On 13 February and 7 March 2006 Mr Ferrato wrote to Mr Wilcoxon, the then Director of Works and Services, complaining that Mr Mitchell was being called out more often and asking for a comparison of their callout figures. Mr Wilcoxon replied on 27 February 2007, apologising for the delay and stating the matter was being investigated, and on 9 May 2007, advising that due to a lack of documentation and an audit trail the Council could not supply the information. The letter also stated system improvements would be put in place to overcome definite short falls. The letters are attached (exhibit 5, Tabs A and B). Mr Ferrato pursued the matter through the USU who Mr Tzoukos met with on 17 May 2006. The USU wrote for further information on 22 May 2006 (exhibit 5, Tab C) but he does not know if Council replied. Mr Ferrato resigned from the USU on 25 August 2006. 104On 11 or 12 February 2009 Mr Ferrato sent an e-mail to everyone on the General Manager's mailing list. The e-mail concerned an incident on 10 February 2009 involving Mr Collins, Team Leader Waste Services, driving a truck in need of repair to the workshop and not calling Mr Ferrato as the mechanic on call. Ms Marie Wilson, HR Officer, replied on behalf of Mr Burgess on 12 February 2009 and advised Mr Ferrato to refer it to his supervisor. Mr Burgess also replied to Mr Ferrato on 17 February 2009. The e-mail chains are attached (exhibit 5, Tabs E and F) 105On 26 August 2010 Mr Wearne advised him that Mr Mitchell had instructed Mr Ferrato to perform a service on a Depot Wheel Loader and he had not completed the job properly because the vehicle was dirty. Mr Grace also sent him an e-mail (exhibit 5, Tab G) about the incident. 106Union Picnic Day . Mr Ferrato e-mailed him on 10 March 2009 making a complaint about Union picnic day - for members of the USU on 13 March 2009. He e-mailed again on 4 June 2009. Mr Tzoukos replied on 24 June 2009 referring him to the provisions of the Award. The e-mails and letter are attached (exhibit 5, Tabs H-J). 107Sick Leave Policy . On 15 July 2009 he received an e-mail from Mr Grace concerning an earlier e-mail from Mr Ferrato to Ms Adrienne Nally, HR Officer, asking questions about the sick leave policy and complaining there had not been any consultation on the changes. 108Around the time of the e-mail Council employees had been asked to comment on the policy in accordance with the JCC and the policy was discussed and approved. Ms Nally replied to Mr Ferrato on 16 July 2009. The e-mails are attached (exhibit 5, Tabs K and L). 109IRC 3126 of 2006 . On or around 11 July 2006 he received a copy of the minutes of a Working Group held to discuss changes to the workshop hours, recording that Mr Ferrato speaking on behalf of himself and two other workers, stating they were not prepared to discuss changes unless management continued the current arrangements until June 2007. A further Working Group meeting was held on 18 July 2006 but Mr Ferrato and the other two workers did not attend. On 25 July 2006 Mr Ferrato ceased work between 1:30 and 2:00pm to attend a meeting arranged by the AMWU concerning the proposed changes. 110On 27 July 2006 Mr Burgess wrote to Mr Ferrato about his failure to attend the Working Group meeting, confirming that it was his direction that all employees will, from now on, attend Working Group meetings. He also informed Mr Ferrato his pay would be docked for attending the AMWU meeting. The AMWU responded to the letter on 31 July 2006 raising some concerns and seeking a meeting. A further Working Group meeting was held on 1 August 2006 and Mr Ferrato did not attend. 111On 15 August 2006 Mr Burgess wrote to Mr Ferrato to clarify the proposed workplace changes pursuant to clause 34 of the Award. 112Prior to 1 September 2006 workshop employees worked a 35 hour week, 9 days a fortnight with no call out roster. Mr Ferrato e-mailed Mr Wilcoxon on 28 August 2006 and stated that on call was not part of his job description. Mr Tzoukos was invited to a meeting with Mr Wilcoxon and Mr Meehan to discuss the issue. 113On 14 September 2006 the USU notified a dispute to the Commission. The matter was settled on 18 October 2006, setting out the hours etc pre- and post - 1 June 2007 for employees employed prior to 4 October 2006. 114At a meeting between management, the USU and workshop employees on 8 November 2006 it was agreed that the working arrangements outlined by Mr Burgess on 15 August 2006 had been superseded by the settlement of 18 October 2006. Mr Burgess wrote to Mr Ferrato on 9 November 2006 to advise him of these arrangements. 115On 1 June 2007 Mr Meehan e-mailed workshop staff confirming the new workshop hours in accordance with the settlement. The various e-mails, letters and documents are attached (exhibit 5, Tabs M-U). 116Mediation . Mr Mitchell sent him and Mr Meehan a letter about the history of his relationship with Mr Ferrato. About 23 March 2007 Mr Mitchell allegedly called Mr Ferrato an 'arsehole' in a meeting. Mr Ferrato complained to management in April 2007 and made further complaints about previous verbal altercations between him and Mr Mitchell. 117Mr Wilcoxon proposed to conduct mediation between Mr Mitchell and Mr Ferrato, Mr Mitchell agreed, Mr Ferrato did not. The Council then engaged an independent mediator, Mr Holst. Mr Holst advised him on 2 May 2007 that Mr Ferrato would not agree to participate in mediation, as Mr Ferrato preferred to have Council pursue his complaint formally. 118On 27 April 2007 Mr Tzoukos and Mr Meehan had been instructed by Mr Wilcoxon to conduct an investigation into eight allegations made by Mr Ferrato against Mr Mitchell. The recommendations made by him and Mr Meehan were contained in a memo to Mr Wilcoxon dated 26 July 2007. After the memo was prepared separate meetings were held with Mr Mitchell and Mr Ferrato on 28 September and 5 October 2007. Following the meeting of 5 October a letter dated 15 October 2007 was sent to Mr Ferrato seeking his acknowledgement of the outcomes, his agreement to participate in mediation, and his agreement to abide by the Code of Conduct. Mr Ferrato did not sign the letter as requested and Ms Wilson prepared a file note dated 23 October 2007 on the matter. 119On 29 October 2007 industrial relations consultants wrote to Mr Burgess on behalf of Mr Ferrato advising he had three separate grievances with the Council - the alleged harassment of Mr Ferrato by Mr Mitchell; the alleged harassment of Mr Ferrato by Mr Collins; and the non-payment of on call allowance. Mr Burgess responded on 31 October 2007 stating that the Council had its own internal grievance procedure; that the second and third grievances had been investigated and finalised; and the first matter had been referred to him for internal closure. On 31 October 2007 Mr Burgess wrote to Mr Ferrato and directed him to attend a meeting in an attempt to resolve his grievances. Mr Ferrato attended the meeting, with Mr Sandanam as his support person, with Mr Burgess and Ms Wilson on 1 November 2007. Following on from the meeting Mr Burgess wrote to Mr Ferrato seeking acknowledgement that two of the grievances had been resolved. Mr Ferrato annotated the acknowledgement as 'I do not accept the contents of this letter'. 120Mr Burgess wrote to Mr Ferrato on 29 November 2007 advising him the two grievances were finalised and informed him an external mediator had been engaged to work with the parties to build working relations. On 4 December 2007 Mr Ferrato was advised the mediator was Merryn Crawford. 121Ms Crawford updated him on the progress of the mediation by letter dated 2 July 2008. Mediations between Mr Mitchell and Mr Ferrato were conducted on 12 December 2007, 14 February 2008 and 12 June 2008. A further mediation was held on 21 October 2008. At that session Mr Ferrato felt he was not being consulted on union issues as reported to him by Ms Crawford. Those issues were subject to high level talks between management and the USU and had not been raised at the shop floor level. A mediation agreement from 21 October 2008 was prepared but was unsigned. 122A further mediation session was held on 16 March 2009 and on 7 July 2009 Mr Mitchell and Mr Ferrato agreed that the mediation agreement dated 12 June 2008 would resolve the matter. Mr Tzoukos attended a meeting with Mr Donovan, Mr Meehan, Ms Nally and Mr Ferrato, with his support person Mr Sandanam, on 10 November 2009 to finalise the mediation process. On 24 November 2009 Mr Donovan wrote to Mr Mitchell and Mr Ferrato regarding the finalisation of the mediation and summarised the outcome agreed between the parties. The various e-mails, letters and documents are attached (exhibit 5, Tabs V-NN) 123First Formal Warning . Mr Ferrato's and Mr Sandanam's position description was amended around February 2008 to incorporate basic data entry duties for internal job cards and a requirement regarding to performing the on-line RTA registration of vehicles. Mr Meehan met with them on 20 February 2008 and both stated they would not sign it unless they received additional remuneration. Mr Meehan e-mailed Mr Wilcoxon who replied to Mr Ferrato (exhibit 5, Tab OO). 124On 29 May 2008 he attended a meeting with Mr Ferrato, Mr Wearne, Mr Meehan and Mr Donovan to discuss Mr Ferrato's refusal to sign the position description. He wrote to Mr Ferrato on the issue on 27 June 2008. On 4 July 2008 he received an e-mail from Mr Ferrato to Mr Donovan requesting a copy of the minutes from the meeting of 28 May 2008. He sent a further letter to Mr Ferrato on 8 July 2008 about his refusal to sign. On 14 July 2008 Mr Donovan sent him a copy of an e-mail chain between Mr Ferrato and Mr Donovan from 12 June 2008 onwards. On 14 October 2008 he received an e-mail from Mr Wearne to Mr Meehan stating Mr Ferrato's and Mr Sandanam's refusal to perform on-line registration of the vehicles was ongoing. The e-mails, letters and minutes are attached (exhibit 5, Tabs PP-TT). 125On 8 July 2009 a meeting was held with Mr Ferrato, Mr Wearne and Mr Mitchell. Mr Ferrato was advised that he was required to complete on-line registration of vehicles within 7 days and a failure to do so would result in disciplinary action. On 3 August 2009 he received an e-mail from Mr Ferrato complaining of bullying at that meeting (exhibit 5, tab UU).On 20 July 2009 Mr Tzoukos was advised by Mr Wearne by e-mail that Mr Ferrato was still refusing to perform on-line registrations (exhibit 5, Tab VV). 126Mr Ferrato was issued with a Formal Warning from Mr Donovan on 21 July 2009 for refusing to obey a reasonable and lawful direction; Mr Ferrato signed the Warning and made the annotation 'I do not agree with what has been recorded in this letter'; an internal file note details the events leading up to the issue of the Warning; and on 28 July 2009 Mr Meehan e-mailed him that Mr Ferrato would be signing up with the RTA to undertake on-line registration (exhibit 5, Tabs WW-YY). 127Without informing him, Mr Ferrato made an allegation of bullying by Mr Mitchell at the meeting of 8 July 2009 to Workcover. A WorkCover Officer, Ms Hogan, contacted him about the allegations and he informed her of the Council's grievance procedure and the status of the ongoing mediation between Mr Mitchell and Mr Ferrato. On 12 August 2009 Ms Hogan sent him an e-mail requesting copies of the grievance documents and Ms Nally prepared a reply (exhibit 5, Tabs ZZ and AAA). 128He states that in June 2010 Mr Ferrato refused a reasonable and lawful request to sign the Council's Code of Conduct for e-mail Use and the Code of Conduct for Internet Access and signing the Codes is a standard practice for all Council staff. Ms Vera Moors, IT Support Officer, e-mailed (exhibit 5, Tab BBB) these policies to Mr Ferrato for signing and he did not respond. 129He says signing the Codes was necessary to use a Council computer to access the RTA on-line registrations and had to be completed by 1 September 2010. Council records show Ms Moors provided induction training to Mr Ferrato on the on-line registration of vehicles on 31 May 2010. 130On 22 July 2010 he received an e-mail (exhibit 5, Tab CCC) from Mr Grace stating that Mr Ferrato would carry out the RTA inspection on-line and enter the registration information in the computer as requested. He states that although Mr Ferrato had not signed the Codes, a Council computer was made available for limited use in the workshop for conducting on-line inspections, with blocks on all non-RTA websites and all non-work e-mails. 131Second Formal Warning . On 14 July 2010 he sent a memo (exhibit 5, Tab DDD) to all Depot Supervisors advising attendance at the USU rally was to be in an employee's lunch break. That afternoon Ms Nally informed him she had been conducting training that morning with Mr Roese and noticed Mr Ferrato was late for the 8:00am start and he extended his tea break by 10 minutes. 132Later that day he received an e-mail from Mr Wearne informing him Mr Ferrato and Mr Sandanam had attended the USU rally and then returned to the workshop and had lunch from 12:30 to 1:00pm; and he reported these matters to Mr Grace and Mr Donovan by e-mail (exhibit 5, Tabs EEE and FFF). He rang Mr Wearne to discuss what had happened. He also spoke to Mr Cluff about what had happened. 133On the afternoon of 15 July 2010 Ms Nally informed him that she was again conducting training with Mr Roese and observed Mr Ferrato was not ready to commence work at 8:00am. Ms Nally confirmed her reports to him by an e-mail dated 24 August 2010 (exhibit 5, Tab GGG). 134He states that the issue of employees taking their breaks in the time allocated and returning to work promptly had been discussed repeatedly at 'toolbox' meetings attended by workshop staff. Minutes from February 2009 to July 2010 are attached (exhibit 5, Tab HHH). 135On 24 August 2010 Mr Tzoukos organised a meeting with Mr Ferrato, Mr Grace and Ms Wilson. Ms Wilson prepared a contemporaneous file note (exhibit 5, Tab III). Mr Ferrato also recorded the meeting even though Mr Tzoukos objected to it being recorded. He has listened to track 3 of the first CD and, although he cannot confirm it includes the whole meeting, it is accurate. He e-mailed Mr Tzoukos on 25 August 2010 (exhibit 5, Tab JJJ) and requested a copy of the recording of 24 August 2010 and stated that a failure to do so would be regarded as a contravention of the Surveillance Devices Act 2007. He did not receive a copy as requested. 136On 30 August 2010 around 3:00pm he gave Mr Ferrato a letter from Mr Donovan requesting he attend a disciplinary meeting at 4:00pm to discuss his unsatisfactory conduct and attitude on 14 and 15 July 2010 (exhibit 5, Tab KKK). He attended the meeting around 4:00pm with Mr Grace, Mr Wearne and Mr Ferrato. He has listened to track 4 of the first CD and, although he cannot confirm it includes the whole meeting, it is accurate. The outcome of the meeting was that Mr Ferrato was verbally advised he would be issued a second formal warning regarding his refusal to obey reasonable and lawful directions. 137He says Mr Ferrato was given an opportunity to respond to the allegations against him and Mr Tzoukos considered the responses he gave at the meetings of 24 and 30 August 2010. He says those responses were inadequate in explaining his failure to obey reasonable and lawful objections. 1382010 Rostering Dispute . On 26 August 2010 he received an e-mail from Mr Wearne informing him Mr Ferrato would not open the workshop on Monday 30 August 2010 in accordance with the new roster; and on 27 August 2010 he e-mailed Mr Ferrato a memo drafted by Mr Grace on 25 August 2010 advising employees of the proposed roster for call outs, the new 6:00am start time and advising Mr Wearne and Mr Mitchell would be filling the roster occasionally (exhibit 5, Tabs LLL and MMM). 