Day v Lumley Life, 90 IR 70

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

SAMIH ALI GHUNAIM AND C P & E TING PTY LTD t/as SWATOW IMPORTS

Application by Samih Ali Ghunaim re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Mr Samih Ghunaim ("the applicant") seeking relief in respect to his alleged unfair dismissal by C P & E Ting Pty Ltd t/as Swatow Imports ("the respondent"), on 29 May 2000. 2 The matter first came before the Commission on 14 June 2000, at which time Mr Ghunaim represented himself and Ms Devine (Employers' Federation of New South Wales) appeared for the respondent. Following preliminary submissions, I directed the parties to confer.

As no settlement was reached the Commission adjourned until 19 July at which time private conferences, chaired by the Commission, produced no settlement. Accordingly, I formed the view, pursuant to s87 of the Act, that the matter should proceed to arbitration. I issued directions for the filing and service of affidavit material. 3 Mr Ghunaim gave evidence on his own behalf and Mr Moses - now appearing for the respondent - relied on the evidence of three company management persons and three employees.

4 It is uncontroversial that the reasons for dismissal relate to the alleged wilful refusal of the applicant to comply with a reasonable direction of the employer. The circumstances of the refusal concern an incident in which Mr Ghunaim left behind two delivery employees at the Miranda shopping complex. While driving back to the Alexandria work site, Mr Ghunaim received a phone call from Mr Court, the Acting Managing Director. Mr Court directed him to return to the complex to pick up the employees. Mr Ghunaim refused.

Mr Ghunaim maintains that it was not for Mr Court to direct him to do so, as he had express instructions from his supervisor, Mr Anstee, to leave any employee who does not return to the truck within ten minutes. This alleged instruction was referred to during the proceedings as the "ten minute rule" and I shall so describe it throughout this decision. 5 Three questions seem to be readily apparent from this short description of the reasons for dismissal:

1. Did the applicant refuse a lawful direction of management? 2. If so, was the direction a reasonable one, in all the circumstances? 3. Even if the direction was reasonable, was dismissal for misconduct appropriate in the circumstances?

These questions will be answered in the context of the evidence to which I will now refer. 6 Affidavit and oral evidence was provided by:

7 Swatow Imports is an importer and wholesaler of furniture and homewares. The company has a turnover of around $3 million per annum and employs eighteen people - five in the office and thirteen in the warehouse. 8 Mr Ghunaim is fifty-seven years of age and commenced employment on 29 September 1999 as a storeperson, driver/delivery organiser on a starting salary of $23,000 per annum. His letter of appointment (incorrectly styled "Employment Contract") was annexed to Mr Ting's affidavit, Ex'A'. The job description is also annexed and marked 'C'. 9 Two background incidents on 1 March 2000 are worthy of recounting.

The applicant was asked by Mr Anstee to weed the garden and clean the front of the company. He refused, went to Mr Ting and said " Would you please sack me ?" He said he wasn't a cleaner or gardener and if there is no work as a driver he should be finished up. Mr Ting refused. He denied telling Mr Ting the work was " beneath me ".

Mr Ting gave evidence that he asked the applicant if he wanted the sack to go on the dole and Mr Ghunaim had replied " yes ". Mr Ghunaim denies this part of the conversation. 10 Mr Ghunaim said he only ever witnessed the cleaning of the front area once in his eight months of employment. Mr Anstee's request on 1 March was the first time he had been asked to do this work and he refused because he believed it was not part of his job description. Mr Anstee said the applicant had done the cleaning and gardening before. He didn't like doing it and would offer to do something else. He would say "I'm not doing it any more. I have been downgraded". (T.p86)

Mr Ting said it was part of everyone's duties to assist in cleaning and gardening. He had done it himself. It was part of the job description for storemen. Mr Ting, while annoyed at the applicant's refusal, acknowledged taking no action against him. Instead, he asked Mr Anstee to give him something else to do. He said he had more important matters to deal with. Mr Ting accepted that, not all the duties on the job description were performed by Mr Ghunaim, as he was primarily a truck driver.

