National Employers' Mutual General Association Ltd v Waind and Hill

APPLICANT Mr M J Barnes, Solicitor White Barnes UNION Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division LEGAL REPRESENTATIVES: RESPONDENT Mr D Inverarity of Counsel SOLICITORS Abbott Tout

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

FEDERATED MUNICIPAL AND SHIRE COUNCIL EMPLOYEES' UNION OF AUSTRALIA, NEW SOUTH WALES DIVISION, ON BEHALF OF GREGORY BOWMAN, AND CITY OF SYDNEY COUNCIL

Application by the Federated and Municipal Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Proceedings commenced in this matter on 14 August 2000, consequent upon an application filed under s84 of the Industrial Relations Act 1996 ("the Act"), by the Federated Municipal and Shire Council Employees' Union, New South Wales Division ("the Union") on behalf of its member Mr Gregory Bowman ("the applicant"). 2 The applicant had been employed as a Works Co-ordinator, on a salary of $624.56 a week (Ex"11") by the City of Sydney Council ("the respondent") for a period of twelve years. His employment was terminated following the respondent's investigation of an incident on 6 July 2000, in which the applicant, in company with another employee, was found on licensed premises whilst on duty. The allegations against the applicant were particularised in the letter of termination dated 17 July 2000:

Playing poker machines at South Sydney Leagues Club while on duty at double time penalty rates;

Leaving the workplace without seeking permission;

Using a City of Sydney motor vehicle for non-work related activities without permission;

Failing to carry out your supervisory responsibilities through knowingly allowing your subordinate staff to play the poker machines at South Sydney Leagues Club while on duty;

Failing to follow a reasonable direction given by your team leader to continue your work at a job on the corner of Liverpool and Castlereagh Streets after completing the Broadway job.

3 Mr Reid for the Union appeared for the applicant at directions and conciliation proceedings on 14 August and made this admission on transcript: HIS HONOUR: Do I also take it from what you are saying, Mr Reid, that the allegations are not contested but rather the severity of the penalty is? REID: That is the union's position in this matter.

4 Mr Reid sought the applicant's reinstatement with some form of disciplinary action being imposed in lieu of dismissal. Mr Neil of Counsel, for the respondent, submitted that reinstatement was not an option for the respondent, but it would consider other forms of settlement. 5 The Commission directed the parties to confer. However, on 29 August 2000, having chaired private discussions with the parties, the Commission, pursuant to s87 of the Act, formed the view that the matter could not be resolved through conciliation, set the matter for arbitration and issued directions for the filing and service of evidentiary material. 6 The matter came before the Commission for various procedural rulings on a number of occasions; in particular the Commission was moved by the respondent, to set aside a summons to produce certain documentary material relating to disciplinary action taken against five other employees of the respondent.

7 After hearing short submissions as to the motion to set aside the summons, from Mr Barnes (Solicitor) now acting for the Union, and Mr D Inverarity, of Counsel, now for the respondent, the Commission issued the following decision on 11 December 2000: Mr Barnes, I have, as you would appreciate, looked at the documents. All of them are addressed to particular persons, that is, the letters. Four of the five mention the union being involved. It would seem to me, if there was intending to be some reliance placed upon the relative fairness of one situation over another, that the union, whom you appear for, and indeed it involves the officer of the union that initially appeared in this case, would perhaps see it as appropriate to file an affidavit about such matters. I am not saying there is anything derelict about not having done so. It would seem to be that would be one way of making a comparative assessment because I presume that these employees having involved the union, were union members and the union may well have these documents in their possession in any event. That relates to the first four employees. I should also say that I do not see the circumstances disclosed, although a couple of them are a little vague, as being anywhere near the circumstances that are disclosed so far. The fifth person, while not mentioning the union, the issues there are about as far removed from this case as one could possibly imagine. So it seems to me - and I will publish my reasons in due course - that in the exercise of my discretion that I do not believe that this material should be made available, both as to relevance but also, as I said, in respect to at least four of them that it may well be able to be done through some other means.

REASONS FOR DECISION (on Motion to set aside Summons)

9 A number of summonses to produce were served by White Barnes Solicitors (for the applicant) on the City of Sydney Council. The summonses were returnable at 9.30am on 7 December 2000 and were expressed in the following terms: (a) All personnel files relating to the following past and present employees of the Respondent, including all records relating to the commencement of service, promotion, demotion and any disciplinary processes together with all internal reports including security reports relating to any disciplinary process:- (i) Lorraine Ewing (ii) Bruce Mitchelson (iii) John Devine (iv) Denis Devine (v) Len Steele

10 It would appear to be common ground that the primary intention of the summons was directed to establishing what, if any, disciplinary action had been taken by the respondent against the five named employees. I note that none of the named employees were, in any way, connected to the circumstances leading to the applicant's dismissal. 11 Mr Inverarity made application to set aside the summons in whole, pursuant to Rule 94 of the Commission's Rules citing the following grounds:

1. There is no legitimate forensic purpose in obtaining the said employees' personnel files;

2. The summons to produce is too wide amounting to a "fishing expedition".

3. There is no conceivable relationship to these proceedings. The material is irrelevant. 4. The material contains sensitive and confidential information about persons who have nothing to do with these proceedings. 5. The test to be applied is whether the production of the documents is necessary for disposing fairly of the proceedings. 12 Mr Inverarity referred me to National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; Commissioner of Railways v Small (1938) 38 SR(NSW) 564; WorkCover Authority of NSW v Richard Crooks Constructions Pty Ltd (unreported) Maidment J, Matters IRC6329 and 6330 of 1997, 16 March 1999; Hanlon v Federated Engine Drivers and Firemen's Association of Australasia (unreported) Marks J, Matter CT1049 of 1992, 22 August 1994; Master Builders' Association (NSW) v Plumbers and Gas Fitters Employees Union of Australia (No 1) (1987) 20 IR 387; Arhill Pty Ltd v General Terminal Company Pty Ltd, 23 NSWLR 545 and Brooks v Watling (1995) 61 IR 163. 13 Mr Barnes submitted that the documents may disclose that the applicant was treated unfairly in comparison to how other employees have been disciplined. He described the inquiry as "comparative equity".

