Blyth Chemicals Limited v Bushnell

APPLICANT Mr W Irvine, Transport Workers' Union of New South Wales RESPONDENT LEGAL REPRESENTATIVES: Mr R Crow of counsel SOLICITOR Mr B Williamson, Workplace Law

JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 4 March 2004 Matter No IRC03/2767 Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council Application by the Transport Workers' Union of New South Wales on behalf of its member Paul Robert Jasper re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm

1 This is an application pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act') filed on 26 May 2003 by the Transport Workers' Union of New South Wales ('the Union') on behalf of its member Paul Robert Jasper ('the applicant').

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.

3 Proceedings commenced in the matter on 16 July 2003. Mr Irvine from the Union appeared for the applicant and Mr B Williamson (Solicitor) appeared for the respondent. Private conferences with the parties failed to produce a settlement. The applicant sought reinstatement. This was vigorously opposed by Mr Williamson.

4 Accordingly, the Commission made a finding pursuant to s87 of the Act and set the matter for hearing. Directions were issued in preparation for the arbitration. By consent, these directions were later amended and a new hearing date set.

5 The applicant is a retained fire fighter attached to the Balgownie Fire Station. He was paid a $90.00 a month retainer and paid a minimum of one hour for any fire callout. Regular paid drill training was also required. Training is usually conducted outside work hours. He claimed that his work for the New South Wales Fire Brigade did not impact upon his work for the respondent.

6 Prior to commencing employment with the respondent, the applicant completed a secondary employment form, which noted that he was paid for the time he worked for the New South Wales Fire Brigade. The Council's General Manager approved the application.

7 The applicant described his work at Council as relief driving of the Council's "one arm" trucks for the collection of garbage, recyclables and green waste. The work was "job and finish." This meant that he usually commenced the day at between 5.00 - 5.15am and went home when the waste collection was completed. He said this arrangement had allowed him to become available to be called out by the Fire Brigade. The applicant confirmed that he had attended fire callouts on 13 January, 3 February, 12 and 17 March and 15 April 2003.

8 As to the allegations against him, the applicant deposed that it had not been his intention, nor had it ever been, to defraud the respondent over sick leave or workers' compensation. The applicant claimed he had never been counselled over his attendance record and three to four weeks before his dismissal he received a satisfactory assessment in relation to his attendance at work.

9 The applicant said that he had received two warning letters on 1 February and 20 February 2002. The first warning referred to a failure to properly load his truck, a failure to wash down the vehicle and falsifying his timesheet by signing off at 1.45pm when he had left at 12.20pm. The second warning related to a collision involving his vehicle when the lifting arm had not been retracted. Disciplinary action had been imposed.

10 The applicant said he had received some casual work since his dismissal, but had not been able to secure alternative permanent employment. However he was due to commence permanent work in December 2003 and at the hearing of his claim, Mr Irvine, on instructions, no longer sought reinstatement or re-employment as a remedy for the applicant's alleged unfair dismissal.

11 Uncontested affidavit evidence was admitted from two of the applicant's Balgownie Fire Brigade colleagues, Mr Scott Hamilton and Mr Gregory Fredericks. Both attested to the applicant's integrity, teamwork and commitment to his community responsibilities as a fire fighter.

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.

13 Mr Smith gave details of when he had contacted the New South Wales Fire Brigade as a result of his concern with the applicant's sick leave and whether he had worked as a fire officer while on workers' compensation. He sought the following information: Paul is aware that his primary employment is with Sutherland Shire Council. I have concerns with Pauls absenteeism and also a period of workers compensation recently. Paul was on workers compensation for the period Tuesday April 8 to Tuesday April 15 inclusive this year. I am trying to establish if there is a pattern to Paul's sick leave and if he was employed by NSW Fire Brigades or carried out duties for NSW Fire Brigades during his period of workers compensation. Would it be possible to see if there is a correlation between his time off work and his obligations to NSW Fire Brigades. Below is Paul's leave so far this year. Would it be possible to indicate if Paul worked voluntarily or otherwise on the day before, during or after the leave? TIL is "time in lieu" and is generally programmed leave. My other concern is that Paul's employment at Council requires him to drive a heavy vehicle and any other employment obligations may impact on his responsibilities in relation to driving hours.

