Blyth Chemicals v Bushnell

APPLICANT: Applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT: Mr J Stanton, Australian Business Lawyers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 8 December 2004

Matter No IRC04/2576 Sandra Lee Goldsmith and Spotless Services Limited Application by Sandra Lee Goldsmith re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 365

1 Ms Sandra Lee Goldsmith ('the applicant') worked as an after hours helpdesk consultant for Spotless Services, Gladesville ('the respondent'). The applicant had been employed for four years. She was dismissed on 13 April 2004 for gross misconduct. Specifically, the misconduct alleged by the respondent was that the applicant was found to be sleeping on the job in the early morning of 8 April 2004.

2 The applicant strenuously denied sleeping on the job and claimed that she had laid down under a desk to get out of the light, because she was suffering from a migraine headache.

3 On 30 April 2004, the applicant filed a s84 claim for reinstatement arising from her dismissal pursuant to the provisions of Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). The matter came before me for conciliation and directions on 17 June 2004. Attempts at settling the matter were unsuccessful and directions (for the filing of evidence) were issued on that day. At the hearing of the claim, the applicant represented herself and the respondent was represented by Mr J Stanton from Australian Business Lawyers.

4 The applicant said she had been employed as a helpdesk consultant since January 2000. She had changed from day shift to permanent night shift in July 2002. The applicant agreed that most calls received during the night were urgent calls. The night shift operated between the hours of 8.00pm to 6.00am with seven days on and seven days off. The applicant was paid for the full 10 hours of the shift. There are two employees on the night shift. She claimed that there was no allowance for breaks to be taken during the night shift.

5 The applicant referred to an incident about 12 months earlier in which the Helpdesk Manager, Mr John Hankin telephoned on two occasions when she was unavailable. Her colleague, Mr Jonathan Payne had taken the phone calls and when he passed the phone to her, she explained to Mr Hankin that she had been making coffee or had been in the restroom. The applicant said that management had expected her to answer the phones without any allowance for meal, coffee or toilet breaks.

6 The applicant deposed that she started getting regular migraines at work in February 2004. Her doctor and treating psychologist diagnosed work related stress. She lodged a stress claim in February 2004 and was given four to five days off. However, she had returned to work after two days.

7 The applicant said that the standing instruction from management in regard to sick leave was to call as early as possible. However, she claimed that if an employee was ill in the afternoon, they were expected to attend for work regardless, because the notice was too short to find a replacement.

8 The applicant described the events on the night of 7/8 April 2004. She said that around 9.00pm the light above her had started flickering and by 10.00pm it was giving her a headache. Between 11.00pm and 12.00am, Mr Payne had fixed the light. The applicant said she had continued to do her work. At 1.30am, the applicant said her headache was getting worse and, as a result, she took two Panadol. She continued working.

9 The applicant said that the internet had gone down. She claimed that the computers use an internet facility and seven out of ten times, the internet servers are down between 2.00am and 4.00am. The applicant said because of this, she had always completed the internet work first, before her other work, except for answering the phones.

10 The applicant said that at around 3.00am she took a couple more Panadol and at around 3.20am, with no work left to do and no calls coming in, she told Mr Payne that she needed to get out of the light. She said that if she did not get rid of her headache, she would not be able to drive home at the end of her shift. It was the applicant's evidence that management would not have let her go home with only three hours left on her shift. So she grabbed an old broken sleeping bag and a seat cushion and laid on the floor under her desk.

11 The applicant said she heard Mr Hankin come in to the office around 3.30am. Mr Payne had told him she had a headache and had laid down just ten minutes ago. Mr Payne had told her not to worry and to get rid of the headache. After about 20 or 30 minutes the applicant got up. Mr Hankin asked her to come to his office.

12 The applicant deposed that Mr Hankin then accused her of repeatedly sleeping on the job. She had explained that she had a headache. He had called her a liar. When she had asked why he had come to the office, Mr Hankin said he knew he would catch her doing something wrong.