He said this case was about honesty and integrity and, if other employees were disciplined for lapses of honesty and integrity, how they were disciplined is relevant.

He said that limiting the material sought was not a wild fishing expedition. He also referred me to National Employers' Mutual General Association Ltd v Waind and Hill .

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".

And subsequently at para 32: Notwithstanding the generality and width of the call for the documents concerned, I am not satisfied, with some few exceptions, that the summons is so wide as to be oppressive in the sense of being uncertain. It cannot be said to offend the established principle that a subpoena is not to be used as a substitute for discovery because discovery is not available against a party in a criminal proceeding, see Maddison v Goldrick [1976] 1 NSWLR 651 at p663 per Samuels JA and R v Saleam (16 NSWLR at p19 per Hunt J). This is not to say, of course, that in criminal proceedings such as these that a summons for production could properly issue where the purpose was, as the authorities so say, a "fishing expedition"; the test still remains that, as Mr Hastings put, there must be a legitimate forensic purpose to obtain the documents, and, as Mr Crawshaw put, the documents must appear to be sufficiently relevant to an issue in the proceedings. In whatever way one may describe the test, it seems to me it comes down to a balancing exercise involving the nature of the documents sought in light of the apparent issues. In Attorney-General v Stuart (34 NSWLR at p681) Hunt CJ at CL stated it this way: The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (16 NSWLR at pp17-18). He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a prerequisite before the balance required for that claim can be struck

17 I respectfully concur with his Honour's conclusion that the test to be applied "comes down to a balancing exercise involving the nature of the documents sought in light of the apparent issues". 18 The Commission has had an opportunity to review the material produced by the respondent under summons. It consists of letters from the respondent to the named employees concerning disciplinary action taken against them. 19 In balancing the nature of this material in light of the issues involved, I make the following observations:

1. None of the particular incidents disclosed in each case, is analogous to that which the Commission is dealing with here.

2. None of the employees had any role in, or connection with, the circumstances giving rise to the dismissal of the applicant.

3. The apparent issues to me concern whether the penalty of dismissal of Mr Bowman was justified in the circumstances of a particular set of facts and circumstances which occurred on 6 July 2000.

4. The letters indicating disciplinary action taken against other employees do not reveal any mitigating factors the employer may have taken into account; such as age, employment record, period of service, admissions or pleadings, personal or financial circumstances. To properly assess the relevance the Commission would need to have before it, all of the facts and circumstances of each case. This would be illogical and impractical.

5. The material contains personal and sensitive matters. There was no evidence that the five employees gave their approval for their files to be produced, let alone were even aware that their personal records were being called for.

6. At least four of the five incidents disclosed involvement by the Union on behalf of the named employees - indeed Mr Reid himself. It seems reasonable to presume that the Union would have been well aware of each of the particular circumstances, the investigation and the outcome. It may well be in possession of the very documents requested, or at least be in a position to ask their members for the documents. 20 I am not satisfied that the documents sought would assist the Commission in fairly determining Mr Bowman's application.

For these reasons I determine to set aside, in whole, the summons to produce filed on 28 November 2000 and referred to in para 9 of this decision.

The Evidence 21 The applicant provided four affidavits and gave extensive oral evidence.

Events of 6 July 2000 22 The applicant said he commenced work at 7.15am and proceeded to a job at Surry Hills and then to an excavating and concrete job at Broadway. He denied going with the Project Manager, Mr Skimmings, in a car to the Broadway job. He said that he was not given a direction by Mr Skimmings to proceed to the corner of Liverpool and Castlereagh Streets (I shall refer to this job hereafter as "the Castlereagh Street job").

The Surry Hills crew consisted of George Loumanis (another works co-ordinator), the applicant and five other employees. Just after 9.00am, the crew moved to the Broadway job and the applicant said he was driving the roller. 23 He said that shortly before 12 o'clock, Mr Skimmings arrived and spoke to Mr Loumanis. Mr Skimmings had asked that work continue through lunch as the job needed to be finished by 3.00pm. Of the seven members of the crew, five, including the applicant, agreed to do so.

The applicant said he drove the roller back to the depot at Ultimo around 12.30pm (clocked in time was 1.04pm) - see Ex'10'. When he returned, he said he was told that Mr Skimmings had visited the job again and advised of the saw cut job at Castlereagh Street. This was preparatory work for weekend overtime on this job. He denied that Mr Skimmings had spoken to him on his return. 24 Around 2.00pm the Broadway job was cleaned up and made safe. He said it was agreed that Mr Loumanis and several others would go to the Castlereagh Street job and he and a young labourer, Mr Dickson, and two other employees would finish up at Broadway. He said there were access and obstruction problems with all of the crew going to Castlereagh Street.

He and Mr Dickson went to the tip, at Burrows Road St Peters, via their usual route, to dump the rubble from the job. On leaving the tip, around 2.30 to 2.40pm, Mr Dickson inquired as to a break and the applicant replied " we are entitled to a twenty minute crib break ". The applicant said he needed to get money from the credit union located at South Sydney Leagues Club ("the Club"), a block away from the tip. His oral evidence was that he visited the Club to go to the credit union once a week, usually when coming back from the tip. He said he intended to get money to buy something to eat and then return to the Broadway job. Being the supervisor, he did not seek permission to take a crib break. Having gone to the credit union, the applicant left the Club as Mr Dickson was entering. They agreed to meet at the Club when the applicant returned from a local shop. The applicant walked past his mother's house, but didn't go in, as she wasn't home. He would sometimes visit her in the trips back from the tip. 25 He went into the Club and found Mr Dickson upstairs playing poker machines. Neither of them had a drink. After the applicant put a single dollar coin in a machine he was approached by Council supervisors, Michael O'Hanlon and Michael Ryan, who had been sent to the Club to investigate an anonymous complaint that Council employees were involved in a "disturbance".

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".

1. Playing poker machines at South Sydney Leagues Club while on duty at double time penalty rates.

The applicant acknowledged he was playing a poker machine at the Club. He gave oral evidence that he had never played poker machines at the Club during work time (T.p18). He believed he was on a crib break at the time. He said no one had ever told him he required express permission to take a crib break.

