Burge v NSW BHP Steel Pty Ltd - [2001] NSWIRComm 117 - NSWIRComm 2001 case summary — Zoe

NSWNSWIRComm

Burge v NSW BHP Steel Pty Ltd

[2001] NSWIRComm 117

Industrial Relations Commission (NSW)|2001-07-01|Before: Walton J, Hungerford J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2001-07-01

Before

Walton J, Hungerford J, Mr P

Catchwords

08/18/2000
12/13/2000 DATE OF JUDGMENT: 05/31/2001

Source

Original judgment source is linked above.

Catchwords

08/18/200012/13/2000 DATE OF JUDGMENT: 05/31/2001

Judgment (80 paragraphs)

[1]

CITATION : Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 APPELLANT Shane Peter Burge PARTIES : RESPONDENT NSW BHP Steel Pty Limited FILE NUMBER: IRC 1251 of 2000 CORAM: Walton J Vice-President; Hungerford J; Bishop C CATCHWORDS : Appeal - Application for leave to appeal - Unfair dismissal - Challenge to commissioner's decision that dismissal was not harsh, unreasonable or unjust - Dismissal for fighting in the workplace - Alleged serious and wilful misconduct - Errors of fact and law - Serious issues raised - Interests of dismissed employeee - "No fighting" policy of employer - Investigation of incident by employer - Policy applied without considertion of background circumstances - Provocation - No eyewitnesses - Failure to take into account objective evidence of what likely occurred - Reliance on reconstruction of incident without evidentiary support - Onus on employer to establish misconduct to requisite standard of proof - Leave to appeal granted - Appeal upheld - Practicability of reinstatement - Discretion - Reinstatement ordered, without loss of remuneration and continuity of employment (except for a specified period). LEGISLATION CITED : Industrial Relations Act 1996 s 89 s 181(2) s 187(a) s 188(1) Pt 6 of Ch 2 Abalos v Australian Postal Commission (1990) 171 CLR 167 Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Australasian Transport Officers' Association v Department of Motor Transport [1988] 25 IR 235 Autobake Pty Ltd v Budd [1986] 19 IR 18 Bankstown City Council v Paris (1999) 93 IR 209 Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] 41 IR 452 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CCH Australia Ltd v Bowen (1998) 79 IR 206 Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 CASES CITED : Four Sons Pty Ltd v Limsiripothong (No 2) (2000) 100 IR 400 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151, (1999) 88 IR 282 London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 Martin v Osborne (1936) 55 CLR 367 NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 Oswald v New South Wales Police Service (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Port Macquarie Gold Club Ltd v Stead (1996) 64 IR 53 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Warren v Coombes (1978) 142 CLR 531 Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 HEARING DATES: 08/17/2000; 08/18/2000; 12/13/2000 DATE OF JUDGMENT: 05/31/2001

[13]

8 It is timely also to restate what we regard as the settled approach to follow on an appeal from a discretionary decision involving findings of fact and credibility of witnesses. In Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 at pp 42-44, Wright J, President and Walton J, Vice-President reviewed the principles by reference to the authorities cited therein. In summary form, the approach was re-stated by a Full Bench (Wright J, President, Glynn and Hungerford JJ) in Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 at p 428, as follows : Nevertheless, and notwithstanding the grant of leave, this appeal falls to be considered in accordance with the ordinary principles as an appeal stricto sensu and having in mind the statutory requirement in s 191(3) of the Industrial Relations Act obliging the Full Bench to follow the principles applying to appeals from discretionary decisions: see Big W Discount Stores v Donato (1995) 58 IR 239 at 242-244; Re Solicitors (State) Award (No 3) (1997) 72 IR 225 at 234-235 and the cases cited therein. In the result, it is only open for us to view the challenged decision on appeal in accordance with the proposition that the exercise of a discretion by the primary judge has long required that an appellate court is not justified in interfering with the decision made unless it reaches the clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a different view but has failed properly to exercise the discretion conferred: see also Mace v Murray (1955) 92 CLR 370 at 378; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 58-60. The principle was restated by a Full Bench ( Wright J, President, Walton J, Vice-President and Peterson J) of the Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446 and again in Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 at 42-43 (per Wright J, President, and Walton J, Vice-President); it needs no further elaboration here.