13 The applicant said that about four hours after she finished work that day, Mr Hankin called her and told her not to attend for work and that she should attend a meeting with himself and Sandra Campbell from Human Resources on 13 April. He had said, "it would be in your best interest to look for other employment."

14 At the meeting on 13 April, the applicant was told she was dismissed for having been found sleeping on the job with a bed, doona and pillows. She had tried to explain that it was an old sleeping bag and a seat cushion.

15 The applicant believed her conduct was no different to that of any other employee. She said that she had been called in on numerous occasions when she had been off; even when she was unwell. The applicant said that there had been no complaints raised with her about her work and she had always given 110 per cent. She claimed to have never seen a book on the rules of employment and was unaware of a list of backup personnel for the night shift in cases of illness. The applicant said she was not aware of any particular policy concerning sick leave. She sought reinstatement and saw no difficulty in returning to work.

16 In oral evidence, the applicant insisted she was not asleep on the night in question. Rather, she had simply been resting, with her eyes closed. The applicant acknowledged that during the weeks she was off, she had another job at Leichhardt Plumbing and was currently working there between 40 and 50 hours per week.

17 The applicant agreed that employees could go to the toilet, make a cup of coffee and have meals away from the phone. The applicant disagreed with Mr Hankin's evidence about a mattress being used by her. She said there was no mattress - it was an old sleeping bag that was used in the office on cold nights, particularly in winter. She agreed that she had brought the sleeping bag into the office.

18 The applicant disagreed with the proposition that she was asleep under the desk, with her head on a pillow. She denied that Mr Payne was watching out for the phone for her.

19 In cross examination, the applicant accepted that employees were allowed to take breaks, that sick leave was permitted and arrangements were available to cover employees who were absent. The applicant said she could not say if she disagreed with a report from Network Services which disclosed that on the night in question, the email server was in operation the entire time.

20 The applicant denied that she had been counselled by Mr Hankin about her poor communications with other employees and for not completing her work.

21 Mr Jonathan Payne provided a witness statement and gave oral evidence in support of the applicant. Mr Payne is a friend of the applicant and worked with her on night shift. He deposed that he had not discussed the contents of his statement with the applicant before he swore to it.

22 Mr Payne recalled two occasions before 8 April when Mr Hankin called in while the applicant was making coffee. Mr Hankin had said that he believed the applicant was sleeping and he (Mr Payne) was covering for her. Mr Payne had not made a note of these conversations.

23 Mr Payne offered his version of the incident on 8 April. He said that the applicant had told him she was developing a headache and had finished all the work that she could do - either the computer was down or she had finished everything. At about 3.00am the applicant said she was "going to have a little nap under the desk to get out of the light."

24 Mr Payne said that he was startled and very surprised when Mr Hankin arrived at about 3.30am. Mr Payne had been watching television at the time. Mr Hankin had said, "its not what I wanted to see."

25 Mr Payne deposed that he told the applicant that Mr Hankin had arrived and they discussed how strange it was to see him at that hour. The applicant was called to Mr Hankin's office and when she returned she told him she had been told not to return for the next shift and that there would be a meeting held later.

26 It was Mr Payne's evidence that it was a common practice for employees on night shift "to have a little nap." Every person who had worked this shift, had a little rest, at one time or another. At no time were both staff asleep at the same time and whoever is asleep is always near the phone.

27 Mr Payne said he had been instructed to have a break during the down time between phone calls. Mr Payne put that the procedure for calling in sick was to ring as soon as possible. He claimed that if someone is sick after midday they have to attend anyway, as it would be too difficult to get a replacement. There were no hard copies of these guidelines, but they had been discussed when he first worked the night shift.

28 In oral evidence, Mr Payne deposed that the applicant had told him after 13 April that she had been dismissed and that she would be filing an application for unfair dismissal. She had asked him to make a statement in support.