The applicant acknowledged that he made no contact with his direct supervisor, Mr Skimmings, to seek approval for the crib break. He said he knew Mr Skimmings was in a meeting and would be unavailable. In any event, he believed he had authority to approve his own crib break (T.p43).

In cross examination, the applicant acknowledged there was no award provision entitling a twenty minute paid crib break and that he was wrong to presume so (T.p39 and 46).

2. Leaving the workplace without seeking permission

The applicant accepts he did not seek permission to leave the workplace; but he was in the course of returning from the tip during his worktime. He said, in any event, he was on a crib break and entitled to double time.

3. Using a City of Sydney motor vehicle for non-work related activities without permission

The applicant acknowledged that he used a work vehicle to go to the Club; but it was little more than one block from the usual route he would travel from the tip back to the depot.

In cross examination he accepted he did not seek permission to use the Council's vehicle or tell anyone he was doing so (T.p46).

4. Failing to carry out your supervisory responsibilities through knowingly allowing your subordinate staff to play the poker machines at South Sydney Leagues Club while on duty

The applicant believed he had authority to authorise Mr Dickson's and his own crib breaks. He denied misleading the Council as to his visits to the Club and said he would go to the Club to use the credit union facilities.

In cross examination, he accepted that he was in error in approving Mr Dickson's crib break, based on what he now knew to be no Award entitlement to it (T.p47).

5. Failing to follow a reasonable direction given by your team leader to continue your work at a job on the corner of Liverpool and Castlereagh Streets after completing the Broadway job

The applicant maintains that he did not directly receive a direction to attend the Castlereagh Street job. There is a clear conflict of evidence on this matter to which I will later turn my attention.

Firstly, the applicant was closely cross examined on his understanding of the 14 August conciliation proceedings in which Mr Reid, from the Union, acknowledged the allegations were not contested; but that dismissal was too severe (See para 3).

The applicant was present at all the conciliation proceedings. He said that he had always contested the allegations. He did not protest Mr Reid's admissions at the time because he " didn't understand what was going on " (T.p29) . He went further to say that he never gave Mr Reid such specific instructions and did not challenge him at the time. He believed Mr Reid was acting on his behalf and " thought he was doing the right thing " (T.p30).

Secondly, the applicant denied claiming Mr Saunders was a racist in a phone conversation on 18 July. He said he had asked if he was a racist and " why wasn't white boy Scott Dickson dismissed ?" He claimed he was upset and stressed about losing his job and wanted to find out, if being part Aboriginal, was a factor in his dismissal. He now conceded it was wrong to have made this allegation. He did not believe Mr Saunders, or the employer, were racist. 36 Ex'18' was tendered without objection, being a breakdown of the applicant's income since dismissal to 13 February 2001. It discloses various sources of income, totalling $4,164.62.

In view of my later findings and orders in this matter, little turns on the detail of this income. I have, however, taken it into account pursuant to s89(6) of the Act when considering what relief should be ordered in Mr Bowman's favour. 37 Two short supporting affidavits were filed by Mr Robert Nies (Ex'12'), Storeman, employed by the Council, and Mr Gregory Gollidge, Union Organiser (Ex'13'). Neither was required for cross examination. 38 Mr Nies' evidence was that the timing and taking of crib breaks was authorised by the leading hand, not Mr Skimmings. 39 Mr Gollidge's evidence was that he had never suggested that Mr Bowman was in breach of his obligations as an employee and that he believed a week's suspension was penalty enough for an offence of this type.

Mr Lee Scott Dickson Labourer, Roads and Footways Division

Mr George Loumanis Works Coordinator, Roads and Footways Division

Mr Chris Saunders Group Manager, Employee Relations

Mr Gary Skimmings Project Manager, Roads and Footways Division

Mr Michael O'Hanlon Group Manager, Physical Services - Living City Services Division 41 All except Mr O'Hanlon were required for cross examination. To the extent that the respondent's evidence is consistent with that of the applicant's, I do not repeat it. There are, however, a number of areas of evidentiary conflict; not least of which is disclosed in the evidence of Mr Dickson. 42 Mr Dickson is a young labourer, first employed by Sydney Council in January 1999. The applicant was his supervisor on 6 July 2000 and attended the South Sydney Leagues Club with him on that day. Five primary areas of conflict were revealed in the evidence of the applicant and that of Mr Dickson.

Firstly, Mr Dickson said he loaded the vibrating plate on the truck on the morning of 6 July. He could not remember loading the saw cutter. The applicant's evidence was that the vibrating plate had to be obtained later in the day. In oral evidence, Mr Dickson could not recall loading the vibrating plate or the saw cutter.

Secondly, Mr Dickson said that a Mr Alland drove the roller back to the depot after 1.45pm. This cannot be correct as the depot records show the applicant clocking the roller into the depot at 1.04pm. When confronted with this evidence, Mr Dickson said he couldn't remember.

Thirdly, Mr Dickson gave evidence that the applicant was playing the poker machines for ten minutes; the applicant said it was a couple of minutes. In oral evidence, Mr Dickson agreed it was less than five minutes.

Fourthly, Mr Dickson gave evidence that Mr Skimmings attended the job before lunch and spoke to a group of employees about working through lunch. He later gave evidence that he was unsure as to whether Mr Skimmings spoke to Mr Bowman directly, or even if Mr Bowman was present (T.p97).

Fifthly, the applicant said he did not mention visiting his mother to Mr Dickson that day. Mr Dickson said he did. When pressed in cross examination he said " I think that is what he said ". 43 Mr Dickson contradicted his own evidence in a number of significant respects claiming to have visited the South Sydney Leagues Club with the applicant to play poker machines, once a week, for two to three months. He first said in oral evidence that he never did so during work hours and then said he couldn't recall (T.p99).

Shortly after, he said it was not more than once a month and he had gone there by himself (T.p100). 44 Despite his affidavit evidence, Mr Dickson agreed, in cross examination, that 6 July was the only occasion Mr Bowman had played poker machines with him.

In oral evidence, Mr Dickson said there were times he played alone, and other times when Mr Bowman had played.

