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Mr Dissanayake also claimed he was unaware of a change in procedure that required him to check wheel nut tension.

The Allegations

1. This extract from the Commissioner's decision makes clear that the appellant was dismissed after a finding that two allegations levelled against him were made out following an investigation. Those allegations concerned the conduct of the appellant on 18 August 2014 in the discharge of maintenance tasks assigned to him as a mechanic with respect to a bus bearing the designation MO1196.
2. The allegations were conveyed to the appellant by correspondence from Mr Craig Brown, Regional Fleet Manager North/West of the respondent on 7 November 2014.
3. Allegation 1 was expressed as follows: Allegation 1: On 18 of August 2014 you breached section No's 2.3, 2.4.2, 2.4.1(a), 2.4.1 (g), 2.4.1(i), 2.13, 2.18 of the State Transit Code of Conduct and Work Instruction No WI 26.04.40 when you failed to correctly secure the nearside rear road wheels to a State Transit Bus. Particulars of Allegation 1: On 18 August 2014, you were tasked with Ellipse Work Order No 00282680 to carry out an M2 inspection on bus MO1196 (attached). During your inspection you failed to check or secure the road wheels. As a result of particular No 2, on 22 October 2014 at 6.45am the rear nearside wheels (positions 3 and 4) separated from the nearside rear axle hub. Your actions as outlined in particular No 2 were inappropriate, demonstrated a lack of diligence, constitute a failure on your part to carry out your duties and responsibilities to the required competency level of our position and to stay up to date with policy relating to your position. Your actions as outlined in particular No 2 constitute a failure on your part to follow a reasonable and lawful instruction, specifically WI 26.04.40 (attached). Your actions as outlined in particular No 2 resulted in an unnecessary risk to the health and safety of your colleagues and members of the public. 1. (hereafter 'the first allegation').
4. Allegation 2 was expressed in the following manner: Allegation 2: On 18 August 2014 you breached section No's 2.3, 2.4.1, 2.4.1(a), 2.4.1(g), 2.4.1(i) and 2.18 when you incorrectly made a notation on an M2 Service Item report that the checking of wheel nuts was "Not Applicable" to a State Transit bus. Particulars of Allegation 2: On 18 August 2014, you were tasked with Ellipse Work Order no 00282680 to carry out an M2 inspection on bus MO1196. During your inspection you failed to check or secure the road wheels. When completing the M2 Service Report (Ellipse Work Order 00282680) following your inspection, you recorded "N/A" in the status box for Item 31, Check wheel nut tension (refer WI 26.04.40) Your actions as outlined in particular No 3 were inappropriate, demonstrated a lack of diligence and constitute a failure on your part to carry out your duties and responsibilities to the required competency level of your position, to stay up to date with policy relating to your position and to follow reasonable and lawful instructions. Your actions as outlined in particular No 3 constitute a failure on your part to follow a reasonable and lawful instruction, specifically WI 26.04.51 (attached in completing the M2 Service report). (hereafter 'the second allegation').
5. The allegations were the subject of an investigation and were found to be proven.
6. We shall briefly consider the terms of each charge against the appellant.
7. The first allegation made the factual assertion (not contested in these proceedings) that during the maintenance inspection of 18 August 2014, the appellant failed to secure the road wheels on a bus (designated MO1196). That failure was said to result in the rear nearside wheels separating from the rear nearside axle hub. Those factual assertions were not contested in these proceedings, although the evidence makes clear that the maintenance task in question was, in fact, performed on 16 August 2014. Nothing in the resolution of this appeal turns on that irregularity and, hence, consistently with the approaches of the parties, we should generally refer to 18 August 2014 with respect to both allegations levelled against, and the conduct of, the appellant as encompassing that true factual position.
8. The specific allegations of misconduct against the appellant were conveyed by paragraphs 4 and 5 of the first allegation (although we acknowledge that paragraph 6 refers to the consequences of the appellant's actions). As will become apparent later in this decision, it is necessary to fix attention upon only one of those allegations, namely, the allegation of disobedience in paragraph 5 of the first allegation.
9. The 'instruction' said to be disobeyed by the appellant was described in paragraph 5 of the allegation as "specifically WI 26.04.40". Paragraph 1 of the allegation refers to the appellant being "tasked with Ellipse work order No. 00282680 to carry out an M2 inspection on bus MO1186".
10. The reference 'Ellipse work order No. 00282680' or 'M2 service report' in the allegations is a reference to a job card which contained a checklist of tasks which a maintenance employee was required to complete for a particular class of maintenance work. Such job cards shall hereinafter be referred to as 'a work order' or 'work orders'.
11. It was not alleged, in the first allegation, that the appellant disobeyed this work order. The word 'specifically' in paragraph 5 of the first allegation, would not seem to affect the conclusion as both the opening words of Mr Brown's letter to the appellant and the preamble to the first allegation refer, with particularity, to work instruction WI 26.04.40 (as does the preamble to findings as to the first allegation in the Notice of Punishment dated 12 December 2014 and signed by Mr Michael Reardon, General Manager, Fleet Operations & Infrastructure of the respondent). Further, in a statement by Mr Ian Satchell, Manager, Fleet Operations of the respondent, introduced into evidence below, the work order was said to be "an example of how" the request to tighten wheel nuts as provided by WI 26.04.40 "is scheduled into the overall maintenance program for buses".
12. The second allegation concerns a failure to complete the aforementioned work order which was described as a 'service report'. This allegation and the ultimate finding alleges a failure to follow instructions in both paragraph 4 and 5. The instruction alleged to be disobeyed in paragraph 4 and 5 is that contained in WI 26.04.51 which is said to be attached, but no record of the document is in evidence in the proceedings.
13. No proposition was contained in the second allegation that the appellant's failures, as described in that allegation, resulted in serious risks to health and safety in the manner of paragraph 6 of the first allegation. It is difficult to see how, standing alone, the conduct described in the second allegation could properly result in summary termination.
14. The findings of the respondent with respect to the allegations were contained in a document, as we previously observed, entitled 'Notice of Punishment'. It was agreed by the parties that this document was received by the appellant on 15 December 2014.
15. By that communication, the appellant was advised he had breached various provisions of the 'State Transit Code of Conduct'. The breach was then particularised in the same terms as the allegations, save for a change in the preamble of the first allegation and a change in the entry the appellant was said to have made in the work order in the second allegation - the finding was that he wrote 'NR' or 'Not Required' rather than 'N/A' or 'Not Applicable'.
16. The punishment recorded on the Notice of Punishment was "Dismissal" but it is common ground, as recorded at the outset of this decision, the dismissal was summary, that is, without notice.