14 Mr Smith explained that the reference to annual leave and days in lieu was because the Council has a policy of allowing employees to access other leave, when their sick leave entitlement is exhausted.

15 Mr Wayne Challiner, Human Resource Manager, for the South Region New South Wales Fire Brigade replied as follows: I can confirm that a senior officer from the Fire Brigade has visited Balgownie Fire Station to which Paul Jasper is attached and station records confirm that Paul Jasper attend (sic) the fire station for fire calls and other business as follows: 6 Jan 2003 Nil attendance 13 Jan 2003 4 Separate fire calls 3 Feb 2003 2 Separate fire calls (0601hrs and 1926hrs) 28 Feb 2003 Nil attendance (however travelled to Glenn Innes on Brigade Business) 12 March 2003 3 separate fire calls (0114hrs, 1017hrs, 1203hrs) 17 March 2003 1 fire call (0841hrs) 8 April - 14 April -Nil attendance 15 April 2003 1 fire call at 0716hrs and I drill-training (1000 - 1200hrs)

16 After he had received this information, Mr Smith arranged a meeting on 5 May 2003, with the applicant, Mr Bob Lotze, the TWU delegate and Mr Peter Evans, Human Resources Manager. At the meeting Mr Smith informed the applicant of the details of the allegations - that on four occasions while claiming to be sick he had attended one or more fire calls and that while on workers' compensation on 15 April he had attended a fire call and a two hour training session. The applicant denied the allegations. He was provided with the details in writing and given two days to consider his position.

17 Mr Smith said a further meeting was held on 7 May attended by Mr Irvine. At this meeting the applicant claimed that the allegations were 99 per cent wrong. Mr Smith said that they went through the allegations again and the applicant was unable to disprove any of them. Mr Irvine had said that the applicant had a clearance to return to work on 15 April. Mr Smith had said that if this was so, he should have been at work and not attending his secondary employment. The meeting ended with the applicant's dismissal.

18 It was Mr Smith's further evidence that only eleven Council employees originally transferred from Linfox in 1992, were on "job and finish". All others, including the applicant were required to remain at the depot until the end of the shift, even if the work had been finished. However, in oral evidence, Mr Smith accepted that the Council offered this concession to other permanent employees, notwithstanding the terms of the enterprise agreement.

19 Mr Smith deposed that the working relationship between the applicant and the Council had broken down and his reinstatement might cause some "industrial issues."

20 In cross examination, Mr Smith was asked about the applicant's WorkCover medical certificate. This stated that the applicant was unfit for duty from 8 to 15 April inclusive. Mr Smith said that if the applicant attended his doctor on 15 April to get a clearance, it meant that he would return to work on 16 April. Mr Smith was shown Mr Evans' affidavit in which he described what the applicant had said at the meeting on 7 May. The applicant had said he didn't attend a fire call at 7.16am on that day. Rather he had visited the doctor at 9.00am, received a clearance and went to the training course at 10.00am. He said he didn't return immediately to work because the Council wouldn't have had any work for him on that day. It was noted that the termination of employment letter also referred to this conversation.

21 It was Mr Smith's evidence that the respondent's Counselling and Disciplinary Procedures were applied to the applicant. Mr Smith had focused on the workers' compensation matter because he was seriously concerned the applicant was working for the Fire Brigade whilst being paid workers' compensation. He observed that the Council was a self-insurer.

22 Mr Peter Ray Evans has been employed as the respondent's Personal Manager since July 2001. Part of his role was to be involved in processes which involve formal warnings or termination of employment. Mr Evans conceded that he had not been involved in the applicant's first formal warning.

23 Mr Evans said that in early May 2003, Mr Smith spoke to him about the information he had received from New South Wales Fire Brigade concerning the applicant's attendance at fire calls whilst on sick leave and workers' compensation. Mr Evans had advised that a meeting should be convened and the allegations put to the applicant.