He later said Mr Bowman would " sometimes " play poker machines, but he could not recall any other occasion apart from 6 July. Pressed again, he agreed that Mr Bowman did not play poker machines - except for 6 July. Finally, after a short adjournment, he accepted that, apart from 6 July, he would play the machines himself and Mr Bowman did not play.

45 Mr Christopher Saunders is Council's Group Manager, Employee Relations. He conducted all the interviews with Mr Bowman and Mr Dickson and made recommendations to the General Manager as to the applicant's dismissal.

Mr Saunders described what was said in the meeting with the applicant on 6 July. He conceded no notes were taken (T.p120).

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).

55 Mr George Loumanis is a Works Co-ordinator employed by Council. His position is the equivalent to that held by the applicant. He had some difficulty in understanding and responding to cross examination on 15 December 2000. Consequently, arrangements were made for a Greek interpreter to be present on 1 February 2001. 56 There are a number of problems with the evidence of Mr Loumanis. They include:

a) In his affidavit (Ex'C') he describes commencing work on 6 July 2000 when Mr Skimmings gave "papers" to the applicant in the morning. In oral evidence Mr Loumanis could not remember if this had happened.

b) He said that all the team commenced work at Broadway on that day. This could not be correct as the applicant was at a Surry Hills job.

c) Mr Loumanis claimed to be " absolutely positive " the applicant did not drive the roller back to the depot (T.p197). The clear evidence was that he did.

d) Mr Loumanis also contradicted Mr Skimmings' evidence when he said that Mr Skimmings did not speak to him on the morning of 6 July (T.p199).

e) Mr Loumanis admitted he was wrong where he said in his affidavit that he saw the applicant and Mr Dickson at the tip (T.p201).

f) He also admitted it was wrong when he said Mr Bowman told him to go to the Castlereagh Street job if there was time.

g) Mr Loumanis said Mr Skimmings arrived at about 1.00pm and spoke to Mr Bowman. This could not be so as Mr Bowman was at the depot at that time. Mr Skimmings said it could not have been 1.00pm.

57 Mr Gary Skimmings has worked for Council for over thirty-seven years. His present position is Project Manager, Roads and Footways Division and he was the applicant's immediate supervisor. 58 Mr Skimmings said he had driven Mr Bowman to the Broadway job on the morning of 6 July. He gave evidence of three conversations that day with the applicant. He instructed Mr Bowman to go to the Broadway job and then to the Castlereagh Street job. He also asked him to work through lunch and about 1.45pm again instructed the applicant to go to the cutting job at Castlereagh Street. He later conceded that he may have been wrong about these instructions (T.p183). Mr Skimmings conceded that he did not give a personal direction for Mr Bowman to do the work and he was not concerned with who undertook the work (T.p181). It was to be done if there was time. 59 Mr Skimmings gave evidence that he fills in the daily activity sheets and did so on 6 July. The works co-ordinators do not fill in any paperwork except for delivery documents. 60 In oral evidence, he said he did not speak to Mr Loumanis in the morning about the Castlereagh Street job. However, he said he spoke to both Mr Bowman and Mr Loumanis at 7.15am concerning the Broadway job (T.p175). 61 Mr Skimmings was re-called to clarify certain aspects of his evidence. 62 He said the practice of filling in the daily activity sheets was changed on the 6 July and he now fills in the sheets. There was no document or instruction recording this change in procedure, nor was it reported to senior management. The change was initiated by Mr Skimmings himself.

63 Both Mr Barnes and Mr Inverarity put comprehensive and detailed submissions. The Commission summarises their respective cases.

For the Applicant 64 Mr Barnes submitted that the applicant's misconduct was characterised by the employer as being in the nature of a criminal act, in that he was involved in the attempted theft of wages by claiming payment for which he was not entitled; namely double time while on a break.

So characterised, Mr Barnes said, means firstly that the onus rests on the employer to prove the misconduct. See Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 , 35 IR 70. 65 Secondly, the Commission must be convinced on the balance of probabilities, that the employee was guilty of the misconduct. See Wang v Crestell Industries Pty Ltd, 73 IR 454. 66 Mr Barnes said the employer had failed to meet the onus of proving the misconduct and the Commission would not be able to conclude, on the balance of probabilities, that the misconduct had been proven.

67 Mr Barnes submitted that it was open for the Commission to form a view that Mr Bowman genuinely believed he was on a meal break and entitled to be in the Club. If this be so, then all of the charges against Mr Bowman "fall away". 68 He supported this contention with the following:

1. No witness could give evidence as to the custom and practice in respect to the taking of breaks. Jones v Dunkel ((1959) 101 CLR 298) inferences are, therefore, to be taken.

2. Mr Bowman's supervisory duties and responsibilities were such as to permit him to form the view that he could authorise breaks for himself as well as those he was supervising.

3. The award provision could be misinterpreted, and even if Mr Bowman was mistaken, there was no deliberate intent to gain financial advantage. Mr Saunders had not raised with his superiors that Mr Bowman may have been mistaken.

4. Mr Saunders' evidence as to the award provision was " academic " and inconsistent. There was a belief that if an employee was on an unpaid break, the employer could not direct where or how the break was to be taken. But if the break was paid, it was to be taken " as directed ". He conceded however, that the employer cannot tell an employee where to go or what he/she can do on a break.

5. Mr Skimmings changed a practice unilaterally; that being the signing of the activity sheets. This confirms that what is required by documentation is not necessarily what happens in practice.