Work Instructions and Work Orders

1. It will be clear from our discussion of the allegations that a distinction was drawn by the respondent, for the purposes of regulating maintenance tasks, between work instructions and work orders. There are a number of such documents bearing upon the disposition of the appeal.
2. We have earlier described 'work orders'. These documents are to be distinguished from general work instructions issued to maintenance employees from time to time by the respondent in the form of a bulletin or circular containing instructions of a broader character including safety alerts. These documents shall hereinafter be referred to as a 'work instruction' or 'work instructions'.
3. There are three work instructions which are necessary to consider for the disposition of this appeal. In chronological order, the first such work instruction was designated as "Maintenance Instruction No: WI 26.04.40". This was issued on 14 May 2012 and was the first such work instruction in chronological order which was material to the questions raised on this appeal. It shall hereinafter be described as 'the first work instruction'.
4. The first work instruction was entitled "Securing of Road Wheels" and contained the bold heading "INSTRUCTION". Under that heading there were two relevant entries: Re-tensioning of wheel nuts for all vehicles must be carried out following the first completed road shift following any wheel removal. … The wheel nuts should be checked-tightened every 6 to 8 weeks, whether or not the wheels have been slackened.
5. The second work instruction bears the date "23 May 2014" and has the maintenance instruction number "WI 26.04.53". This shall be referred to as 'the second work instruction'.
6. The second work instruction is entitled "Wheel Nut Retainers" and has a sub heading "Fitting Wheel Nut Retainers". The instruction advised that the respondent would fix wheel nut retaining devices (hereafter 'nut lock clips') to its fleet of buses and the procedure by which these devices were to be fitted.
7. The second work instruction contains the following relevant entry: There have been a number of incidences resulting from loose wheel nuts across the bus industry. As a result Transport For NSW (TFNSW) had advised all MBSC contract holders to examine their wheel fitting procedures. In accordance with the TFNSW recommendations, State Transit has carried out a trial of various wheel nut indicators and wheel nut retaining devices available in the market and has decided to introduce two types of wheel nut retaining devices ("RicClip" and "Checklock") across the fleet. Detailed below is the procedure on how to fit these devices to buses. These are to be used to retain wheel nuts on all models of buses for ongoing maintenance and safety assurance.
8. It is common ground that the second work instruction gave no specific instruction as to the tightening of wheel nuts and did not refer to the first work instruction.
9. The third work instruction appeared to be of a different class as it was described as a "Maintenance Alert". However, the parties drew no distinction between this circular and other documents described specifically as work instructions. We shall, therefore, refer to the Alert as a 'work instruction'. The sub-title of the document was "Security of Wheel Nuts" and it bore a "Maintenance Alert No: WI 26.01.34". This document was dated 4 April 2014 and shall hereinafter be described as 'the third work instruction'.