139On 31 August 2010 around 8:15am he attended a meeting with Mr Donovan, Mr Grace, Mr Wearne and Mr Ferrato, with his support person Mr Sandanam. He has listened to track 5 of the first CD and, although he cannot confirm it includes the whole meeting, it is accurate. 140He handed Mr Ferrato his Second Formal Warning dated 30 August 2010 (exhibit 5, Tab NNN) and Mr Ferrato did not sign the acknowledgement. 141At around 8:25am, the meeting was paused when he, together with Mr Donovan and Mr Grace, left the meeting to go to Mr Grace's office to consider Mr Ferrato's responses in relation to his failure to comply with the call out roster. Mr Donovan said Mr Ferrato was still refusing to work the roster; regarding the two previous formal warnings he had a history of refusing to obey directions, it was affecting the efficiency of the workshop and they should terminate his services. Mr Tzoukos agreed and said they had to get approval from John (Burgess). They had a conversation with Mr Burgess by speaker phone outlining the situation they had discussed and Mr Burgess agreed that his services be terminated. 142After he returned to his office he prepared a memo for Mr Burgess detailing what had happened at the meeting and confirming Mr Donovan's verbal recommendation that Mr Ferrato's employment be terminated; Mr Burgess signed the document; and around 4:00pm he personally delivered a termination letter signed by Mr Burgess to Mr Ferrato's home (exhibit 5, Tabs OOO and PPP). Mr Ferrato was paid 5 weeks salary in lieu of notice. 143In examination in chief he confirmed, with some amendments, the contents of his statement of 5 November 2010, including the tender of an e-mail chain that was marked as Tab QQQ to his statement (exhibit 5). 144In cross examination he confirmed he had worked at the Council as the Manager of Human Resources since 24 January 2000 and he had tertiary qualifications in HR. 145He agreed he attended a meeting on 24 August 2010 with Mr Ferrato, Mr Grace and Ms Wilson and the meeting was recorded by Mr Ferrato. The recording of the meeting was played (track 3, first CD). He agreed that the issues discussed at the meeting were: that Council had concerns with Mr Ferrato's attitude, conduct and start time; his representation by the AMWU at disciplinary meetings; his attendance at the USU rally on 14 July 2010, his subsequent lunch time from 12:30 - 1:00pm and the exchange between him and Mr Cluff; his previous formal warning of July 2009; his extended tea break on 14 July 2010; Council's concerns that he had not started duty at 8:00am on 15 July 2010; Mr Ferrato changing his start and finishing times; and nothing else. 146Mr Tzoukos agreed he attended a meeting on 30 August 2010 with Mr Ferrato, Mr Grace and Mr Wearne and the meeting was recorded by Mr Ferrato. The recording of the meeting was played (track 4, first CD). He agreed they discussed Mr Ferrato's recording of the meeting and Mr Tzoukos said at the outset that there were a number of issues of concern that needed to be discussed. He agreed that: they discussed the issue of Mr Ferrato taking an extended tea break on 14 July 2010; they discussed the issue of him not being at his work station at 8:00am on 14 and 15 July 2010; towards the end of the meeting he indicated that Mr Ferrato had engaged in unsatisfactory conduct and attitude and Mr Ferrato had a pattern of refusing directions; at the end of the meeting he indicated that Mr Ferrato would be issued with a second formal warning; and was the extent of their discussions at the meeting. 147He agreed that subsequently on 31 August 2010 Mr Ferrato was issued with a second formal warning in writing. He agreed: four issues were specified in the second formal warning; those four issues were the ones discussed with Mr Ferrato at the meetings of 24 and 30 August 2010; and that Mr Ferrato was dismissed that same day. 148He agreed that between the meeting on 30 August 2010 and dismissing Mr Ferrato on 31 August 2010 there were no new issues of misconduct or unsatisfactory performance involving Mr Ferrato that were raised. 149He agreed he attended the meeting on 31 August 2010 with Mr Ferrato, Mr Sandanam, Mr Donovan, Mr Grace and Mr Wearne, the meeting was recorded by Mr Ferrato and there was a break in the meeting. The recording of the meeting was played (track 5, first CD). He agreed: they discussed the issue of Mr Ferrato recording the meeting; they discussed his second formal warning that was handed to him at that time; they discussed Mr Ferrato's start and finish times and his refusal to agree to Mr Grace's proposal to change his hours; and that there was a break. 150He agreed that during the break he discussed matters with Mr Grace and Mr Donovan as set out in paragraph 86 of his statement (exhibit 5). The discussions resulted in a loudspeaker phone call to Mr Burgess, the General Manager, and a conversation between them as set out in paragraph 87 of his statement in which Mr Burgess agreed with Mr Donovan's recommendation that Mr Ferrato be terminated. 151He agreed that following on from this conversation with Mr Burgess, they resumed the meeting with Mr Ferrato, Mr Sandanam and Mr Wearne and Mr Ferrato was advised his services were terminated. He said he prepared the memo, at Tab OOO of his statement, recommending to Mr Burgess that Mr Ferrato be terminated; Mr Burgess accepted the recommendation; he prepared a draft termination letter, at Tab PPP of his statement, that Mr Burgess signed. 152He rejected the proposition that Mr Ferrato's refusal to change his start and finish times was the primary reason, or a significant reason, in the Council's decision to terminated his employment. After some pressing he agreed that Mr Ferrato's refusal to change his start and finish times was a factor, that he attached significant weight to, in the decision to dismiss Mr Ferrato. 153He ultimately agreed he was heavily involved with the decision and/or recommendation to dismiss Mr Ferrato. He agreed with the suggestion that a finding by the Commission that Mr Ferrato's dismissal was unfair would also be a judgement on him. 154He agreed he: reviewed Mr Ferrato's work record before his dismissal; look at it again before giving evidence; and would be familiar with any warnings given to Mr Ferrato by the Council. He was taken to Clause 31C of the Award and said he understood those provisions and agreed the clause provided that if the Council had concerns with an employee's performance or his conduct was unsatisfactory, the employee shall be given a written record of any warning issued. He said Mr Ferrato had received two formal warnings and agreed Mr Ferrato has only received two separate formal written warnings. He accepted that if the Council had any other concerns about Mr Ferrato's work performance or unsatisfactory conduct on occasions other than those covered by the two formal warnings, the Award obliged the Council to provide him with a written warning. He also agreed that, because the Council always follows the Award, it could be assumed that apart from those issues covered in the two formal warnings there were no other issues or instances of unsatisfactory work performance or conduct. 155Mr Tzoukos was questioned at some length, after being taken to the dismissal letter at Tab PPP of his statement, as to the reasons for Mr Ferrato's dismissal. He appears to have agreed that Mr Ferrato was dismissed for the reasons stated in, and related to, the first and second formal warnings and those issues of concern in relation to the first and second formal warnings were 're-emphasised' by Council at the meetings on 24, 30 and 31 August 2010. He clarified that the allegation in the dismissal letter that he was disruptive and was not prepared to work with Council in improving and providing efficient workshop services was related to the matters, including his refusal of a reasonable and lawful request concerning the RTA e-safety checks and registration, covered in the first and second formal warnings and as discussed at the meetings. 156He agreed that the dismissal letter also stated as a reason for Mr Ferrato's dismissal that his 'actions demonstrate poor attitude and unsatisfactory conduct given Council's expectations and sufficient warnings, knowing what the issues are and reasonable time frames to improve'. 157He accepted that other than those matters discussed at the meetings of 24, 30 and 31 August 2010, Council did not indicate to Mr Ferrato an occasion where he was said to have demonstrated poor attitude or unsatisfactory conduct besides those for which he had been warned. 158He agreed that in forming the view that Mr Ferrato had demonstrated a poor attitude and unsatisfactory conduct he had reviewed Mr Ferrato's most recent performance review. He said, from his recollection, Mr Ferrato's most recent appraisal was that he met expectations. 159He was taken to the document headed 'Performance Appraisal Form' at TF1 of Mr Ferrato's statement of 5 November 2010 (exhibit 3) and was questioned at some length. He agreed, overall, that from Mr Wearne's rating in the various 'tick boxes' that Mr Ferrato appeared to be meeting Council's expectations in terms of the corporate obligations, that are the standards of the Council, at the time of the appraisal at the end of June 2010. He disagreed that Mr Ferrato was meeting those obligations at the end of August 2010. He maintained that he was not meeting expectations at the end of August 2010 for the reasons documented in the formal warnings, including his failure to follow lawful and reasonable directions. He also eventually agreed that if the formal warnings don't contain a reference to any other issues, it could be assumed that there were no further issues at that time. 160He said he recalled discussing with Mr Grace prior to the meeting of 24 August 2010 the issue of Mr Ferrato being represented by the AMWU in disciplinary meetings but could not recall what was said. He confirmed that it was his view that as the AMWU was not a party to the Award it could not represent an employee but could attend as a support person. He agreed that Mr Morgan's statement (exhibit 2) concerning a conversation they had was broadly correct. 161He said he was aware Mr Ferrato resigned from the USU in August 2006 and subsequently joined the AMWU. He agreed paragraphs 13 and 14 of his statement dealt with events in relation to the Union Picnic Day in March 2009. He agreed he gave advice to Mr Ferrato that he was not entitled to a paid day off for the 2009 Union Picnic Day because he was not a member of the USU. He said he was relying on advice from the Local Government and Shires Association concerning the Union Picnic day after November 2008 when local councils were de-corporatised from the federal system. He said prior to November 2008 the Council was under WorkChoices and gave all staff, including Mr Ferrato even though he was not a member of the USU, the day off on the basis of freedom of association. 162In relation to the exchange between Mr Ferrato and Mr Cluff on 14 July 2010, he agreed Mr Cluff was still employed by the Council and said he was not aware of whether he was at work today nor if he was on any extended period of leave. 163He was taken to Clauses 31C and 31D of the Award. He agreed he was familiar with the provisions and procedures. He accepted that under Clause 31C an employee who engaged in unsatisfactory work performance or conduct should be issued with a first warning; if there is a reoccurrence of unsatisfactory work performance or conduct the employee should be issued a second formal warning and counselled; if there is a resumption of unsatisfactory work performance or conduct the employee should be given a third and final warning; and only then, if there's no improvement after a third and final warning can the employee be dismissed. 164He agreed Mr Ferrato was not given a third and final warning. He disagreed that Mr Ferrato was issued his second formal warning on the day he was terminated, he said he was informed on 30 August 2010 that he would be issued with a second formal warning and the second formal warning was delivered on the morning of 31 August 2010. He agreed that on the morning of 31 August 2010 Mr Ferrato was dismissed. 165He was asked a number of questions concerning what performance review periods Council set for Mr Ferrato with the warnings. Mr Tzoukos maintained that it was ongoing from July 2009 when he was made aware in relation to his first formal warning about refusing lawful and reasonable directions and that Mr Ferrato was aware of the expectations. He, eventually, agreed that in the second formal warning there is no explicit highlighted wording that mentions a review period. 166He was taken to paragraphs 83 to 87 of his statement and the meetings of 30 and 31 August 2010. He said the meeting of 31 August 2010 started around 8:15am to discuss Mr Ferrato's failure to comply with the call out roster; Mr Ferrato was handed his second formal warning; the meeting paused around 8:25am; the break lasted about 5 or 10 minutes; and when the meeting resumed Mr Ferrato was dismissed. 167It was then put to him that Mr Ferrato was not told there was a period to review his performance after the second formal warning was issued. Mr Tzoukos agreed. 168He was taken to the second formal warning letter, at Tab NNN of his statement, and agreed it said Mr Ferrato had a 20 minute tea break on 14 July 2010. He said the Council allowed a paid tea break of 10 minutes only. He recalled that Mr Sandanam also had taken an extra 10 minutes for his tea break around that time but could not recall other staff doing so. 169He also agreed the letter said Mr Ferrato was not at his workshop area at 8:00am on 14 and 15 July 2010. He said the employee who informed him Mr Ferrato was still in the lunch room said it was 'after 8am', but that the time was not more specific. He agreed there would be a range of seriousness if Mr Ferrato was only a minute late or hours late. He maintained he would treat each employee engaged on the same form of conduct on the same basis. He disagreed that he would treat Mr Ferrato or Mr Sandanam any differently from any other employee who left the lunch room at 2 minutes past 8:00am. 170He confirmed the Council has 300 employees. He described his level of contact with the employees of the workshop as 'occasionally'. He described his relationship with the 300 employees as very good. He agreed he got on with some people better than others, said some he would possibly consider friends, some he possibly wouldn't. He characterised his working relationship with Mr Ferrato as a reasonable relationship. 171In re-examination he said the Union Picnic Day was granted at the time to all staff as a precaution because of the freedom of association provisions of WorkChoices, which he agreed he understood as stopping the Council from excluding non-union employees from a paid Picnic Day. 172In relation to Mr Ferrato's performance appraisal he agreed: with the tick boxes a tick in the far left box indicated the best level of performance and a tick in the box to the far right the poorest level of performance; the boxes ticked by Mr Wearne indicate to him that Mr Ferrato was considered to be meeting expectations; and he saw the appraisals of his own staff as well as sometimes other staff. His own view was that there was room for improvement in his performance. Except for serving on a few workplace committees, he had no contact with Mr Ferrato other than through the various meetings detailed in the evidence before the Commission. He agreed the recordings of those meetings were indicative of the nature of his relationship he had with Mr Ferrato. Evidence of Mr Wearne 173In his statement of 3 December 2010 Mr Wearne says he commenced at the Council about 25 years ago and has worked with Mr Ferrato for 10 or 11 years. He is a Plant Supervisor and is responsible for the employees in the workshop and reports to the Operations Manager. 