Merrin v Mosman Municipal Council

Background to the dismissal

1. The applicant initially worked for the Council as a Functions Coordinator at the Mosman Art Gallery. In around June 2011, she commenced work at the Drill Hall and Sports Centre as a Venue Assistant or, as the Council describes the position, an Operations Assistant.
2. The Drill Hall is an old army barracks which has been converted into a children's services facility. It is also used for functions and children's parties on weekends. The Marie Bashir Mosman Sports Centre is a sports facility which caters for indoor sports such as basketball, indoor soccer, hockey, fencing and netball amongst other activities.
3. According to the applicant, her duties at the Drill Hall and Sports Centre included: 1. opening and closing the premises and securing them after use; 2. providing first aid as and when required; 3. assisting with sporting enquiries; 4. supervising the premises whilst in use and ensuring that the facilities were functioning properly; 5. monitoring the grounds outside the Drill Hall and the Sports Centre; 6. responding to any general enquiries from the users of the Drill Hall and the Sports Centre; 7. ensuring that the kitchen was kept clean and left in the same state as it was in at the beginning of the evening; 8. ensuring the safety and well-being of the patrons using the Drill Hall, Sports Centre and surrounding grounds; 9. overseeing the functions booked in the Drill Hall on weekends; 10. attending to any other activities she was asked to attend to; 11. restocking medical supplies.
4. The applicant gave evidence to the effect that her working relationship with her immediate supervisor, Kate Pires, had been a difficult one. The applicant alleged that Ms Pires had:

• denied the applicant access to Council computers;
• denied the applicant access to the Council photocopy machine;
• denied the applicant access to Council telephones;
• denied the applicant access to lock codes on doors at the Sports Centre;
• required the applicant to wear a male uniform;
• made inappropriate remarks to the applicant about her clothing and appearance;
• made insensitive comments to the applicant about her dying father and ill mother;
• discouraged the applicant from applying for a permanent part-time position with a threat that, if she applied for the position, her hours would be cut back severely; and
• discouraged/prevented the applicant from attending the staff Christmas party in 2015, which prompted the applicant, on 3 December 2015, to make a written complaint to Michael Neal, Operations Manager for the art gallery, about that matter and other behaviour of Ms Pires towards the applicant over the previous three years. Ms Pires has denied these allegations.

1. According to the applicant, on Sunday 6 December 2015, she was required to supervise a sporting event, which she believed was a hockey match, at the Sports Centre. At the same time, the annual Christmas party for the Bushcare volunteers was being held at the Drill Hall, commencing at midday.
2. The applicant claimed that she arrived at the Drill Hall at approximately midday and oversaw the hockey match at the Sport Centre until approximately 3.00pm. CCTV footage shows that the applicant actually arrived at the Sports Centre at 1.48pm and left at 3.47pm on this day. These times are generally confirmed by her timesheet for this shift which shows her start time as 1.45pm and her finish time as 4.00pm. Nothing of significance turns on this discrepancy.
3. The applicant claimed that she had a conversation with an elderly female Bushcare volunteer on the street as the applicant was leaving at the end of the first part of her split shift for that day. The lady said to the applicant, "We have quite a bit of leftover food and would you like to take some home as it seems a waste to throw it out". The applicant replied, "Thank you that would be nice I will be returning later on to pick it up please leave it in the refrigerator as I will collect it tonight".
4. At about 7.00pm that evening, the applicant returned to complete the second part of her split shift. She went to the Drill Hall to ensure that it had been left in a satisfactory manner. The applicant claimed that she had previously been directed by Ms Pires to ensure that nothing was left in the fridge and that there were no perishable items left in the kitchen at all. She saw the leftover food which, according to her, consisted of two bowls of salad and a small bag which contained approximately ten sausages. She placed these three items in a plastic bag and took them with her.
5. During the course of her shift on that evening from about 7.00pm, the applicant was in the company of a friend, George Toussaint, a former employee of the Council. She claimed that Mr Toussaint assisted her with an electrical problem at the Sports Centre.
6. On Monday 7 December 2015, the two Council employees, who had hosted the Bushcare volunteers Christmas party on the previous day, arrived at the Drill Hall intending to prepare for an Environment and Open Space team barbeque. They noticed that the sausages and two of the salads, which they had left in the fridge the day before, had gone missing. This led to an investigation which included an examination of CCTV footage from cameras at the Drill Hall and Sports Centre which showed the applicant's movements whilst on shift the previous day.
7. On Tuesday 8 December 2015, the applicant started work at 4.45pm. She claimed that Ms Pires said to her, "Can you keep an eye on Rawson Oval they have a jumping castle there and a large number of adults and children with dogs. It is the annual Christmas party for the local rugby union side". Rawson Park, which is also referred to as Rawson Oval, is a sports oval which is adjacent to the Sports Centre and the Drill Hall.