Mr Court also acknowledged doing some cleaning and said, as a small company, everyone was expected to chip in. 11 On the same day, Mr Anstee instructed Mr Ghunaim to do a delivery in the small truck. The applicant refused and gave no reason. He believed Mr Anstee knew why he refused. Mr Anstee gave evidence that in refusing to drive the truck, Mr Ghunaim had complained that his knees touched the steering wheel. The applicant had not raised any issue of safety.

He received the following warning for refusing to drive the truck:

Dear Samih, The Warehouse Manager has advised me that you refused to drive the small truck yesterday, 1 March, 2000. This refusal is grounds for instant dismissal. However, we are giving you a warning that any future refusal for any reasonable request will mean instant dismissal. Yours faithfully Matthew Ting Managing Director

He replied, in writing, that the truck was mechanically unsafe (annexure B to Ex'1').

Mr Ghunaim said the truck had broken down and he was told " it wasn't worth fixing " (T.p37). It had been sitting idle for three days. He also gave evidence that the truck's water pump had blown and the engine required constant topping up with oil.

Mr Ting's evidence was that while the truck was old; it was safe (T.p44). He conceded that his information came from others.

Mr Anstee said the truck had a current registration and roadworthy certificate and was safe. Mr Anstee said on one occasion the truck was pushed by staff due to a flat battery.

Mr Phuoc Nguyen, who regularly drove the truck, said it was old, but the engine was good. It sometimes broke down, but he felt " very safe ".

12 It is appropriate to quote the job description in full: JOB DESCRIPTION - STOREPERSONS General Duties 1. Unload containers, check stock, put away stock 2. Pick & pack orders 3. Load trucks for delivery 4. Clean warehouse & remove rubbish 5. Re-stack stock in warehouse where necessary 6. Assemble KD merchandise 7. Conduct minor repairs to stock 8. Sort damaged stock 9. Assist in 2-man deliveries 10. Select stock for gift fairs 11. Put gift stock away in correct place 12. Check off and put returns away in correct place & give list to despatch or warehouse manager. 13. Clean & tidy garden & grounds Specific Duties 1. Picker/Packers (caneware etc) Tick pick & pack orders (see picking & packing - caneware etc)

2. Picker/Packers (wooden furniture) To check furniture, detail where necessary & pack for delivery (see picking & packing - wooden furniture)

3. Storeperson/Driver To drive truck as directed for delivery of goods to customers or onforwarding carriers.

13 Mr Ghunaim gave evidence that the first time he saw this job description was when it was showed to him on 18 September 2000, attached to Mr Ting's affidavit. He denied being given it at his interview with Mr Ting on 29 September 1999. He said he was told he was a delivery driver and if there were no deliveries he would help out in the store.

He didn't think any other employees received job descriptions. 14 Mr Ting and Mr Anstee gave evidence that the job description was given to the applicant at the time of interview - as it is to all storepersons when first appointed. Mr Ting denied the document was created after Mr Ghunaim's employment commenced.

The two employees left at Miranda, Mr Sevastos and Mr Ramos, both gave evidence that they received a job description when they commenced employment. Mr Sevastos accepted that cleaning and gardening were part of the job, and all warehouse employees were expected to do it.

15 Mr Ghunaim said that on 5 March 2000, he went to Mr Ting for something and Mr Ting told him to take his orders from Michael (Mr Anstee). He assumed that from then on, it was only Mr Anstee who could give him instructions.

He said however, if Mr Court or Mr Ting asked him " nicely " to do something, he would. He didn't regard this as instruction. He drew a distinction between a mandatory direction and a request. While he accepted Mr Court was second in charge, it was not usual for Mr Court to give him instructions.

Mr Court, however, said that in Mr Anstee's absence, staff in the warehouse would turn to him to answer any of their queries. He had had significant authority in the company since 1995 and communicated directly with Mr Ghunaim on the status of deliveries and other information. He would visit the warehouse four or five times a day.

Mr Anstee is the immediate supervisor of the two employees, Mr Sevastos and Mr Ramos. Mr Sevastos said that in Mr Anstee's absence, he takes instruction from Mr Court or Mr Ting.

Mr Anstee gave evidence that Mr Ghunaim would take it upon himself to leave at 3.30 by not having lunch, even though management encouraged employees to take a lunch break. Despite this, he said Mr Ghunaim did a good job.