Actions of the Appellant

1. There was no contest in these proceedings as to the following facts: 1. The appellant kept, in his toolbox, a complete list of work instructions issued from time to time and he was required to sign for each work instruction he received; 2. The appellant received the first and second work instructions at or around the time they were issued and he thereafter carried out his maintenance tasks according to those instructions and the corresponding work orders issued; 3. At 18 August 2014 the appellant was not in receipt of the third work instruction; 4. The appellant received the third work order prior to completing the maintenance task on 18 August 2014. He had read that work order by that date; 5. In the maintenance he carried out on 18 August 2014, the appellant did not check or secure the wheel nuts of bus numbered MO1196 in accordance with item 31 of the third work order. Rather, the appellant marked "NA", meaning not applicable, next to that item. Notwithstanding that entry, the appellant's supervisor certified that the service was complete; 6. The appellant's failure to tension the wheel nuts resulted in the wheel nuts and the wheels of bus MO1196 coming loose on 22 October 2014; 7. That occurrence had severe implications for driver and public safety; and 8. The appellant first received the third work instruction on 3 November 2014. From this time, which was prior to when he became aware that he was under investigation for his conduct on 18 August 2014, he performed his work in accordance with the third work instruction.
2. To conclude this summary of non-contested factual matters, we mention a further matter that escaped specific attention in the submissions of the parties. There was no submission or concession that bus MO1196 had nut lock clips fitted to its wheels at the time the appellant performed his maintenance tasks on 18 August 2014. Nor does any witness below directly deal with that issue. However, a finding is available, by necessary implication arising from the submissions of the parties and the evidence (including evidence as to the wheels of the bus coming loose), that nut lock clips were fitted to the wheels of the bus, the subject of the allegations, as at 18 August 2014.
3. There was a question below, which resurfaced on the appeal, as to the appellant's practice in regard to making entries against item 31 in the third work order - "Check wheel nut tension (Refer: WI 26.04.40)". At first instance, the respondent cited eight work orders that the appellant had signed off between 4 and 16 August 2014 (these were appended to the statement made by Mr Ian Satchell). Six of these were versions of the third work order and two were M3 service orders where the relevant instruction appeared at item 37. Across these eight work orders, the instruction was variously marked with "NR", a tick, or a tick and the words "locks on".
4. Despite the appellant having given evidence as to why these entries varied (as discussed below), the Commissioner, at [113] of his decision, stated: Mr Dissinayake could not explain why on occasions he had use "ticks" on the earlier M2 service check list to show that tensioning had been carried out despite the relevant vehicle being fitted with wheel lock nuts. Nor could Mr Dissinayake explain the inconsistency whereby he had placed a tick to indicate tensioning had been completed in circumstances where wheel nuts were no locks had been fitted.

Encapsulation of the parties' submissions

1. We will summarise the submissions of the parties below, but the pith and substance of those submissions, so far as they relate to this background and a contention of the appellant that his summary termination was wrongful (corresponding to one ground of the appeal), may be briefly summarised in the following manner.
2. As we have observed, the findings against the appellant which were said to justify summary dismissal concerned, on the one hand, carelessness and a lack of diligence and a failure to exercise a required competency and, on the other, a failure to follow a reasonable and lawful instruction as conveyed by the third work order. However, the respondent's defence of the s 84 application and, more significantly its defence of the appeal, relied upon only one of those findings, namely, the failure to obey a reasonable and lawful instruction, even though there were references in the allegations to breaches of the respondent's code of conduct and safety procedures and passing or non-specific references to the inadequacy of the appellant in approaching his work on 18 August 2014 and its implication for public safety.
3. Ultimately, the joinder of issues in this case as to whether or not summary dismissal was or was not justified was whether, if there was a disobedience of a lawful and reasonable instruction to tension wheel nuts by the appellant, pursuant to a work instruction, as particularised in the allegations or work order (as pressed in the respondent's case before us), did such disobedience warrant the summary termination of the appellant.
4. Ms L Andleman of counsel, who appeared for the respondent, contended that the appellant disobeyed a lawful and reasonable instruction evidenced by the failure to check and secure the wheel nuts and the completing of the third work order by inserting the letters "NA" recorded against item 31. The state of mind of the appellant in that respect was irrelevant. However, it is important to note that the respondent's characterisation of the instruction that was disobeyed differed between its written submissions and its oral submissions. In its written submissions, the alleged misconduct was referred to as the "failure to comply with Work Instruction WI 26.04.40 which required the Appellant to check the tension on the wheel nuts on bus No 1196 and incorrectly notating M2 Service Report as NA". In its oral submissions, item 31 of the work order (referred to as a 'job sheet') was fixed upon as the lawful and reasonable instruction which the appellant disobeyed (this position reflected the respondent's oral submissions before the Commissioner). There the respondent submitted: "The job sheet constituted a direction for him to perform the work. The direction was in clear unambiguous words. The direction was lawful and reasonable and that he failed to follow it".
5. It may be said, as the respondent did, that the third work order referred to the first work instruction, but the reference was not an instruction per se and there were issued, subsequent to the first work instruction, the second and third work instructions. Both were issued before 18 August 2014. As we will discuss later, this shift in the position adopted by the respondent cannot be said to be inconsequential.