24 Mr Evans detailed the conversation at the meeting on 5 May. He said that Mr Smith had told the applicant that he had defrauded the Council. The applicant denied this and asked how Council got the information. The applicant believed such information could not be released. Mr Evans said the applicant had said that "its not like I'm going to get rich from doing work with the brigade, I only get paid about $90 per call." Mr Evans said the Union delegate (Mr Lotze) was silent during the meeting.

25 Mr Evans also related the conversation of the meeting on 7 May. He added the reference to the applicant's explanation of going to the doctor at 9.00am on 15 April (see para 20). Mr Evans said he could not recall if the applicant had offered to pay back the day for his absence on 15 April.

26 Mr Evans said that, after considering the applicant's record (which he had reviewed) and the inability of the applicant to disprove the allegations, he had dismissed him with one week's pay in lieu of notice.

27 Mr Evans agreed that the applicant's performance record was not mentioned in the termination letter. However, he said the issue was certainly raised in the meetings on either 5 or 7 May.

28 Mr Robert Hawkins is the Council's Waste Services Business and Industrial Waste and Occupational Health and Safety Controller. Mr Hawkins' evidence dealt only with a performance appraisal he conducted on the applicant on 13 March 2003. He said he had conducted the appraisal because of the two operations controllers, one was on leave and the other was new to the position.

29 Mr Hawkins attached the performance appraisal to his affidavit. Mr Hawkins had given the applicant a "C" rating on all aspects of his performance. He had not felt a "D" rating was warranted. Mr Hawkins explained that he had given the applicant a "C" rating for attendance because although he had used his five days' sick leave, he had produced medical certificates for each absence.

30 Mr Irvine emphasised that the applicant had only received two written warnings and the last warning was on 20 February 2002 - some fourteen months before dismissal. Moreover, the applicant had received a satisfactory attendance appraisal.

31 Mr Irvine submitted that the applicant had been denied procedural fairness, in that he had only been given two days to respond to the allegations. He had been given no opportunity to offer alternatives to dismissal, such as ceasing his secondary employment or paying back the day for 15 April 2003. Mr Irvine had himself offered alternatives, but these had been ignored.

32 Mr Irvine put that, at no time, did the applicant seek to defraud the Council. He has a community responsibility as a retained fire fighter. He had never left his place of work to attend a fire call, except when he was granted leave to attend a bush fire emergency. Even when he had received pager messages during work time, he did not leave his primary place of employment.

33 Mr Irvine claimed the respondent had a number of options available to it, but had been intent on summary dismissal. In the circumstances, such dismissal was 'harsh, unjust and unreasonable.'

34 During his submissions, Mr Irvine sought instructions from his member as to reinstatement. Those instructions were that the applicant had no desire to return to Council, particularly as he was to commence a permanent position the next day.

35 Mr Crow of Counsel detailed the applicant's unsatisfactory employment record over a relatively short period of 21 months' employment. The applicant had challenged only one incident concerning the falsification of time sheets and, even then, called no evidence to corroborate his version of events. Even so, Mr Crow described the applicant's record as "very poor."

36 Mr Crow said that it had been acknowledged that the applicant, on a number of occasions, had claimed sick leave but attended a fire call or calls on those days. The applicant had accepted he had attended a training course from 10.00 to 12.00pm on 15 April - the last day he was still on workers' compensation. Moreover, he had brought no evidence to contradict his attendance to a fire call at 7.16am on that day.

37 Mr Crow put that there were no real issues put as to a denial of procedural fairness. The applicant had been interviewed twice, he had an opportunity to respond and the Union organiser or delegate advised and accompanied him to the meetings.

38 Mr Crow submitted that if the applicant was well enough to attend a fire callout on at least three occasions, he was well enough to attend his primary place of work. His sick leave claims were false and dishonest. Moreover, he had breached his duty of good faith to the employer by working while on workers' compensation.