16 Mr Ghunaim claims that he had a sound basis for leaving the two employees, Mr Sevastis and Mr Ramos, after they failed to return to the truck after ten minutes. He said that Mr Anstee had given express instructions that the driver should leave after ten minutes. This instruction had arisen from an earlier occasion when he had been in Mr Anstee's office, when another employee, Phuoc came in complaining at waiting forty-five minutes for an employee, Charlie. The applicant said that Mr Anstee had said to Phuoc that if it happens again "leave him there and let him come back by taxi". Mr Ghunaim had asked about going to the toilet. Mr Anstee said that even if it was to go to the toilet, it should be no more than ten minutes. Contrary to Mr Ghunaim's evidence, Mr Anstee said only he and Phuoc were in the office on this occasion and, if it happened again, the direction was to leave Charlie and continue his deliveries. The instruction only applied to Charlie. No one else was told about it - it wasn't a policy and was never put in writing.

Mr Phuoc Nguyen corroborated Mr Anstee's evidence that only he and Mr Anstee were in the office (T.p95). Mr Nguyen told other employees about the conversation because he had been very upset.

17 Mr Ghunaim said that everyone in the store knew about the "ten minute rule". Most didn't think it was serious. He didn't consider the implications of leaving the employees behind and said it "was their problem".

Mr Court stressed that abandoning employees after ten minutes " is not appropriate ". He gave evidence that there was no "ten minute rule" - it was a figment of someone's imagination.

Mr Court gave evidence that when Mr Ghunaim returned from Miranda he didn't check the reason why he said he had left the employees behind. However, he queried Mr Anstee on the following Monday morning about the " complete picture " but not the "ten minute rule". He said it was irrelevant, as it did not exist. He added such a rule was impractical and no company could ever apply it. 18 Mr Ting's evidence, confirmed by Mr Anstee, was that he was aware Mr Anstee had told Phuoc to leave Charlie behind, but that the instruction applied only to him. He accepted that, in a small workplace, other employees would find out about such incidents. 19 Mr Anstee said there was no "ten minute rule". It was impossible, and, in any event, there had been no similar incident involving any employee since 26 May. He regarded the instruction to Phuoc as guidance, not as disciplinary action against Charlie. 20 Mr Sevastis gave evidence that he knew of the incident involving Phuoc and Charlie on the day it happened. He knew nothing about a "ten minute rule".

Mr Ramos was not aware of any such rule, was never told about such a rule and it was never discussed. He didn't know of the Phuoc/Charlie incident.

21 On 26 May 2000, after two deliveries to Miranda Shopping Centre, the applicant said that the truck was unloaded by 2.30pm and Mr Ramos said "we are going to the toilet". The applicant had said something about being away for "ten minutes". Mr Ramos frowned, so the applicant said "fifteen minutes".

Mr Ghunaim said he waited until exactly 2.45. Phone records show he contacted the office at 2.37pm and spoke to Mr Court. He asked for Mr Anstee. He was told that Mr Anstee had left and was there anything Mr Court could help him with. The applicant replied " no, I just wanted to ask Michael something ". He said he didn't ask Mr Court because it was Mr Anstee who was his direct boss and who had given the order to leave employees behind. Mr Anstee gave evidence that Mr Ghunaim would have known he was not there, as he had told him earlier in the day that he would be leaving early.

The applicant said he waited a further ten minutes and left at precisely 2.55pm to return to Alexandria. 22 Mr Court received a call from the two abandoned employees at "around 3.00pm" complaining they could not find the truck or Mr Ghunaim. Keeping Mr Sevestis on hold, Mr Court phoned Mr Ghunaim at 3.09pm on the road near Kogarah TAFE and ordered him to return to pick them up. Mr Ghunaim refused, citing heavy traffic on the Princes Highway. He said Mr Court hung up before he could finish his explanation. 23 Mr Ghunaim said he didn't refuse the direction. He said he couldn't go back and had tried to explain to Mr Court before he hung up. The phone conversation records show a duration of 1min 30 secs. The applicant said he could not say if he would have complied with the instruction, if it had been Mr Anstee who had told him to go back. 24 Arriving at Alexandria at 3.40pm he went to see Mr Court. When asked why he left the employees behind, he complained that his work finished at 3.15pm and it was now 3.45 and he was owed overtime. 25 Mr Court said that Mr Ghunaim told him he had an instruction from his immediate supervisor, to wait no longer than ten minutes. He was obeying that instruction and wouldn't take instruction from anyone else.