The appellant's approach to work instructions and work orders

1. We approach this question in the context of not only the respondent denying the relevance of the appellant's state of mind in discharging his duties on 18 August 2014 but also in circumstances where the Commissioner eschewed, in our view (as we will later discuss), any necessity to form a view about whether the appellant had or had not deliberately flouted his employer's instructions for the purposes of deciding whether or not his summary termination was justified but also in determining whether the dismissal was harsh, unjust or unreasonable (the Commissioner makes a finding that the dismissal was harsh but he does so in the absence of a finding on the issue). The findings here are made in anticipation of our conclusion that the Commissioner, by this approach, erred in law.
2. The appellant gave evidence of his awareness of a change in the respondent's procedure regarding the wheel nut tensioning. This was set out in the appellant's first affidavit at paragraphs 28 to 32: 28. In or around May 2013, the Respondent commenced fitting wheel nut retaining clips ("retaining clips") to the wheel of its buses. These retaining clips were made of metal and were shaped like a figure-8 that could be attached around a pair of affixed wheel nuts. The retaining clips were designed to stop the nuts from moving and unthreading through regular wear and vibration. 29. On approximately 23 May 2013, I received a copy of maintenance instruction WI 26.04.53 from the Respondent, which detailed the process of fitting the retaining clips to the wheel nuts of the Respondents buses ("the May 2013 Maintenance Instruction"). The May 2013 Maintenance Instruction further provided that at each service the mechanic would be required to check that the retaining clips were fitted and replace any retaining clips that were missing. A copy of the May 2013 Maintenance Instruction is annexed to this affidavit and marked "SD06". 30. After the Respondent implemented its new system of fitting retaining clips to the wheel nuts of its buses, the Respondent did not require its mechanics to check the tension of wheel nuts. I note that this change was not set out anywhere within the May 2013 Maintenance Instruction, but to the best of my recollection, was set out within the job cards issued after May 2013, with words to the effect of: "Check wheel nut tension (if wheel nut locks not fitted)". Unfortunately, I do not have copies of any of the job cards issued after May 2013 which contained these words. 31. Following May 2013, I ceased checking the tension of the wheel nuts during services whenever retaining clips had been fitted. Further, whenever I was performed a service on a bus with retaining clips fitted, I would mark the wheel nut tension check with an N/A (not applicable) on the job card. 32. At no time was my practice of marking my job cards with N/A ever called into question by my supervisor, Mr Stuart Hadley, or by the Respondent's Workshop manager, Mr Greg Mills). As noted above, I engaged in this practice consistently from May 2013 to November 2014.
3. It was not directly put to the appellant in cross-examination that he had received the third work instruction prior to 18 August 2014 (it should be noted that an attempt to do so was abandoned by the representative for the respondent after he confused the first and the third work instructions). He was, however, cross-examined as to when he became aware of the change to the third work order and why he did not follow the instruction given in the third work order. The relevant parts of his evidence in these respects will be extracted below.

consideration

Ground 7 as expanded in submissions

1. We shall commence our consideration by examining the ground of the appeal which the parties, by the conduct of their cases on the appeal, made central to the disposition of this appeal. That was ground 7 (see [79] above) as expanded in the submissions of the appellant (see [85] above). We note that other grounds did have some intersection with the arguments developed as to the expanded version of ground 7 such as grounds 1, 2, 3, 4 and 5.
2. It was not suggested by either party that the determination of whether the summary dismissal was wrongful would be determinative of the question of whether the dismissal was harsh, unjust or unreasonable for the purposes of s 84 of the Act. We consider that that approach was correct and consistent with the authority of the Full Bench in Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 ('Budlong') at [15]. The jurisdictional foundation for the making of any order under Pt 6 of Ch 2 of the Act is a finding that a dismissal of an employee was harsh, unreasonable or unjust.
3. Nonetheless, the question as to whether the summary dismissal of the appellant was wrongful constituted a relevant factor in the determination as to whether the dismissal was harsh, unjust or unreasonable. The Full Bench in Budlong aptly described the relevant proposition in this respect as (at [87]): To put it another way, if the employer is able to show that it was justified in summarily dismissing the employee, the onus falls on the employee to show that, nonetheless, the dismissal was harsh, unreasonable or unjust. If, on the other hand, the employee's conduct did not justify summary dismissal in law that would be "a very compelling consideration for restoring the employment relationship otherwise unlawfully severed": Pastrycooks at 84.
4. In Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 at [63], the Full Bench applied Budlong and, in consequence, determined that, in a case such as the present where the lawfulness of a summary dismissal was central, a procedure should be adopted in the determination of unfair dismissal applications (or an appeal from a decision in such a matter) by which the Commission should first consider whether the appellant's conduct was a breach of the contract of employment and, secondly, whether the breach was of a serious nature involving a repudiation of the essential obligations under the contract or actual conduct that was repugnant to the relationship of employer or employee. (The reversal of Casari in Director General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47; (2010) 77 NSWLR 159 did not affect that part of the decision of the Full Bench.)
5. The Commissioner was cognisant of the obligation to reach a determination as to whether the summary termination of the appellant was lawful in determining whether the dismissal was unreasonable, unjust and harsh. He effectively found that the respondent had properly reached a conclusion that the appellant should be summarily dismissed and that the dismissal was not unreasonable or unjust. He then concluded that, notwithstanding that the summary termination was lawful, the dismissal was, nonetheless, harsh because of the consequences of the summary termination upon the appellant having regard to factors such as his length of service.

