Blyth Chemicals Limited v Bushnell - [2004] NSWIRComm 26 - NSWIRComm 2004 case summary — Zoe

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Blyth Chemicals Limited v Bushnell

[2004] NSWIRComm 26

Industrial Relations Commission (NSW)|2004-07-01|Before: Sams DP

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Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Sams DP

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Original judgment source is linked above.

Judgment (74 paragraphs)

[1]

CITATION : Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26 APPLICANT PARTIES : Transport Workers' Union of New South Wales, on behalf of Paul Robert Jasper RESPONDENT Sutherland Shire Council FILE NUMBER: 2767 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - waste collection truck driver - applicant a retained fire fighter - conflict of interest - serious misconduct - applicant engaged in secondary employment while on sick leave and workers' compensation - investigation of past performance - two earlier written warnings - applicant represented by the Union - procedural fairness - whether dismissal too "harsh" - principles considered. CATCHWORDS : Held, case finely balanced - conduct acknowledged - wilful breach of employment contract not demonstrated - applicant's poor performance record taken into account - applicant's conduct stupid and regrettable - alternative disciplinary action should have been imposed - no issues of procedural unfairness - reinstatement not sought - dismissal "harsh" in all the circumstances - mitigation of loss - small amount of compensation appropriate- orders made. LEGISLATION CITED : Industrial Relations Act 1996 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Busways v Johnson (1996) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 Franklins Limited v Webb (1996) 72 IR 257 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 CASES CITED : John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors 1972 AILR 517 Laing and Northcott Society [2002] NSWIRComm 365 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 North v Television Corporation Ltd (1976) 11 ALR 599 Paris v Bankstown City Council [1999] NSWIRComm 10 Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service [2000] NSWIRComm 14 Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis and TNT Australia Pty Limited, t/as TNT Express [2002] NSWIRComm 46 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 12/01/2003 DATE OF JUDGMENT: 03/04/2004

[5]

2 The respondent, Sutherland Shire Council, employs some 1200 persons under various industrial instruments. The applicant was employed in the Waste Services Department under the terms of the Sutherland Shire Council Waste Services (Domestic Collection Employees) Agreement 2003 ('the Agreement'). He commenced permanent employment on 13 August 2001 and was dismissed on 7 May 2003. His letter of termination was expressed in the following terms: Termination of Services I refer to an initial meeting held on Monday 5 May 2003 between Ron Smith, Bob Lotze, Peter Evans and yourself to discuss areas of concern in relation to your secondary employment in the NSW Fire Brigade conflicting with your attendance at work during periods of sick leave and workers compensation. Specifically, the areas of concern raised were: a. 13 January 2003, completed a sick leave application form for 'Gastric' however, attended 4 separate fire calls on that date. b. 3 February 2003, competed (sic) a sick leave application form for 'Headache/Migraine' however, attended a fire call, at 6.01 am. c. 12 March 2003, competed (sic) a sick leave application form for 'Headache/Migraine' attaching a Doctors Certificate certifying that you were sick with Headache?, Migraine' (?Quoted from certificate) however, attended 3 separate fire calls at 1.14am, 10.17am and 12.03pm. d. 17 March 2003, completed a sick leave application form for 'Headache/Migraine' however, attended a fire call at 8.41am. e. 15 April 2003, submitted a workcover certificate unfit for any duties and was paid workers compensation for that day, then attended the doctor mid morning and received a clearance for 15 April 2003. The NSW Fire Brigade advise you attended a fire call at 7.16am whilst on paid workers compensation, yet you indicate this record of attendance is incorrect within the fire station records. In addition, you attended a two-hour drill training session between 10.00am and 12 noon, on the day. The fire call and drill training were either attended on a day of workers compensation (which is what was paid based on the medical certificate in receipt of Council on that day) or you were cleared by your Doctor fit to return to work and did not return. You were given the opportunity during the next two days to confirm or deny the NSW Fire Brigade information and arrange for external Union representation if you deemed it necessary. The meeting convened on Wednesday 7 May 2003 with the same panel as abovementioned, and also Warwick Irvine from the Transport Workers Union. You indicated 99% of the information was incorrect. The panel then methodically reviewed each of the above instances and you disputed one fire call only. You completed a Secondary Employment Declaration upon your commencement in permanent employment with Council, with an approval by the General Manager on 31 August 2001. The approval was on the basis of the declaration you completed on the form "that the employment, or work outlined below, does not relate to the business of Council nor does it conflict with my duties." Council believes that your paid secondary employment on days of sick leave and workers compensation has been a direct conflict of interest, and, as such, is terminating your services immediately, effective Wednesday 7 May 2003 at 4.00pm (cessation of disciplinary meeting). Your entitlements and an additional one weeks notice payment will be forwarded to your Bank Account in the next available pay.