CCTV footage

1. During the proceedings the Commission was shown CCTV footage from a number of different cameras located in or around the Drill Hall and the Sports Centre. The following is a description of what was seen on that footage: Sunday 6 December 2015 1.50pm The applicant enters the Sports Centre. 3.47pm The applicant leaves the Sport Centre. 6.52pm The applicant enters the Drill Hall. 6.58pm The applicant leaves the Drill Hall carrying a grey plastic bag, meets Mr Toussaint in the car park and they walk to the Sports Centre. 7.07pm The applicant returns to the Drill Hall with Mr Toussaint and they remain in the kitchen until 7.30pm. 7.30pm The applicant and Mr Toussaint leave the Drill Hall. The applicant is carrying another plastic bag. 7.31pm The applicant and Mr Toussaint enter the Sports Centre and proceed upstairs to the office. 7.50pm The applicant leaves the office. Mr Toussaint remains in the office with the door shut. 7.55pm The applicant returns to the office. 7.56pm The applicant and Mr Toussaint exit the office and leave the Sports Centre. 8.02pm The applicant and Mr Toussaint return to the Sports Centre office. 9.08pm Mr Toussaint leaves the office carrying a loaded plastic bag. 9.09pm The applicant leaves the office carrying bags. By 9.17pm the applicant and Mr Toussaint have left the Sports Centre carrying plastic bags containing the sausages and salads taken from the refrigerator at the Drill Hall. Tuesday 8 December 2015 4.50pm The applicant enters the Sports Centre. 5.10pm The applicant leaves the Sports Centre and gets into the passenger side of a car which drives off down Cross Street. 6.43pm The car returns and parks in Cross Street. 6.47pm The applicant and another female person walk towards the Drill Hall down Cross Street. 6.50pm The applicant and the other female person enter the Sports Centre. 8.59pm Mr Toussaint enters the Sports Centre. 9.05pm Mr Toussaint enters the office. 9.13pm The applicant and Mr Toussaint leave the Sports Centre and get into Mr Toussaint's car. 9.16pm The car drives off. 9.40pm The applicant and Mr Toussaint enter the Sports Centre. 10.18pm The applicant, Mr Toussaint and the other female person leave the Sports Centre.

Dismissal of the applicant

1. On Wednesday 9 December 2015 the applicant was requested by Linda Carter, Human Resources Manager for the Council, to come to a meeting and answer some questions in relation to an allegation of theft of Council property.
2. Ms Carter gave evidence concerning that meeting which occurred on the afternoon of Wednesday 9 December and was attended by herself, Maxwell Glyde, Director Corporate Services, Anthony Fitzpatrick, Manager Governance, the applicant and her solicitor, Gary Cassim.
3. At the meeting Mr Glyde put each of three allegations outlined at paragraph 2 above to the applicant by reference to what had been observed on the CCTV footage. The applicant responded to each allegation.
4. According to Ms Carter, in relation to the matter of the sausages and salads, the applicant stated that one of the Bushcare volunteers at the party, who was not known to the applicant, said to her, "You're welcome to help yourself to any of the leftovers".
5. In relation to Mr Toussaint's presence on Council property and in the administrative area, at times unsupervised, the applicant responded that Mr Toussaint had come to pick her up. According to Ms Carter, the applicant made no reference to any electrical problem which Mr Toussaint assisted to resolve.
6. In response to the matter of the applicant's absence from her post on Tuesday 8 December 2015 for over two hours, over two separate occasions, the applicant claimed that she only left the Council site for five minutes to go and get her car. She then said that she did not leave the site and was outside the Sports Centre to get some fresh air as it was too hot in the office. According to Ms Carter, the applicant made no reference to being asked by Ms Pires to monitor the activities on Rawson Oval.
7. On the following day, Thursday 10 December 2015, the applicant was provided with written notice of the Council's intention to terminate her employment and was asked to show cause by 15 December 2015 why that should not happen. This letter was signed by Veronica Lee, the Council's General Manager.
8. On 15 December 2015, the applicant provided Ms Lee with a written response to the "show cause" letter.
9. In relation to the matter of the sausages and salads, the applicant claimed that she was acting under the Council's instructions that all items of property owned by a hirer of a Council venue must be removed on or before the agreed vacation time. The applicant repeated her assertion about the lady from the Bushcare volunteers inviting her to take the leftover food.
10. With respect to Mr Toussaint's presence on site, the applicant outlined her concerns about her security as a female working alone late at night. The applicant claimed that Ms Pires had her husband sit in with her for the duration of an evening shift because of similar concerns, as do other employees with family and friends. There was no reference in this written response to any electrical problem which Mr Toussaint assisted to resolve.
11. In relation to the matter of abandoning her post on Tuesday 8 December 2015, the applicant claimed that she had been asked by Ms Pires to monitor the activities on Rawson Oval and the general grounds in that vicinity to oversee the activities there.
12. The applicant also stated in her response that the Council's notice to her of its intention to terminate her employment followed the raising by her of allegations of bullying by Ms Pires with another manager from another department who had spoken to Mr Fitzpatrick about those allegations on the previous Friday.
13. By letter dated 22 December 2015 from Ms Lee, the applicant's employment with the Council was terminated with effect from that date. The letter dealt, in considerable detail, with the matters raised by the applicant in her response to the "show cause" letter. Ms Lee also rejected the suggestion that the dismissal of the applicant was connected to her allegations of bullying by Ms Pires.
14. The dismissal letter also stated that the Council believed there to be an irrevocable breakdown in the Council's ability to trust the applicant to act honestly in her working relationship with the Council.