174He recalls that Mr Ferrato was a hard worker when he commenced but after a few years his attitude began to sour. He regularly heard Mr Ferrato arguing with managers and in particular he started to complain about how the workshop was run and take issue with operational procedures, including some issues that did not directly concern him. 175For example, they had a monthly 'toolbox meeting' designed to discuss operations and get constructive feedback on systems and workflow; usually scheduled for a set day each month; but sometimes the day had to be changed to allow all staff to participate; he recalls Mr Ferrato raised operational matters that were not relevant to the day to day running of the workshop; Mr Ferrato also took issue if the meetings were not on the same day; and often complained if the minutes were not released promptly the day after the meeting. 176He considers Mr Ferrato a disruptive influence at work based on a number of matters. First, in April 2005 he asked him to inspect a garbage truck experiencing mechanical difficulties; asked him to inspect it, not repair it; suggested he examine it with the driver; he subsequently sent a letter (exhibit 6, Tab A) to Council management complaining he had been requested to attend a break down in dangerous conditions. Secondly, he formed the view he did not get on with a Team Leader, Mr Collins; early in 2010 on Mr Collins last day at work Mr Ferrato complained to Council that Mr Collins was using a mobile phone while driving. 177Thirdly, Mr Ferrato was recently issued a truck maintenance job by Mr Mitchell; he removed the brake pins; Mr Mitchell removed him from the job for unknown reasons and allocated it to Mr Harber; there was no communication between Mr Ferrato and Mr Harber when the vehicle was handed over; and when the vehicle went for the RTA inspection it was discovered the brakes were not working and the pins were missing. When Mr Wearne found this out he asked Mr Ferrato if he had done work on the truck and Mr Ferrato said he had not. Mr Mitchell later told him that Mr Ferrato had said he removed the pins. He convened a meeting with Mr Roese, OHS Officer, and Mr Ferrato, which Mr Ferrato recorded. At the meeting he asked Mr Ferrato why he had not told him he removed the pins, and he replied why should he it will be used against him. 178Fourthly, in December 2008 Mr Ferrato had an argument with Mr Harber about the volume of a radio in the workshop; Mr Harber requested he turn it down; Mr Ferrato refused; Mr Harber smashed the radio; and Mr Ferrato turned up the volume on a truck radio 'so it was blaring'. Mr Harber no longer works for the Council. He notified Mr Tzoukos of the matter in an e-mail (exhibit 6, Tab B). 179Fifthly, on or around 25 August 2010 Mr Mitchell informed him that he had asked Mr Ferrato to perform a service on a Depot Wheel Loader and Mr Ferrato complained he could not finish the job as it was not clean enough. 180He says Mr Ferrato's position description was amended in early 2008 to incorporate changes regarding the RTA on-line registration system. Mr Ferrato refused to sign the position description, requested a job evaluation and additional remuneration and training for entering data on the RTA website. He attended a meeting on 29 May 2008 where Mr Ferrato refused to sign the position description. He attended a meeting on 8 July 2009 where Mr Ferrato was informed he had to complete on-line registration within 7 days or face disciplinary action. On 20 July 2009 he sent an e-mail (exhibit 6, Tab C) advising that Mr Ferrato would not commence the RTA on-line registration. Mr Ferrato was subsequently issued with a Formal warning on 21 July 2009. 181He says on 14 July 2010 he sent an e-mail (exhibit 6, Tab D) to Mr Tzoukos informing him Mr Ferrato and Mr Sandanam had attended the USU rally between 12:00 and 12:30pm and on return commenced a lunch break. He says both of them had been directed by Mr Cluff to return to work and both refused to do so. He informed them both they would be docked pay for the lunch break. On 30 August 2010 around 4:00pm he attended a disciplinary meeting with Mr Tzoukos, Mr Grace and Mr Ferrato. At the meeting Mr Ferrato was verbally advised he would be issued with a Second Formal Warning regarding his refusal to obey a reasonable and lawful request on 14 and 15 July 2010. 182On 12 August 2010 he attended a meeting with other managers in which it was agreed to revise the call out roster and have one employee open the workshop at 6:00am and to share out this duty among the mechanics. The same day he met Mr Ferrato, Mr Sandanam, Mr Grace and Mr Mitchell to explain the changes to workshop employees. 183On 31 August 2010 around 8:15am he attended a meeting with Mr Donovan, Mr Grace, Mr Tzoukos, Mr Ferrato and with Mr Sandanam as a support person to Mr Ferrato. Mr Ferrato recorded the meeting. 184He believes Mr Ferrato has no respect for Council management and this view is supported by his continued disregard for instructions. Although he considers a supervisor should be open to feedback and criticism, he did not view Mr Ferrato's criticisms as helpful. He believes he appears hostile to Council management and actively sought to undermine it. Since Mr Ferrato's dismissal he has witnessed less tension amongst staff in the workshop. 185He states he read Mr Ferrato's statement of 5 November 2010 and says he offered him and Mr Sandanam a lift to the USU rally as a favour as it would reduce the period of their absence and the risk their pay might be docked if late back. He received a memo about the USU rally (exhibit 6, Tab E), placed it on the lunch room notice board, and understood it to mean that if the rally did not coincide with an employee's lunch break then it was in lieu of their break. 186He says the Council installed a computer in the workshop with access to the RTA website and also provided Mr Ferrato with training on using the website. He recalls that Mr Ferrato's objection to performing the work was he wanted extra remuneration for doing so and, in his opinion, the work value of registering vehicles on-line was the same as the old paper system. 187In examination in chief he confirmed the contents of his statement of 3 December 2010. 188He recalled the incident where he requested Mr Ferrato examine a garbage truck that was having mechanical difficulties. He agreed Mr Ferrato said words to the effect of 'because of the rain and the wet road, having to load tools onto the back of an open top truck and because the truck is pretty close, can we get him to drive into the workshop'. He did not recall him saying the words 'having to load tool onto the back of an open top truck'. He said it had been raining that day but had stopped sprinkling, and remained so, when Mr Ferrato went out to the truck. He said he: did not ask Mr Ferrato to take tools; only wanted him to look at the truck; told him to get in the truck with the driver and look at conditions out on the road. 189He recalled the incident of the truck that went to the RTA inspection with missing pins. He recalled saying to Mr Ferrato words to the effect of 'There was a brake problem on one of the trucks when it went for RTA inspection. Did you remove the brake pins from that truck or do any work on that truck'. He recalled Mr Ferrato saying words similar to 'I started work on the truck, but Marshall had done the repairs on the brakes in that truck' and said he also said 'I didn't work on the truck'. 190In cross examination he confirmed he had been working at the Council for 25 years, spent 10 to 15 years as a supervisor and had been Mr Ferrato's supervisor for the 10 to 11 years he had worked with him. 191He was taken to the document headed 'Performance Appraisal Form' at TF1 of Mr Ferrato's statement of 5 November 2010 (exhibit 3) and questioned at length. He agreed he had prepared the performance appraisal in relation to Mr Ferrato and it represented his view of him as at 28 June 2010. He confirmed that various 'tick boxes' had been ticked by him under a number of categories and those tick box descriptors applied to Mr Ferrato's work. He also maintained his written comments in the document applied and highlighted his comment in the overall summary section - 'Tony is progress (sic) but is capable of much more. He still has many underlying issues that may effect work performance'. He said some might consider the performance appraisal positive but he did not agree that overall it was, based on his written comments. He also would not agree as to how many positive results in particular categories would lead to classifying the overall result as positive. 192He agreed: the events listed in paragraph 8 of his statement (exhibit 6) occurred prior to 28 June 2010; as his supervisor he was familiar with Mr Ferrato's work record; he was aware Mr Ferrato received two formal warnings prior to being dismissed; and he did not receive any warnings for the events listed in paragraph 8. He was not aware of Mr Ferrato being warned about showing no respect for, being hostile to and actively seeking to undermine Council management. 193In relation to the dirty Loader incident he said there was no need for a warning as Mr Ferrato told him it was unclean and he told him to go and clean it. He agreed when he told him to clean it he did clean it. He said Mr Ferrato used to complain all the time the trucks were not clean enough. He agreed: when directed to clean the truck Mr Ferrato did; he did not quibble and ask for someone else to do it; and he did not refuse to clean it. 194In relation to the inspection of a truck in the wet incident he was taken to paragraph 36 of Mr Ferrato's statement of 11 December 2010 (exhibit 4) and agreed Mr Ferrato's version of their conversations was more or less correct although he could not recall the exact words said. He particularly could not remember if Mr Ferrato at the end said 'if you want me to inspect the truck, I will go and inspect the truck' but agreed he did go and inspect the truck. He was taken to the Mr Ferrato's letter at Tab A of his statement (exhibit 6), agreed it was addressed to the Chairman of the OHS Committee and, after some pressing, agreed that part of that letter was a complaint that an allegation had been raised that he had refused duty. 195He agreed that someone driving a truck and talking on the phone would breach the safety rules of the Council. 196In relation to the missing brake pin incident he was taken to paragraph 41 of Mr Ferrato's statement of 11 December 2010 (exhibit 4) and disagreed with that version of their conversation. He says he said to Mr Ferrato 'did you work on that truck' and Mr Ferrato replied 'I didn't work on the truck'. When pressed he said he did not recall every word said but vividly remembers Mr Ferrato saying 'I didn't work on the truck'. He said he was off on the Monday of the following week and got a call from the team leader who informed him Mr Ferrato told him he removed the pins. 197He agreed a week or so after the incident he attended a meeting with Mr Ferrato and Mr Roese and that Mr Ferrato recorded the meeting. The recording (track 1, second CD) was played and he accepted it was an accurate account of the meeting. He maintained, after lengthy questioning, that: Mr Ferrato said words to the effect of 'why should I, you will just hold it against me'; could not recall if he had heard it on the tape just played; and he had not used those words to paint Mr Ferrato in a negative light. He said he was at the meeting for two main reasons - to find out how the pins got out of the truck and to then put something in place to make sure it doesn't happen again. He said he wasn't there to victimise Mr Ferrato, he just wanted to get to the bottom of it and he finally did after that meeting. He rejected the suggestion that his recollection of exchanges between Mr Ferrato and himself were overblown to paint a negative picture. 198In relation to the smashed radio incident he said he was in the office and did not hear the exchange between Mr Ferrato and Mr Harber. He agreed the smashed radio belonged to Mr Sandanam and said that Mr Harber replaced it the next day. He heard the radio from his office, said he didn't hear it increase in volume and maintained the noise was 'blaring' throughout the workshop. He agreed he brought both men into his office after the incident but thought he spoke to them separately. He agreed that the contents of his e-mail reporting the incident at Tab B (exhibit 6) is more accurate than his current recollection. He agreed Mr Harber had ceased his employment after this incident but would not ultimately agree that it was because of this incident. He agreed it was wrong for any employee to smash a radio in the workplace and added it was also wrong to provoke someone. 199He was taken to paragraph 28 of Mr Ferrato's statement of 11 December 2010 (exhibit 4) and agreed that the work practice is as described by Mr Ferrato - 'the employee is required to have bundied on, be in their overalls and on their way to the work station at the normal starting time'. He could not recall what time Mr Ferrato was at his work station on 14 and 15 July 2010. He agreed that, as Plant Supervisor, if Mr Ferrato were significantly late for work he would be advised and that he would notice if he were significantly late. 200In re-examination he was taken to a letter that was attached at Tab A of his statement (exhibit 6). He agreed it was dated 7 April 2005, written by Mr Ferrato and addressed to the Chairman of the OHS Committee. He said he believe Mr Roese was the Chairman at that time. Evidence of Mr Burgess 201In his statement of 3 December 2010 Mr Burgess says he has been the General Manager since 2005. 202On 31 August 2010 around 8:30am he received a telephone call from Mr Donovan, who said he was on speaker phone with Phil (Grace) and Peter (Tzoukos). Mr Donovan said: they had stepped out of a meeting with Mr Ferrato after issuing him with his second Formal Warning; Tony (Ferrato) was still refusing to work the call out roster; Tony had two formal warnings informing him his refusal to obey directions and his ongoing pattern of disruptive behaviour was affecting the efficiency of the workshop; they had considered the responses Tony had given this morning and saw no option but recommending his termination that day. Mr Burgess agreed and said the organisation could not continue to be held to ransom, the workshop had to meet its customers needs, and he authorised the termination of Mr Ferrato's services and his removal from Council premises. 203Later that same day he received a memo from Mr Tzoukos setting out the background to the matter and reiterating the earlier recommendation that in light of Mr Ferrato's historical pattern of refusing directions and poor attitude, his employment relationship with the Council was irreparable. He confirmed his earlier agreement by writing on the memo 'Recommendation noted and agreed' and he signed a dismissal letter drafted by Mr Tzoukos. 204In examination in chief he confirmed the contents of his statement of 3 December 2010. 205In cross examination he confirmed he had been General Manager of the Council since 2005 and he made the decision to terminate Mr Ferrato's employment. 