[15]

12 Mr Ronald Keith Smith is the Council's Waste Services Manager. Attached to Mr Smith's affidavit were various documents relating to the applicant's request for secondary employment in August 2001. Mr Smith also provided details of the applicant's work performance record. This record may be summarised as follows: 6 November 2001 - second monthly appraisal recorded the applicant's failure to pick up a missed collection service. He had explained he could not find the street in the directory and had said at the time " shit happens ." 14 November 2001 - Memo to the applicant concerning a failure to hose down his vehicle. A second memo related to his lateness attending a meeting and having commenced his shift prior to the start time. 1 February 2002 - First written warning (see para 9) 20 February 2002 - Second written warning (see para 9) The applicant replied in writing to these warnings. Mr Smith investigated his concerns and decided: After receiving Paul Jasper's letters in response to the first and second letters of warning, I investigated his concerns. I considered his responses in Annexure "K" and decided: a. In relation to the weight of the truck, that Paul did not load the truck to its capacity and in accordance with general clean up procedure. I also resolved that it was highly unlikely that all of Paul's loads would suffer from the predicaments he described in his letter. b. In relation to the cleaning of the truck, that Paul should have washed the bowl, the back of the truck and the mud on the truck in order for the job to have been satisfactorily completed. c. In relation to the falsification of the time sheet, I did not accept that Paul's did not sign the time sheet because I saw him sign it and checked the time sheet whilst he walking out the gat. I would quite often check the time sheets as employees had in the past signed off incorrectly, for example, to include an extra half an hour for their lunch break. I considered his responses in Annexure "L" and decided: i. In relation to Paul's suspension from driving duties, that this action was not taken only because he smashed the arm of the truck, but rather as a result of a combination of all the matters that he had been spoken to about. Accordingly, the disciplinary action taken in this case could not really be compared to action taken in other cases where employees had been involved in an isolated incident in which they smashed the arm of a truck. ii. In relation to Paul's claim that he did not have sufficient training, that he had in fact had sufficient training and that a record was available to substantiate this. All of the one-man automatic collections equipment used by Council is the same and includes a joystick that activates the arm and to operate the bin. When a new model is manufactured, we arrange for a representative from the manufacturer to come out and explain whether there are any variations with the new model. Paul Jasper's signature on the training record indicates that he was in attendance when the representative of the garbage compactor trained Council's employees on the use of the new model. 9 May 2002 - Memo to the applicant about overloading his vehicle. 25 September 2002 - Show cause letter sent to the applicant following seven 'at fault' accidents in the year ending 30 June 2002. 15 January 2003 - Meeting with the applicant about a spillage incident at Gymea. 31 January 2003 - A resident complained that a truck driver drove on the nature strip and damaged his lawn. The applicant was the driver. 1 April 2003 - Spillage complaint from a resident. Memo placed on the applicant's file. 7 April 2003 - Meeting held to discuss two issues: driving on the wrong side of the road and a refusal to do "extras" (assisting other drivers in a breakdown situation). Memo placed on the applicant's file. 8 April 2003 - Applicant went off work on workers' compensation with "Anxiety/Adjustment Disorder." 16 April 2003 - Applicant removed from driver's duties for a month. He was warned that any further incident would result in third and final warning. 28 April 2003 - Meeting held with the Union organiser and delegate to discuss the above disciplinary action taken against the applicant.

[49]

46 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at 302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternatives. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255, Wells v Commissioner of Police (2000) 100 IR 106.

[55]

50 In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 and Hunt v Hornsby Shire Council , [2001] NSWIRComm 242.