6. Mr Saunders accepted that visiting a sick mum en route to and from work was not of very great moment.

7. Mr Dickson was not a witness of truth. He was either deliberately lying, or his evidence is " rampantly unreliable ". Numerous examples of inconsistency, even contradicting his own evidence were identified. 69 Mr Barnes dealt with the allegation of failing to follow a reasonable direction by referring to the evidence this way:

1. Mr Skimmings had acknowledged that the direction was given in broad terms to include all members of the work team.

2. The work was not of a high priority, but could be undertaken if there was time available at the end of the day.

3. Mr Loumanis gave evidence that he had been told to do the work, but in a general way.

4. Mr Skimmings might be categorised as a "disinterested witness". He was belligerent and wilful. His evidence should be treated with caution. He did not know Mr Bowman had a different view about what directions he received on 6 July. In cross examination, Mr Skimmings was resistant to accepting he might be wrong. 70 The Commission could not be comfortable with Mr Skimmings' evidence as there is conflict with the actual movement of employees on the day. Mr Bowman's evidence on the other hand, is "cogent, reliable and clear". 71 Mr Skimmings said that Mr Bowman had a mobile phone. This was plainly wrong. It was plainly wrong also that Mr Bowman went to the Broadway job with Mr Skimmings. He didn't. 72 Mr Loumanis, Mr Barnes submitted, made flagrant errors as to factual matters. For example, he firmly believed Mr Bowman did not take the roller back to the depot. He said they all started work at Broadway at 7.30. They had, in fact, started at Surry Hills, as Mr Skimmings confirmed. 73 Mr Barnes submitted that the dismissal of Mr Bowman was substantively and procedurally unfair. 74 As to the procedure, he referred to the following matters:

1. The employer did not comply with its own disciplinary procedure, as Mr Bowman was not made aware that the disciplinary proceedings might result in his dismissal.

2. The General Manager had made the decision to dismiss the applicant on the recommendation of Mr Saunders. There was no evidence that the General Manager had taken account of Mr Bowman's employment history.

3. Not all the employees involved in the work on 6 July were called to give evidence.

4. Mr Saunders had prejudged the applicant by pursuing questions as to taking a blood alcohol test when he was aware from Mr O'Hanlon that Mr Bowman had not been drinking.

5. The questions asked at the meeting on 13 July were not provided to the applicant until after the meeting. 75 As an alternative, Mr Barnes submitted that the dismissal of a works co-ordinator with twelve years' service and a good record was manifestly harsh in all the circumstances. See Electricity Commission of New South Wales T/as Pacific Power v Crump, 48 IR 296 and Busways v Johnson, 55 IR 255. 76 Reinstatement to his former position with continuity of service is sought. There is no evidence that the employment relationship could not be restored. Mr Saunders gave evidence that Mr Bowman could not be trusted. There was no evidence, from any line manager that Mr Bowman would be a problem. Mr Saunders works in Human Resources, far removed from the actual operations. The issue of loss of confidence must be soundly based. This is not the case here. 77 Orders for lost remuneration are also sought.

78 Mr Inverarity's submissions may be summarised as follows:

1. All of the allegations made against the applicant have been made out and in respect to allegations 1 - 4, the applicant conceded as much. He conceded he did not have an award right to a crib break. He conceded he sought no authority to use a work vehicle for non work related purposes. He conceded making a serious error in allowing Mr Dickson to play poker machines.

2. The case turns on the credit of the witnesses. As the applicant's evidence was confusing (" a movable feast ") and changed from an acceptance of the allegations in conciliation, to denial in the proceedings, even claiming he had certain entitlements to a crib break and overtime payments.

Other examples of inconsistent evidence was his attitude to taking the company vehicle without permission, his familiarity with the award, his belief that he was entitled to a crib break and his acknowledgment that he had made a " serious error " in allowing Mr Dickson to take a crib break.

More significant were his inconsistent answers in respect to the direction given by Mr Skimmings. Mr Skimmings' e-mail, a week after the incident, confirmed the instructions he gave. The applicant never mentioned visiting his mother, or walking past her house when questioned by Mr Saunders. While there are problems with aspects of Mr Dickson's evidence, on this point the evidence is consistent with what the applicant did on that day.

5. If the applicant had any doubts as to the entitlement to a crib break, he should have checked. He took it upon himself to interpret the award as he saw fit without seeking approval from his supervisor. Mr Bowman's suggestion that he would have sought approval later is not believable.

There is no Jones v Dunkel inference as to the respondent's failure to call evidence as to the custom and practice. Mr Saunders gave the best evidence of what the award entitlement actually is.

6. It was far too coincidental that Mr Bowman claimed this was the first occasion he had been playing poker machines at the Club and was caught. Mr Dickson's evidence was to the contrary. Mr Inverarity invited the Commission to reject such a coincidence.

7. The applicant expressed no contrition. He claims to have done nothing wrong.

8. The applicant misled Mr Saunders as to what he was doing at the Club.

9. Mr Inverarity relied on a number of authorities dealing with dismissal for misconduct. See 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 1998, 18 March 1999, Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 , 35 IR 70 and Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 2. He put that these authorities went to the civil standard of proof, as to the balance of probabilities. The Commission can be satisfied that all the allegations were proven and the dismissal was justified.

10. Nothing turns on minor issues with Mr Skimmings' evidence such as who filled in the daily activity sheets and whether the applicant had a mobile phone.

As to the applicant's misunderstanding in respect to the crib break, this was never put to Mr Skimmings. 79 As to the process, Mr Inverarity said the applicant was made aware of the allegations on 6 July. He was taken through each one of them. He was under no illusion that the matters were serious and the consequences were dire, after he was suspended for five days. The Union was involved in the meetings of 13 and 17 July and Mr Bowman was afforded every opportunity to respond. The employer even reconsidered its decision after the dismissal. 80 Contrary to Mr Barnes' assertion, Council's disciplinary procedure was followed. There was no requirement for the employee to address the General Manager directly. 81 As to Mr Saunders' report to Mr McGee, Mr Inverarity submitted there was no evidence that Mr Saunders put anything adverse from the applicant's personal file. The Commission is entitled to presume that Mr Saunders took account of the applicant's length of service, employment record and supervisory position.

Indeed, he said, this information would work against the applicant's interests, as an experienced long term employee should have known better. 82 As to the reinstatement relief sought, Mr Inverarity argued that the employer's loss of trust and confidence went much further than embarrassment at having to accept Mr Bowman back. Reinstatement would send a "very nasty message to the workforce. He referred me to Blyth Chemicals v Bushnell (1933) 49 CLR 66, Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and Brooks v Watling (1995) 61 IR 163. 83 Further to the employer's loss of trust and confidence was the applicant's phone message to Mr Saunders, accusing him of being a racist. 84 Mr Inverarity proposed, in the alternative, should the Commission find the dismissal unfair, that the applicant be only awarded minimal compensation. Proceedings had been vacated at the applicant's request. If the Commission was minded to order reinstatement there should be no continuity of service and the period between dismissal and reinstatement should be considered as a justified suspension. 85 Written submissions in reply were filed by Mr Barnes rejecting Mr Inverarity's criticism of the applicant's evidence. The applicant's evidence, he said, should be considered in its totality, including concessions, admissions and his expressions of regret. Mr Reid's admissions should be disregarded as they were made at a directions hearing and not formally led as evidence. Mr Bowman's belief that he did not understand what was going on was perfectly reasonable.