206He agreed: Mr Ferrato was advised verbally that his employment had been terminated at a meeting on 31 August 2010; he was not at that meeting; Mr Ferrato was advised that same day by a letter signed by him that his employment had been terminated; the letter had been prepared by Mr Tzoukos; in making the decision to terminate he had sighted and read a memo prepared by Mr Tzoukos; he agreed with that recommendation and signed the memo; he was acting upon that recommendation when he decided to terminate Mr Ferrato; and he was also acting upon the verbal advice he received during a conversation with Mr Donovan that is set out in paragraph 2 of his statement (exhibit 7). Evidence of Mr Mitchell 207In his statement of 3 December 2010 Mr Mitchell says he is employed as a Team Leader, Maintenance Section, and commenced working at the Council in 1995 and Mr Ferrato started about 5 years after he did. His work is mostly administrative and supervisory but he does 'on the tools' work when necessary. 208He is a delegate of the USU. Mr Ferrato resigned his USU membership in August 2006 and joined the AMWU. 209He details the events that led to him attending mediation with Mr Ferrato. On 12 December 2006 Mr Ferrato asked him why he had not attended the most recent OHS Committee meeting; when told it was none of his business, Mr Ferrato then questioned why he was on the Committee if he was not willing to discuss safety issues; Mr Mitchell referred to Mr Ferrato as an 'arsehole'; and Mr Ferrato complained to Mr Meehan, the Operations Manager. The e-mails are attached (exhibit 8, Tab A). Mr Mitchell wrote to Mr Tzoukos and Mr Meehan setting out the history of his relationship with Mr Ferrato (exhibit 8, Tab B). 210On or around 23 March 2007 he again referred to Mr Ferrato as an 'arsehole' and again Mr Ferrato complained to the Council and mentioned previous verbal altercations. Mr Wilcoxon proposed to mediate between them, he agreed but Mr Ferrato did not. Mediation was then arranged with an independent mediator, Mr Holst, for 13 April 2007. After a private session with Mr Ferrato, Mr Holst told him the mediation would not proceed as Mr Ferrato refused to participate. 211The matter was escalated to Mr Burgess and then referred to Ms Crawford, another independent mediator. Mediations were conducted on 12 December 2007, 14 February 2008 and 12 June 2008. A mediation agreement dated 12 June 2008 was signed on 19 June 2008 (exhibit 8, Tab C). At another mediation on 21 October 2008 Mr Ferrato refused to sign an agreement they would not discuss any union issues with each other. Another mediation session was held on 16 March 2009 and it was eventually agreed, on 7 July 2009 (exhibit 8, Tab D), that the mediation agreement dated 12 June 2008 would resolve the matter. 212He attended a meeting with Mr Donovan, Mr Tzoukos and Mr Meehan on 9 November 2009 concerning the finalisation of the mediation and Mr Donovan wrote to him on 24 November 2009 to summarise the outcomes of the mediation (exhibit 8, Tabs E and F). 213Following the conclusion of the mediation his working relationship with Mr Ferrato improved. However, he maintains that he has continued to witness the ongoing disruption Mr Ferrato has caused in the workshop. 214First, Mr Ferrato's usual practice is to down tools on the dot of morning tea and lunch breaks when working on waste collection vehicles; other mechanics finish the job if nearly complete; and he did not seem to like Waste Management workers. Secondly, Mr Collins, a Team Leader in Waste Management seemed to have problems with Mr Ferrato and did not get on; he frequently saw them arguing about delays to completion of repairs and maintenance on waste trucks; Mr Ferrato when on call would attend in normal clothes, bundy on and then change into overalls, whereas other mechanics attended dressed in overalls; and Mr Ferrato appeared to work to rule when working on waste trucks. 215Thirdly, Mr Ferrato rarely informed him when he had completed jobs; he had to approach him to find this out; and he eventually stopped trusting him and found himself double checking his work. Fourthly, Mr Ferrato complained when a new smoking policy had been introduced without consulting him; and it had been through the JCC and approved by the USU. 216Fifthly, Mr Ferrato had an argument with a casual workshop employee named Marshal Harber about the volume of the radio; Mr Harber requested it be turned down; Mr Ferrato refused; Mr Harber smashed the radio; in response Mr Ferrato turned up the volume on the truck radio. 217Sixthly, Mr Ferrato frequently complained that garbage trucks were not clean enough and, in particular, on 26 August 2010 he asked Mr Ferrato to perform a service on a Depot Wheel Loader and he complained he could not finish the job as the vehicle was not clean enough. Seventhly, he recalls that on one occasion, after he became the OHS representative, Mr Ferrato asked him to raise the cleanliness of the trucks; Mr Ferrato would not leave so he pushed past Mr Ferrato with his shoulder; and he later discovered Mr Ferrato complained to the Council about that incident. 218He states Mr Ferrato seemed very preoccupied with OHS issues and the cleanliness of the vehicles and recruited the support of other workshop employees, particularly among the smokers, to complain of deficiencies in the OHS procedures. He recalls that in October 2006 he and Mr Ferrato nominated for election as the OHS representative for the workshop; he was successful; Mr Ferrato seemed upset at this; and Mr Ferrato lodged a complaint about the nomination process by e-mail dated 18 October 2006 (exhibit 8, Tab G). 219On 12 August 2010 he attended a meeting with Mr Grace, Mr Shiels and Mr Wearne where it was agreed to change the workshop opening hours to 6:00am to assist the Parks Section to access machinery left for repairs early in the morning. They then asked the workshop mechanics to attend a meeting and informed them of the proposed 6:00am commencement time. 220Later that day he saw Mr Grace and suggested that one person start early according to the call out roster; Mr Grace agreed and asked Mr Wearne to convene a meeting to explain the idea to the mechanics. He met with Mr Ferrato, Mr Sandanam, Mr Wearne and Mr Grace. Mr Wearne explained the changes to the call out roster and one person would start from 6:00am every two weeks in an eight week cycle. Mr Sandanam and Mr Ferrato objected but Mr Diotato and Mr Le were amenable. Mr Ferrato also seemed unhappy that he and Mr Wearne would not be participating in the roster. 221On 16 August 2010 he met with Mr Grace, Mr Ferrato and Mr Sandanam. Mr Ferrato did not want to start work at 6:00am due to his family commitments. He also said he would rather start at 6:00am every day rather than for 2 weeks out of 8. Mr Mitchell explained starting at 6:00am should be easier as the rostered person is able to take a vehicle and drive directly to call outs rather than come into the workshop for a vehicle and tools first. 222He states that despite Mr Ferrato complaining that he and Mr Wearne were not regularly rostered to call outs, he remembers that Mr Ferrato complained if he was called out in the mornings and Mr Ferrato was not. He lives 10 minutes from the depot, Mr Ferrato lives 40 minutes away. 223He says Mr Ferrato was also difficult to work with because of his unpredictable moods, sometimes he was very angry and other times he seemed to get on with the other workshop employees. 224He has heard that Mr Ferrato's mother is ill and he provides her with care; he assumes this is the family commitment he was referring to at the meeting on 16 August 2010; and he finds it strange that Mr Ferrato would prefer to start at 6:00am every day instead of 2 weeks out of 8. 225In examination in chief he confirmed, with amendments, the contents of his statement of 3 December 2010. 226He recalled that a procedure using written work orders was introduced into the workshop in the last year, year and a half or two years. Prior to that procedure work instructions were given orally and Mr Ferrato did not regularly seek him out to tell him he had finished jobs. 227He recalled the incident with the smashed radio. He said the volume of the radio was extremely loud compared to its usual volume and the truck radio volume was just as loud. 228He agreed that sometimes truck cleaners would miss a bit of a truck. He said Mr Ferrato would want a truck cleaned again and would not work on the truck in such cases. He recalls the incident with Mr Ferrato about the dirty Loader; he did not recall Mr Ferrato saying 'the loader is dirty and has not been washed' and him saying 'well, go and wash it then'; it is his recollection that Mr Ferrato just complained about it being dirty so he referred it to his immediate supervisor. 229In cross examination he said he had been with the Council since 1995 and throughout Mr Ferrato's employment had been his team leader. 230He agreed he attended a meeting on 23 August 2010 with Mr Grace and Mr Ferrato. He did not recall Mr Grace telling Mr Ferrato he had to meet the next day with Mr Tzoukos or Mr Ferrato asking for a representative. He was initially unsure, but after being taken to paragraph 32 of Mr Ferrato's statement of 5 November 2010 (exhibit 3), agreed that was more or less the exchange they had about the AWMU not being able to be there. He said no one had told him on that occasion that Mr Ferrato could not have the AMWU there, but he knew because he had been through it before and agreed that meant someone senior to him had told him on the previous occasions that the AMWU would not be permitted to attend a meeting. 231He confirmed that his working relationship with Mr Ferrato improved following the conclusion of the mediation. 232He agreed he had documented a number of incidents involving Mr Ferrato at paragraphs 19 to 21 of his statement. He said he would not necessarily know whether Mr Ferrato had or had not received a warning about any of the incidents but he did not think he did receive any warnings. 233He agreed Mr Ferrato was not the only Council worker who worked to the minute. 234He agreed that his statement that he stopped trusting Mr Ferrato and was double-checking his work related to the system in place before written work orders and said the written orders were introduced two years ago. He agreed those concerns were no longer relevant with written work orders. 235In relation to the smashed radio incident he said he did not hear Mr Harber's request to Mr Ferrato that he turn the radio down. He agreed the smashed radio was the private property of Mr Sandanam. He agreed it was his evidence that the volume of the radio was just as loud throughout the incident. 236He was taken to two e-mails from Mr Meehan in 2005 at attachment TF19 to Mr Ferrato's statement of 11 December 2010 (exhibit 4). He agreed the work practice of workshop employees, in performing work on a truck, is that the truck should be washed. Evidence of Mr Roese 237In his statement of 3 December 2010 Mr Roese says he has worked for the Council for 28 years and in October 2008 was appointed OHS Officer. 238On 14 July 2010 he was presenting a training session with Ms Adrienne Nally, (the now former) Human Resources Officer, in the lunch room of the Works Depot. The training commenced at 7:00am. The bundy clock on which workshop staff bundied on and off is in the lunch room of the Works Depot. On 14 July 2010 he and Ms Nally were facing the bundy clock while delivering the training. 239On 14 July 2010 he observed Mr Ferrato arrive at the lunch room after 8:00am, not in his overalls ready to perform his duties and start work, he was dressed in casual clothes. On the same day, he observed Mr Ferrato re-enter the lunch room at 9:55am to start his tea break and to leave the lunch room at 10:15am. 240On 15 July 2010, he and Ms Nally were conducting further training in the Works Depot lunch room. On that day he observed Mr Ferrato arrive at the lunch room at 7:55am. Mr Ferrato was dressed in casual clothing and left the lunch room after 8:00am. 241In examination in chief he confirmed the contents of his statement of 3 December 2010. 242In cross examination he said his observations on the times Mr Ferrato was in the lunch room were based on looking in the direction of the bundy clock and he was relying on the time shown on the bundy clock. He agreed he did not look at his watch or use his watch to tell those times. He said that the bundy clock is the system everyone has to work off even if the bundy clock is fractionally out. 243He said the bundy clock was getting towards 5 past 8 when Mr Ferrato arrived on 14 July 2010; he left not long after; agreed it would have been 8:06 or a minute or two past 8:05am; and agreed, again, that the timings in his statement were based on the bundy clock. He said Mr Ferrato left the lunch room on 15 July 2010 around the same time as the day before and agreed that it was around 8:05 or 8:06am. 244In re-examination he agreed that Mr Ferrato was still wearing casual clothes when he saw him leaving the lunch room on 14 and 15 July 2010. Evidence of Mr Grace 245In his statement of 3 December 2010 Mr Grace says he started as Acting Operations Manager with the Council on 17 May 2010 under a temporary contract. One of his duties was to implement organisational changes including changes to the workshop and to improve its productivity. His day to day dealings are primarily with Mr Wearne as the Plant Supervisor. 246He had a number of dealings with Mr Ferrato who sought to be consulted about most decisions regarding the functioning of the workshop; some of the consultations did not result in consensus; Mr Ferrato appeared to expect consultation to continue until consensus was reached; and Mr Grace's view is that it is his responsibility to make responsible business decisions after listening to the opinions of stakeholders. 247On or around July 2010 the Council introduced a new Sick Leave Policy. After a meeting of workshop employees Mr Ferrato sent an e-mail (exhibit 10, Tab A) to Ms Nally complaining that there was no consultation prior to implementation. It was the only objection he was aware of from an employee. 248He says Mr Ferrato attempted to elevate every OHS matter, however minor, to the OHS Committee, and was usually dissatisfied with the result. The proper procedure was for Mr Ferrato to raise the matter with his supervisor, if not satisfied raise the issue with him and if still dissatisfied then refer the matter to the Committee. He told Mr Ferrato on numerous occasions that this was the proper procedure. He became increasingly concerned that Mr Ferrato's attitude at work generated disruption among other workshop employees, which affected the working environment. 249On 12 August 2010 he called a meeting with Mr Shiels, Parks Manager, Mr Wearne and Mr Mitchell. Because of the need of the Parks Section to access machinery prior to leaving the depot at 7:00am, and often some of it was in the workshop for repairs and maintenance, together with the ability to attend to minor repairs on the spot, it was agreed to open the workshop prior to the then current 8:00am start time. It was decided to have one employee open the workshop at 6:00am, which was within the span of hours in the Award and to share the early start time among all workshop mechanics. 250Mr Wearne was asked to discuss implementation of the proposed changes with staff. The same day he met with Mr Wearne, Mr Mitchell, Mr Ferrato and Mr Sandanam to explain the changes to the call out roster and each person would start at 6:00am for two weeks every eight week cycle. He recalls Mr Ferrato seemed please only one employee would be required to start early but refused to work the first two week period. He told him the casuals would also be rostered despite concerns he had for their experience. 251On 16 August 2010, the first day of the new roster, he again met with Mr Mitchell and Mr Ferrato. Mr Ferrato expressed his dissatisfaction at commencing work at 6:00am and informed him that he had family commitments, his mother, that prevented him opening the workshop at that time. When Mr Grace reiterated that it would only be two weeks out of eight, Mr Ferrato said he would rather start at 6:00am every day. Mr Grace thought this inconsistent with his earlier position, and informed him the roster would be implemented as discussed and previously agreed. A casual employee worked from 6:00am for the first two weeks. 