Case for the applicant

1. In opening her case, counsel for the applicant stated that she had never been provided with an employment contract, or with the award or with any code of conduct policies in respect of her employment. Apart from the matters which led to her dismissal, the applicant had an unblemished employment record.
2. Counsel identified the following four issues for determination by the Commission: 1. Whether the dismissal was harsh, unreasonable or unjust; 2. Whether the applicant was afforded procedural fairness or substantial unfairness; 3. Whether the applicant did not abandon her post; and 4. If the claim is successful pursuant to s 84 of the Industrial Relations Act 1996, whether the applicant should be reinstated, re-employed or remunerated. The position of the applicant is that she should be reinstated.
3. With respect to the issue of the sausages and salad, the applicant's position is that she was given permission to take those items from the fridge in the Drill Hall by an elderly female Bushcare volunteer. Further, she claimed that she had been directed by Ms Pires to ensure that nothing was left in the fridge and that no perishable items were left in the kitchen. The applicant denied that her actions, in this instance, constituted misconduct.
4. In relation to the allegation that the applicant allowed an unauthorised person, being a former Council employee whose services had been terminated, to access (at times alone) the Sports Centre administration office, the applicant claimed that, during the course of the evening of 6 December 2015, there was a problem with the electricity. One of the scoreboards had become inoperable.
5. The applicant claimed that she left the premises with Mr Toussaint, who understands electrical workings, with a view to restoring the electrical power to the Sports Centre. They were able to complete this task and the soccer game resumed.
6. In response to the allegation that she abandoned her post during her shift on Tuesday 8 December 2015, the applicant stated that she was requested by Ms Pires to observe and monitor the activities at Rawson Oval as well as the Sports Centre. She claimed that she went to Rawson Oval at approximately 5.15pm and stayed there, and in the surrounding streets, until approximately 6.30pm, constantly checking the area as there was a large number of vehicles coming and going from the area.
7. Mr Toussaint came to the Sports Centre again on the evening of Tuesday 8 December at 9.30pm. The applicant and Mr Toussaint moved his car and returned to the Sports Centre at approximately 9.40pm. At 10.15pm the applicant locked the premises, put the alarm on and left with Mr Toussaint and two other people from the indoor soccer team.
8. The applicant claimed that Mr Toussaint would often come to the Drill Hall and the Sports Centre to accompany her off the premises at the end of her shifts as she felt insecure and at risk, given the remote location of these facilities.
9. The applicant submitted that her dismissal for the reasons given was unfair and that the Council could have, and should have, taken other steps such as requesting that she repay some money for the food she took and for the time when she was absent from her post, and/or issue her with a warning.
10. The applicant also claimed that she had been denied procedural fairness in the process leading up to, and including, her dismissal.