39 Mr Crow submitted that the employer was entitled to take into account the whole of the performance record of the applicant. See John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors 1972 AILR 517, Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 and Laing and Northcott Society [2002] NSWIRComm 365. The applicant's record was so poor that he had exhausted any right to leniency. Mr Crow said the application should be dismissed. However, if the Commission was against him, any compensation should be minimal, having regard for the circumstances and the applicant's past six months employment earnings.

40 Mr Irvine put that any new employee would experience difficulties, which after counselling and training, would be rectified. The fact was the applicant's last written warning was over fourteen months prior to dismissal. It should not have been taken into account.

41 Mr Irvine conducted a robust and valiant defence of his member. His case rested primarily on the argument that dismissal, in all the circumstances, was too harsh a penalty. To a lesser extent Mr Irvine raised certain procedural matters which I will return to later.

42 It is fair to say that the applicant, at the meetings with the respondent on 5 and 7 May 2003, and during these proceedings did not seriously contest the factual basis of the allegations made against him. It would be difficult to imagine how he could have. That being said, it came as no surprise that the Union's case was advanced in the manner which I earlier described.

43 It seems to me that the following questions necessarily arise for determination in this case. Firstly, did the seriousness of the misconduct justify summary dismissal? Secondly, did the conduct constitute a fundamental and wilful repudiation by the applicant of his contract of employment? Thirdly, were other mitigating factors taken into account, such as length of service, age and contrition? This last question also raises the extent to which the respondent relied on the applicant's performance record when deciding to dismiss him. The parties hotly contested this issue and I shall refer to it shortly. What then are the legal principles which must be considered in a case of this type?

44 Before dealing with the relevant authorities, it is incumbent upon the Commission to make the following observations:

45 Summary dismissal can have serious implications for an employee. It is for this reason that the Full Bench in Franklins Limited v Webb (1996) 72 IR 257, reminded employers of the need to be fully satisfied that the misconduct had been committed and justified dismissal. The Full Bench said at p261 We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

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.

47 Thus, it is plainly open for the Commission to review the decision of the employer and determine that a particular dismissal was too severe a penalty in all the circumstances (see also my conclusions in 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, 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 and Police Association of New South Wales on behalf of Adam Tregonning, and New South Wales Police Service [2000] NSWIRComm 14

48 The allegations against the applicant were described as a direct conflict of interest. He was summarily dismissed (albeit with one week's pay in lieu of notice). Put another way, the reason for the applicant's dismissal was for serious misconduct. Where an employee has been dismissed in these circumstances, it is my view that the conduct must be such as to constitute a repudiation of the contract of employment such as to disclose a wilful and deliberate intent by the employee.

49 Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the applicant? In deliberating on this question, I refer to four authorities: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288).

Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith.

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.

51 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.

52 Of course, it is equally true that taking into account past performance works both ways. That is, it would be wrong for an employer to ignore an employee's otherwise exemplary record when weighing up all the factors in its decision to dismiss. I adopt the words of McLeay C in Paris v Bankstown City Council [1999] NSWIRComm 10: It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is as unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct.

53 That is not to say that an unblemished record would mitigate completely against a particular act of serious misconduct. Each case will turn on its own facts and circumstances and the gravity of the misconduct. Nevertheless, it is a factor which might tip a dismissal either way if the decision is finely balanced. It follows therefore, that an employer should be cognisant of, and give appropriate weight to the employee's past record of employment.

54 I turn then to consider the above principles in the context of the facts and circumstances of this case.

55 At the outset, I would say that I have found this case to be one which falls in the category of being finely balanced. In other words, it is a case which could have gone either way. In my view, the applicant was a very foolish young man. He seemed to be unable to reconcile his obligations to his primary employer with his laudable commitment to community service as a retained fire fighter. I accept that the applicant was not enriched, nor was he so motivated by his work for the Fire Brigade. Moreover, I do not accept that the applicant was wilfully seeking to "moonlight" at the respondent's expense.

56 On the other hand, however, there can be no doubt that he claimed to be sick and was paid sick leave on days when he was engaged in fire fighting call outs. This conduct was unacceptable and warranted severe disciplinary action. The question however, in my view, is whether this stupid and regrettable conduct justified his summary dismissal. In weighing up all of the circumstances, I have reluctantly come to the view that the applicant's conduct did not warrant summary dismissal. His dismissal did not meet the tests of the authorities to which I earlier referred.