252He says Mr Ferrato expressed dissatisfaction that Mr Wearne and Mr Mitchell were only able to 'fill in' on the roster because of their other work commitments at a meeting on 20 August 2010. Mr Ferrato recorded part of the meeting. Mr Ferrato was rostered to work on call, and now start at 6:00am, from 23 August 2010. He agreed to be on call but refused to start at 6:00am. Mr Mitchell volunteered to commence at 6:00am. 253He met with Mr Tzoukos, Ms Wilson and Mr Ferrato on 24 August 2010. Mr Ferrato recorded the meeting. On 25 August 2010, at Mr Ferrato's request, he drafted a memo (exhibit 10, Tab B) to workshop employees involved in the new roster advising them of the proposed roster for call outs and the new 6:00am start time. On 26 August 2010 he was informed by Mr Wearne that Mr Ferrato was still refusing to work the new roster. 254He attended a disciplinary meeting with Mr Tzoukos, Mr Wearne and Mr Ferrato on 30 August 2010. Mr Ferrato recorded the meeting. On 31 August 2010 he attended a further meeting with Mr Donovan, Mr Tzoukos, Mr Wearne and Mr Ferrato, and with Mr Sandanam as his support person. Mr Ferrato recorded the meeting. 255He states he was not aware of Clause 16A(v) of the Award in August 2010 and understood that the Council had the right to require Mr Ferrato to work his ordinary hours at any time in the span of hours stipulated in the Award. 256He observes that the attitude of the workshop employees has improved since Mr Ferrato's dismissal. In reply to Mr Ferrato's statement of 5 November 2010 he said that, at the meeting on 12 August 2010 (see paragraph 35 above), he also told Mr Ferrato that it was not up to Mr Ferrato as to who works in the workshop and when they start, he will make those arrangements. 257In examination in chief he confirmed the contents of his statement of 3 December 2010. He agreed he had been employed since 17 May 2010 and said he was not, and had never been, a member of the Council's OHS Committee. 258In cross examination he agreed he had attended a meeting on 23 August 2010 with Mr Mitchell and Mr Ferrato. He agreed that at the meeting: he told Mr Ferrato he had to attend a meeting with Mr Tzoukos the following day; Mr Ferrato asked if a representative could attend who was an external person; he understood that to be a reference to an official of the AMWU; and he would discuss that with HR and get back to Mr Ferrato. He said he discussed it with Mr Tzoukos who advised that the AMWU were not entitled to be there. 259He was taken to the memo at Tab B to his statement (exhibit 10). He said: he wrote it on 25 August 2010; it was his view at the time that the changes were in accordance with the Award; and in reaching that view he sought the advice of Mr Tzoukos. 260When asked if his observation that the attitude of the workshop employees had improved since Mr Ferrato's termination was just his opinion, he agreed but said he had a feeling from the start. He agreed he had been there since 17 May 2010, Mr Ferrato, Mr Mitchell and Mr Wearne had longer periods of service and in comparison he had been there a relatively short period of time. He said he had nothing to do with Mr Ferrato since his termination and bore him no personal hostility, malice or ill will. 261He agreed he expressed a view in relation to the decision to dismiss Mr Ferrato but did not accept an unfair dismissal finding by the Commission would reflect on him. He agreed he was finishing up with the Council and would not be employed from January 2011. Submissions Applicant 262The Union relied principally on its written submissions filed in November and December 2010 and made supplementary submissions at the hearing. 263In its written submissions the Union submitted that Mr Ferrato was dismissed on 31 August 2010 for the cited reasons of: a continued refusal to follow a lawful and reasonable directive to alter start and finish times of his ordinary hours of work; behaving in a disruptive manner and not prepared to work with Council to improve and provide efficient workshop services; a pattern of continually refusing directives from management, supervisors, team leaders and resisting all efforts to turn this situation around; and he has demonstrated a poor attitude and unsatisfactory conduct. 264The primary submission is that the misconduct relied upon by the Council did not occur and therefore the dismissal was unjust. 265The Union further contents that the dismissal was unreasonable because he was denied procedural fairness. 266The Union also submits the dismissal was harsh because: the sanction of dismissal was disproportionate to any unsatisfactory performance or conduct; Mr Ferrato's length of service and work record; and the impact of the dismissal upon the personal and economic circumstances of him and his family. 267The Union sets out the relevant principles by reference to section 84 of the Act and the decisions in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 - 468; Outboard World Pty Ltd (t/as Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 and Bankstown City Council v Paris (1999) 100 IR 363. 268The Union submits that it appears most of the central facts that led to the dismissal are not contested. However there are some factual disputes for the Commission to resolve based on the material placed before it - NSW Nurses' Association on behalf of Debbie Rudder v Booroongen Aboriginal Corporation [2007] NSWIRComm 89 and Zonneveld v South Eastern and Illawarra Area Health Service [2010] NSWIRComm 1002. 269The Union submits that the evidence of the tape recordings of the meetings of 30 and 31 August 2010 and the written dismissal letter of 31 August 2010 make it clear that the primary reason for his dismissal relates to his refusal to follow a purported reasonable and lawful directive. And the Union submits that the direction was not lawful and reasonable and on that basis the dismissal will be found to be unfair - Ferns v Department of Corrective Services [2005] NSWIRComm 9 at [117]. 270The direction was not lawful and reasonable because under Clause 16A(v) of the Award Mr Ferrato had to agree to any change in his start and finish times and he did not so agree. The Union referred to a number of cases on lawful and reasonable directions including R v Darling Island Stevedoring and Lighthouse Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621 - 622. 271The Council also cited other reasons in dismissing Mr Ferrato. These reasons are bare assertions and not supported by any evidence. 272The Union says Mr Ferrato was not given any opportunity to make out a defence or give an explanation and therefore his dismissal was procedurally flawed and unreasonable - Antonakopoulos v State Bank NSW (1999) 91 IR 385; Schokoman v RTA [2010] NSWIRComm 1011 at [69]. 273Any such opportunity to do so occurred at the meeting on 31 August 2010 but was only cursory due to the short duration of the meeting prior to the break in the meeting and after which he was dismissed. 274The Union says the Council also failed to comply with the provisions of Clause 31A(iv) of the Award by failing to allow him to be represented by the AMWU. 275The Union says the procedures followed by the Council did not comply with Clause 31C of the Award. In particular, he was not given a third and final warning before dismissal. The evidence establishes there was no resumption of any unsatisfactory work performance or conduct after the second formal warning, indeed he was less than 30 minutes after being issued with the second formal warning. 276Alternatively the Union submits the dismissal is disproportionate to any unsatisfactory performance or conduct - Schokman at [75]; and it is harsh based on his length of service, work record and the impact of the dismissal on his personal and economic circumstances - Joseph D'Souza v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042 at [227] and [316]. 277Mr Ferrato's work record discloses a first formal warning on 21 July 2009 and a second formal warning on 30 August 2010. 278The first formal warning was in relation to the refusal to follow a direction to register on the RTA on-line site which the Union says was not lawful and reasonable because he did not have the appropriate training and resources to complete such a direction. 279The second formal warning included his failure to obey a lawful and reasonable direction to stop recording meetings. The Union argues the direction is not lawful and reasonable in light of the comments of Bacon C in I W McLauchlan v Australia Meat Holdings Pty Ltd (24/3/1998 AIRC unreported) that recording such meetings is good practice. Alternatively the direction was not reasonable because of Council's refusal to allow him to be represented by the AMWU. Additionally, the Union does not accept that Council did not consent to the recording of the meetings. When he was challenged and pressed the point of recording the meetings, it says the Council's officers acquiesced. 280The Union also submits that, based on Mr Ferrato's denial, that no directive was issued to him by a supervisor on 14 July 2010 to return to work. It also points to the differential in treatment between Mr Ferrato and Mr Sandanam on the matter. In any event, the matter was appropriately dealt with by docking Mr Ferrato 30 minutes pay. The issue of Mr Ferrato's lateness on 14 and 15 July 2010 is trivial. 281The Union seeks orders that: Mr Ferrato be reinstated to his former position of mechanic on terms no less favourable than those that would have applied if he had not been dismissed; the reinstatement to be effected no later than 7 days from the date of the order; the Council pay Mr Ferrato from 31 August 2010 to the date of his reinstatement, less any gross income earned since that date; and Mr Ferrato's period of service is treated as not to have been broken by his dismissal. 282The Union submitted reinstatement was entirely practicable in view of the primary reason for dismissal given by Council and referred to the decisions in Joseph D'Souza at [231] and [397]; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; and Australian Services Union of NSW on behalf of Valentina Angelovska v St George Youth Services Inc [2010] NSWIRComm 1051 at [402]. 283In its written reply to the Council's case the Union submitted: it maintained the primary reason for dismissal was the refusal to change his start and finish times; being a 'high maintenance' employee does not justify dismissal; the additional grounds cited are not substantial and sufficient and do not justify dismissal; many of those grounds are clearly not misconduct; with three exceptions Mr Ferrato did not receive any warnings about the grounds cited by Council; and none of these additional grounds were put to Mr Ferrato which is a breach of procedural fairness if Council now seeks to rely upon them. The Union maintained its argument that it was entitled to represent Mr Ferrato at the disciplinary meetings under the Award and submitted that the evidence shows he asked to be allowed such representation. The Union also maintained that reinstatement was practicable and drew attention to Clause 17A(v) of the new Local Government (State) Award 2010 ("2010 Award") under which an employee must not now unreasonably withhold agreement to a change in the start and finishing times. 284In final submissions the Union further submitted that the evidence of Mr Tzoukos, Mr Grace, Mr Burgess, the dismissal memo and letter, and the contents of the five meetings recorded on the first CD, clearly support the conclusion that Mr Ferrato's refusal to change his start and finish times was the primary reason for dismiss and therefore relied on the decision in Ferns to say the dismissal was unfair. 285The Union labelled the additional reasons advanced by Council to now justify dismissal as disingenuous. It was submitted that the evidence from Council's witnesses confirmed that Mr Ferrato had not received warnings in relation to any matters except those covered in the first and second formal warnings. The Council's summary of those incidents in its written submissions is overblown and not entirely accurate. For example, the evidence of Mr Wearne and Mr Mitchell largely confirms Mr Ferrato's version of events in relation to the incidents concerning the inspection of the Loader in the wet, the smashed radio; and the dirty garbage truck. Most of the issues raised are not misconduct and do not justify the opinion of witnesses such as Mr Mitchell that Mr Ferrato is disruptive. 286The Union made further submissions that the process followed by the Council to terminate Mr Ferrato was flawed and contrary to the Award, in particular as there was no third warning and no review periods were set, rendering the dismissal unfair - Antonakopoulos . It also emphasised its argument that Mr Ferrato was entitled under the Award to AMWU representation during the disciplinary process. 287The Union emphasised the harshness of the dismissal based on Mr Ferrato's length of service and his age. The Union submitted that reinstatement is not impracticable and the views of the witnesses for the Council to the contrary are tainted by their involvement in the process; the performance appraisal on 28 June 2010 shows a positive performance by Mr Ferrato; and even Mr Tzoukos described their working relationship as reasonable. 288The Union submitted there was little evidence of misconduct and said it did contest the warning which was given on the day of his dismissal for the reasons previously outlined during the submissions. It urged the Commission to conclude that Mr Ferrato was an honest person and Council had not damaged his credit during the hearing. It was also submitted that a credit finding was important to the issue of reinstatement as well. And the Commission was again referred to the decisions in Angelovska and Perkins . Respondent 289The Council relied principally on its written submissions filed on 3 December 2010 and made supplementary submissions at the hearing. 290The Council submitted that the statements it filed provided abundant evidence in support of its contention that were other reasons for Mr Ferrato's dismissal besides the 'primary reason' referred to in the Union's submissions. 291The Council conceded that under Clause 16A(v) of the Award it required Mr Ferrato's written agreement to change his start and finish times and he was therefore entitled to the continuation of his existing start and finish times. The Council's managers involved in the decision to dismiss him were unaware of this at the time and they should not have included his refusal to agree to change his start and finish times among the reasons for dismissal. 292However, it does not automatically follow that his dismissal was harsh, unreasonable or unjust. As the Union submission noted, he was also dismissed because he had: behaved in a disruptive manner and was not prepared to work with Council to improve and provide efficient workshop services; a pattern of continually refusing directives from management, supervisors and his team leader and had resisted all efforts to turn the situation around; and demonstrated a poor attitude and unsatisfactory conduct. His refusal to accept his new starting times precipitated consideration of the viability of his employment but the decision to dismiss was based on his conduct generally. 