29 Mr Payne recalled that on 8 April the applicant was lying on the floor with her head on a seat cushion, covered by a sleeping bag. He had seen the bag before and had used it himself during winter when it was cold. He said there was no mattress or air bed and maybe she had been lying on the fold of the sleeping bag. Mr Payne deposed that he had observed the applicant having a little nap using the sleeping bag prior to the incident.

30 Mr John Bradley Hankin is the respondent's National Help Desk Manager. Mr Hankin gave his version of events on the night of 7/8 April. He denied acting "stealthily" and said he did not sneak up on the employees when he arrived at the office.

31 Mr Hankin said that when he had walked round the office he saw the applicant sleeping on a mattress, her head resting on a pillow with a doona like blanket over her. Mr Hankin said she had appeared comfortable and fast asleep. Mr Hankin had said that this is the last thing he wanted to see. Mr Payne asked if he wanted him to wake her up. He replied "don't worry about it, she will find out soon enough."

32 Mr Hankin said that the respondent did not own any of the sleeping gear and sleeping on the job was not permitted. Mr Hankin said he was angry and disappointed by what he had observed.

33 Mr Hankin said that about 15 minutes later the applicant came to his office. She was dressed in what looked like pyjamas. The applicant said she had a headache. Mr Hankin did not believe her. He denied the applicant's evidence that she had asked to go home, or that he had said "I knew I would catch you doing something wrong." Mr Hankin said that later that day the applicant was stood down on pay.

34 Mr Hankin had cause to have a check made of the computers for that night. Annexed to his affidavit was a report from Network Services which confirmed the computers were operational throughout the night.

35 On Friday 9 April, Mr Hankin phoned the applicant to arrange a meeting. The applicant had said, "this does not sound good John. Are you saying I am going to lose my job?" He had answered that he was not saying that at this stage. The applicant replied that if she might lose her job she would look for a new one over the weekend. Mr Hankin had agreed it was serious and he said it "might be worth having a look in the papers."

36 At the meeting on 13 April, the applicant had first said she had a headache and then claimed that she was on a break. Ms Campbell told her that sleeping on the job was gross misconduct. The applicant was given an opportunity to give reasons why her employment should not be terminated. The applicant was then dismissed.

37 Mr Hankin explained the rules of the Help Desk and its operation. There are about fifty full and part time employees who work on the Help Desk. Mr Hankin described the night shift operations. Employees work a two week roster - Friday, Saturday, Sunday in the first week and Monday, Tuesday, Wednesday and Thursday in the second week. Employees work seven days on, then seven days off and receive a 15 to 20 per cent night shift loading.

38 Mr Hankin stressed that breaks are not forbidden. However, there are no set breaks. Employees are allowed meal, coffee and toilet breaks when possible and the two employees work together to have their breaks. Mr Hankin said there are no specific deadlines for phoning in sick. If employees are sick, they call the Team Leader, Joy Hunter.

39 Mr Hankin referred to complaints he received from other staff in March/April 2004 about the applicant's work. These complaints were that work had not been completed for the day shift. He had raised the issue with the applicant. She had explained that they were very busy and weren't always able to complete the work. Mr Hankin had then checked the activity records for the night and noticed little or no activity between 1.00am - 4.00am. As a result, Mr Hankin had warned the night shift he would be conducting an audit and may come in at any time.

40 Mr Hankin denied that the applicant had been called in off holidays. Rather, she had volunteered to come in. He further denied that there were no complaints about her work performance and that she had been told she would receive a good pay rise.

41 In cross examination, Mr Hankin reiterated that he had seen the applicant asleep on a mattress. Mr Hankin said he was not aware of anyone else who had been found sleeping on the job. He said that all employees can ring at any time to say they are sick. However, the company would appreciate as much notice as possible.

42 When asked if the applicant was dedicated to her job. Mr Hankin replied she did "a fair day's work for a fair day's pay." He denied having a personal vendetta against her. Mr Hankin acknowledged that on some occasions, when work was not completed, the applicant had informed him of the reasons.