[14]

9 It is necessary, before reviewing the subject altercation which occurred at about 3.00 am on 7 June 1999 leading to the dismissal, to shortly trace the earlier relationship between the appellant and Mr Usher. The appellant commenced employment with the respondent on 6 April 1992 as a mechanical maintenance fitter at its steel mill at Rooty Hill. Mr Usher also was employed at the steel mill on maintenance work, but as an electrician, and both he and the appellant commenced work together during 1994. However, it seems that in mid to late-1994 Mr Usher and another employee carried out a workplace "prank" by filling the appellant's tool box with expanding foam - it was said in evidence by Mr Usher, denied by the appellant, that the appellant threatened to "punch his head in"; it appeared from that point, notwithstanding an apology by Mr Usher after he cleaned the tool box, that relations between the two men became strained and, unbeknown to the appellant, Mr Usher requested the supervisor to so arrange the rostering that he and the appellant would perform work on different shifts. Although that arrangement was put in place, it was not communicated to senior management at the steel mill. Then, in 1998, there occurred at the steel mill an altercation between two employees, Jonathan Holmes and Peter Cavanagh, in which the former assaulted the latter, although it seems not seriously so; at the time, both the appellant and Mr Usher were union delegates - Mr Usher urged Mr Cavanagh to report the incident to management, against the appellant's strong disapproval, and Mr Holmes was thereupon asked to resign and he did so. In the result, it was alleged the appellant continued to make adverse comments to Mr Usher about "dobbing-in" Mr Holmes. To exacerbate the situation, there was evidence that the appellant regarded Mr Usher as a good electrician but he had heard rumours since 1994 from other employees that Mr Usher had stated he was incompetent in his job and should not have been employed by the respondent as a mechanical fitter. In that context, the events of what occurred on 6 and 7 June 1999 are to be viewed.

[40]

15 The commissioner then considered, notwithstanding the appellant's participation in the fight, whether the Commission should intervene and exercise discretion in his favour. For that purpose, reference was made to the history of the relationship between the appellant and Mr Usher in terms of what the commissioner described as his "40 years of experience working directly in and associated with such heavy industries as steel making, ship building and coal mining", "powerful anti-discrimination legislation in place to protect minority groups from vilification" and "the dynamic nature of language". It followed, on the commissioner's reasoning, that "the public denigration over the 2-way radio system and the direct accusation made by Mr Burge to Mr Usher in front of other workers that he was a 'two-faced cunt', ... (was) ... at the high end of the scale (of up to 10) and not less than 9". The commissioner expressed the view that it was "perhaps not surprising therefore that Mr Usher could contain himself no longer and sought Mr Burge out in the Hydraulic Room to confront him and put an end to his ongoing humiliation" and "the only surprise is that Mr Usher was able to contain himself for as long as he did before he reacted to Mr Burge's persistent provocation which had been elevated to a new level of intensity following the Holmes/Cavanagh incident". The commissioner then said : That Mr Burge was so severely injured is not to be condoned and is most regrettable. However, given my findings concerning the fight between the two men and my observation that they appear physically and, by virtue of their similar ages, evenly matched, in my view Mr Burge was the unlucky victim of a punch that was thrown by Mr Usher, a man with no boxing experience or training. Mr Burge did not deserve to be assaulted at all, but I find that he was not the innocent victim in the whole fracas. As an immediate prelude to the fight he was responsible for at least two highly insulting and humiliating public verbal attacks against Mr Usher with the highest degree of provocation. The commissioner then concluded that the decision to dismiss the appellant "was, in all the circumstances, a reasonable decision consistent with contemporary standards in industry generally and should not attract the Commission's discretion to intervene". However, in the event the finding that the appellant actively engaged in the fight was wrong, the commissioner said "it would be my view that his conduct up to the time of the physical confrontation outside the Hydraulic Room was serious misconduct such as to justify his dismissal with payment of wages in lieu of the notice period". The appellant's unfair dismissal claim was, therefore, dismissed.

[42]