57 Having so concluded, I agree entirely with Mr Crow's contention that the respondent was entitled to have regard for the totality of the applicant's work performance and record. This approach is consistent with the authorities cited earlier.

58 While there was some attraction to Mr Irvine's submission that the applicant's second written warning was some fourteen months earlier, and therefore should be disregarded, one can hardly describe the applicant as a model employee. The applicant's record is littered with other misdemeanours and incidents which must, I think, demonstrate that, at best, he was careless at work and less than diligent to his duties and responsibilities. A few examples serve to demonstrate the point. The applicant had seven recorded 'at fault' driving incidents during twelve months and numerous other reminders about Council's practices and procedures. His performance appraisal in March 2003 disclosed a "C" rating (satisfactory) in all areas of his performance - hardly a glowing recommendation.

59 On the other hand, I don't doubt the applicant's enthusiasm or his willingness to work. The fact he has had four periods of casual employment and commenced full time employment on 2 December 2003 would appear to corroborate this view.

60 I turn then to consider the serious allegation that the applicant was engaged in fire fighting duties while on workers' compensation from his primary employment. This allegation is less clear cut than the other allegations relating to calls out while on sick leave.

61 The evidence disclosed the following: the applicant was unfit for duty from 8 to 15 April 2003. His WorkCover clearance indicated that he was fit for duty on 15 April, yet he didn't return to work that day. There was some dispute as to whether the applicant attended a fire call out at 7:16 am on that morning. I note that the Fire Brigade's records were not seriously challenged in this respect. Even giving the applicant the benefit of the doubt as to the callout, there can be no argument that he attended a training course from 10.00am to noon on that day.

62 The applicant claimed he visited the doctor at 9.00am and did not attend for work because no work would have been available by that time. The respondent seemed also to have accepted (Mr Evans' evidence) that the applicant had received a medical clearance "mid morning." In my opinion, the applicant again displayed poor judgement in not fronting for work, even if no work was available. He foolishly took it upon himself that it would be pointless to go to work if no work was available. Did this conduct constitute a wilful and fundamental breach of the applicant's contract of employment? I cannot be positively persuaded to this conclusion. I would have been inclined to take a completely different and dim view if the applicant had worked for the Fire Brigade at other times during his period of workers' compensation.

63 Turning then to claims of procedural unfairness, I would reject Mr Irvine's arguments on this subject. One hardly needs to be counselled about what the employer expected in respect to secondary employment. Moreover, Mr Irvine's claim that the applicant was denied procedural fairness during the investigation cannot be substantiated. The applicant was given the precise details of the allegations, given an opportunity to respond and was represented by his Union at all times.

64 The Commission earlier described this case as one which was finely balanced. The applicant should consider himself fortunate that the Commission did not find against him. While I would have granted reinstatement had it been sought, it would have been under strict conditions. He should be under no illusions that had he been reinstated any further indiscretions might well have resulted in dismissal. I would counsel him in this regard in respect to his new employment.

65 However, the applicant has secured alternative permanent employment and Mr Irvine had firm instructions at the conclusion of the proceedings not to press for reinstatement.

66 No doubt the respondent will welcome the Commission's decision not to reinstate the applicant. However, pursuant to Pt 6 ch 2 of the Act, I do find that the applicant's summary dismissal was 'harsh' in the circumstances.

67 This is a case in which I have decided to order a small amount of compensation having regard for the particular circumstances of the case and the applicant's mitigation of his losses in securing some casual employment subsequent to his dismissal.

ORDERS 1. Pursuant to ss89(5) and (6) of the Industrial Relations Act 1996, the Commission orders that the respondent, Sutherland Shire Council shall pay to the applicant, Paul Robert Jasper, an amount of $2870.12 being four weeks' pay at $717.53 per week. 2. The above amount shall be paid within 21 days of today. 3. These proceedings are now concluded.

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.