Case for the Council Sausages and salads

1. Ms Carter gave evidence that the package of sausages taken by the applicant consisted of approximately 2.5 kilos of uncooked gourmet beef and chicken sausages purchased from a butcher by a member of staff on behalf of the Council. They were not leftovers and were to be used at an operations function the following day. The salad taken by the applicant consisted of approximately 1.5 kilos of potato salad and green salad, purchased by staff on behalf of the Council. A third lentil salad had been left behind in the fridge.
2. Alexi Gilchrist, Bushcare Officer - Part Time at the Council, gave evidence that, on Sunday 6 December 2015, he and another Bushcare Officer, Natalie Edmonds, hosted the annual Bushcare volunteers Christmas party at the Drill Hall. At the conclusion of the party Mr Gilchrist and Ms Edmonds took with them what leftovers their respective families could manage. The remainder was left in the fridge overnight for use the following day by the Environment and Open Space team.
3. Under cross-examination, Mr Gilchrist explained that the perishable items which he and Ms Edmonds took home were "a range of food, dips, salads, sausages, bread, cheeses, dessert and what was salvageable". He said that they left the raw sausages in the fridge. He believed that there were twenty sausages left in the fridge. Mr Gilchrist confirmed that the food left in the fridge was to be prepared and consumed the next day by members of the Environment and Open Space team.
4. Ms Edmonds swore an affidavit in which she deposed that, after the Bushcare volunteers party had concluded, she and Mr Gilchrist, "cleaned up the venue, packed our cars including small remains of leftover food including a left over cheese platter and antipastos (mainly olives left over), some cooked sausages and half-finished soft drinks and juice and a few bottles of beer (mainly light beer)". The leftover salad, uncooked sausages and bread were left in the fridge to be used for the team barbeque the following day. Ms Edmonds was not required for cross-examination.
5. Ms Pires gave evidence that the direction to ensure that nothing is left in the fridge applies to external bookings only. The daily resource schedule, which is provided for all staff so that they know the event type and who it is organised by, clearly showed that the Bushcare volunteers Christmas party was run by the Council.
6. On Sunday 6 December 2015, the applicant was not rostered on to check on the Bushcare function at the Drill Hall or to assist at that function. She was instructed only to ensure that the building was locked.
7. Mr Fitzpatrick stated that the applicant had no discretion in removing food items for personal use and the argument related to booking conditions for Council venues is irrelevant.
8. Under cross-examination the following was put to Mr Fitzpatrick: Yes, so why would it - why wouldn't you just have a laugh about it, and just think it was just a bit too - everyone's taking this a little bit too serious? Mr Fitzpatrick responded to the effect that the food was Council property.
9. It was put to Mr Glyde, in cross-examination, that Mr Gilchrist had given evidence that he and Ms Edmonds had taken "what they could after the completion of the barbeque home to their friends and then they returned the next day to retrieve the rest of the goods, the sausages and salad, for their mates in the open space team… they were not to be used for a function… Alexi Gilchrist wanted to share it with his mates?" This is not an accurate representation of the evidence given by Mr Gilchrist. What Mr Gilchrist stated in his evidence was that the leftover food was to be prepared the next day and eaten by members of his team. He wasn't challenged on this aspect of his evidence.
10. Ms Edmonds' evidence was that, on Monday 7 December 2015, she and Mr Gilchrist "returned to the Drill hall to prepare for our team BBQ…" This evidence was not challenged. Ms Edmonds was not required for cross-examination.
11. It was not put to either Mr Gilchrist nor to Ms Edmonds that the use of the leftover food for the planned Environment and Open Space team barbeque on Monday 7 December 2015 was unauthorised. George Toussaint