17 The principal propositions put by Mr Dixon in resisting the appeal may be summarised as follows - · The commissioner set about considering whether the misconduct complained of had in fact occurred. In doing so, the commissioner properly had regard for all the evidence before him. · The respondent had to establish, to the reasonable satisfaction of the Commission, that the appellant employee was guilty of the misconduct alleged. The standard of proof required was to enable a positive finding to be made, on the balance of probabilities, that the misconduct occurred having regard to the gravity of the allegations. · The commissioner's findings of fact were substantially influenced by the credibility of the appellant as a witness so that the ultimate conclusion should not be set aside even if on appeal it be thought that the probabilities of the case were against, even strongly against, those findings. · The appellant has been unable to show that the commissioner failed to use, or palpably misused, the advantage he enjoyed at first instance in hearing and observing Mr Usher and the other witnesses give evidence. Cogent reasons were given for the findings made by the commissioner concerning credibility of the appellant and those conclusions were open and could not be said to be clearly wrong; they cannot now be challenged. · In considering the alleged inconsistencies in Mr Usher's evidence, it is to be borne in mind that he gave an explanation for not fully discussing all the details in his original account of the incident based on legal advice, that his account on oath was consistent with the account he gave to the police and that his account on oath was not inherently improbable. · As to what probably occurred during the incident, the commissioner weighed the evidence, or particular aspects of it, by assessing how the fight occurred and the extent to which the employees concerned participated in it and/or contributed to it. · The findings made by the commissioner supported the conclusion that the appellant engaged in the fight in a manner as culpable as Mr Usher, who was also dismissed, and that should not be interfered with. · Having found that misconduct occurred, the commissioner by reference to the materials before him embarked upon the discretionary exercise to determine whether the dismissal was in all the circumstances, including the conduct of the appellant over a period of approximately 5 years, unfair so as to lead to the issue whether the Commission should intervene and exercise discretion in the appellant's favour. · The commissioner concluded correctly that the fight was not a spontaneous isolated eruption - there was regular harassment by the appellant of Mr Usher over a considerable period of time, the appellant's public denigration of Mr Usher over the two-way radio system on 6 June 1999 was at the high end of the range of provocation short of a direct physical assault, there had been persistent provocation by the appellant which had been elevated to a new level of intensity following the Holmes/Cavanagh incident in 1998 and it was Mr Usher rather than the appellant who behaved maturely and responsibly. · The commissioner correctly concluded that the appellant had engaged in deliberate, provocative conduct and in light of the facts intervention by the Commission was not warranted. · The discretion reposed in the Commission in determining unfair dismissal claims was very wide. Whether a particular dismissal in particular circumstances was harsh, unreasonable or unjust was a matter involving value judgments and on which opinions may differ. · The commissioner's conclusions as to the alleged unfairness were clearly open and should not be overturned. · The alternative conclusion reached by the commissioner that the appellant's conduct leading up to the time of the physical confrontation was serious misconduct, such as to justify his dismissal, was clearly open on the evidence. It is not to the point that the employer did not dismiss the appellant for that reason as it was unnecessary to do so. That, however, does not preclude the Commission from forming that view on the evidence given the clear findings about the appellant's conduct. · In relation to the appellant's submission as to relief, it must be borne in mind that on any view the appellant engaged in conduct which was provocative and highly offensive in a workplace where safety was a significant factor. · It is also clear that the appellant contributed in a very significant way to the ultimate dismissal of another well thought of employee, Mr Usher, who had until the provocation on the night of the incident sought to avoid the appellant. · Consideration also must be given to whether the appellant is entitled to discretionary relief in his favour, if successful, when there are clear findings he had not been honest or open and frank with the Commission or with his employer and, as such, the employer-employee relationship must be regarded as incapable of proper restoration. It is not to the point that some of the witnesses said they would have no difficulty in having the employee return to the workplace.

[45]