The appellant's previous act of misconduct

1. Those conclusions follow, irrespective of whether the actions of the appellant constituted a single act of disobedience or not, because the essential error was to fail to take into account factors necessary to appreciate whether the employee had repudiated his contract of employment as that concept is understood in the authorities earlier discussed and because that error included a failure to properly assess the nature and quality of any misconduct by putting out of account factors necessary to properly make such an assessment. That said, we do consider that, to the extent that the appellant's conduct can be assessed as disobedience, his conduct on 18 August 2014 should properly be considered as a single act (albeit mitigated in the manner discussed above) because we do not consider the prior conduct which gave rise to a warning from his employer, for the purposes of considering the lawfulness of the summary termination, to be sufficiently related in nature to the purported act of disobedience on 18 August 2014.
2. The Commissioner, at [127], and the respondent referred to the appellant's prior act of misconduct in justifying the summary termination of the appellant. That prior punishment was located in a Notice of Punishment issued to the appellant on 2 July 2013 ('the 2013 Notice of Punishment'). It was found that, on 6 June 2013, the appellant had "failed to operate and perform duties to required competency level of [his] position resulting in said vehicle travelling uncontrolled and damaging said vehicle and depot infrastructure". The appellant, in that instance, had failed to check the pressure in a brake prior to moving a bus he was working on, resulting in the bus running, out of control, into a garage door. The punishment issued to the appellant, as outlined in the 2013 Notice of Punishment, was: 1. Suspension without pay for a period of four weeks (already served during investigation period). 2. A regression in grade to that of ERT LVL 3 as from 3rd July 2013 until 31st December 2013. 3. A Final Warning, in that any future breach by yourself of State Transit Code of Conduct or policies may result in the termination of your employment.
3. That prior instance of misconduct can be differentiated from the charge of disobedience that has been levelled at the appellant in relation to his conduct on 18 August 2014, from which these proceedings arise. The appellant's conduct on 2 July 2013 was clearly an act characterised as 'incompetence' and reflected a degree of carelessness in relation to his work on that day. However, as has been discussed above, the respondent relied in this appeal, and below, upon a finding of disobedience of a lawful and reasonable order to justify its dismissal of the appellant, not a finding of incompetence or carelessness (notwithstanding that there may have been elements of carelessness in the appellant's failure to check that he was following the correct procedure as to tightening wheel nuts where nut lock clips were fitted after the third work order came into use).
4. More significantly, if attention is directed to the nature and quality of misconduct the concepts of disobedience and carelessness are quite different. A refusal to obey a reasonable and lawful instruction denotes an unwillingness to receive and/or act upon such instructions. Whereas an act of incompetence arising from carelessness denotes lack of diligence in completing one's work. Putting aside particularly heinous acts of carelessness, misconduct of that kind is generally of a lesser gravity.

Ground 6 of the appeal

1. We also consider there is substance to ground 6 of the appeal insofar as it concerns the issue of proportionality. It is tolerably clear that the Commissioner did not consider the penalty imposed upon the appellant to be disproportionate to that imposed upon his supervisor, not only because, as he states at [127], the appellant's circumstances could be differentiated due to the prior warning he had received and his lack of contrition but also because of his assessment of the nature and quality of any misconduct committed by the appellant vis-à-vis disobedience. It may be implied from the Commissioner's decision that he considered the nature and quality of the appellant's misconduct to be of such a serious character as to distinguish it from the mere carelessness of his supervisor in checking the third work order. That again underlines the vice found in the Commissioner's decision in omitting any consideration of why or how the appellant came to not follow the requirements of the third work order on 18 August 2014.

Conclusions re errors

1. It follows that the Commissioner's decision was attended by errors of law and principle. Leave should be granted to deal with those errors and in our view the appeal must be upheld.

Re-exercise of power and discretion

1. Attention must then turn to what the Full Bench should do in these circumstances. Under s 192(1)(a) of the Act, the Full Bench has the power to substitute its own decision for that of a Commissioner: ITD Preece v Industrial Court [2008] NSWSC 285; (2008) 177 IR 172 at [41] (per Spigelman CJ). It was submitted by the appellant that the Full Bench should undertake such a procedure. The respondent made no submissions as to what course should be taken if the impugned decision was found to contain errors of law. We consider the approach contended for by the appellant to be the appropriate course in these circumstances.

Was the dismissal of the appellant harsh, unreasonable or unjust?

1. We will now turn to deal with the question of whether summary termination was lawful as a discrete but relevant consideration as to whether the dismissal of the appellant was harsh, unreasonable or unjust.
2. We have concluded that the summary termination of the appellant was unlawful for the following reasons: 1. The appellant failed to discharge an instruction contained within the third work order on 18 August 2014. Strictly speaking, that failure constituted a breach of an express or implied term in the appellant's contract of employment, namely, that the appellant must follow lawful and reasonable instructions issued to him by the respondent. 2. The respondent's case centred upon the appellant's disobedience of a lawful and reasonable order constituting the repudiatory conduct that would warrant summary dismissal irrespective of the wilfulness of the act of disobedience or whether it constituted an act arising from carelessness or mistaken judgment. The respondent's decision to summarily dismiss the appellant was, therefore, based on an incorrect legal premise as to the repudiatory nature of the conduct required to warrant a summary termination. 3. The appellant's conduct in failing to discharge the instruction he was tasked with on 18 August 2014 cannot be properly understood as conduct evincing an intention to repudiate his contract of employment because the objective circumstances surrounding that conduct support the conclusion that the appellant's failure was not a wilful or deliberate act of disobedience. The failure of the appellant was not a result of him determining that he would not follow the requirements of the third work order in defiance of his employer's directions but a decision to so act because of what he erroneously considered constituted those directions. His conduct represented an error of judgment or ill-conceived conduct. 4. Irrespective of being a single or further act of disobedience, the appellant's conduct did not constitute a flouting of the essential conditions of the contract of employment. His actions fall well short of the repudiatory conduct discussed in the authorities as would justify summary termination. As we found, however, the appellant's conduct on 18 August 2014 should properly be treated as a single act of misconduct for the purposes of determining the lawfulness of his summary termination. Thus, it can be concluded, with even stronger force, that the appellant's conduct did not constitute a repudiation of his contract of employment.
3. In the circumstances of this matter, the conclusion set out above, in our view, properly constitutes a basis for concluding that the dismissal was harsh, unreasonable or unjust. That is because the respondent sought to sustain its defence of the appeal entirely upon a foundation of the appellant's disobedience of a lawful and reasonable instruction. Having reached that point, it remains important to apply the general principles associated with the answer to this question in the light of the factors more broadly bearing upon the issue arising from the earlier analysis in this judgment.

