National Employers' Mutual General Association Ltd v Waind and Hill - [2001] NSWIRComm 91 - NSWIRComm 1999 case summary — Zoe

NSWNSWIRComm

National Employers' Mutual General Association Ltd v Waind and Hill

[2001] NSWIRComm 91

Industrial Relations Commission (NSW)|1999-03-16|Before: Sams DP, Maidment J, Marks J, Hungerford J, Wright P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-03-16

Before

Sams DP, Maidment J, Marks J, Hungerford J, Wright P

Catchwords

12/11/2000
12/14/2000
12/15/2000
02/01/2001

Source

Original judgment source is linked above.

Catchwords

12/11/200012/14/200012/15/200002/01/200102/14/200102/27/200103/06/2001 DATE OF JUDGMENT: 05/02/2001

Judgment (196 paragraphs)

[1]

CITATION : 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 APPLICANT PARTIES : Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman RESPONDENT City of Sydney Council FILE NUMBER: 3619 of 2000 CORAM: Sams DP Motion to set aside summons - reasons for decision - termination of employment - unfair dismissal - allegations of misconduct - whether dismissal "harsh, unreasonable or unjust" - principles considered - procedural fairness - practicality of reinstatement. CATCHWORDS : Held, whole of summons set aside - allegation of misconduct not proven to requisite standard - dismissal of applicant "harsh" - unnecessary to consider procedural unfairness - reinstatement appropriate - remuneration ordered for loss of earnings - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1995 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Commissioner for Railways v Small (1938) 38 SR(NSW) 564 WorkCover Authority of New South Wales v Richard Crookes Construction Pty Ltd (unreported) Maidment J, Matters IRC6329 and 6330 of 1997, 16 March 1999 Hanlon v Federated Engine Drivers & Firemen's Association of Australasia (unreported) Marks J, Matter CT1049 of 1992, 22 August 1994 Master Builders' Association (NSW) v Plumbers and Gasfitters Employees Union of Australia (No 1) (1987) 20 IR 387 Arhill Pty Ltd v General Terminal Company Pty Ltd, 23 NSWLR 545 WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (unreported) Hungerford J, Matter IRC5721 of 1997, 16 November 2000 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Wang v Crestell Industries Pty Ltd, 73 IR 454 Jones v Dunkel (1959) 101 CLR 298 Electricity Commission of New South Wales T/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 CASES CITED : Wang v Crestell Industries Pty Ltd, 73 IR 454 Four Sons Ltd v Lamsiripothong (unreported) Wright P, Hungerford J, Cambridge C, IRC6337 of 1999, 20 March 2000 Standley v Electronics Boutique Pty Ltd (unreported) Sams DP, IRC4516 of 1999, 18 March 1999 Shop Distributive & Allied Employees' Association v Jewel Food Stores, 22 IR 2 Blyth Chemicals v Bushnell (1933) 49 CLR 66 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Brooks v Watling (1995) 61 IR 163 Sams and Contact Point Internaitonal Pty Ltd (unreported) Matter IRC3774 of 2000, 28 February 2001 Briginshaw v Briginshaw (1938) 60 CLR 336 Bigg & Anor v New South Wales Police Service, 80 IR 434, Franklins Ltd v Webb, 72 IR 257 Hill and the Commissioner for Public Employment - Department of Juvenile Justice (unreported) Sams DP, IRC6474 of 1999, 27 July 2000 Byrne & Anor v Australian Airlines (1995) 185 CLR 310 Outboard World v Muir (1993) 51 IR 167 Bankstown City Council v Paris (1999) 93 IR 209 Hollingsworth v Commissioner of Police (No 2), 88 IR 282 HEARING DATES: 12/07/2000; 12/11/2000; 12/14/2000; 12/15/2000; 02/01/2001; 02/14/2001; 02/27/2001; 03/06/2001 DATE OF JUDGMENT: 05/02/2001

[23]

14 Rule 94(1) of the Commission's Rules enables the Commission to "set aside wholly or in part a summons issued at the request of a party". An application under subrule (1) can be made by way of notice of motion or " with leave of the tribunal orally, in the course of the proceedings ". 15 Mr Inverarity sought leave during the proceedings to make the application orally and leave was granted. 16 For a useful discussion of the relevant principles to be applied in respect to applications under Rule 94, I need venture no further than a recent judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (unreported) Matter IRC5721 of 1997, 16 November 2000: The documents and things sought by the prosecutor to be produced by the defendant have been detailed earlier. A reading of them shows that they were certainly cast in somewhat general and wide terms, including by reference to time periods of up to 15 years both before and after the commission of the alleged offence. The result is that the process of determining the apparent relevance, not that they are relevant or admissible into evidence, of the documents to a subject matter in the proceedings is made more difficult. Nevertheless, the very width of the documents may be no more than an indication of the nature and scope of the issues to be decided. After all, as Smithers J (with whom Bowen CJ and Nimmo J agreed) commented in Lucas Industries Ltd v Hewitt [1978] 45 FLR 174 at pp 188-189, "... a degree of generality in the description of the documents may according to circumstances be compatible with reasonableness ... The purpose of the process of subpoena is to facilitate the proper administration of justice between parties". It is timely also in this respect to repeat what was said by Moffitt P, with whom Hutley JA and Glass JA agreed, in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 AT P382, as follows: It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery".