Mr Court said he would discuss the matter again on the following Monday.

Mr Ghunaim claims he was not given an opportunity to respond, or give an explanation to Mr Court. 26 The two employees left behind at Miranda both gave evidence. After finishing the second delivery, Mr Ramos said to Mr Ghunaim "we're just going to the toilets". Mr Sevastis heard Mr Ghunaim mumble "be back in fifteen minutes". Both employees gave evidence that they had not been to Miranda before and had trouble locating the toilets, which they finally found on the third level. They both claim they were away for about fifteen minutes. In oral evidence, Mr Sevastis thought about ten minutes.

Upon their return and finding the truck gone, they both believed Mr Ghunaim may have gone to pray, as was his usual practice at about that time of day. They looked for him for about ten minutes and then Mr Sevastis called Mr Court and asked what to do. 27 Mr Sevastis gave evidence that, while this was the first occasion he had worked with him, Mr Ghunaim had not been particularly helpful during the loading and deliveries. He acknowledged that earlier in the day, Mr Ghunaim was working while he and Mr Ramos were having lunch. Mr Ramos had worked with Mr Ghunaim before and gave evidence that he never had any problems with him.

28 Mr Ghunaim said that he was called to Mr Court's office at 8.00am on Monday 29 May. He said he was asked to resign or be sacked. He refused to resign and was dismissed. At the time, Mr Ghunaim said he would challenge the dismissal as unfair.

Mr Ghunaim denied Mr Court's version of this conversation, in particular that he was given an opportunity to respond to the allegation of refusing a reasonable instruction. He denied acknowledging that he had refused a reasonable instruction. 29 Mr Anstee was already aware of the incident when Mr Court discussed it with him at about 7.30am on Monday, 29 May. (His cousin - Mr Sevestis -had visited him on the weekend and told him what had occurred at Miranda). In the meeting with Mr Court he had not raised the "ten minute rule" because it had only ever been directed to Charlie. He said it was not raised because the two incidents were completely different. This incident was far more serious, as two employees had been left stranded at Miranda and Mr Ghunaim refused to pick them up. 30 Mr Court gave evidence that in the meeting with Mr Ghunaim he again asked him to explain what happened on Friday. He said that Mr Ghunaim acknowledged he had refused a fair instruction. Mr Court offered resignation or dismissal. Mr Ghunaim said he would not resign, so he was dismissed. Mr Ghunaim disputed the reason for dismissal given on the separation certificate. 31 Mr Ting gave evidence that there was no precise structure or procedure for disciplining employees. He wouldn't always become involved, as discipline was left to the departmental managers. In his absence, Mr Court had full authority, as Acting Manager, and all staff were aware of this. 32 Mr Ting referred to three warnings and concluded three warnings hadn't applied to Mr Ghunaim, as his refusal to follow Mr Court's direction was far more serious.

He said, Mr Ghunaim should not have assumed, he had three warnings in such circumstances. Warnings were for misdemeanours, not refusing a direct order. As a similar example, he cited the financial controller who was sacked, without warning, for charging his wife's mobile account to the company. 33 Mr Court confirmed that the company had no written disciplinary procedure. Mr Ting had given him no direction as to how to discipline employees. He described an appropriate procedure during an investigation as looking at both sides of any situation and making a decision based on the available evidence.

Mr Court accepted that there may have been some overlapping of authority between himself and Mr Anstee. Mr Court wasn't aware of the instruction concerning Charlie, but this wasn't unusual, as Mr Anstee had day to day running of the warehouse. 34 Mr Court kept notes of the meetings with the applicant on 26 and 29 May. A witness, Mr Jeffrey, was present at the first meeting, but was not called to give evidence.

35 Mr Warton, Solicitor, appearing for the applicant, submitted that:

1. It is likely Mr Ghunaim sought to justify to Mr Court his reason for abandoning the two employees on the basis of his instruction from Mr Anstee. However, Mr Court failed to properly investigate whether such a reason was soundly based. Had he done so, it might have only led to a warning.