43 Mr Hankin described the applicant as erratic. She required a great deal of time in terms of counselling as to her work and her dealings with other employees. When the opportunity arose to move her to the night shift, he had believed it to be a positive move.

44 Ms Joy Hunter had been employed by the respondent for fifteen months in the role of After Hours Team Leader. The after hours staff report directly to her.

45 After a month or two of employment, Ms Hunter said she had observed the applicant finishing her Friday night shift. She was wearing flannelette pyjamas. She didn't say anything at the time because she was not team leader and was a new employee. On another occasion, she had observed the applicant to come in on a Saturday when not scheduled to work. The applicant had blown up an air bed and then gone to sleep on the floor. She had explained that she could not sleep at home because it was too hot.

46 Ms Hunter outlined the role of employees on night shift. Her evidence was similar to that of Mr Hankin and I need not repeat it. Ms Hunter said that she had received a few complaints from day workers who had claimed that work had not been completed from the night before.

47 Ms Hunter described the respondent's sick leave procedure. It was normal practice for employees to call her if they were unable to attend for work. Her first response is to call an off duty night shift worker and then an off duty day worker.

48 Ms Hunter rejected the applicant's evidence that she hadn't known her contact details and that management did not allow employees to leave their shift if they are sick. Ms Hunter said she had actually told the applicant to call her, as she only lived fifteen minutes away. Ms Hunter attached to her affidavit copies of four occasions the applicant had applied for sick leave during the last 12 months.

49 Ms Hunter acknowledged that there had been an occasion when she herself had a nap at work. In re examination, Mr Hunter explained that when this happened she had been sitting at her desk with her eyes closed. She said she had been called in at late notice and had possibly worked the day before.

50 Mr Keith Fremlin, another night shift employee, provided a statement but was not required for cross examination. He deposed that in January 2004, the applicant had told him, "I have brought in a sleeping bag as a Christmas present for the night shift."

51 The applicant maintained that she had a migraine on the night of 7/8 April 2004 and had to get out of the light, without leaving her work station. She said she was sick, but had not been sent home, even when Mr Hankin knew she was sick.

52 The applicant agreed that if she were to be reinstated there may be occasions when she would be required to work day shift at Leichhardt Plumbing and night shift for the respondent.

53 Mr Stanton submitted that there was simply no basis on which the Commission would disturb the respondent's decision to terminate the applicant's employment for gross misconduct. Her misconduct went to the heart of the employment relationship. See Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 289; Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82; North v Television Corporation Limited (1976) 11 ALR 599 at 609.

54 Mr Hankin's evidence, as an eyewitness to the incident on 8 April, was not seriously challenged. Rather, the applicant had sought to attack the respondent's case by suggesting unacceptable work practices. Mr Stanton asserted that this attack had not been proven.

55 Mr Stanton put that there was no evidence that napping at the desk was condoned by management. In any event, Ms Hunter's honest admission was much different to the deliberate and wilful conduct of the applicant. He said that it did not matter whether there was a mattress or not.

56 Mr Stanton observed that the applicant had not disputed Ms Hunter's evidence that she had been observed wearing pyjamas. This must have been for the sole purpose of sleeping on the job. Mr Stanton put that this was an overwhelming case of gross misconduct. He added that it would be completely impractical to reinstate the applicant.

57 Referring to the provisions of s88 of the Act, Mr Stanton submitted that there was a reason for the dismissal; the reason was given to the applicant and she had an adequate opportunity to respond. The Commission could be satisfied, on the balance of probabilities, that the misconduct had occurred.

58 Mr Stanton said there was no evidence which would substantiate the applicant's claim that employees were expected to stay at work when they are ill or that she could not take sick leave. Indeed, the evidence was to the contrary. Similarly, there was no evidence that employees could not take breaks. Further, the evidence had demonstrated no breakdown in the computer system that night.