293The evidence shows that, from 2005 at least, Mr Ferrato has been, to say the least, a 'high maintenance' employee. The issues shown by the evidence are: (1)Unwarranted complaint about being required to attend break down in light rain in April 2005; (2)Complaint in February 2006 about call out hours; (3)Argument in December 2008 with Mr Harber about volume of radio; (4)Complaint in February 2009 about Mr Collins driving a vehicle in need of repair; (5)Refusal in August 2010 to complete service on a vehicle not considered clean enough; (6)Complaint in March 2009 about exclusion from USU picnic day; (7)Complaint in July 2010 about consultation over new sick leave policy; (8)Complaint about smoking policy; (9)Refusal in July 2006 to discuss roster changes; (10)Conflict with team leader Mr Mitchell that emerged in January 2007 and not resolved until November 2009; (11)Refusal to register on-line RTA certificates between February 2008 and July 2009; (12)Complaint to WorkCover about bullying by Mr Mitchell during meeting on 8 July 2009; (13)Conflict with Mr Collins including complaining about Mr Collins use of mobile whole driving on his last day before retirement in early 2010; (14)Removing the brake pins from waste truck just before it went to the RTA for inspection; (15)Refusal in June 2010 to sign Council's codes of conduct for e-mail usage and internet access; (16)Timekeeping issues on 14 and 15 July 2010, including refusal to comply with an instruction from a supervisor on 14 July 2010; and (17)Refusal to participate in new workshop roster in August 2010 and recording meetings without participants' permission. 294The evidence also shows there were concerns about Mr Ferrato: misusing OHS concerns (from Mr Grace, Mr Wearne and Mr Mitchell); being hostile to management and seeking to undermine it (from Mr Mitchell); and being inflexible and uncooperative which hampered productivity (from Mr Mitchell). There is also a view (Mr Grace and Mr Wearne) that the working environment has improved since Mr Ferrato's dismissal. 295The Council submits Mr Ferrato has been a formidable advocate for his point of view and, indeed, his propensity to create and exacerbate workplace issues is at the forefront of Council's dissatisfaction with him. He has not missed an opportunity to explain his position and cannot complain about being denied procedural fairness. 296It says Union's submissions about Mr Ferrato having the right to AMWU representation under Clause 31A of the Award are misconceived as the definition of 'union' in Clause 4 of the Award does not cover the AMWU. Nor is there evidence he requested the presence of an AMWU representative. His only complaint was the unavailability of his usual support person, Mr Sandanam, for the meeting on 30 August 2010. 297Mr Ferrato was told at the disciplinary meeting on 30 August 2010 that his attitude to work was unsatisfactory and he would be given a second formal warning; in the meeting of 31 August 2010, after receiving the second formal warning, he again demonstrated an unsatisfactory attitude to his work. Mr Tzoukos specifically mentioned at the end of the meeting on 30 August 2010 that he had a historical pattern of refusing directives and had resisted efforts to turn the situation around. 298Council said one of the matters of concern was him insisting on recording meetings despite the lack of consent of the other parties. At the meeting of 31 August 2010 he again recorded the meeting despite being told the participants did not consent. 299Council said another matter is the inadequacy of Mr Ferrato's reasons for opposing the new start time. Council submitted it had sound operational reasons to change the hours and his reasons for opposing it were insufficiently articulated and contradicted by his offer to take the early position permanently. Council submitted while it was not able to compel him to change his start time, it was able to consider the inadequacy of his reasons for doing so, and his antagonistic approach at the meeting, as a continuation of his unsatisfactory attitude to work that had led to the second formal warning. 300The Council submitted that because of its concerns with his continued disruptive and uncooperative behaviour at work and his refusal of directions over a prolonged period, despite numerous disciplinary and other meetings including many meetings with an independent mediator, there was no alternative to dismissal. In short, Mr Ferrato's conduct compromised the efficient operation of the workshop. 301Council submitted these reasons also established that reinstatement or re-employment would be impracticable. The Council noted Mr Tzoukos told Mr Ferrato at the meeting of 31 August 2010 that the relationship between Council management and him was irreparable and he agreed. 302The Council submitted that the application should be dismissed. In the event the Commission finds the dismissal was unfair, it should find reinstatement and re-employment impracticable and either make no order or an order for compensation only. 303In final submissions Council conceded that procedurally in terms of Clause 31C of the Award that it did not dot the I's or cross the T's. However, there was a substantial degree of compliance with the disciplinary procedure. 304Council relied on the initial warning placed on the file from 27 July 2006 when Mr Burgess wrote to Mr Ferrato about unauthorised stoppages and warning any further unauthorised stoppages may lead to disciplinary action (exhibit 5, Tab N). It was submitted this satisfied Clause 31C(i) and (ii) of the Award. 305The first formal warning of 21 July 2009 (exhibit 5, Tab WW) in relation to the RTA on-line registrations. He was also told an immediate and sustained improvement must be seen in his attitude and conduct in the performance of his duties, which would be monitored by his supervisor, or disciplinary action may result. He was then given a 7 day deadline to sign up for registrations. The Council concedes that he did rectify the problem in the 7 days by registering. Council submitted this shows substantial compliance with Clause 31C(iii). 306In terms of Clause 31C(iv), Council submits that his unsatisfactory behaviour resumed and led to the second formal warning (exhibit 5, Tab NNN). Council concedes it was not called a final warning but in reality it was the third one in the structure of Clause 31C but he was given a final or further warning as contemplated by the process. It was submitted Mr Ferrato did understand the consequences, as shown in the meeting of 31 August 2010, when handed the second formal warning, he asked if this was leading to the termination of his employment. 307Clause 31C(v) then requires that if the employee's work performance or conduct does not improve after the final warning disciplinary action can be taken. Council submitted it substantially satisfied this requirement. Mr Ferrato was told at the meeting of 30 August 2010 that he was going to get the second formal warning and even though it was not handed to him until the meeting of 31 August 2010 it does not mean his behaviour at the meeting of 31 August 2010 cannot be taken into account. At the meeting of 31 August 2010 he again recorded the meeting despite the objections of the others present, a repeated thumbing of his nose at their objections. Secondly, he manifested his uncooperative behaviour and poor attitude to the efficiency of the workshop by again refusing to work the new start time with no real explanation for his refusal. 308Council submitted that Mr Ferrato's refusal to change his times at the meeting of 31 August 2010 was not the primary reason for his dismissal as argued by the Union - it was instead the 'straw that broke the camels back'. The Council seeks a fair go all round. The evidence abundantly supports the opinions of his supervisors that he was disruptive and difficult and the recordings support this conclusion. He had every opportunity to put his point of view and it can't be doubted he put forward his point of view at great length and at every opportunity. The evidence amply supports the conclusion that, at the very least, he is a 'high maintenance' employee and indeed a disruptive influence at work and that he was given due process. If this position, which the Council urges strenuously, is not accepted, the Commission should nevertheless find that reinstatement is impracticable because of those matters. And because of Mr Ferrato's attitude and referred the Commission to the evidence of Mr Mitchell (witnessing ongoing disruption and Mr Ferrato's unpredictable moods); Mr Grace (concern Mr Ferrato generated disruption amongst workshop employees and the improved atmosphere in the workshop since his dismissal); and Mr Wearne (Mr Ferrato's lack of respect for and hostility towards management and the reduction of tension in the workshop since his dismissal). 309Council rejected the Union's submissions that seemed to suggest an employer could not rely on an episode of misconduct if the employee does not receive a warning or that it is the end of the matter if an employee does receive a warning. It was submitted an employer is entitled to have regard to the entire work history of an employee when considering whether to terminate that employee or impose some other disciplinary outcome. 310The Council maintained that the definition of union in the Award precluded the AMWU representing Mr Ferrato in terms of the disciplinary process and therefore there was no breach of the Award or denial of procedural fairness. It also maintained that the evidence did not support the conclusion that Mr Ferrato made an actual request to Council for the AMWU to represent him at a meeting. The Council also pointed to it delaying the start of the meeting on 31 August 2010 so that Mr Sandanam could be called into the meeting as a support person. 311In relation to the Union's submissions on the17 issues raised in Council's written submissions, Council said it did not claim they were all incidents of misconduct, they were raised to substantiate its claim that Mr Ferrato was at least a high maintenance employee. 312The Council submitted that its witnesses evidence withstood any challenge by the Union in cross examination concerning times on 14 and 15 July 2010. There was no evidence the bundy clock was wrong, it was discovered and reported later as being fast. And Mr Ferrato did not rely on the bundy clock in his disciplinary interviews. In any event, even if it was five minutes fast the evidence of Mr Roese has Mr Ferrato still in his casual clothes after 8:05am on both days. And Mr Roese also gave evidence that staff work off the time on the bundy clock in any event. Mr Ferrato's lateness is significant in itself because it was subject to a recent campaign in the work place and was raised regularly in a number of tool box meetings. 313The Council accepted there was an OHS element in ensuring where possible that garbage trucks are cleaned before mechanics work on them. Sometimes that is not possible where a truck breaks down on the road. But there was evidence from Mr Mitchell that Mr Ferrato had a practice of refusing to work on it if any part was dirty. 314In relation to the radio incident, Council submitted that the evidence shows the radio was much louder than usual that day, Mr Harber had a hearing problem and Mr Ferrato's denial that he did not do it to irritate Mr Harber is unconvincing. Mr Ferrato's evidence that Mr Harber swore at him demonstrates how upset Mr Harber was by Mr Ferrato's actions. 315The Council submitted that Mr Ferrato's performance appraisal was in the middle position of the spectrum of responses, Mr Wearne's written comments indicating there were still underlying issues and Mr Tzoukos summarised it as indicating there was room for improvement. None of those are the endorsement of a good worker and any such conclusion is weakened as it occurred before the brake pins incident and the time keeping issues on 14 and 15 July 2010 including his refusal to abide by the direction of Mr Cluff. It was submitted it provided weak support for suggesting he was a good worker for whom reinstatement would be practical. 316Council rejected the Union's submissions on the incident in April 2005 and said the real complaint by Mr Wearne was that Mr Ferrato complained to the Chairman of the OHS Committee that there was a safety matter when there was no safety matter. In relation to Mr Ferrato not being the only one to work to the minute, Council pointed to Mr Mitchell's statement that other mechanics will complete the task before taking their tea break. 317Finally, Council pointed out that not much reliance could be placed on Mr Tzoukos describing his working relationship with Mr Ferrato as reasonable because Mr Tzoukos works at a different location and only had limited contact with him in the course of his duties. It was significant that the same question wasn't asked in cross examination of Mr Mitchell, Mr Wearne and Mr Grace who gave evidence of Mr Ferrato's effect on the workplace. 318The Council said the application should be dismissed. Applicant's Reply 319The Union submitted that it was disingenuous for the Council to rely on a written warning from 27 July 2006 because nobody thought it was the first formal warning. Mr Ferrato's evidence was that he received two formal warnings, as was the evidence of Mr Wearne and Mr Tzoukos. The letter itself is headed 'Workplace Change' and deals in part with an unauthorised stoppage. It cannot be properly characterised as a warning and even the Council did not do so when they sent is with a heading of 'Workplace Change'. 320The Union says Mr Ferrato took recordings of the meetings because he was denied the representative of his choice. Additionally, it noted that the recordings had been used in the proceedings which meant there was no need for the parties to the meetings to rely on their recollections. 321The Union rejected Council's submission that Mr Ferrato's refusal to change his start time was not the primary reason for dismissal and that it can draw something out of his unwillingness to do so. The Award is clear and a worker has to agree to a change. A worker does not need a reason to refuse and may do so unreasonably. The Union noted however that the provision is now different in the 2010 Award and if Mr Ferrato was returned to work then Council could change his hours on giving reasonable notice and provided there were operational or safety reasons to support the change. 322The Union submitted that the recordings show that Council officers were also at times aggressive, particularly Ms Wilson in the meeting of 24 August 2010. 323The Union noted that the Council now says the 17 incidents it referred to in its written submissions are not misconduct but are just issues. But the Council relied on those issues in its submissions as providing abundant grounds for Mr Ferrato's dismissal. The Council also refers to a pattern and issues that is says justify dismissal One such issue is Mr Ferrato's 'low act' in reporting Mr Collins for a safety issue on his last day. But the Council does not have a problem with giving Mr Ferrato a second formal warning for being a few minutes late on two consecutive days. 324The Union maintained you cannot dismiss a worker for something they have previously been sanctioned about. The worker has to do something further after they are warned. It is clear that Mr Ferrato received a warning for the RTA related issues in 2009. It is also clear that he received a second formal warning for reasons that are clear on the day he was dismissed. The Union says however the Council has failed to produce a reason as to what happened between the second formal warning and the dismissal being effected and the Council cannot do it because what triggered the dismissal was Mr Ferrato's refusal to change his start and finish times. 325The Union says that although he did not request representation by the AMWU by name, he did request representation and indicated to Mr Grace on 23 August 2010 that it was an external representative. 