2. Mr Ghunaim didn't feel Mr Court should necessarily be giving him instructions.

3. Mr Ghunaim had misunderstood the nature of Mr Court's instruction.

4. It was unclear if all employees were aware of Mr Court's authority.

5. Objectively, it was not unreasonable for him to return to Miranda, but in the circumstances as Mr Ghunaim viewed it, it was unreasonable.

6. Compensatory relief is sought, not reinstatement.

1. Mr Ghunaim was dismissed for misconduct, in that he failed to follow a lawful and reasonable direction from his employer.

2. The applicant was aware, from an earlier refusal to accept direction, that another incident would result in dismissal.

3. The applicant knew the line of authority flowing from Mr Ting to Mr Court and Mr Anstee.

4. There was no "ten minute rule" which the applicant could rely on as justifying abandoning the two employees and refusing an order to pick them up. He showed no remorse for his behaviour.

5. There is no issue over the timing of the phone calls. In fact, the phone records corroborate the company's version of events.

6. Mr Court's direction was lawful and reasonable (Mr Warton accepted it was reasonable).

7. Mr Court investigated the matter, and spoke to all the employees involved, including the applicant's supervisor, Mr Anstee.

8. Mr Ghunaim had an opportunity to follow Mr Court's direction and to put forward his explanation as to why he didn't.

9. Mr Ghunaim had a history of not complying with instructions, although the specific incident on 26 May was, of itself, sufficient to warrant dismissal.

37 I return to the questions posed earlier in this decision. 38 Did the applicant refuse a lawful direction of management?

There is no doubt that the applicant was instructed to return to Miranda and collect the two employees he had deliberately left behind. He was directed to do so during work time and by the most senior person in authority. There is no argument that what he was directed to do was entirely within his duties and responsibilities and, indeed, within what he insisted he was employed to do; namely, driving.

In my view, there can be no doubt that all employees knew the company hierarchy and knew particularly that Mr Court had acting manager status in Mr Ting's absence.

Viewed in this context, the answer to the first question must be unequivocally in the affirmative.

39 Was the direction a reasonable one in all the circumstances?

While I acknowledge that Mr Warton conceded that the direction was reasonable (T.p127), it is appropriate to highlight the circumstances in which it was refused.

Mr Ghunaim's defence is that he only took instructions from his immediate supervisor, Mr Anstee, from whom he had a direct instruction known as "the ten minute rule". I shall discuss this so called "rule" shortly.

Here was a junior employee refusing a direction from the most senior manager.

Mr Ghunaim's defence is akin to a police constable refusing an order of the Police Commissioner on the grounds that the constable only takes orders from his/her station sergeant.

The nonsense of the argument is readily apparent from this analogy.

The strength of the applicant's case squarely rested on what he claimed was "the ten minute rule" which his supervisor, Mr Anstee, had insisted upon. He claimed he was made aware of this rule sometime in April when sitting in Mr Anstee's office during a conversation between Mr Anstee and Phuoc.

Firstly, it is curious that in the applicant's affidavit there is no mention of the "ten minute rule" in, either the phone conversation with Mr Court on Friday, 26 May, or in the meetings with Mr Court later that day and on Monday, 29 May. Mr Ghunaim's reason for not returning to Miranda, are in my view, more about his own personal convenience. Going back to Miranda in heavy traffic meant he would not have been able to leave work at his usual time of 3.15pm.

Secondly, why would Mr Ghunaim need to call Mr Anstee to confirm what he already believed was a firm instruction to leave employee's behind after ten minutes?

Thirdly, even if there was such an instruction, Mr Ghunaim, himself had waived it by waiting fifteen minutes. His evidence, corroborated by Mr Sevastis, was that he offered the two employees fifteen minutes to go to the toilet. A few minutes before the time was up, he called the company and spoke to Mr Court.

Fourthly, it is ironic that it was Mr Court's evidence which revealed that Mr Ghunaim had mentioned something about Mr Anstee's instruction when he returned to the company on 26 May. Mr Court's contemporaneous note also mentions it in these terms: ... I met with Samih on his return to Swatow office at approximately 3:45pm (Friday 26 May), with Milton Jeffree (Swatow Sales representative) as witness. I asked him why he had refused to obey my reasonable instruction. Samih's reply was that his immediate superior had told him previously not to wait more than ten (10) minutes for any staff assisting with deliveries if they had left the truck for any reason, and he was merely obeying that instruction and would not take instruction from any other person. ...