Principles as to harsh, unreasonable or unjust

1. A recent illustration of the relevant principles in that regard can be found in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at [18 to 21]. We will adopt the principles as set out by the Full Bench there and, for convenience, extract them below: [18] We adopt the statement of principles in Vouden and Kaplan and, for convenience, shall set out the relevant passages of those judgments in order to reiterate some basic principles in this respect. [19] In Kaplan, the Full Bench stated (at [27] to [29]): 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 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 committees 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. [20] The judgment in Vouden distilled the relevant principles as to the tripartite factors in the context of proceedings under s 181D of the Police Act 1990.However, the principles stated in [480] of that judgment are directly applicable to proceedings under s 84 of the Act. We extract those principles below as follows: Even though Lawrance (No1) concerned an application for review grounded solely on the basis that the removal was harsh, that decision nonetheless stated the relevant principles governing the adjudication of applications in the present matter (relying on tripartite factors). The relevant paragraphs from the decision are set out below: 19 The task of the Commission in undertaking a review under s 181E (1) is now well established as being constituted by the Commission making "a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted": Hosemans v Commissioner of Police (No 2) (2005) 138 IR 159 at [134] ('Hosemans No 2'). As earlier noted, Div 1C of Pt 9 requires the Commission, in the review, to consider whether the removal of the applicant police officer is "harsh, unreasonable or unjust". As noted in Collins at [61], the removal of a police officer may be either harsh, unreasonable or unjust "or a combination of all three". 20 In this case, the confinement of the grounds for review by the applicant require only a determination as to whether the removal was harsh; a process that involves mixed issues of fact and law: Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325 at [4]; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 at [82]; Dobbie at [18] and [40], Johnston at [25] and Evans at [1]. 21 Distinguishing between what may be harsh, unreasonable or unjust may be sometimes elusive or involve a degree of circularity, but it is necessary for the Commission to state explicitly the basis upon which it makes a determination in a review undertaken under s 181E (1): Collins at [61] and see Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. Thus, the Commission must state explicitly which, if any, of the grounds pursued by the applicant under s 181E(1) are found to be made out. (In this case there is a single ground.) 22 The High Court of Australia discussed the distinction between the concepts of harsh, unreasonable or unjust in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ stated (in the context of an award provision): ... 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. 23 The fundamental exposition of principle as to what may constitute 'harshness' in the removal of a police officer for the purposes of s 181E (1) is found in the decision of Watson J (made in the context of an unfair dismissal claim) in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233. In Little No 2 (at [70]) the Full Bench stated, in this respect, as follows: In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated: 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 committees 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. (See also Department of Health v Kaplan [2010] NSWIRComm 65 at [29] ('Kaplan').) 24 The concepts of the 'severity' of the dismissal and 'too harsh a consequence' in Metropolitan Meat Industry Board naturally bring with them the notion that the assessment of harshness involves, in part, an evaluation of the gravity of any misconduct giving rise to the removal: Collins at [37] and Brennan at [70]. Thus, the question of proportionality arises (see Byrne at 465 and 467, Evans at [7] and Kaplan at [28]). Further, in the case of an application based on harshness, the Commission must take into account whether there were any mitigating circumstances (see Little No 2 at [70] and [71]). 25. Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F (3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36]). [21] In Fraser (No 1) at [210], reference was also made to Vouden at [610]. That paragraph in Vouden does mix particular considerations arising under the Police Act with those presently under consideration but also incorporates general statements of principle relevant to proceedings under s 84. As to the question of harshness, it will be convenient to extract that paragraph and some earlier paragraphs which contextualise the observations in [610]. We therefore take in extracts from Vouden at [606] to [610] as follows: [606] It is against this background and the findings earlier made in this decision as to the seriousness of the applicant's misconduct that an overall assessment as to 'harshness' must be undertaken by the Commission. [607] As earlier mentioned, that consideration requires an evaluation as to whether the removal of the applicant was harsh because of his personal and economic circumstances or because it was disproportionate to the gravity of the misconduct (in itself or when examined in the light of the personal and economic circumstances of the applicant). [608] I have earlier discussed the applicant's personal and economic circumstances and the consequences of his removal. He joined the Police Force as a late career change. … [609] The applicant's past good service record and references attesting to his personal character, work ethic and performance, as earlier found, are also factors which contribute (in favour of the applicant) to an assessment of whether his removal was harsh. [610] Those conclusions do not necessarily result, however, in a finding that the removal was harsh. They must be balanced or weighed against earlier findings as to the seriousness of the applicant's conduct and public interest considerations arising under s 181F(3)(b).