Mr Barnes reaffirmed his criticism of the dismissal process, particularly that the applicant was not told his employment was at risk. 86 In respect to the respondent's view of the allegations, Mr Barnes submitted:

Double time for the crib break was never paid. It was not the applicant's position that he could read the award as he liked. Rather, he had a genuine belief as to the entitlement and there is no evidence that what was done was not contrary to custom and practice.

This allegation is linked to the first, in that the applicant believed he was entitled to a crib break.

Similarly, this is linked to Mr Bowman's belief. Mr Saunders had no problem with a deviation of one hundred and fifty to two hundred metres to go to the credit union. In any event, the real issue was playing poker machines in work time.

Similarly linked to Mr Bowman's belief that he could authorise his own and his subordinates' crib breaks.

Mr Bowman had made no concession as to failure to follow a reasonable direction. The evidence of Mr Bowman was that he was given no direct personal direction. Mr Skimmings and Mr Loumanis gave evidence that the saw cut job was not a priority. A reasonable direction needs to be put in the context of it being performed if the time was available.

The conclusion can be drawn that there was no discussion at the depot or, alternatively, it was a minor comment that the applicant had no recollection of.

Mr Barnes reminded the Commission of the clear conflicts of Mr Skimming's and Mr Loumanis's evidence. These were not peripheral matters, but related to relevant circumstances. The conflicts undermine their evidence and render it unreliable. 87 Mr Barnes rejected the impracticability of reinstatement. It was clear the applicant was sorry if he was in error. It was understandable if he used inappropriate language when he phoned Mr Saunders.

Mr Barnes reaffirmed the relief sought and added that if there was any act, or omission by the applicant which warrants disciplinary action, a short period without pay might be considered. Otherwise, the applicant should be reinstated without loss of continuity or entitlements.

88 Despite Mr Inverarity's submission that Mr Bowman's evidence was a "moveable feast", I do not find, on the significant matters to be determined here, that Mr Bowman was untruthful or deliberately evasive.

This conclusion is best illustrated by the fact that his explanation for being in the Club was consistently put as he believed he was on a break. It was not a constructed defence, made up some time after the event. It was a view he held from the very beginning. He told Mr Saunders of his belief very soon after in the 6 July interview.

Whether or not it was a reasonably held view is, of course, an entirely different matter. I shall deal with this point shortly.

Mr Barnes argued that Mr Bowman's evidence should be viewed in its totality, not merely nitpicking at small inconsistencies. On this basis, Mr Bowman's evidence should be regarded as reliable.

There is much force to this proposition. In my opinion, taking a holistic approach to a witness's evidence gives a more reliable guide to whether the evidence on key issues is to be believed. Highlighting small inconsistencies due to the vagaries of recollection or the passage of time, would not ordinarily impugn the overall credit of the witness. As I said in Sams and Contact Point International Pty Ltd (unreported) Matter IRC3774 of 2000, 28 February 2001 Taking into account the applicant was initially unrepresented, and mindful of the passage of time from July to October/November, it is understandable that recollections of precise conversations will be less than perfect. In my view, it is only when the differences are patently inconsistent, or where evidence appears to be deliberately re-created, or omitted, that the Commission would have cause to doubt its veracity.

89 The same could not be said for the evidence of Mr Dickson, whose testimony I found to be most unhelpful. His answers were evasive, and his demeanour nervous and confused. His evidence was self serving, intending to cover up the extent of his involvement in the incident so as to protect himself. 90 Mr Dickson contradicted his own evidence. Claiming to have visited the South Sydney Leagues Club with the applicant to play poker machines once a week for two to three months, he first said in oral evidence that he never did so during work hours and then said he couldn't recall (T.p99).

Soon after, he said it was not more than once a month and he had gone there by himself (T.p100).

Despite his affidavit evidence, Mr Dickson agreed, in cross examination, that the 6 July was the only occasion Mr Bowman had played poker machines with him.

Ordinarily, the Commission might make allowances for a young man, unwillingly giving evidence about a matter for which he had been disciplined. One might be inclined to appreciate he would be nervous and unsure. However, his evidence went much further than simply failed recollection or nervousness. He contradicted himself in a number of significant respects. For example, he told Mr Saunders in the investigation he went to the Club once a week for two to three months. He recanted this admission in the witness box. 91 The Commission does not place the evidence of Mr Skimmings and Mr Loumanis in the same unfortunate category as Mr Dickson. There are, however, shortcomings in their evidence which went to the sequence of events on 6 July and which must impact on their reliability to so assuredly remember those matters which were adverse to the applicant. Who drove the roller is an issue at point. Mr Skimmings strenuously maintained he drove Mr Bowman to the job in the morning of 6 July, when the records make it plain that this could not be right. Another example is when Mr Loumanis says Mr Skimmings returned to the Broadway job at 1.00pm on the day. Mr Skimmings' own evidence was that it was forty-five minutes later. 92 The Commission is troubled by the rather belligerent attitude of Mr Skimmings. It was clear that he would have rather been anywhere else than in the witness box. He gave answers he knew to be incomplete, such as when authority for signing the activity sheets changed. He dismissively acknowledged obvious mistakes in his evidence when confronted with the reality. When he was recalled to clarify his evidence, he said that he filled in the daily activity sheets, but the practice changed by coincidence on 6 July, the day of Mr Bowman's dismissal. It stretches credulity that such a change was coincidental.

When he was recalled he was unco-operative, murmuring under his breath. He seemed nervous and positively uncomfortable. His demeanour convinces me that his evidence, at least on this issue, is, at best, unreliable.