12. The applicant was well aware that Mr Toussaint had been dismissed from his job with the Council for reasons of impropriety and the Council's inability to trust him to act honestly. Ms Carter gave evidence that, at the meeting on Wednesday 9 December 2015, when the applicant was asked if she was aware of the circumstances surrounding the termination of Mr Toussaint from the Council, she responded, "Yes. The reasons were unsubstantiated".
13. Mr Glyde and Ms Lee formed the view that, given the applicant's knowledge of the circumstances surrounding the termination of Mr Toussaint's employment with the Council, her actions were not responsible behaviour when she allowed Mr Toussaint access to Council property (at times alone), in particular, the Council's administration office.
14. Ms Pires gave evidence that it is not custom and practice to have family members or friends remain on Council premises for entire shifts or to allow them unauthorised or unsupervised access to the Council's secure facilities at any time.
15. According to Mr Fitzpatrick, the applicant's "safety argument rationalising the presence of the unauthorised person on Council property for hours whilst on duty is irrelevant as it does not warrant the presence of a dismissed employee in Council's administration areas". Abandonment of post
16. Ms Pires stated that casual staff are required to remain on site for the entire duration of their shifts. On Tuesday 8 December 2015, prior to leaving at 5.00pm, Ms Pires asked the applicant to keep an eye on what time the jumping castle on Rawson Oval was taken down that night. The oval was booked on this date by the Mosman Rugby Club from 5.00pm to 8.30pm. Ms Pires stated that the applicant was, in no way, asked to leave the Sports Centre to attend the event taking place on the oval at any time. The oval can be viewed from the mezzanine level of the Sports Centre.
17. Mr Fitzpatrick's evidence was that checking on a jumping castle on the oval would not account for an absence of hours, as it could be viewed from inside the Sports Centre. He noted that the jumping castle was not mentioned by the applicant at the 9 December 2015 meeting.
18. Ms Lee gave evidence in relation to the applicant abandoning her shift for more than two hours over two separate occasions on 8 December 2015, leaving the Sports Centre open and unattended by a Council employee while the centre was occupied by the public. According to Ms Lee, venue staff are not only onsite to supervise the booking and use of the Sports Centre. They are trained in first aid and emergency evacuation procedures. The applicant's abandonment of duty represented an unacceptable level of risk for members of the public using the Sports Centre on 8 December 2015. Applicant's bullying complaint
19. Ms Pires claimed that there had never been any mention that the applicant had experienced difficulties working with her from the start. Ms Pires refuted each particular of the applicant's complaints against her as set out at paragraph 8 above.
20. On Thursday 3 December 2015, the applicant sent an email to Michael Neal, the Art Gallery Director, containing a number of allegations against Ms Pires.
21. Mr Fitzpatrick gave evidence that, in early December 2015, he had a conversation with Katrina Cashman, Assistant Art Gallery Director, in which Ms Cashman told him that a staff member had approached her about some problems relating to the Sports Centre and asked which manager they could be directed to. Mr Fitzpatrick wasn't told the name of the staff member or the nature of the issues. He told Ms Cashman that he was responsible for the Sports Centre and would be more than happy to confidentially speak to the staff member concerned at any time. He heard nothing more about the matter.
22. Mr Glyde stated that he had never received any communication from Mr Neal relating to the applicant's complaint about Ms Pires.
23. The position of the Council is that the applicant had never raised any complaint of bullying of her by Ms Pires. The Council's senior managers, who were responsible for the investigation into the applicant's conduct which led to her dismissal, were unaware of any such issues. Those issues could not have played any part in the applicant's dismissal and they did not.
24. I reject the claim that the applicant's email to Mr Neal of 3 December 2015, complaining about Ms Pires, had any connection whatsoever with her dismissal.