41 Mr Warton sought to impugn Mr Court's evidence as to what was said in this conversation. However, by doing so, he does not assist his client's case whose primary defence, as I have already observed, was the "ten minute rule". 42 The Commission is minded to note that a proposition where a delivery employee is left behind after ten minutes is unrealistic and idiotic - particularly in the context of this employer's business.

Mr Ghunaim is seemingly the only employee who believed that the "ten minute rule" was to be strictly applied to every employee.

The author of the alleged rule, Mr Anstee said it was not policy, not written down and did not apply generally. It was directed to one employee in the context of a particular and isolated incident. 43 I accept Mr Anstee as a witness of credit and accept his evidence in regard to the so called "rule". Even so, the applicant could produce no other employee who confirmed his view of the matter.

On the contrary, Mr Sevastis and Mr Ramos both said that, while they knew of the incident involving Charlie, there was no instruction given to them, or employees generally, to leave employees behind after ten minutes.

It seems inescapable from this evidence that the so called "ten minute rule" was, as Mr Court described, a " figment of someone's imagination ". I find there was no such rule. 44 However, even if there was, or to put it more kindly, that Mr Ghunaim believed there was, it obviously begs the real question. The fundamental essence of this case was whether Mr Court's instruction, no matter how contradictory or inconsistent, was a reasonable one? 45 In addition, it seems odd that Mr Ghunaim would maintain his rigid commitment to accept Mr Anstee's instructions unquestioningly when, at other times, he chose to ignore or disobey. For example, the instructions to do gardening and drive the small truck all came from Mr Anstee and were refused by Mr Ghunaim. 46 The Commission is troubled by the conflicting evidence of the conversation, alleged by Mr Ghunaim to have been held, sometime in April in Mr Anstee's office, during which he formed the view about the "ten minute rule".

Mr Ghunaim said he was sitting in Mr Anstee's office chair when Phuoc came in to complain about Charlie not returning for forty-five minutes. Both Mr Anstee and Mr Nguyen gave evidence that Mr Ghunaim was not in the office. I note, nevertheless, the curious expression used by Mr Anstee that " to his knowledge ", Mr Ghunaim was not present.

On the other hand, it seems utterly implausible that Mr Ghunaim be allowed to remain in Mr Anstee's office - let alone sitting in his chair - when Phuoc entered to complain about Charlie. 47 Mr Phuoc Nguyen gave delightfully innocent and open evidence. His demeanour in the witness box leaves me in no doubt that when he said Mr Ghunaim wasn't there, I believe him.

48 I am unable to comfortably make a finding as to whether the applicant was given the job description at his initial interview.

Mr Ghunaim was adamant that he had not; while Mr Ting said a job description was given to him at the commencement of employment. 49 In any event, for the following reasons, nothing material turns on such a finding:

1. The refusal to perform cleaning and gardening said to be part of the job description, was not the decisive factor in Mr Ghunaim's dismissal.

2. It was, in my view, unreasonable for Mr Ghunaim to refuse to perform cleaning and gardening. The evidence was that all employees chipped in, from time to time, to help. These were not tasks that were beyond Mr Ghunaim's capabilities, or ones which placed him at any risk. He plainly believed that they were tasks beneath his station.

3. The reason for dismissal was a refusal to obey a reasonable direction which involved precisely what was part of his job description, namely; driving. It was what he insisted he was employed to do.

It is apparent to me, therefore, that taking issue about whether the applicant received a job description was little more than a diversion from the main point. It has no bearing on what the Commission is required to determine in this decision.

50 Mr Moses referred the Commission to a number of authorities, including my recent decision in Ueckert and Australian Water Technologies Pty Ltd (unreported) IRC5553 of 1999, 25 July 2000, which discuss the matters to be considered in cases involving dismissal for misconduct. 51 More recently, the Commission had further occasion to discuss the principles flowing from several significantly relevant cases. In Foster and Woolworths Limited (unreported) IRC6385 of 1999, 27 October 2000, I said: In the context of this matter, one further well established principle requires some elucidation: The dismissal of the applicant is said to be for serious misconduct. The onus in such matters is, not for the applicant to disprove the allegations, but rather the reverse. The employer must, not only make the allegations, but must prove such allegations to the requisite standard. This principle is now well settled by a long line of authority, for which but a few references are necessary. In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 , 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) 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 , 22 IR 2, 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. In Franklins Limited v Webb , 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.