It must plainly colour my opinion as to the reliability of his other evidence. 93 Mr Loumanis' evidence was troubling for a different reason. He had understandable difficulty in comprehending the questions put to him, even with the interpreter. I am satisfied that he was not deliberately intending to mislead, but rather found the whole process unfamiliar and quite daunting. He appeared confused as to some of the key issues and provided written evidence which he later conceded was not correct (see para 56).

94 Both Mr Barnes and Mr Inverarity cited many of the same cases as being authorities for their respective positions.

It is as well that I refer to the relevant authorities to demonstrate the basis upon which my conclusions have been reached.

The relevant principles are now well and truly settled.

1. The standard of proof to be applied is the civil standard based on the balance of probabilities. See Briginshaw v Briginshaw (1938) 60 CLR 336, and Four Sons Pty Ltd v Lamsiripothong (unreported) Wright P, Hungerford J, Cambridge C, IRC6337 of 1999, 20 March 2000.

This standard is embodied in s140 of the Evidence Act 1995: Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

2. The usual onus in unfair dismissal matters rests with the applicant to prove a dismissal was unfair. This onus is reversed where the reason for dismissal relates to allegations of misconduct. The onus is on the employer to prove such misconduct. See Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Pastrycooks Employees, Biscuit Maker Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 , 35 IR 70; Bigg & Anor v New South Wales Police Service , 80 IR 434; Franklins Ltd v Webb , 72 IR 257 and Shop Distributive and Allied Employees' Association v Jewel Food Stores , 22 IR 2.

Two passages are illustrative of the point. In Shop Distributive and Allied Employees' Association v Jewel Food Stores the former Industrial Commission in Court Session said: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement.

and in Franklins Limited v Webb , the Full Bench said at p261: Those authorities deal with different points but are nevertheless both applicable to circumstances where summary dismissal has occurred for alleged cause. In this case, the employee was dismissed by the payment of one week's wages in lieu of notice but obviously for cause. The reasoning of the Commission in Court Session in Jewel Food Stores , in our view, is directly apposite and we would apply to these circumstances the same consideration with respect to onus as was adverted to by Hungerford J in Gartrell White.

3. In deciding whether the Commission is satisfied that a case has been proven on the balance of probabilities, it is necessary to take into account the gravity of the misconduct.

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).

See also Busways v Johnson and Byrne & Anor v Australian Airlines (1995) 185 CLR 310.

7. The implications for an employee who has been dismissed for alleged misconduct can be serious, brutal and long term. Such implications were discussed in Franklins Ltd v Webb at 261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occured 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. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

See also my comments in Standley and Electronics Boutique Australia Pty Ltd and Hill and the Commissioner for Public Employment - Department of Juvenile Justice , (unreported) Matter IRC6474 of 1999, 27 July 2000.

95 To ground a dismissal as unfair the Commission must make a finding, or findings, that it was "harsh or unreasonable or unjust" within the meaning of Pt 6 ch 2 of the Act. 96 As discussed in Busways v Johnson and Electricity Commission of New South Wales T/as Pacific Power v Crump a dismissal of an employee for proven misconduct may not be "unjust or unreasonable" but, it may nevertheless, be "harsh". 97 This observation demonstrates the point made in that oft quoted passaage from Byrne & Anor v Australian Airlines (1995) 185 CLR 310, where McHugh and Gummow JJ said at p465: 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 consequence 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.

See also Outboard World v Muir (1993) 51 IR 167. 98 A recent Full Bench decision in Bankstown City Council v Paris (1999) 93 IR 209 made the same observation: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

99 The allegations were couched in such terms as to lead one to believe that the allegations were of the most grievous kind, amounting to fraud, and the applicant was a wilfully disobedient employee. However, I am not convinced that the gravity of the allegations so described is matched by the totality of the actual circumstances on 6 July. 100 At first blush, it could be inferred that Mr Bowman wilfully disobeyed a lawful instruction, with the deliberate intention of claiming double time, playing poker machines at the South Sydney Leagues Club, during work time. However, the circumstances surrounding his visit to the Club must be viewed in the overall context of what happened that day. These circumstances include, inter alia:

2. Mr Bowman may have believed he was entitled to a crib break.

4. The Club was only a small detour from the route usually followed from the tip to the depot.

5. It was not unusual for Mr Bowman to withdraw money from the Credit Union at the Club on his way back from the tip.

101 From this perspective, I am not convinced that one incident of this kind was of sufficient magnitude and gravity such as to justify dismissal. 102 In making this finding I do not intend to criticise the management decision, per se. It seems to have acted in part on a belief that Mr Dickson was a truthful employee. I am not so sure - as Mr Dickson's testimony before the Commission will attest. Mr Dickson denied that he and Mr Bowman visited the Club once a week for two or three months during work time, despite telling this to Mr Saunders. Mr Saunders decided that Dickson was truthful and Mr Bowman was not (T.p142). I note that Mr Saunders acknowledged that he had no opportunity to form an opinion of Mr Dickson's character or truthfulness (T.p123). 103 While Mr Saunders acted upon a premise that Mr Dickson was truthful, it has now been established that such a view was unfounded. Mr Dickson's word was either false or, at the very least, open to suspicion. 104 Was this the first occasion Mr Bowman had been playing poker machines at South Sydney Leagues Club? It most certainly wasn't the first time Mr Bowman had visited the Club - he did so to withdraw money from the Credit Union. But the frequency of his visits and for what purpose, is not the issue. It is, as the respondent itself acknowledged, that he was allegedly playing poker machines during work time on 6 July, i.e. on one occasion only. 105 Even if Mr Bowman is guilty of what was alleged, and the other allegations flowed from such a finding, I am not satisfied that dismissal was the proportionate penalty; particularly for someone of Mr Bowman's long service and position. 106 I turn now to consider each of the allegations seriatim.

Allegation 1 - Playing poker machines at South Sydney Leagues Club while on duty at double time penalty rates 107 Mr Bowman does not deny he was playing poker machines at South Sydney Leagues Club on the afternoon of 6 July. However, he claims he was on a paid break and entitled to be in the Club. There is no suggestion that he was drinking alcohol. I have already observed that Mr Bowman consistently, and from the very beginning, claimed he was on a break.