Was the dismissal harsh, unreasonable or unjust? Sausages and salads

1. In his cross-examination of Ms Carter, counsel for the applicant took issue with Ms Carter's estimate of 2.5 kilos being the quantity of sausages taken by the applicant. The applicant's own estimate was ten sausages. On either estimate, the applicant took a substantial amount of food which was the property of the Council. I am prepared to accept that the number of sausages taken was ten, but that does not mean that the applicant's conduct in this regard can be excused.
2. I am also prepared to accept that the applicant was asked by a Bushcare volunteer, whom she did not know and could not identify, if she would like to take the leftover sausages and salad home with her. Again, given the applicant's length of service and experience, this does not excuse her conduct. The applicant knew, or should have known, that the invitation of an unknown elderly volunteer was not sufficient authority for her to help herself to property of the Council. For the same reason, I do not accept that Mr Gilchrist or Ms Edmonds should have, as was suggested by counsel for the applicant, left a note on the fridge telling the applicant to leave the food in the fridge because it was for a function the next day.
3. I also reject the attempt by counsel for the applicant to compare the applicant's conduct with that of Mr Gilchrist and Ms Edmonds, who took home some leftover items that had been put out on the tables for consumption by the attendees at the party, but not eaten. Unlike the bag of uncooked sausages and containers of salad left in the fridge, the leftover food taken by those two employees could not have been salvaged and consumed at a later date.
4. I further reject the attempt to draw a comparison between the conduct of the applicant and the planned Environment and Open Space team barbeque on Monday 7 December 2015. I accept that this barbeque, and the consumption thereat of the leftover sausages and salad, was sanctioned by the Council. Nothing to the contrary was put to either Mr Gilchrist or to Ms Edmonds. The characterisation of this event by counsel for the applicant in terms such as "Alexi Gilchrist wanted to share it with his mates", is a misrepresentation of the nature of the planned team barbeque.
5. The proposition, put in cross-examination by counsel for the applicant to Mr Fitzpatrick, to the effect that the applicant's contract of employment contains no express provision prohibiting the applicant from taking the sausages and salad for her own use, ignores the generally understood and accepted range of obligations which all employees owe to their employer. Clearly, one such obligation is to refrain from taking the employer's property for the employee's own use and benefit without proper authority or permission.
6. I reject the proposition put by counsel for the applicant, in final submissions, to the effect that it would have been consistent with the applicant's responsibilities to have taken the sausages and salad out of the fridge and put them in a rubbish bin. The proposition is unsupported by any evidence and is simply ludicrous. It is certainly not supported by the requirement, which was relied upon by the applicant to justify her actions, that external hirers of Council venues must remove all items of property owned by the hirer from the venue on or before the agreed vacation time.
7. I also reject the proposition put on behalf of the applicant to the effect that her taking of the sausages and salad was a matter which should have been laughed off by senior officers of the Council.
8. I find that, by taking food owned by the Council for her own use and benefit without permission from anyone at the Council who possessed the authority to grant such permission, the applicant misconducted herself. In combination with the other two matters relied upon by the Council, this misconduct justified the dismissal of the applicant. George Toussaint
9. The proposition that Mr Toussaint was at the Drill Hall and the Sports Centre for over two hours on Sunday 6 December 2015 to assist the applicant with an electrical problem and to escort her off the premises at the end of her shift does not explain or excuse his presence in a Council administration area, sometimes on his own.
10. It is clear that the applicant holds certain views about the termination of Mr Toussaint's employment by the Council. She is also aware that the Council did not trust Mr Toussaint to act honestly. Despite this, the applicant was prepared to allow Mr Toussaint to be present alone in an administration area of a Council facility, where he had no legitimate reason to be. This shows a reckless disregard by the applicant towards the attitude which senior officers of the Council held of Mr Toussaint, even in circumstances where the applicant does not share that attitude.
11. A proposition was put to Mr Glyde in cross-examination to the effect that the investigation into the applicant, and her subsequent dismissal, was all about Mr Glyde's ill feelings towards Mr Toussaint and the desire to make an example of the applicant for allowing Mr Toussaint onto the property of the Council. This proposition was not supported by even the slightest shred of evidence and I reject it completely.
12. In final submissions counsel for the applicant repeated her claim that Mr Toussaint was on Council property, "purely because of a safety issue, because it's an isolated area, late at night, nobody around, open to the public, bushland around, and she's got great concerns for her safety". These safety concerns do not justify Mr Toussaint's presence on site for more than two hours before the applicant finished her shift on Sunday 6 December, and more than one hour before the applicant finished her shift on Tuesday 8 December 2015. Further, these safety concerns do not warrant Mr Toussaint being left by the applicant in the Sports Centre office unsupervised with the door shut.
13. This conduct of the applicant, in combination with the other two matters relied upon by the Council, justified the termination of her employment by the Council. Abandonment of post