59 Mr Stanton put that despite what the applicant contended, no other employee was called by her to prove a widespread practice of sleeping on the job. Moreover, it was her sleeping bag which could only have one purpose.

60 Mr Stanton cited a number of decisions which have dealt with the dismissal of an employee for sleeping on the job. See State Dockyards Case (1972) 14 AILR 133, Crawley and Tim Vic Pty Ltd (unreported, Connor C, IRC92/483, 3 July 1992) and Gresser and the Roads and Traffic Authority (unreported, Redman C, IRC93/2654, 23 May 1994).

61 Mr Stanton speculated that had the applicant merely nodded off at the desk, one might take a different view of the matter. However, her action had not been spontaneous. It was planned, deliberate and organised in order to accommodate her other job. It was conduct which was more likely to have occurred on other occasions. He said the applicant had shown no remorse. Rather, she had launched an unfounded attack on the respondent's policies, including a suggestion of a vendetta against her.

62 Mr Stanton also alerted the Commission that he intended to address the question of costs at an appropriate time.

63 The applicant insisted she had a migraine on the night in question and Mr Hankin would not send her home. She claimed that the phone was always attended to when staff had a nap. Even if she had fallen asleep, it was always at her desk, except for this one night when she needed to get out of the light.

64 The applicant agreed she had voluntarily come off her holiday, because of a shortage of staff, but only after Mr Hankin had called her.

65 The issues to be determined in this matter are of a relatively narrow compass. They require the Commission to answer the following questions. Was the applicant sleeping on the job on 8 April 2004? If so, did this conduct represent a reasonable basis for the applicant's summary dismissal for gross misconduct? Were there mitigating factors surrounding the applicant's conduct, including consideration of her period of employment with the respondent? Finally, was her dismissal harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act?

66 This is a case of course, involving the summary dismissal of the applicant for what the respondent described as "gross misconduct." In order for the applicant (who was unrepresented throughout the proceedings) to understand the basis of my later conclusions, I propose to highlight the relevant authorities applying in summary dismissal cases.

67 The usual onus in unfair dismissal cases rests with the applicant to satisfy the Commission that a dismissal was unfair or, more particularly, that it was either 'harsh, unreasonable or unjust' within the meaning of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273).

68 However, that onus is reversed where the employee is dismissed for misconduct. The employer must not only make the allegations against the employee, but prove the allegations to the requisite standard. I shall come back to that standard of proof shortly. This shift of onus has been considered in many decisions of the Commission. A few citations will be sufficient to demonstrate the point.

69 In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70, his Honour, Hungerford J said: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

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.

Was the applicant sleeping on the job on 8 April 2004?

71 In answering this question, I observe that the applicant maintained that she was not asleep when found by Mr Hankin under the desk. Rather she was insistent that she was merely resting while suffering from a migraine headache.

72 Throughout these proceedings, the applicant consistently and strenuously denied any wrongdoing. Schmidt J observed in Lawrence v Catholic Education Office [2002] NSWIRComm 115: In circumstances where allegations of misconduct arise, it is commonplace for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that misconduct has not occurred. I think it unarguable that in every such case, there is a risk that a person who has not engaged in the misconduct alleged, is, nevertheless, dismissed or found guilty of an offence with which they are charged. That possibility remains even when a thorough investigation into particular conduct has been conducted by an employer and not the police. The converse possibility also exists. Here the applicant still maintains his protestations of innocence. He has never departed from them. These proceedings are, however, not finally concerned with establishing the applicant's guilt or innocence. That has been dealt with in the criminal proceedings. This application is rather concerned with the question of whether the applicant's summary dismissal in October 1998 was harsh, unreasonable or unjust in the circumstances which then existed. I respectfully adopt her Honour's approach in reviewing the circumstances in this case.

73 In this matter, it is apparent that the Commission is required to make findings on witness credit. This is so, having regard to the direct conflict of evidence between the applicant and the respondent's witnesses, and even it might be said, between the applicant and her own witness.