326The Union submitted in relation to the April 2005 incident, the conversation detailed in paragraph 36 of Mr Ferrato's statement of 11 December 2010 was put to Mr Wearne and he agreed that it was more or less correct. Additionally, although Mr Wearne did not agree, on the plain reading of Mr Ferrato's letter of complaint it was both a safety complaint and a complaint taking issue that an allegation of refusal of duty was made. 327Finally, the Union submitted that for reinstatement the issue of impracticability does not come down to interpersonal relationships, which is the extent of the Council's evidence from unfounded and speculative opinions. Consideration 328The Union alleges that in all the circumstances of the case, Mr Ferrato was unfairly dismissed by the Council on 31 August 2010. It says the dismissal was harsh, unjust and unfair. It relies on a primary challenge based on the Council dismissing Mr Ferrato for refusing to comply with a direction to change his start and finish times, where such a direction is contrary to the Award. The Union has raised procedural defects in some of the Council's actions. The Union also disputes the factual basis for some of the other matters raised by the Council in support of the two formal warnings it issued to Mr Ferrato and other incidents from his work history. 329The Council concedes that its direction to Mr Ferrato to change his start and finish times was contrary to the Award, which required an employee's written agreement to such changes. However, it argues that Mr Ferrato's work history as a whole justifies its decision to dismiss him on 31 August 2010. 330The Commission is obliged to determine any issues before it on the civil standard of proof, that is, the balance of probabilities. The Commission is also obliged to approach the matter in a manner consistent with the principles in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALJR 170. 331An applicant generally carries the evidentiary burden of establishing the basis for the Commission to grant relief in relation to their unfair dismissal application. However, it is a well established principle that the evidentiary burden shifts to the respondent employer in cases involving misconduct said to justify dismissal - see New South Wales Nurses Association (on behalf of Colin Prior) and South Eastern and Illawarra Area Health Service [2007] NSWIRComm 164; Budlong v NCR Australia [2006] NSWIRComm 288; and Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. 332If the employer discharges that onus the Commission must then consider whether the dismissal was unfair in accordance with Byrne . Similarly, the Commission must also consider whether the dismissal was harsh and/or unjust and/or unreasonable in accordance with section 88 of the Act and make a positive finding to that effect: Bankstown City Council . However, in determining if the dismissal was harsh, unjust and/or unreasonable, the evidentiary burden moves back to the applicant: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 333If the applicant discharges its onus and satisfies the Commission that the dismissal was unfair, the Commission must determine what remedy to grant. In particular, as the primary remedy is reinstatement, and the Union seeks Mr Ferrato's reinstatement, the Commission must determine whether reinstatement is impracticable: Perkins . 334Before discussing the factual disputes between the parties, the Commission should indicate that it found all the witnesses who gave evidence to be generally witnesses of truth. The inconsistencies, contradictions or changes in their evidence are largely attributable to the different perspectives witnesses may have from each other of the same event, problems of recall and memory over time, later reconstructions etc. 335The Commission notes that some of the witnesses when giving their evidence were on occasion somewhat reluctant to agree to relatively straightforward propositions put to them in cross examination. A certain level of defensiveness might be expected from any witness, but in the case of Mr Ferrato, Mr Wearne and Mr Tzoukos, there appeared to be a marked effort to avoid, as much as possible, conceding points that might not assist their respective cases. It does not detract from the Commission's overall view that they are honest witnesses but it does suggest some of their evidence could be coloured by those efforts. 336In particular, the Commission accepts that Mr Ferrato is a witness of truth and generally accepts his evidence except as discussed elsewhere in this decision. However, it is also clear to the Commission, by the tone and contents of various documents he prepared during his employment, his statements tendered as evidence, and the recordings of the six meetings contained on the first CD and second CD, that Mr Ferrato is also a man of strong opinions and views, genuinely held, but which appear to colour his perception of events. He also was given to answering some questions based on his usual practice in such situations - for example his bundying on routine in the mornings and his normal practice of dealing with work assignments - rather than any actual recall of events on particular days. In short, the Commission believes Mr Ferrato is often given to reconstructing events rather than independently recollecting them. 337The Union has directly or indirectly challenged a number of the misconduct findings made by the Council in relation to those matters dealt with by the First and Second Formal Warnings. 338It is disputed that Mr Ferrato disobeyed a lawful and reasonable direction of a supervisor to return to work on 14 July 2010 following the USU rally . The evidence shows Mr Ferrato attended the USU rally between 12:00 - 12:30pm on 14 July 2010. When he returned to the workshop Mr Ferrato, together with Mr Sandanam, commenced their usual lunch break that runs from 12:30 - 1:00pm. Mr Cluff, a supervisor from another department entered the lunch room and spoke to Mr Ferrato and Mr Sandanam. Mr Ferrato's evidence, which is corroborated by the statement from Mr Sandanam who was not required for cross examination, was that Mr Cluff told them they could not take their lunch break because they had attended the rally. Mr Ferrato disputed this and said he should talk to Mr Wearne. Mr Cluff left the lunch room. The only first hand accounts of what was said are from Mr Ferrato and Mr Sandanam as Mr Cluff did not give evidence and there is no statement from him in the Council's tendered material, only the second hand recollections of Mr Tzoukos and Mr Wearne as to what Mr Cluff said he said to Mr Ferrato. The first hand accounts of Mr Ferrato and Mr Sandanam must be accorded greater weight than the other material. Their evidence is that Mr Cluff told them they should not be having lunch, not that he told them to resume work. Therefore, the evidence before the Commission does not establish that Mr Ferrato disobeyed a lawful and reasonable direction of a supervisor to return to work on 14 July 2010 following the USU rally. 339It is disputed that Mr Ferrato was not at his designated workshop area for commencement of duties at 8:00am on 14 and 15 July 2010 . The evidence from Mr Roese was that, according to the time displayed on the bundy clock, Mr Ferrato was still in the lunch room, dressed in casual clothes, at around 8:05-8:06am on both 14 and 15 July 2010. Mr Ferrato claims he was ready for work etc on both days. However, he agreed he had no independent recollection of the matter but was relying on his usual practice for starting the day. Mr Ferrato also notified Mr Wearne in late August 2010 that he believed the bundy clock was 5 minutes fast. He agreed in cross examination that he could not say if the bundy clock had been fast on 14 and 15 July 2010. The evidence before the Commission establishes that Mr Ferrato was not at his designated workshop area for the commencement of duties at 8:00am on 14 and 15 July 2010. 340It is disputed that Mr Ferrato took an extended morning tea break on 14 July 2010 . The evidence from Mr Roese was that, according to the time displayed on the bundy clock, Mr Ferrato was in the lunch room from 9:55am to 10:15am on 14 July 2010. Mr Ferrato gave evidence that he took his normal 15 minute morning tea break that day, but was relying on his normal practice in relation to morning tea and not any actual recollection of the incident. The evidence before the Commission establishes that Mr Ferrato took an extended morning tea break on 14 July 2010. 341It is disputed that Mr Ferrato continued tape recordings at the meetings of 24 August 2010 and 30 August 2010 without the consent of Council officers present following a reasonable and lawful direction by Mr Tzoukos advising him that he required the consent of parties prior to recording . The evidence before the Commission, including the recordings, clearly establishes that Mr Tzoukos told Mr Ferrato that he needed the consent of everyone present, which was withheld, to tape the meeting on 24 August 2010. Mr Tzoukos followed the verbal advice with an e-mail dated 25 August 2010 to Mr Ferrato directing Mr Ferrato that he was in future to adhere to Council's requirement when he was asked to attend meetings that he not use recording equipment without the consent of all present. He also directed him to supply copies and transcripts of the recordings of the meeting of 24 August 2010, and two earlier meeting, by 3 September 2010. Mr Ferrato also taped the meetings of 26, 30 and 31 August 2010. 342The Union raised the issue of the reasonableness of the direction. It relied on the comments of Bacon C in McLauchlan . Although the comments of Bacon C suggest it is good practice to record disciplinary meetings, and the Commission notes that both parties have relied on the recordings to support their cases, it does not follow that a failure by an employer to adopt a potentially useful or good practice makes any other directions issued by the employer in relation to that subject matter unreasonable. 343The evidence before the Commission establishes that Mr Ferrato continued tape recordings at the meetings of 24 August 2010 and 30 August 2010 without the consent of Council officers present following a reasonable and lawful direction by Mr Tzoukos advising him that he required the consent of parties prior to recording. He also went on to record the meeting of 31 August 2010. Although these actions were contrary to a clear direction, the nature of the meetings that were taped and the reliance placed by the parties on the recordings in these proceedings, significantly reduces the seriousness of these actions. 344It is disputed that Mr Ferrato disobeyed a lawful and reasonable direction to perform RTA on-line registration of Council vehicles . There is abundant material before the Commission to support the conclusion that Mr Ferrato initially disobeyed a lawful and reasonable direction to perform RTA on-line registration of Council vehicles. He only complied with that direction on and after 28 July 2009. However, the Union argued that because of a lack of training and resources, the Council's direction was not reasonable. After considering the various documents generated on this issue between the Council and Mr Ferrato, and in particular noting the letter dated 27 June 2008 that was sent to Mr Ferrato by Mr Tzoukos which, among other things, outlined his then current computer access etc, the Commission does not accept that the direction is an unreasonable one. The evidence before the Commission establishes that Mr Ferrato disobeyed a lawful and reasonable direction to perform RTA on-line registration of Council vehicles. 345It follows from the above that the Council has made out the misconduct contained in the First and Second Formal Warnings except for the allegation that Mr Ferrato disobeyed a lawful and reasonable direction of a supervisor to return to work on 14 July 2010 following the USU rally. 346The Council held a meeting on 31 August 2010 with Mr Ferrato to principally discuss his refusal to change his start time to 6:00am in accordance with a new workshop call out roster arrangement. It also handed Mr Ferrato the written Second Formal Warning. The meeting started at approximately 8:15am, there was a 5 to 10 minute break and then around 8:33am Mr Ferrato was advised orally that he was dismissed. His dismissal was confirmed in writing by the Council later that day. 347In dismissing Mr Ferrato the Council informed him it was because, following a Second Formal Warning, he had continued to refuse a reasonable and lawful directive to commence the call out roster and had continually shown in the past by his disruptive behaviour and conduct that he was are not prepared to work with Council in improving and providing efficient workshop services. The Council said it was evident from the formal warnings that he had an historical pattern of continually refusing directives from management, supervisors and team leader and had resisted all efforts to turn the situation around. The Council also said his actions demonstrated a poor attitude and unsatisfactory conduct given Council's expectations and sufficient warnings knowing what the issues are and reasonable timeframes to improve his situation. 348The evidence of Mr Tzoukos and Mr Burgess, together with the recommendation and dismissal letter prepared by Mr Tzoukos for Mr Burgess's signature, and the sequence of events on 31 August 2010 clearly establish two things. First, the actual trigger or catalyst for Council dismissing Mr Ferrato was his refusal to commence the call out roster. Secondly, the conduct covered in the First and Second Formal Warnings are the matters being referred to when the dismissal letter mentions Mr Ferrato's past disruptive behaviour, historical pattern of continually refusing directives, resistance to efforts to turn the situation around, poor attitude and unsatisfactory conduct. 349In relation to the direction that he commence the call out roster the Council accepts that in was contrary to Clause 16A(v) of the Award and should not have been relied upon to dismiss Mr Ferrato. 350Council also sought to rely generally on Mr Ferrato's refusal to commence the call out roster to support its decision to dismiss. That is, Council said his refusal was unreasonable and therefore another example of his poor attitude and his unwillingness to contribute to making the workshop efficient. However, on the evidence before the Commission Mr Ferrato's actions were not unreasonable. He explained to Council that he had family care responsibilities that he had to consider. He also offered to do the early starts on a permanent basis as it would suit his care arrangements. Some of Council's witnesses saw this point as contradictory to his refusal to participate for two weeks out of eight on the rotating roster. However, as Mr Ferrato is clearly heard explaining at the meeting of 31 August 2010, if he did it permanently it would be easier to make alternative arrangements for his carer responsibilities than if it was under the 8 week rotating roster. 351As the Commission has found that Mr Ferrato did not disobey a lawful and reasonable direction of a supervisor to return to work on 14 July 2010 following the USU rally, the Council cannot now rely on that misconduct to support its decision to dismiss Mr Ferrato. 352The actions of the Council on 31 August 2010 are also procedurally flawed in a number of aspects. 353First, Mr Ferrato was not given an opportunity, once Council had decided to dismiss him, to address or be heard on any of the concerns that Council says justified his dismissal. His discussions with various Council officers throughout August 2010 were concerned with the matters that were ultimately encompassed by the Second Formal Warning and the change to his start times. Although Mr Ferrato's comment when he was handed the Second Formal Warning on 31 August 2010 shows foresight of what was to shortly come to pass, there was no indication from the Council prior to its decision on 31 August 2010 that dismissal was either on the cards or within contemplation. 