14. In final submissions, counsel for the applicant put that she, on the instruction of Ms Pires, spent an hour and 40 minutes on Tuesday 8 December 2015 watching the jumping castle at Rawson Oval. I do not accept this proposition.
15. I do accept the evidence of Ms Pires that she had asked the applicant to check on the time when the jumping castle was taken down, and that this could have been observed from the mezzanine level in the Sports Centre.
16. No attempt was made by the applicant to explain why she was seen getting into the passenger side of a car and being driven away if she was, as she claimed, simply going to Rawson Oval, which is a short walk from the Sports Centre, to check on the jumping castle.
17. No attempt was made by the applicant to explain how being away from the Sports Centre for an hour and forty minutes at Rawson Oval, observing a jumping castle and traffic movements in the surrounding streets, was consistent with her responsibilities to the users of the Sports Centre during that time, when no other Council employee was in attendance at that facility. Her absence from the Sports Centre for that length of time, while it was being used by members of the public, was irresponsible given the applicant's own understanding of her duties and responsibilities a set out at paragraph 7 above, especially at subparagraphs (b), (c), (d), (f) and (h).
18. I accept the evidence of Ms Carter that, at the meeting on 9 December 2015, the applicant claimed that she only left the Council site for five minutes to go and get her car and, later, claimed that she did not leave the site but was outside to get some fresh air as it was too hot in the office. I find these statements by the applicant, during this meeting with senior officers of the Council, to be deliberately false.
19. The applicant's story later changed as is demonstrated by the following exchange, which took place during final submissions: COMMISSIONER: Is it your case that she was watching the jumping castle for an hour and 40 minutes? FANTIN: Yes, it is our case and that's her evidence…
20. I find that the applicant's evidence in these proceedings, to the effect that she went to Rawson Oval at approximately 5.15pm and stayed there and in the surrounding streets until approximately 6.30pm, constantly checking the area as there was a large number of vehicles coming and going from the area, to also be untrue. There was absolutely no legitimate reason for her to do this.
21. Having observed the applicant in the witness box, I formed the view that her evidence on this issue was completely lacking credibility.
22. Whether or not being absent from her post for approximately one hour and 40 minutes constitutes abandonment of employment or timesheet fraud is beside the point. Being away from her job for that length of time, with no plausible explanation, and then lying about her whereabouts to her employer, constitutes misconduct such as to justify the dismissal of the applicant. Procedural fairness
23. I find that there was no denial of procedural fairness by the Council to the applicant. The applicant complained that Ms Carter advised her, on the morning of 9 December 2015, that the proposed meeting was to discuss an allegation of theft and was an internal process to the Council and not a legal matter. There is no substance to this complaint. The advice given to the applicant by Ms Carter about the purpose of the proposed meeting was correct.
24. The applicant alleged that Ms Carter told her that she did not need to speak to a solicitor. Ms Carter denied this but, in any event, the applicant not only spoke to her solicitor, but had him accompany her to the meeting as her support person.
25. Each of the three matters of concern to the Council was put to the applicant at the meeting on 9 December 2015. She was given ample opportunity to respond to each of them.
26. The applicant was provided with written reasons as to why the Council was considering terminating her employment. She was given the opportunity to respond in writing which she did. Her response was considered by Ms Lee before any decision was made. Ms Lee did not accept the applicant's explanations for her conduct, as was Ms Lee's entitlement as the ultimate decision maker
27. There was no denial of procedural fairness to the applicant. Impracticability of reinstatement or re-employment
28. Even if I had determined that the dismissal of the applicant was, in some way, unfair, which I have not, I would not have ordered the reinstatement or re-employment of the applicant.
29. There is no prospect of re-establishing any sort of viable employment relationship between the applicant and the Council. The applicant has made a number of very serious allegations against her immediate supervisor, Ms Pires, which are outlined at paragraph 8 above. Ms Pires has firmly denied these allegations and there is no evidence before the Commission to support any of them, apart from the applicant's own assertions. Regardless of who's right or wrong in relation to those matters, my assessment of the prospects of those two employees being able to work together in a viable fashion is "nil".
30. Under cross-examination the attack on Ms Pires was taken even further. She was accused of being jealous of the applicant's ownership of "a nice little property over at the foreshores of Mosman". Further, Ms Pires was accused of simply just not wanting the applicant to succeed. Understandably, Ms Pires stated that she felt that "the trust has been broken".
31. The applicant has, through her counsel and without the slightest shred of an evidentiary basis, accused Mr Fitzpatrick of setting her up to fail and that he targeted her and removed her without any procedural fairness. To describe such an allegation as "outlandish" would, in my view, be a gross understatement.
32. It was further put to Mr Glyde that he had conducted a "witch hunt" to make an example of the applicant for allowing Mr Toussaint onto Council property. Apart from there being no evidence to support this allegation, the mere fact of it having been put, presumably on the applicant's instructions, demonstrates the extent, in this case, of the breakdown of mutual trust and confidence that is essential to the employment relationship.

