Blyth Chemicals v Bushnell - [2004] NSWIRComm 365 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

Blyth Chemicals v Bushnell

[2004] NSWIRComm 365

Industrial Relations Commission (NSW)|1992-07-03|Before: Sams DP, Sheppard J, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-07-03

Before

Sams DP, Sheppard J, Mr J

Source

Original judgment source is linked above.

Judgment (113 paragraphs)

[1]

CITATION : Goldsmith and Spotless Services Limited [2004] NSWIRComm 365 APPLICANT: PARTIES : Ms Sandra Lee Goldsmith RESPONDENT: Spotless Services Limited FILE NUMBER: 2576 of 2004 CORAM: Sams DP Termination of employment - dismissal for gross misconduct - sleeping on the job - whether dismissal harsh, unreasonable or unjust - applicant's denial of misconduct - conflict of evidence - balance of probabilities - whether conduct wilful - mitigating factors - allegations of unacceptable management practices - reinstatment sought. CATCHWORDS : Held, on the balance of probabilities applicant was asleep on the job - conduct wilful - difference between nodding off at desk to deliberately setting out to go to sleep - evidence of applicant not credible - conflicting evidence of supporting witness - allegations of unacceptable management practices not sustained - performance issue not taken into account - lack of contrition or remorse - no mitigating factors - dismissal not harsh, unreasonable or unjust - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Blyth Chemicals v Bushnell (1933) 49 CLR 66 Crawley and Tim Vic Pty Ltd (unreported, Connor C, IRC92/483, 3 July 1992) Day v Lumley Life (1999) 90 IR 70 Ellaby Hall v Holden Ltd [2000] SAIRComm 8 Franklins Limited v Webb (1996) 72 IR 257 Gresser and the Roads and Traffic Authority (unreported, Redman C, IRC93/2654, 23 May 1994) Hill and the Department of Juvenile Justice [2000] NSWIRComm 128 Humphries v Cootamundra Ex Services Club [2002] NSWIRComm 225 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) CASES CITED : Lawrence v Catholic Education Office [2002] NSWIRComm 115 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 North v Television Corporation Limited (1976) 11 ALR 599 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 Paris v Bankstown City Council [1999] NSWIRComm 10 Portland Smelter Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (unreported, Merriman C, No. 33802 of 1994, 13 October 1994) Shop Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 State Dockyards Case (1972) 14 AILR 133 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 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Wilson v Chubb Protective Services [2001] SAIR 56 HEARING DATES: 10/20/2004 DATE OF JUDGMENT: 12/08/2004

[74]

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. In Shop Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1, the former Industrial Commission in Court Session said: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. 70 In Franklins Limited v Webb (1996) 72 IR 257, after discussing both these authorities, the Full Bench said at p261: Those authorities deal with different points but are nevertheless both applicable to circumstances where summary dismissal has occurred for alleged cause. In this case, the employee was dismissed by the payment of one week's wages in lieu of notice but obviously for cause. The reasoning of the Commission in Court Session in Jewel Food Stores , in our view, is directly apposite and we would apply to these circumstances the same consideration with respect to onus as was adverted to by Hungerford J in Gartrell White.

[92]

84 I have regard for, and respectfully agree with the comments in the following decisions. In Portland Smelter Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services (unreported, Merriman C, No. 33802 of 1994, 13 October 1994) the Commissioner said: The Commission distinguishes between a person who may, particularly on night shift, drop off to sleep at or around his work location but that is not the case here. Similarly the comments of Dangerfield C, of the South Australian Industrial Relations Commission in Wilson v Chubb Protective Services [2001] SAIR 56 at para 100 have resonance here: There have been numerous cases over the years in which workers have been dismissed for falling asleep on the job. Many of them involve factual disputes as to whether the workers concerned were actually asleep or just resting with their eyes closed and otherwise in what might be described as a state of "passive alertness". This case is not one of them. There is no dispute that the applicant was fast asleep when he was found in the early hours of Saturday 4 November 2000. Further, as I have already found in par 59 above, the applicant had been asleep for some considerable time, for at least 20 minutes and possibly as long as 35 minutes before he was awakened. Hampton , DP of the South Australian Industrial Relations Commission said in Ellaby Hall v Holden Ltd [2000] SAIRComm 8: There may well be circumstances where the dismissal of an employee for sleeping on the job during paid work time would not be warranted. In that respect, just as the substance of the process is important, the employer, and the Commission, must not look for perfection in the conduct of employees. These parties have conducted their affairs in the real world and regard must be taken of the fact that individuals make mistakes. Accordingly, the judgement required by s 108 is to be made in the specific circumstances of each case, and involves a judicial and realistic assessment of all of the material facts and the degree of misconduct.