354Secondly, the Council has not strictly compiled with the requirements of Clause 31C of the Award. It had only issued two written warnings about his conduct to Mr Ferrato before deciding to impose disciplinary action - in this case dismissal - rather than giving him a third and final warning. Additionally, the Second Formal Warning fails to specify an appropriate review period for monitoring Mr Ferrato's performance, indeed it fails to mention any review at all, when the nature of some of the misconduct (time keeping / breaks) is such as to clearly warrant a review period. further, the warnings must be in writing. Although the Commission accepts that the substance of the issues were discussed at the meeting on 30 August 2010, it was not until Mr Ferrato was given the written Second Formal Warning that the warning took effect. And then Mr Ferrato had only a short period of time to digest its contents on 31 August 2010 before he was dismissed. 355The Commission does not accept Council's submission that there was a substantial degree of compliance with Clause 31C of the Award. Council did warn Mr Ferrato about unauthorised stoppages in July 2006, as part of a broader dispute concerning the introduction of workplace changes to the workshop, and it is part of his record. However, as discussed at paragraph 348 above, the evidence shows that the Council's dismissal decision was focussed on issues arising from the First and Second Formal Warnings. The old warning formed no part of any of the Council officers' or Mr Ferrato's consideration when dealing with these matters. 356The Union raised a further procedural issue in relation Council's failure to allow Mr Ferrato to be represented by the AMWU in the disciplinary meetings. The Union's submissions on this point are misconceived. It is clear from the provisions of the Award, and having particular regard to the definition of 'union' in Clause 4 and the contextual use of the word 'union' within Clause 31, that the Award permits an employee to be represented by one of the unions as defined. The AMWU is not one of the defined unions and Mr Ferrato has no right under the Award to be represented by the AMWU in the disciplinary meetings. The Council's refusal of AMWU representation was not procedurally unfair. Mr Ferrato was placed in the same position as any other employee who is not entitled to representation as of right under the Award, such as an employee who was not a member of any union. He was however entitled to a support person of his choice. 357The Council has sought to rely on Mr Ferrato's overall work history to justify its decision to dismiss him. It is open to an employer to rely on the employee's aggregated work history: Hornsby Shire Council v Hunt [2002] NSWIRComm 158 applying Clarke and Metropolitan Meat Industry Board, Re [1967] AR (NSW) 16. 358The Council has submitted 17 particular incidents or issues (together with some broader issues such as misuse of OHS matters, hostility etc to management and being inflexible and uncooperative) it says are relevant to the Commission's determination of this matter. 359The Commission has carefully considered all the evidence and submissions provided by the parties on these matters and has drawn some general conclusions. A few issues were disputed or in conflict and need to be dealt with before the Commission states its findings. 360The Council submitted that the Commission should find that Mr Ferrato deliberately provoked Mr Harber during the incident in the December 2008 with the radio. The evidence of Mr Mitchell and Mr Wearne supports the conclusion that the radio was loud, and louder than normal. However, it is drawing a long bow to suggest Mr Ferrato thereby provoked the incident. From Mr Ferrato's uncontested evidence Mr Harber asked him to turn it down in an aggressive - swearing - manner. Mr Ferrato refused and Mr Harber smashed the radio, Mr Ferrato then turned up a truck radio. Mr Ferrato may have been in error in not turning down the radio to accommodate Mr Harber or in turning up the truck radio rather than reporting the incident to Mr Wearne or Mr Mitchell. However, the clearly inappropriate and excessive behaviour was committed by Mr Harber in smashing the radio. 361There was some slight confusion in the evidence concerning the dirty garbage truck on 26 August 2010. Mr Ferrato gave evidence he told Mr Mitchell about the dirty truck and was told to wash it and he did so. Mr Mitchell denied doing so and said he immediately reported the matter to his supervisor. In Mr Wearne's evidence he said he told Mr Ferrato to wash the truck and agreed that he did so promptly. So although Mr Ferrato initially raised the issue with Mr Mitchell it was Mr Wearne who told Mr Ferrato to wash the truck. The Commission accepts Mr Ferrato's evidence that it was his usual practice to raise with his supervisors any dirty trucks and they were then usually sent to be washed. Mr Mitchell confirmed that the policy was that trucks should be washed. 362Mr Ferrato gave evidence of his conversations with Mr Wearne and Mr Shaw in April 2005 in relation to the inspection of a truck in the wet. Mr Wearne generally confirmed the gist of Mr Ferrato's version of their conversation. The Commission therefore accepts Mr Ferrato's evidence on these two conversations. In that context, Mr Ferrato's letter to the OHS Committee clearly deals with the broad OHS issue of working in wet weather and a complaint about being accused of possible refusal of duty, that is consistent with Mr Ferrato's evidence on the conversations. 363Mr Wearne and Mr Ferrato had different versions of what was said by Mr Ferrato in relation to the brake pin incident. After considering their evidence in light of the recording of their subsequent meeting to discuss the matter, the Commission accepts that Mr Ferrato initially told Mr Wearne that he started to work on the truck but also said he did not do the repairs or work. Mr Ferrato made the point several times in the meeting that he considered Mr Wearne's previous questions about the matter to be leading. Clearly Mr Ferrato was deliberately avoiding giving anything other than, at best, a non-committal response. Mr Ferrato admitted shortly after the incident to Mr Mitchell that he removed the pins before he was taken off the work, who told Mr Wearne, and Mr Ferrato owned up to it at the meeting. The Commission also accepts Mr Ferrato's uncontested evidence that he was asked to leave working on the truck without knowing that Mr Harber would be taking over the job. 364The rest of the matters raised by the Council were largely uncontested as to the general facts. The parties did not necessarily agree on what those issues and incidents established about Mr Ferrato's employment history. 365The Commission accepts that Mr Ferrato is not an employee who immediately and unquestioningly obeys every request, task, direction or suggestion by his supervisors and managers. He has a clearly established habit of raising concerns or questions if he thinks something is contrary to established policy and procedure. As Mr Grace observed, he also clearly likes to be consulted on issues he sees as impacting on his work environment and possibly fails to appreciate that consultation does not have to go on until it ends in consensus. He also has a long standing interest in OHS issues, as evidenced by his participation on the OHS Committee, contesting elections for the Committee, actively questioning Committee members and even falling out with Mr Mitchell over an unsuccessful election attempt. 366However, by and large, Mr Ferrato would obey directions and orders, once clearly given to him by his supervisors and managers until the issues covered by the First and Second Formal Warnings arose. 367He also, because of his interest in OHS matters, is quick to raise OHS issues. Nothing in the material before the Commission suggests he did so in a vexatious or frivolous way. The Commission accepts he generally had genuine concerns or issues to raise - even reporting Mr Collins is, in the Commission's opinion, a valid OHS issue to report. However, he did on occasion 'push the envelope' on some matters. For example, although there was an underlying valid reason for reporting Mr Collins when he drove a potentially defective vehicle to the workshop contrary to policy, there was no discernible need to report the matter to the General Manager. The Commission also accepts Mr Ferrato's evidence that he intended it just for the General Manager but selected the wrong e-mail address from the internal list. Similarly, although Mr Ferrato had a valid underlying reason to refer the inspection of the Loader in the wet to the OHS Committee, there is no obvious reason that an allegation of refusing duty was a matter for the same Committee. 368Some of the general issues he raises appear entirely genuine - such as his seeking clarification about why the 2009 USU Picnic Day was not paid as in previous years. He also appears from time to time to 'push the envelope' of what is acceptable from an employee in relation to his questioning of policy change. For example, although he asked for clarification on a couple of points as to entitlements under the new sick leave policy, his questions about the consultation process etc served no discernible purpose. 369The Commission notes that his dispute and subsequent mediation with Mr Mitchell was a long running one. But entrenched workplace issues can take time to resolve and, importantly, the issues were resolved by mediation and Mr Mitchell, as a credit to his honesty, gave evidence that their relationship had improved after the mediated resolution. Similarly, although Council has raised his involvement in the 2006 workplace change process and subsequent dispute, one of the outcomes agreed to settle the industrial dispute was a point Mr Ferrato had been pressing - no change until 1 June 2007 for incumbents. 370When these matters are considered together, including with those matters covered in the First and Second Formal Warnings, the Commission does not believe they justify the dismissal of Mr Ferrato. At worst they are matters that point to the possible need for some structured performance management from time to time, or more appropriately, that should have occurred in times past. 371The Commission has found that Council's reasons for dismissing Mr Ferrato included some reasons that were not valid - his refusal to change his start time and disobeying a direction to return to work. As such, the Commission finds that his dismissal was unjust. 372The Commission has found that there were procedural errors in the Council's dismissal of Mr Ferrato. As such, the Commission finds that his dismissal in unreasonable. 373In light of his substantiated misconduct connected with the First and Second Formal Warnings, his recording of the meeting on 31 August 2010 and his overall work history, the Commission has concluded that the penalty of dismissal is a disproportionate one. As such, the Commission finds his dismissal to be harsh. 374The Commission has also found that the trigger or catalyst for Mr Ferrato's dismissal was an invalid one - his refusal to change his start time. Based on Carolyn Juilie Smith v Walgett Shire Counci l [2010] NSWIRComm 1071 at [124] the Commission finds his dismissal to be harsh. 375Having found that the Council's dismissal of Mr Ferrato was harsh, unreasonable and unjust, the Commission must now determine the appropriate remedy. The Union has sought Mr Ferrato's reinstatement to his former position. Reinstatement is the primary remedy envisaged by the Act: Booroongen. What the Commission is required to do is to consider whether reinstatement is practicable in the particular circumstances of this case. 376The Council opposes reinstatement on the basis that Mr Ferrato has continued disruptive and uncooperative behaviour at work and with his refusal of directions over a long period of time, despite numerous disciplinary and other meetings including many meetings with an independent mediator. Mr Ferrato's conduct compromises the efficient operation of the workshop. The Council also relies on Mr Ferrato agreeing with Mr Tzoukos at the meeting on 31 August 2010 that his relationship with management was irreparable. 377However, in the Commission's opinion, and based on the findings above, Mr Ferrato's behaviour is not as disruptive and uncooperative as Council maintains. The Commission accepts that there may be some friction at the workplace if Mr Ferrato is reinstated. But, some weight must be given to those incidents that show Mr Ferrato as capable of successfully working with others after a falling out. In particular, his relationship with Mr Mitchell improved after mediation. Similarly, despite the incident with Mr Harber in December 2008, and his subsequent departure, Mr Harber was back working in the workshop later in 2010 as the incident with the brake pins and some notations in the tool box minutes confirm. There was no suggestion in the evidence that problems subsequently arose between Mr Ferrato and Mr Harber. 378Mr Ferrato's agreement that the relationship was irreparable, is not surprising at the time it was made - the meeting on 31 August 2010 which led to his dismissal. As he now seeks reinstatement the Commission accepts his view has changed. 379The Commission is aware that Mr Mitchell and Mr Wearne expressed negative views about Mr Ferrato's impact on the workshop. But many of the incidents they relied on to support those are now somewhat dated or have been superseded by subsequent events, for example, with the introduction of written work orders. Mr Grace also held negative views of Mr Ferrato's impact on the workshop, but provided little foundation for those concerns beyond OHS procedural issues. However, the Commission is also aware that with its findings, Mr Ferrato will return to work with two formal written warning still on his record. 380The Commission is also mindful of the relevant authorities and the principles enunciated in cases such as Perkins - the employment relationship can withstand some frictions and doubts and trust and confidence are questions of degree. 381After carefully considered the evidence and submissions of the parties, the Commission does not consider that it would be impracticable to reinstate Mr Ferrato. The Commission will therefore order Mr Ferrato reinstated to his former position of mechanic with the Council. The Commission will also make orders for the payment of loss remuneration for the period between dismissal and reinstatement and that his continuity of service is to be taken not to have been broken by the dismissal. Orders 382The Industrial Relations Commission makes the following orders: (1) Pursuant to section 89(1) of the Industrial Relations Act 1996, the respondent, Auburn City Council, shall reinstate Tony Ferrato to his former position of mechanic on terms no less favourable to those which would have applied had he not been dismissed on 31 August 2010. (2) Pursuant to section 89(3) of the Industrial Relations Act 1996, the respondent, Auburn City Council, shall pay to Tony Ferrato the amount he would have otherwise received had he not been dismissed, less any other earnings received during the period from dismissal to reinstatement. (3) Pursuant to section 89(4) of the Industrial Relations Act 1996, Tony Ferrato's period of service with Auburn City Council shall be treated as not to have been broken by his dismissal. (4) The reinstatement of Tony Ferrato shall be effected no later than 21 days from 6 April 2011. (5) These orders take effect from 6 April 2011. M Oakman Acting Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2011