Authorities

1. I agree with the submission put on behalf of the applicant that, in cases such as this, the respondent bears the onus of proving that the applicant's misconduct, upon which it relies to justify the dismissal, did, in fact, occur. The requisite standard of proof is as discussed by Dixon J in Briginshaw v Briginshaw [(1938) 60 CLR 336].
2. I also agree with the submission that, in assessing whether to dismiss any employee, it is also appropriate that the employer take into account all the circumstances surrounding the incident or, as in this case, the incidents which prompted the dismissal, including mitigating factors.
3. In support of her application, the applicant relied upon a number of authorities. They do not assist her.
4. In the applicant's written outline of submissions the following was stated: In relation to allegation of theft, in Zdraveski v. BlueScope Steel Limited [2008] NSWIRComm 1028 and New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440, the Court stated: In a case of summary dismissal for misconduct four questions usually arise for consideration. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? Fourthly, were mitigating factors taken into account?
5. This submission requires a number of responses.
6. Firstly, neither Zdraveski nor Natoli were concerned with an allegation of theft. In Zdraveski the applicant had been dismissed from his employment at the Port Kembla steelworks for failing to follow an established safety procedure. Natoli was a case involving the dismissal of a Senior Firefighter for the unauthorised use of a fire engine and for leaving his fire station without permission.
7. Secondly, with respect to the passage quoted from the decision of Sams DP in Natoli, this is not a case of summary dismissal. This is a case about the termination of the applicant's casual employment.
8. Thirdly, if I was required, in the present matter, to answer the four questions posed by Sams DP, I would answer each question in the affirmative. In particular, I find that by absenting herself from the Sports Centre for an hour and 40 minutes on Tuesday 8 December 2015, leaving the facility unattended and then lying about her whereabouts to her employer, constituted a fundamental and wilful repudiation of the contract of employment.
9. The unreported decision of McKenna CC in Gardener v Electricity Commission of NSW (845 of 1992, 23 May 1994) which is referred to in the text by Mark Baragwanath on Unfair Dismissal, does not assist the applicant. As is apparent from the passage of the decision, which is quoted by the author in chapter 7 of the text, the Commissioner was influenced by the fact that the scrap aluminium taken by Mr Gardener was not for his own benefit, but for use in a community-minded project, namely, to build a fire escape ladder for the local surf club. That is not the case in the present matter.
10. On the question as to whether a dismissal is harsh, the applicant relies upon the following passage from the Full Bench decision in Department of Health v Perihan Kaplan ([2010] NSWIRComm 65 (28 May 2010)): [26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. [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.
11. In this matter I do not find that the dismissal of the applicant to be disproportionate to the gravity of the misconduct or to be too harsh a consequence.
12. Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited ([2003] NSWIRComm 211), Antonakopoulos v State Bank of New South Wales [(1999) 91 IR 385] and Buckman v Burdekin [(1998) 85 IR 415] are all cases which deal with the obligation on an employer to afford an employee procedural fairness. As I have already stated, in the present matter the applicant was given ample opportunity to respond to the matters which ultimately led to her dismissal. There was no denial of procedural fairness to the applicant in this case.
13. Lastly, counsel for the applicant referred to the decision of the Full Bench of the Commission in Budlong v NCR Australia Pty Limited ([2006] NSWIRComm 288 (3 November 2006)). In that matter the Full Bench stated: 77 It is a very fine matter of judgment as to whether the dismissal was harsh, unreasonable or unjust, however, we are satisfied that the dismissal was in all the circumstances harsh, unreasonable and unjust. Whilst it was clear that the respondent's requirement to abide by its Code of Conduct was a term of the appellant's employment contract, his breach of this term must be seen in the context of the work environment where senior managers did not comply with the Code; where another employee who had breached the Code in the same respect was first afforded a warning rather than being summarily dismissed; where other employees who, prima facie, had engaged in sending and/or receiving pornographic emails but had not been investigated for doing so; where there was no reinforcement of the need to comply with the Code other than the requirement, annually, to sign a compliance undertaking; where unlike other provisions of the Code the terms relating to pornography did not reflect a zero tolerance policy. In this sense, we consider that the respondent's conduct was unreasonable and unjust. 78 Further, we observe that if the appellant's misconduct was so serious as to justify instant dismissal it seems to us indefensible that he would be allowed to continue to engage in an activity that the respondent found so aberrant and unacceptable while the respondent took three months to investigate the matter. The respondent contended that the appellant's conduct required extensive investigation. However, by early April 2005 the respondent had extracted copies of the pornographic material on the appellant's computer, yet it was not until June 2005 that the respondent acted to summarily dismiss the appellant. We consider that the respondent's actions to summarily dismiss the appellant in these circumstances was unreasonable. 79 Further, we consider that the summary dismissal was harsh in the circumstances where the appellant only generated a single pornographic email; where no other employee saw any of the material on the appellant's laptop (we consider that Mr Findlay, who reported the appellant, only had a suspicion he saw something untoward); where the appellant was immediately remorseful and contrite on being confronted about his misconduct, although in relation to this last matter we accept that faced with the evidence, the appellant had few options. 80 The dismissal was also harsh in the context of the appellant, who was 56 years old at the time of the dismissal, had been employed by the respondent for over 31 years, that is, a very substantial part of his working life, and had an otherwise unqualified employment record. Indeed, evidence was accepted at first instance that he had received 21 performance awards during his 31 years working with the respondent and had been nominated for a further performance award two months before the investigation commenced. In this regard, we refer to the comments of the Full Bench of this Commission (as it was then constituted) in Franklins Limited v Webb (1997) 72 IR 257 at 261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. 81 The reasoning of the Full Bench in Franklins is, in our view, directly apposite and the considerations expressed fortify our view that the dismissal of the appellant was, in all the circumstances, harsh. The relevance of these personal and economic considerations was also recently emphasised in Maitland v Royal Blind Society (NSW) [2004] NSWIRComm 368; (2004) 138 IR 75 at 92.
14. The facts in Budlong are clearly distinguishable from those in the present matter. There is no suggestion of any "culture" at the Council of employees taking home, for their own use, Council owned food of the sort taken by the applicant in this case, or of allowing unauthorised persons unsupervised access to Council administration areas, or of abandoning their posts for lengthy periods during their shifts.

Conclusion

1. I have taken into account, and given due weight to, the applicant's 16 years and four months of previously unblemished service with the Council.
2. Against this, I have determined that the three matters which led to the termination of the applicant's employment were, when considered together, sufficiently serious such as to render her dismissal not unfair.
3. I also have taken into account the applicant's lack of honesty in relation to her whereabouts on the evening of Tuesday 8 December 2015, for a period of one hour and 40 minutes, when she should have been at work, performing her duties at the Sports Centre.
4. I agree with the submission of Ms Rooke for the Council that the applicant has failed to establish that her dismissal was harsh, unjust or unreasonable.
5. The application by Genna April Merrin for relief in relation to unfair dismissal is dismissed.
6. I so order.

Amendments 30 May 2016 - Paragraph 114. The word "Bdulong" amended to read "Budlong". 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. Decision last updated: 30 May 2016