[38]

26 The applicant attended three disciplinary meetings; the first around 4.30pm on 6 July, after he was directed to return to the Town Hall for an interview with Mr Saunders, the Council's Group Manager, Employee Relations. Mr O'Hanlon and Ms Angela Jones Blayney were also in attendance. He believed he was being asked about the complaint of a disturbance at the Club. 27 Mr Saunders asked a number of questions as to why he was at the Club, was there a disturbance at the Club, whether he had been drinking and would he be prepared to undergo a breath test? He denied going to the Club once a week to play poker machines and denied playing the poker machines on this occasion for ten minutes. He did not seek permission to have a crib break. Pending another meeting he was suspended for five days without pay. He received a letter dated 7 July detailing the allegations against him, which included an allegation of improper conduct in a public place. 28 On 13 July, another meeting was held attended by the applicant's union organiser, Greg Gollidge. Mr Dickson was interviewed before the applicant and received a final written warning. 29 A series of prepared questions were asked, similar in substance to those asked on 6 July. However, no mention was made of any disturbance at the Club. 30 At the third meeting, on 17 July, the applicant was told he was to be dismissed. He subsequently received a letter of termination setting out the five charges against him. 31 At a follow up meeting on 21 July he asked for, but was refused, access to his personal file. He also questioned why Mr Dickson had not been dismissed. Mr Saunders told him that Council considered Mr Dickson to be under the applicant's responsibility and had less responsibility (Ex'5'). 32 By letter of 20 July, the applicant requested a reconsideration of the dismissal decision. Mr Saunders discussed the matter with Mr Tony McGee, Director Living City Services, who raised the request with the General Manager. On 24 July, Mr Saunders met with Mr McGee who advised that the General Manager considered the applicant's dismissal was appropriate and justified. Mr Bowman was advised accordingly. 33 Mrs Penelope Bowman pleaded for her husband's reinstatement in a letter of 27 July, admitting he had made a "serious error".

[72]

However, despite some small discrepancies, his evidence does not materially differ from the applicant's version of the conversation. 46 After suspending the applicant, Mr Saunders received a letter from the Union requesting a copy of the questions and answers from the 6 July meeting. Mr Saunders contacted the Union organiser, Mr Greg Gollidge, and advised that photocopies of the questions for the 13 July meeting would be provided. However, he intended to ask the same questions then, as he did on 6 July. 47 Mr Bowman did not receive the questions until after the interview. Mr Saunders said if the Union had asked for them beforehand, they would have been provided (T.p125). Mr Saunders gave a verbal report to Mr McGee (Director, on 13 July) and provided him with a copy of the questions and answers. Mr McGee took the matter to the General Manager with Mr Saunders' view that the applicant's actions were serious misconduct. He did not tell Mr McGee that the applicant thought he was on a paid crib break. 48 On 17 July, after being informed of Mr Bowman's dismissal, Mr Gollidge said the decision was excessive and one week's suspension was sufficient. 49 Mr Saunders received a recorded phone message from the applicant on 18 July in which he sought his personal file and said Mr Saunders was a racist (Mr Bowman is part Aboriginal). Mr Saunders' own file note of the message records "GB wanted to know if I (Chris Saunders) was racist". 50 Mr Saunders said it was impractical for the applicant to be reinstated; the respondent no longer has trust or confidence in him. 51 Attached to Mr Saunders' affidavit was an extract from the Award (City of Sydney Wages/Salary Award 1998) in respect to Meal and Crib Breaks. Mr Saunders' evidence was that when an employee elects to work through lunch, double time is paid until the end of the shift. A break is not provided unless arranged with the Team Leader so as to ensure double time ceases when a break commenced. Mr Saunders said the applicant should have sought approval from Mr Skimmings. A break is to be taken as directed. Mr Saunders was closely questioned on the practical effects of this provision. There was a difference, he said, between paid and unpaid breaks. 52 In oral evidence, Mr Saunders said that after 6 July he wished to investigate and clarify the directions given by Mr Skimmings and whether there had been a disturbance at the Club. There was no evidence of any disturbance. Indeed, the unknown person who phoned Council couldn't be found. 53 Mr Skimmings told Mr Saunders the next day that he gave two instructions to the applicant to go to the Castlereagh Street job. 54 Mr Saunders was questioned as to the discrepancy in hours worked and payment for the 6 July. He conceded there was a shortfall mistake (T.p136).