This matter, likewise, deals with a different point, but can be generically grouped as a summary dismissal for cause. See also Bigg & Anor v New South Wales Police Service , 80 IR 434.

52 In my opinion, the circumstances here do not constitute serious misconduct of the character disclosed in Ueckert or Foster. Nevertheless, the dismissal was, as Mr Moses submitted, for misconduct. Whether serious or not, the onus rests on the respondent to, not only allege misconduct - but prove it.

It is an onus which I believe the respondent has discharged. 53 After reviewing the evidence in this matter, particularly that of the applicant, the Commission is left with the distinct impression that he was, at best, ambivalent to his ongoing employment with Swatow Imports. In my opinion, he was actively goading the employer into dismissing him. It is not readily apparent to me, however, what motivated this behaviour. However, the evidence that he was, is all to clear. Such evidence includes:

1. The warning letter of 2 March 2000 would have left the applicant under no illusion that, any future failure to carry out a reasonable instruction, might result in dismissal.

2. The uncontested evidence was that the applicant did not regard gardening and cleaning as part of his job description. He resented doing it, or being asked to. As mentioned earlier, I am unable to conclusively find that he was given the job description at the commencement of employment. Pointedly, I ask what difference would it have made? It is not unreasonable, in a small workplace, for everyone to chip in from time to time, and perform simple tasks which might not strictly conform to their expectations. There are no reasonable grounds for refusing to do so.

3. Mr Ghunaim's first reaction when questioned about his refusal to do gardening was to ask to be sacked. This was his evidence. It is extraordinary that someone who was said to value his job, would react in such a way over such a trivial matter.

4. There was no evidence that the small truck was unsafe. On the contrary, all the other evidence, from Mr Nguyen and Mr Anstee particularly, was that, while the truck was old, it was not unsafe. Mr Ghunaim's refusal to drive it, is inexplicable. 54 At this juncture, it is convenient to refer to what Hungerford J said in Day v Lumley Life, 90 IR 70, concerning the obligations on the employer and the employee in the employment relationship: 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.

While his Honour, in Day , was there dealing with an unfair contract application, pursuant to s106 of the Act, his comments are no less apposite in this case or, indeed, to employment relationships generally.

In my opinion, Mr Ghunaim failed to display good faith and fidelity in the employment relationship. He has brought about his own downfall. His mala fides are self evident. It is axiomatic therefore, that the applicant's claim of unfair dismissal cannot be sustained and will be dismissed.

55 There was some attack on the credibility of the respondent's case on the basis that there was no formal disciplinary procedure and there appeared to be a rather relaxed and haphazard approach to discipline.

This is hardly remarkable for a small employer with less than twenty employees. My impression of the working environment at Swatow is one of considerable flexibility and tolerance. I doubt there are many employers who would treat an employee's continuing refusal to perform menial duties with such patience. 56 Mr Ghunaim appeared to be able to do as he chose with impunity, including leaving an hour before the normal finishing time. It seems to me that the quid pro quo for this flexibility was that all employees were expected to chip in and help each other - even on occasion perform mundane tasks below their status. 57 From all that has emerged in this case, the Commission believes that Mr Ghunaim wanted all the benefits of this easy going arrangement, but none of the obligations.

Simply put, he didn't fit in and made little effort to do so. 58 I also note that there is no obligation on an employer to have, or to apply, a "three warning policy". In any event, Mr Ghunaim had a long history of insubordination. After the truck incident, he was warned that a further refusal to accept a reasonable direction would lead to dismissal. Nothing could have been clearer. The Miranda incident was not of some small order such as refusing to do gardening or cleaning. It was of major significance to the effective operational needs of the company and a direct challenge to the authority of management. 59 In summary, I conclude that the employer h as discharged the onus of proving the misconduct. The applicant has not established a case warranting the intervention of the Commission. There are no mitigating factors which would ground any claim of unfairness in the dismissal, both in respect to substance and procedure. 60 Accordingly, the application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.