74 In addition, the circumstances of this case bring into focus the obligation on the Commission to closely and carefully examine whether it is open, on the evidence, to make an adverse finding against an employee. I referred to this approach in Hill and the Department of Juvenile Justice [2000] NSWIRComm 128 at paras 62-63: In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so.

75 Some attention was given to an argument as to whether the applicant was asleep on a mattress using a pillow. Mr Hankin said that this is what he observed on the night in question. The applicant and Mr Payne said that there was no mattress and the pillow was a seat cushion. Whether there was a mattress, or whether it was a pillow or a seat cushion, is really not the point. Perhaps Mr Hankin was mistaken. In any event, little turns on these discrepancies. The issue boiled down to whether the applicant was asleep under the desk while on duty.

76 The standard of proof to be applied in circumstances where the applicant strenuously denies the allegations, is to make findings on the civil standard of proof; namely, on the balance of probabilities. See my discussion of this test in Humphries v Cootamundra Ex Services Club [2002] NSWIRComm 225.

77 Having considered all of the evidence, in particular that of Mr Payne, I find that, on the balance of probabilities, the applicant was asleep on duty on 8 April 2004. I have arrived at this conclusion by reference to the following matters.

78 Firstly, the applicant did not deny she was laying on the floor, under the desk, covered by a sleeping bag with her head on a cushion.

79 Secondly, the applicant's claim that she could not go home if she was sick, is not supported by the evidence of Mr Hankin and Ms Hunter. Nor is it supported by any other employee - save for a rather oblique reference to it by Mr Payne. Neither he, nor the applicant gave evidence of any occasion when they had been expressly prevented from doing so. In any event, I do not believe it could be seriously suggested that an employer would require an employee to stay at work in an unfit state. The occupational health and safety risks for such an employer are manifest. Further, I note that there was no medical evidence that the applicant was being treated for migraine headaches at the time.

80 Thirdly, the applicant claimed that when Mr Hankin arrived she heard his voice, yet curiously, on her own evidence, she remained on the floor under the desk for a further 20 to 30 minutes. However, the applicant further deposed to having been surprised by Mr Hankin's visit. Yet, if she was really awake, she continued to lay under the desk for this length of time knowing Mr Hankin was in the workplace. This evidence simply beggars belief. It also flies in the face of Mr Payne's evidence that he had told the applicant of Mr Hankin's arrival soon after he saw the applicant and he (Mr Payne) told her to stay under the desk to get rid of her headache.

81 Fourthly, the applicant's evidence that at no time was she asleep, is in stark contrast to what her own witness, Mr Payne deposed to in his affidavit. Mr Payne's evidence was most enlightening. He said that the applicant had told him "she was going to have a little nap under the desk to get out of the light." Moreover, Mr Payne defended the applicant by saying that "it was common practice for them to have a little nap" and further that "both staff have not been asleep at the same time. Whoever is asleep is always near the phone." In other words, Mr Payne was under the clear impression that not only was the applicant intent on having a little nap on this occasion, but that it had probably happened before.

Did this conduct represent a reasonable basis for the applicant's summary dismissal for gross misconduct?

82 Mr Stanton referred the Commission to a number of authorities which have considered the dismissal of an employee for sleeping on the job. Most of these authorities concern an employee whose conduct posed a risk to the safety of other employees or whose conduct may have affected the company's production or operations. I do not think these authorities are on all fours with the facts and circumstances in this case; although some of the observations in them are apposite here to the general proposition about sleeping on the job.

83 Ordinarily, an employee whose job is to answer the phone on a night shift and who is found nodding off at a help desk would be subject to counselling, and possibly some disciplinary action. Repeat behaviour might result in more severe disciplinary action, including dismissal.

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.

85 With these decisions in mind, I refer to Ms Hunter's candid admission that she had nodded off on one occasion on night shift. I agree with Mr Stanton that the seriousness of the conduct in Ms Hunter's admission is poles apart from a deliberate, premeditated decision to make oneself comfortable in order to sleep under a desk, knowing full well that a work colleague would cover for you. What the applicant didn't know was that she might be caught.