[146]

An extract from Electricity Commission of New South Wales T/as Pacific Power v Crump at 302, is apposite to the point: We propose to follow the approach in the present case which essentially requires a review of the conciliation commissioner's discretion in deciding to order Mr Crump's re-employment, subject to terms, after it had been found that the appellant's action in dismissing Mr Crump was "neither unreasonable nor unjust". Having thus found, the conciliation commissioner further found mitigating circumstances, namely Mr Crump's record "as a good and energetic employee" and his employment "for six and a half years with no concern as to his attendance apart from the month of August 1992". The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Met Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Lotys case [1971] AR (NSW) 95 at 99, the Commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. 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." (our italics).

[181]

118 At the commencement of this decision, I referred to the comments of Mr Reid, for the Union, and the applicant, in conciliation proceedings on 14 August 2000 (see para 3). In answer to a question from the Commission, Mr Reid acknowledged the allegations against the applicant, but contested the severity of the penalty of dismissal. 119 Mr Inverarity carefully cross examined the applicant on this matter. It was clear the applicant was present at all times during the proceedings. He accepted the Union was acting on his behalf, and did not protest Mr Reid's admission at the time. 120 Mr Inverarity concluded that this demonstrated the applicant's change of position as to the allegations and proved his evidence to "be all over the shop". 121 Mr Barnes defended the applicant's position by arguing that the applicant was uncertain as to what was going on in the conciliation proceedings and in any event, Mr Reid was not acting on the applicant's instructions. 122 Mr Barnes described referring to comments in conciliation proceedings as "unsatisfactory and unreliable". 123 I accept that Mr Reid's admission was made on the record and appears to have been unequivocal. On the other hand, there is some force to Mr Barnes' submission that comments in conciliation proceedings do not constitute formal evidence and reliance on such comments is unsatisfactory. I note that Mr Reid's admission was made before I directed the parties to confer as to settlement. Viewed in this way, Mr Reid may well have been offering, without liability, a concession in order to facilitate settlement negotiations and secure his member's reinstatement; but with some lesser penalty. To my mind, this is not an unusual, or unreasonable negotiating position. It should not be used against the applicant's interests. 124 Even so, it is my opinion that Mr Reid was merely acknowledging the general thrust of the major allegation; that Mr Bowman was playing poker machines on licensed premises. There is no argument that this was precisely what occurred. In that sense, and having regard for my earlier remarks, I am not convinced that Mr Reid's admission has damaged the applicant's case.

[187]

126 Having found the dismissal of the applicant to be unfair, it next falls for consideration as to what form of relief should be ordered. Three alternatives are obviously available; reinstatement, re-employment or compensation. I note that any order made under s89 of the Act may be made on "such terms and conditions as the Commission determines" (s89(8)). Reliance on this section will become obvious when I shortly discuss the form of orders I propose to make. 127 The applicant has consistently sought reinstatement to his former position as Works Co-ordinator. The Commission accepts this is his genuinely held preferred relief. It is, of course, the primary form of relief available under s89 of the Act. 128 Where a finding of unfairness has been made, and reinstatement is strongly pressed by the applicant, the onus rests with the employer to satisfy the Commission that reinstatement would be impractical. 129 Having regard for the applicant's admissions, his lack of contrition and his position of authority, Mr Inverarity argued that the employer had lost all trust and confidence in him. Consequently, it was impossible to restore the employment relationship. In addition, he submitted that Mr Bowman's reinstatement would send a very bad message to the rest of the workforce. Mr Inverarity also relied on the phone call made by Mr Bowman to Mr Saunders in which the reference was made to Mr Saunders being a racist. 130 Mr Inverarity said that the question of reinstatement was not merely about embarrassment, or inconvenience for the employer, but went to very real and serious issues which demonstrate conclusively that reinstatement is impractical. 131 Mr Barnes strongly disputed Mr Inverarity's contentions. He submitted the applicant had admitted his mistakes and was sorry if he had done anything wrong. As to the phone call to Mr Saunders, Mr Barnes said that Mr Bowman was understandably upset and distressed. The applicant did not believe Mr Saunders, or his employer, were racist. 132 Mr Barnes pressed for full reinstatement, without loss of income or continuity of service; but if the Commission found any act, or omission, by the applicant which warranted disciplinary action, a short period of suspension would be sufficient having regard for the five days already lost while suspended. 133 A relatively recent Full Bench decision of this Commission has effectively adopted the principles to be considered as to the practicality of reinstatement which were discussed by the Full Court of the Industrial Relations Commission of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd. In Hollingsworth v Commissioner of Police (No 2), 88 IR 282, where at 341 Wright P and Hungerford J said: Finally on this aspect of the practicality of reinstatement of the appellant we refer with agreement to what was said by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia 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.) That passage was applied by a Full Bench (Fisher P, Hungerford J and Bishop C) of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 and by another Full Bench (Hungerford and Schmidt JJ and Murphy C) in Oswald v New South Wales Police Service (unreported, NSW Industrial Relations Commission, IRC97/4130, 11 March 1999, pp50-51). It is appropriate to apply it again in the instant case.

National Employers' Mutual General Association Ltd v Waind and Hill

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Judgment (196 paragraphs)

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Cases Cited (11)