(1) The dismissal was by way of, as said in the respondent's letter to the appellant, "summary dismissal for serious and wilful misconduct (fighting)"; there was no reference to the use of coarse language. (2) There were no witnesses to the altercation. Notwithstanding that the commissioner had the benefit of seeing the appellant and Mr Usher give evidence, that circumstance alone does not preclude appellate review. (3) To the extent the commissioner made credibility findings in preferring the evidence of Mr Usher to that of the appellant, such a preference was based on the evidence of Mr Usher which was "glaringly improbable" and "contrary to the compelling inferences of the case" so as to render the commissioner's decision open to appellate review. (4) The evidence demonstrated that Mr Usher gave a fundamentally different version of the fight during his evidence in the proceedings compared to that given by him to Mr McKissock and Mr Ainsworth immediately following the incident. (5) The respondent regarded Mr Usher's assertion that he was merely defending himself against the appellant to be unreliable which, together with the variations in his accounts of what occurred, meant that the commissioner's preference for the evidence of Mr Usher over that of the appellant was erroneous. (6) An analysis of the whole of the evidence before Redman C supports the proposition that the commissioner erred in preferring Mr Usher's evidence as being more reliable than that of the appellant. In particular, Mr Usher's account of the incident was inherently improbable having regard to the fact that - · although Mr Usher was directed by Mr McKissock to stay away from the appellant, he defied that direction and confronted the appellant - Mr Usher admitted he "went to see him (the appellant) when he was on his own" and that he "felt he had to go and confront" the appellant; · prior to the incident, Mr Usher had said to Mr McKissock "I hate the cunt" in relation to the appellant; · Mr Usher was responsible for the first physical contact between himself and the appellant when he knocked the appellant's hard hat off with his hand; · Mr Usher fled the scene of the incident and had to be called to return on two separate occasions; and · Mr Usher initially denied he had assaulted the appellant by claiming he was acting in self-defence and that the appellant "must've been jumped again". (7) In circumstances where an employee is dismissed for serious misconduct the onus of proof is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred; the degree of satisfaction referred to should not be, but as was the case here, by "inexact proofs, indefinite testimony or indirect inferences". The respondent did not discharge its onus of proof in the proceedings at first instance so that the commissioner's conclusion against the appellant based on the evidentiary material was not sound. (8) Given the fundamental problems with Mr Usher's evidence of the incident, the only basis upon which the commissioner could have found the appellant to have engaged in serious misconduct would be on the appellant's own evidence. However, that evidence, which was not undermined in cross-examination, was that he "did not initiate the fight with Mr Usher nor did I attempt to fight back once he commenced to physically assault me". (9) On a proper view of the whole of the evidence and the respondent's inability to satisfy the onus of proof, Redman C erred in finding that the appellant actively participated in the fight with Mr Usher. (10) The respondent had a well known policy against fighting in the workplace, the consequence for which was instant dismissal. The respondent's decision to dismiss the appellant was based on six conclusions concerning its view of the appellant's conduct at the relevant time but without regard to the appellant's particular circumstances. Specifically, the appellant failed to have regard to - · who was the aggressor in the incident; · the history of the relationship between the appellant and Mr Usher; · the two men since 1994 were not to be rostered to work together on the same shift; · whether or not Mr Usher's behaviour to the appellant was aggressive and provocative; · the fact that Mr Usher criticised and denigrated the appellant to another employee, Mr Refalo, which was the trigger or cause for the appellant abusing Mr Usher over the two-way radio; · the fact that Mr Usher sought out the appellant despite being told by Mr McKissock to keep away from him; · the fact that Mr Usher went to the Hydraulic Room to deliberately confront the appellant; · the fact that Mr Usher's demeanour on the evening in question was described as being "boiling" and that he said to Mr McKissock that "I hate the cunt (ie, the appellant)"; · the fact that Mr Usher had to be recalled to the scene of the incident on two occasions; · the fact that Mr Usher initially denied involvement in the fight; · the views of Mr McKissock not being sought by the respondent at the time of the decision to dismiss the appellant, even though it was Mr McKissock who was the shift supervisor and had interviewed both employees; and · the fact that the respondent regarded the appellant as being a good employee with "no prior history of fighting with any other employee at work", "no previous record of misdemeanour" and where the appellant had been selected to participate in a training programme in Germany following advice that he had been advised he "would be looked at for the next available planner's job on day shift". (11) The respondent applied its "no fighting" policy inflexibly without taking into account many other relevant considerations which were known to it at the time so that the dismissal of the appellant for non-compliance with the policy was harsh, unreasonable and unjust. The commissioner erred in accepting this position by failing to follow settled principle. (12) Apart from the fight itself, the commissioner erred in finding, in the alternative, that the appellant's conduct up to the time of the altercation was serious misconduct such as to justify his instant dismissal, particularly having in mind the respondent's evidence that the appellant was not disciplined for using foul language and such language was not uncommon at the plant with a high level of tolerance to its use. (13) The respondent either condoned the use of coarse language or waived its right to dismiss the appellant on the basis of his use of such language. To the extent the respondent belatedly sought to rely on the appellant's use of coarse language to justify the dismissal, such a reason was harsh, unreasonable and unjust because the appellant was not given notice of that reason, was not given an opportunity to make out a defence or explain his behaviour; neither was he warned that the use of coarse language could lead to dismissal. (14) It would not be impracticable to reinstate the appellant in his former employment. (15) Reinstatement should be accompanied by an order for the respondent to pay the appellant the wages lost as a consequence of the dismissal as it was only in exceptional circumstances that the discretion to so disentitle an employee should be made. 20 It is helpful in understanding the thrust of a central submission by Mr Kimber in relation to the altercation, namely that Redman C erred by failing to pay any, or any proper, regard to significant admissions made by Mr Usher and to other evidentiary material, to cite the evidence relied upon as set out in the grounds of appeal, thus : (a) After the disputed exchange of words in the Arc Furnace Control Room, Usher was counselled by his supervisor (McKissock) to stay away from the applicant for the balance of the shift, but Usher admitted that he defied that direction from McKissock ("Mr Usher was unable to contain himself": ...) and deliberately sought to confront the applicant (by going to the room where he knew the applicant would be).