86 Even more extraordinary was that the applicant was aware that Mr Hankin was conducting an audit and might make an unannounced visit to the workplace. Having been so warned, one would have thought that an employee would not place themselves in a position where even the slightest suspicion of inappropriate behaviour might be observed.

87 I should add, that I find no basis for any defence in the applicant claiming she was unaware of the respondent's policies. It hardly needs to be said that one doesn't need a written policy or a warning that sleeping on the job is not permitted unless expressly condoned, such as applies to fire fighters or ambulance officers. That being said, I return to the question of whether such conduct constituted gross misconduct.

88 The allegation against the applicant was described as "gross misconduct." The additional word "wilful" was not used. However in my opinion, where an employee has been dismissed for gross misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee and must disclose a wilful and deliberate intent by the employee.

89 Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the employees? To answer this question I refer in particular to four authorities: In North v Television Corporation Ltd , 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).

90 Hungerford J in Day v Lumley Life (1999) 90 IR 70, describes 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.

91 In Blyth Chemicals Limited v Bushnell, Dixon and McTiernan JJ said at paras 81 and 82: Conduct which in respect of important matters is incompatible with the fulfilment 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 ( Boston Deep Sea Fishing and Ice Co. v. Ansell [5]; English and Australian Copper Co. v. Johnson [6]; Shepherd v. Felt and Textiles of Australia Ltd. [7]). But the 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. See also 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.

92 For the reasons I have previously expressed, I am satisfied that the applicant's conduct was wilful and constituted a fundamental breach of her obligations in the employment relationship. I am further satisfied, on the balance of probabilities, that this conduct was likely to have occurred before.

93 That being so, I find that the respondent had a reasonable basis for terminating the applicant's employment on the grounds of gross misconduct.

94 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 (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972): 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.

95 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.

96 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 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, having regard for the seriousness of the misconduct.

97 The applicant had relatively short service with the respondent. There was some evidence of poor performance; although probably not sufficient to justify of itself, her termination of employment. At the time she had other employment and continues to maintain that employment. However, there were two mitigating factors, which had they existed, might have tipped the balance in the applicant's favour.

98 This was her failure to offer any believable, let alone reasonable, explanation for her conduct and her lack of contrition. Rather, as I observed earlier, the applicant steadfastly refused to acknowledge the glaringly obvious and then sought to impugn the employer's decision on untenable and implausible grounds. She asserted that she was sick and could not go home because of the respondent's policy. She then claimed to be on a break and that the employer allowed no breaks. In oral evidence, the applicant was forced to concede that these claims were not true. She further suggested the employer had a vendetta against her.

99 I find no substance to any of these assertions and they are rejected. These claims were little more than a desperate attempt, at the time, to defend an otherwise untenable position.

100 It follows therefore, that the dismissal of the applicant on 13 April 2004 was neither harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act.

101 Before concluding this matter, I find that there were no issues of procedural unfairness which would otherwise warrant a finding that the dismissal of the applicant was unfair. There was a reason for the dismissal; the reason had a sound basis in fact and the applicant had received earlier warnings. The applicant was not dismissed unilaterally and was given five days to consider her position and explain her conduct at the meeting on 13 April. The fact that Mr Hankin advised her on 9 April to look for another job was at her pleading for an answer to the question as to whether her job was in jeopardy. In view of the circumstances, she could have been under no illusion that this was a definite possibility. There can be no criticism of Mr Hankin for doing no more than warning the applicant her job was in jeopardy - as indeed he was obliged to do to emphasize the seriousness of the matter.

102 For the aforementioned reasons, this application for relief from unfair dismissal must be dismissed.

103 I direct that any application for costs must be made by notice of motion within 21 days. Save for any costs application these proceedings are now concluded.

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