Boers and South Sydney Council [2003] NSWIRComm 105 - NSWIRComm 2003 case summary — Zoe

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Boers and South Sydney Council [2003] NSWIRComm 105

[2003] NSWIRComm 105

Industrial Relations Commission (NSW)|2003-07-01|Before: Sams DP, Sheppard J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Sams DP, Sheppard J

Catchwords

03/04/2003
03/05/2003
03/06/2003
03/07/2003

Source

Original judgment source is linked above.

Catchwords

03/04/200303/05/200303/06/200303/07/200303/24/200304/30/200305/19/200309/05/2003 DATE OF JUDGMENT: 10/30/2003

Judgment (412 paragraphs)

[1]

CITATION : Boers and South Sydney Council [2003] NSWIRComm 105 APPLICANT PARTIES : John Boers RESPONDENT South Sydney Council FILE NUMBER: 4031 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - allegations of serious misconduct - work performance - applicant's allegations of sexual discrimination and victimisation - allegations of homophobia - offensive emails - investigation of email distribution - Code of Conduct - conflicts of interest - pecuniary and non pecuniary conflicts of interest - Local Government Act - Disciplinary and Counselling Policy - disciplinary inquiries - hostility of management - complaint to Anti-Discrimination Board - recommendations of disciplinary inquiry not implemented - failure to advise of conflict of interest - refusal to comply with reasonable directions - principles of summary dismissal - witness credit - medical assessment - mitigating factors. CATCHWORDS : Held, no reasonable basis for applicant's allegations of discrimination - no evidence of homophobia - respondent's investigation of offensive email thorough and exhaustive - applicant ignored reasonable management direction - applicant aware of Code of Conduct - applicant failed to declare conflict of interest - applicant's explanations not credible - serious misconduct proven - disciplinary inquiries conducted according to Council's policy - applicant given opportunity to respond to allegations - no denial of procedural fairness - medical evidence contradictory and unreliable - no mitigating factors - previous work performance considered - dismissal not harsh, unreasonable or unjust - application dismissed. Industrial Relations Act 1996 LEGISLATION CITED : Anti-Discrimination Act 1977 Local Government Act 1993 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bigg & Anor v NSW Police Service (1998) 80 IR 434 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Crown Employees Teachers in Schools and TAFE and Related Employees Salaries and Conditions Award [2002] NSWIRComm 144 D & R Commercial v Flood [2002] NSWIRComm 88 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91 Franklins Ltd v Webb (1996) 72 IR 257 Hill v Department of Juvenile Justice (unreported, Sams DP, NSWIRComm 128, 27 July 2000) CASES CITED : 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) Little v Commissioner of Police (2002) 112 IR 212 Metropolitan Meat Industries Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) 73 AR 231 Outboard World v Muir (1993) 51 IR 167 Paris and Bankstown City Council (unreported, McLeay C, IRC97/5426, 22 January 1999) Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 Standley and Electronics Boutique Pty Ltd (unreported, Sams DP, IRC98/4516, 18 March 1999) Stonham v Speaker of Legislative Assembly [2003] NSWIRComm 30 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Wilson v Department of Education and Training [2000] NSWIRComm 20 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 HEARING DATES: 03/03/2003; 03/04/2003; 03/05/2003; 03/06/2003; 03/07/2003; 03/24/2003; 04/30/2003; 05/19/2003; 09/05/2003 DATE OF JUDGMENT: 10/30/2003

[293]

280 There are other cases where the employee will admit to the misconduct, but will contend that the penalty of dismissal was too harsh. In this regard I refer to Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296: 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 alternative. 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 committ ees 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. (Our italics) See also Busways v Johnson (1994) 55 IR 255, Byrne & Anor v Australian Airlines (1995) 61 IR 32 and my comments in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8.

[299]

284 It is now well settled industrial law that each of the words - harsh, unreasonable and unjust, have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and 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. 285 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

[306]

290 Two passages from Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 are also apposite. The Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . See also D & R Commercial v Flood [2002] NSWIRComm 88 and Wilson v Department of Education and Training [2000] NSWIRComm 20.

[405]

Summary of Findings The Commission makes the following findings: 1) There was no reasonable basis for the applicant's allegation that he was subject to sexual discrimination or victimisation. There was no evidence that any of the Council's witnesses were homophobic or were involved in a vendetta against the applicant, either on a personal basis or because of his sexuality. There was no evidence that the Union delegate or the Union was homophobic. There was no evidence as to the claim that the Union did not assist its gay and lesbian members in workplace issues. 2) The Council responded swiftly and decisively to the applicant's complaint concerning the offensive email. This investigation was thorough and exhaustive. It was impossible to identify who sent the offensive email. The Council took further steps to address the applicant's concerns, including altering the email policy to make it more specific to homophobic harassment and changing his password. 3) There was no ambiguity in Mr Harrison's directive to the applicant not to undertake work for Ms Bates in Wagga Wagga. The applicant deliberately and intentionally ignored the reasonable direction of management. The Council's allegation that " you refused to comply with a direction by the Statutory Planning Manager, Mr Giovanni Cirillo and Miss Jodie Harris, that you were not to deal with any DA associated with Julie Bates or Urban Realists in the South Sydney City Council area " was proven. The applicant's conduct was such as to constitute misconduct. 4) The applicant was aware, at all material times, that Ms Bates was involved in the 93 Crown Street DA. The applicant knew at the time he sought approval to go to Wagga Wagga that Ms Bates was involved in a development application he was processing for 93 Crown Street. The applicant's explanations for not being aware of the file note of 15 June 2001 are not credible and are rejected. The Council's allegation that the applicant failed to disclose a conflict of interest, whether pecuniary or non pecuniary, as required by the Code of Conduct was proven. The applicant's conduct was such as to constitute serious misconduct. 5) The applicant was well aware of the Council's Code of Conduct and his obligations and responsibilities under it. Both disciplinary inquiries were conducted strictly in accordance with Council's policy. The disciplinary inquiries were not intimidatory or discriminatory. In the words of s88 of the Act, the applicant was given an opportunity to make out a defence and give an explanation for his behaviour. There was no denial of procedural fairness to the applicant.

Boers and South Sydney Council [2003] NSWIRComm 105

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Judgment (412 paragraphs)

Cases Cited (26)