[61]

25 After considering the various cases on fighting in the workplace, the commissioner found "that in the light of the Company's well known policy concerning fighting in the workplace, a policy absolutely essential in industry and particularly in a hazardous environment, the Company's conclusion that Mr Burge was guilty of misconduct was a conclusion open to it as a result of its investigation" so that the decision to dismiss was "a reasonable decision consistent with contemporary standards in industry generally and should not attract the Commission's discretion to intervene". For that approach, the commissioner relied upon the decision of the Full Court (Sheppard and Heerey JJ, with whom Gray J agreed) of the Federal Court in Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] 41 IR 452. Whilst the commissioner said he was "particularly mindful" of that case, it is nevertheless to be borne in mind, as their Honours said (41 IR at p 460), that "employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable". However, in finding there that the dismissal was unwarranted, their Honours added (41 IR at p 465) : The underlying cause of this dismissal was that the company took the view that, having formulated its no smoking policy it had no option but to dismiss the respondent, notwithstanding the long and good service he had given the company, the catastrophic financial consequences for him, the lack of any actual danger in his conduct, and the inadequacy of the way in which the new policy was communicated. It seems that even if the company had carried out the most formal and meticulous procedures the decision would have been no different. That decision to dismiss was we think rightly held by the learned trial judge to be harsh, unjust and unreasonable and the actual procedure which the company adopted was merely incidental.

[69]

28 Under cross-examination, Mr Ainsworth said that no conclusion was drawn as to who was the aggressor, the appellant or Mr Usher, and the decision to dismiss was made by applying the no-fighting policy based on the circumstances leading to the incident which showed both employees had the opportunity to withdraw from the confrontation but did not do so. However, Mr Ainsworth conceded that the respondent applied its no-fighting policy by "a straight application of policy, no fighting in the workplace" but, as he further conceded, the respondent "just applied the policy and therefore the detail really didn't matter". We have earlier referred to Mr Kimber's submission identifying a number of factors which the respondent failed to have regard in deciding to dismiss the appellant; we do not repeat them but accept that senior counsel's submission was cogent as a result of the admissions made by Mr Ainsworth. Of particular relevance in that respect was the respondent's failure to consider who was the aggressor, the history of the relationship between the two employees, whether Mr Usher was aggressive and provocative towards the appellant, the confrontation by Mr Usher of the appellant, the level of anger of Mr Usher at the time and Mr Usher's departure from the scene after the fight and then his initial denial of any involvement in it. Those matters which the respondent did not take into account were, in our view, proper and necessary to be so considered rather than, as it would seem, the respondent applying its no-fighting policy without regard to the particular circumstances as they existed. It follows, we are satisfied, that the respondent's dismissal of the appellant in this case was harsh, unreasonable and unjust in that the policy was applied without relevant regard to all the circumstances; its investigation of the incident was merely incidental to its application of the no-fighting policy contrary to the approach, with which we agree, stated in Bostik v Gorgevski. We are reminded in expressing this view of the following comments by Wilcox CJ in Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at p 205 : ... it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a "no fighting" policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential, I think to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence. We respectively agree with his Honour's comments and which are apt to apply in the present case. That the commissioner here endorsed the respondent's approach in dismissing the appellant as a result of its investigation necessarily meant that the commissioner also erred.

[71]

30 In the circumstances as disclosed in the evidence, we are unable to accept that this so-called alternative finding, in itself, justified summary dismissal. The long settled industrial approach in such a situation was stated by Cook J in Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at p 374 in terms that : ... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline. (See also the discussion by Hungerford J in Gartrell White (No 3) (35 IR at pp 73-76) as to the various authorities supporting this approach.) True it is the appellant used provocative and coarse language to Mr Usher, but, it must be acknowledged, in response to Mr Usher's provocative denigration of him to Mr Refalo and others. Those features of the relationship were well known to the respondent and, indeed, arrangements had been in place for some years not to roster both employees on the same shift. Regrettably, as it happened, that arrangement on the present occasion broke down. In any event, and particularly having in mind the nature of the language apparently not uncommonly occurring and accepted at the workplace, we do not consider the appellant's conduct here could properly be regarded, as Cook J observed, "of such a nature as to strike at an essential element in the contract of service". We conclude, therefore, that the alternative finding made by the commissioner as justifying the appellant's summary dismissal was not established. At most, in our opinion, it is but a factor to be taken into account by the Commission in exercising its overall discretion as to whether, and if so to what extent, intervention is warranted in allowing relief.

Burge v NSW BHP Steel Pty Ltd

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