The nature and quality of any misconduct

1. On the evidence in these proceedings, the true nature of the appellant's misconduct is that he failed to discharge an instruction conveyed by a work order because he erroneously acted upon the second work instruction (when understood in the light of its change to the first work instruction and when read in conjunction with the second work order) with respect to nut lock clips upon the genuinely held belief that the second work instruction operated on 18 August 2014, notwithstanding a third work order which gave a contrary indication, and did so carelessly by failing to inquire about an apparent anomaly between the contents of the third work order and his understanding of the extant work instructions. The manner in which he made an entry into the third work order is not demonstrative of some aggravation of his conduct in that respect but, as we have noted, was illustrative (together with other factors discussed earlier) of a genuinely held but mistaken view.
2. However, the questions raised in this appeal do not revolve around the question of carelessness. The respondent eschewed any reliance upon that allegation in sustaining the decision below (noting that the Commissioner did not rely on misconduct of that nature), reducing its characterisation of the misconduct to disobedience simpliciter, thereby misjudging that it would sustain the decision below upon that basis. As discussed above (at [124] to [125]), that characterisation of the appellant's conduct on 18 August 2014 distinguishes it from the previous finding of misconduct against the appellant relating to his conduct on 6 June 2013, which may be characterised as 'incompetence' or arising from an act of carelessness. The distinction drawn reduces the degree to which those acts can be seen as reflecting a pattern of conduct on behalf of the appellant. No submissions were made by the respondent as to the gravity of any carelessness.
3. Further, an accurate assessment of the nature and quality of the appellant's misconduct must recognise the contribution of the respondent to the appellant's miscomprehension as to the nature of the instruction he was charged with and, thus, his failure to discharge that instruction (as discussed above at [72]). This is an extenuating factor.
4. Upon these considerations, it is apparent that the severity of the appellant's misconduct was, at its highest, moderate (and well below, as we have found, any conduct warranting summary termination).
5. The treatment of Mr Hedley
6. It is convenient at this juncture to consider the treatment of the appellant's supervisor, Mr Hedley, arising from a related incident of misconduct, as that consideration will bear upon the conclusions drawn as to whether the dismissal of the appellant was harsh, unjust or unreasonable. The issue of disproportionate treatment of Mr Hedley was raised in ground 6 of the appeal and addressed in the appellant's submissions.
7. Mr Hedley occupied the position of Leading Hand at the Ryde Depot and was, as part of his employment, required to sign off on the appellant's work order. On or about 18 August 2014, Mr Hedley signed off on the work order completed by the appellant despite the words "NA" being entered against item 31. In a Notice of Punishment dated 24 November 2014 (hereafter the 'Hedley Notice of Punishment'), it was identified that Mr Hedley "incorrectly recorded that the bus was fit for service, the service was completed, and the service report was completed". It was further noted that as a result of his conduct, "the nearside wheels (positions 3 and 4) separated from the nearside rear axle hub" of bus MO1196 on 18 August 2014. As a result of this misconduct, Mr Hedley received the following punishment that was outlined in the Hedley Notice of Punishment: Suspension from duty without pay from 12.00pm on 7 November 2014 up to and including 11 November 2014 (resumed 10:30am on 12 November 2014). FINAL WARNING that any further breach of State Transit policy may result in dismissal.

Was the appellant's dismissal harsh?

1. The considerations relevant to determining whether the dismissal of the appellant was harsh are as follows: 1. The nature and quality of the appellant's misconduct was, when properly construed, of a low to moderate gravity (as discussed above). 2. The severe punishment given to the appellant was based upon an erroneous conclusion, on behalf of the respondent, that the gravity of the appellant's misconduct was of a far greater severity. The penalty imposed by the respondent was disproportionate to the actual misconduct of the appellant. 3. The dismissal of the appellant, particularly in the penalty imposed, deprived him of significant benefits and diminished his prospects of securing equivalent employment in the future. The appellant's age is relevant in that respect. 4. The disproportionately small penalty given to the appellant's supervisor, Mr Hedley, for misconduct that, in all the circumstances, was of no lesser gravity than the appellant's, is indicative that the penalty given to the appellant was unduly harsh. 5. The appellant had a lengthy period of service. 6. The fact that the appellant was on a 'Final Warning' for a prior incident of misconduct (as found by the respondent) gives minor support to the proposition that the dismissal of the appellant was a proportionate response when consideration is given to the distinctly different character of the earlier instance of misconduct and the penalty was primarily predicated upon a finding of deliberate disobedience.
2. The summary dismissal of the appellant was clearly disproportionate to his misconduct. That observation alone is enough to sustain a finding that the dismissal was harsh within the meaning given to that term in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 (at 465 per McHugh and Gummow JJ) ('Byrne'). The additional factors discussed in the previous paragraph serve only to further buttress that conclusion and underline the degree of harshness present in this case.

