Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 - NSWIRComm 2001 case summary — Zoe

NSWNSWIRComm

Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277

[2002] NSWIRComm 277

Industrial Relations Commission (NSW)|2001-11-12|Before: Sams DP

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-11-12

Before

Sams DP

Source

Original judgment source is linked above.

Judgment (95 paragraphs)

[1]

CITATION : Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 APPLICANT: PARTIES : Mr Ennio Lorenzato RESPONDENT: Sydney Water Corporation FILE NUMBER: 2395 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - serious misconduct - driving work vehicle on call out while under the influence of alcohol - respondent's Drug and Alcohol Policy - admitted misconduct - whether misconduct wilful - fair procedure - whether dismissal too "harsh" - disproportionate penalty - personal and economic consequences for applicant - unequal treatment of employees - long service and record of employment - mitigating circumstances - practicality of reinstatement. CATCHWORDS : Held, no issue of witness credibility - evidence not disputed - applicant's admissions and contrition - respondent's policies and statements inconsistent - appropriate weight not given to unusual mitigating circumstances - misconduct not wilful - applicant's long service, age and record of employment not given appropriate weight - penalty not consistently applied - serious personal and economic consequences for applicant - dismissal "harsh" - reinstatement not impractical - reinstatement ordered on terms. LEGISLATION CITED : Industrial Relations Act 1996 Crimes (Sentencing Procedure) Act 1999 Australian Services Union of New South Wales (on behalf of Robert Anthony Finch) and Australian Water Technologies Pty Limited (unreported, Tabbaa C, IRC 4009 of 2001, 12 November 2001) Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited t/as TNT Express [2002] NSWIRComm 46 Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service [2000] NSWIRComm 14 Reed and Southstate Indsutrial Supplies Pty Ltd [2001] NSWIRComm 185 Busways v Johnson (1994) 55 IR 255 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Wells v Commissioner of Police (2000) 100 IR 106 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 Little v Commissioner of Police No 2 [2002] NSWIRComm 52 Franklins Ltd v Webb (1996) 72 IR 257 Standley v Electronics Boutique Pty Ltd (unreported, Sams DP, IRC4516 of 1999, 18 March 1999) CASES CITED : Hill v Department of Juvenile Justice [2000] NSWIRComm 128 North v Television Corporation Ltd (1976) 11 ALR 599 London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Day v Lumley Life Limited (1999) 90 IR 70 Blyth Chemicals Limited v Bushnell, 49 CLR 66 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison and Keith Donaldson and Australian Co-Operative Foods Limited [2000] NSWIRComm 199 Burrows v Commissioner of Police, Giardini v Commissioner of Police [2001] NSWIRComm 333 Leeds and Northrup Australia Pty Limited v Hull (1992) 46 IR 11 Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1 Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Oswald v New South Wales Police Service (1999) 90 IR 42 HEARING DATES: 08/22/2002 DATE OF JUDGMENT: 10/22/2002

[62]

50 In my opinion, a valid summary dismissal for misconduct needs to be accompanied by the conduct being "wilful" such as to constitute a repudiation of the contract of employment by the employee. I rely on the following authorities in this regard: In North v Television Corporation Ltd (1976) 11 ALR 599 where Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be "wilful": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). In Day v Lumley Life Limited (1999) 90 IR 70, Hungerford J describes the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. See also Blyth Chemicals Limited v Bushnell 49 CLR 66 and Hunt v Hornsby Shire Council , [2001] NSWIRComm 242.

[74]

62 I note Mr Belsito's handwritten notes do make reference to the applicant's service and family circumstances. However in my view, an employee's long period of service and record of employment are important matters which must be given serious consideration and not cursory passing. For this proposition, I refer to my comments in Vallis and TNT Express: 133 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972): The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.

[86]

71 Whatever might be said about the remedies available for unfair dismissal under the 1996 Act, the primary remedy has, and has been for many years, reinstatement of an unfairly dismissed employee, see Leeds and Northrup Australia Pty Limited v Hull (1992) 46 IR 11 and Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1 As to the practicality of reinstatement I refer to the decision in Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282, which quoted with approval the decision in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive . Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. (Emphasis added.) See also Little v Commissioner of Police No 2 and Oswald v New South Wales Police Service (1999) 90 IR 42.