Was the appellant's dismissal unreasonable?

1. The dismissal of the appellant was unreasonable, within the meaning of that term given in Byrne, because it was predicated upon a conclusion as to the severity of the appellant's misconduct that could not have been reasonably drawn, had proper regard been given to the objective circumstances surrounding the appellant's failure to discharge the instruction contained at item 31 of the third work order.
2. These objective circumstances only support the conclusion that the appellant's failure to discharge that instruction was due to a mistaken but genuine belief as to the respondent's procedures vis-à-vis the tensioning of wheel nuts where nut lock clips were in use. There is a further consideration in this respect. There is no basis to doubt that the respondent's contention below and here, that nothing more was required to warrant summary termination than proof of a failure to follow an instruction, was instrumental in its decision to dismiss and the matters it was prepared to take into account in reaching that conclusion. That conclusion makes the respondent's investigation and decision to dismiss unreasonable.
3. Notwithstanding the Commissioner's finding at [128] of his decision that "a proper investigation was undertaken and the opportunity given to Mr Dissanayake to respond to the allegations was adequate", the respondent clearly failed to have a proper regard to the circumstances that gave rise to the appellant's failure to discharge the instruction at item 31 of the third work order on 18 August 2014 based on the factors identified in the previous paragraph. That failure supports the conclusion that the dismissal of the appellant was unreasonable.

Was the appellant's dismissal unjust?

1. The dismissal of the appellant was also unjust within the meaning of that term considered in Byrne. It was unjust for the respondent to attribute the full blame to the appellant for his failure to discharge the instruction at item 31 of the third work order on 18 August 2014 when, in actuality, the conduct of the respondent contributed to that failure by creating a gap in instructions capable of resulting in misapprehension and misunderstanding.
2. Additionally, it is appropriate under this heading to consider the inequity in the treatment of the appellant and Mr Hedley. The significantly more severe punishment given to the appellant for misconduct that should not be considered more grave or serious than the misconduct of Mr Hedley, is indicative of unfairness in the treatment of the appellant.

Findings as to the statutory test

1. On the considerations above, we find that the dismissal of the appellant was harsh, unreasonable and unjust within the meaning of s 84 of the Act.

Remedies

1. Notwithstanding the foregoing findings, determining the appropriate remedy is not a straightforward task, given the manner in which the appellant approached the proceedings.
2. Despite the remedy of reinstatement being sought in the notice of appeal, the appellant modified his position as to remedies during the course of hearing of the appeal by claiming that, if a finding was not made that the dismissal was unjust or unreasonable, then he would not challenge the Commissioner's finding as to harshness nor the remedy given. The appellant did not traverse, in any significant way, whether the Commissioner was in error in finding that reinstatement or re-employment was impracticable.
3. We received no substantive submissions from either the appellant or the respondent as to the appropriate remedy, should the appellant succeed and, in particular, we received no submissions in that respect as to: 1. The significance that should be given to the appellant's prior act of misconduct and the warning issued to him; 2. The significance, if any, of the appellant's attitude to his wrongdoing as found by the Commissioner, noting that the regard given to this by the Commissioner was in the context of his erroneous failure to make proper inquiries as to how the anomaly in the instructions received by the appellant should be resolved; and 3. Ultimately, the practicability of reinstatement or re-employment.
4. On balance, and notwithstanding some misgivings, we consider that, on the case presented by the appellant, we should find that it is not practicable to reinstate the appellant in his former position or to order re-employment in another position that the employer has available for the following reasons: 1. Whilst the primary remedy under the Act is reinstatement, the Commissioner found that the reinstatement of the appellant would be impracticable; 2. That conclusion must not be given undue weight because it rested upon an application of the wrong principles as to the lawfulness of summary termination and an incorrect finding as to whether the dismissal was harsh, unreasonable or unjust, the Commissioner having erroneously failed to consider the deliberateness of the appellant's conduct (and related relevant considerations); 3. The Commissioner's conclusions did, however, rest upon conclusions as to other factual matters bearing upon the question of impracticality about which we have received no contrary submissions; 4. To the extent that the appellant did press for the remedy of reinstatement or re-employment, he did so very mildly; 5. There are proper bases to find impracticability with respect to reinstatement or re-employment on the evidence; 6. Primary amongst those factors was the appellant's conduct on 6 June 2013 and 18 August 2014 which reflected two errors of judgment in the appellant's performance of his work which had serious consequences. These factors must weigh against a conclusion that reinstatement or re-employment is practicable. 7. Further, notwithstanding that the respondent substantially overestimated the nature and quality of the appellant's misconduct, the appellant did not recognise the contribution of his own lack of diligence to his failure to follow the instruction he was tasked with at item 31 of the third work order on 18 August 2014, which diminishes the prospect that a working relationship can be successfully restored.

Orders

1. In all the circumstances we order: 1. Leave to appeal is granted; 2. The appeal is upheld; 3. The decision and orders of Stanton C of 18 March 2016 are quashed; and 4. The respondent is ordered to pay the appellant 18 weeks' pay at the ordinary rate of pay applicable to the appellant at the time his employment ceased.

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