It is conceded that there is no Award provision to support Mr Bowman's belief. On the other hand, there is no evidence that Mr Bowman's belief was not the custom and practice. Mr Nies's uncontested evidence was that three alternatives were available if an employee worked through lunch:

I am satisfied that Mr Bowman held a reasonable belief that he was entitled to be on a break and it was on this assumption that he was in the Club on 6 July.

It follows that an employer cannot direct where, or what, an employee is able to do while so engaged on a break.

Allegation 2 - Leaving the workplace without seeking permission 108 Mr Bowman acknowledged that he did not seek permission to leave the workplace. It raises the question as to what constitutes the workplace. Mr Bowman was in a truck returning from the tip when he deviated to the Club. Clearly, the Club was not the workplace, but how could the truck be so described as the workplace? If anything, Mr Bowman was travelling between workplaces. The allegation, drafted in the terms it was, does not stand up to objective scrutiny.

In any event, accepting, as I do, that Mr Bowman held a reasonable belief that he was on a break, an allegation that he left the workplace without permission cannot be sustained.

Allegation 3 - Using a city of Sydney motor vehicle for non-work related activities without permission 109 Mr Saunders gave evidence that he had no problem with an employee going to the credit union in work time by deviating two hundred metres from his regular journey (T.p143). Further, he said it wouldn't be "controversial" if an employee ducked in to say hello to his sick mother on the way back to work.

Mr Saunders made the point that the real issue of concern was the allegation of playing poker machines in the Club.

In light of these admissions, I am satisfied that there is little substance to this allegation. At its highest, it would warrant little more than a cautionary warning.

Allegation 4 - Failing to carry out your supervisory responsibilities through knowingly allowing your subordinate staff to play the poker machines at South Sydney Leagues Club while on duty 110 If Mr Bowman believed he was on a break, and as a supervisor of Mr Dickson, does it follow that he could also authorise Mr Dickson to take a break?

The duties and responsibilities of work co-ordinator are recorded in Appendix B of the 1998 Local Workplace Agreement, Ex"2": Ensure all work is carried out in accordance with safe work instructions, training requirements and the City's Occupational Health Safety and Rehabilitation Procedures manual. Organise and co-ordinate the use of plant and equipment on maintenance work to ensure cost effective use. Lay out and establish site and traffic control to ensure the safety of the work gang and the public. Ensure provisions of Council's Traffic Control Manual are complied with. Supervise the work flow and allocate tasks within the gang to maintain effective operation and safe work practices. Lead the gang in undertaking the work, including excavation, and concrete and asphalt placement and finishing to ensure a quality outcome through a focus on the detail of the job. Order materials and equipment to facilitate the work flow of the gang. Operate small items of plant in a safe manner to ensure effective completion of the work. Answer simple questions and complaints from the public to promote the image of Council by being courteous and interested. Develop and coach new labourers in the range of work performed by the gang to ensure a broad range of skills are maintained. Complete activity sheets to record activities carried out by the gang on a daily basis. Other duties consistent with work as directed by the Team Leader.

A more detailed position description applying to Mr Bowman including reporting lines is found at Appendix C of Ex"4": KEY ACCOUNTABILITIES Organise and co-ordinate the use of plant and equipment on maintenance work to ensure cost effective use. Lay out and establish site and traffic control to ensure the safety of the work gang and the public, ensure provisions of Council's Traffic Control Manual are complied with. Supervise the work flow and allocate tasks to gang members to maintain effective operation. Lead the gang in undertaking the work, including excavation, and concrete and asphalt placement and finishing to ensure a quality outcome through a focus on the detail of the job. Order materials and equipment to facilitate the work flow of the gang. Operate small items of plant in a safe manner to ensure effective completion of the work. Answer simple questions and complaints from the public to promote the image of Council by being courteous and interested. Develop and coach new labourers in the range of work performed by gang members to ensure a broad range of skills are maintained. Complete activity sheets to record activities carried out by the gang on a daily basis. Other duties as directed by the Team Leader. KEY JOB BEHAVIOURS/OUTPUTS Reliable and able to effectively lead the gang. Courteous and pleasant manner in dealings with the public. Industrious and attentive to the work. Commitment to high quality in work. Creates team spirit and motivates team members. AUTHORITY TO ACT The Work Co-ordinator establishes work priorities in consultation with the Team Leader and allocates work to members. Decisions are made in dealing with unforeseen circumstances, in determining the approach to particular jobs, and in timing the delivery of materials and equipment to the work site.

Obviously, neither of these documents give the express authority to a works co-ordinator to authorise his own, or his subordinate's crib break.

However, it seems to me that the duties and responsibilities described above must implicitly provide for such an authority. I am satisfied Mr Bowman thought he was acting according to his duties and responsibilities, albeit under a mistaken belief as to the Award provision.

I am satisfied that this allegation has not been made out.

Allegation 5 - Failing to follow a reasonable direction given by your team leader to continue your work at a job on the corner of Liverpool and Castlereagh Streets after completing the Broadway job 111 There was much controversy surrounding whether the applicant had been directed to certain work locations by his Team Leader, Mr Skimmings, during the course of the day in question.

The failure to attend the Castlereagh Street work site was, it was said, a failure to comply with a reasonable direction of Management.

The Commission accepts the applicant's contention that he received no direct instruction to proceed to the Castlereagh Street job. I believe there was a general instruction to proceed to the job at the completion of the Broadway job - if there was time to commence useful work. Mr Loumanis gave evidence that he received no direction to do so - and didn't.

In my opinion, the direction was so vague and non specific as to be unclear as to whom it was directed. Indeed, Mr Skimmings said anyone could do the Castlereagh Street job (T.p181).

In any event, there was no urgency with the Castlereagh Street job. It was to be worked as overtime on the weekend. It was not materially vital to the work program for that day and could wait until further programming.

Viewed in this context, I find the allegation expressed as it was " failing to follow a reasonable direction " as being exaggerated and overstated. It cannot be sustained.

112 Notwithstanding Mr Barnes' strenuous criticism of the process leading to dismissal, I am satisfied that the procedural issues he raised were not of very great moment. 113 He cited, for example, that Mr Bowman was never warned in the meetings of 6 and 13 July that there was a threat of dismissal. This fact, he argued, was in breach of the Council's own policies.

However, I feel certain that with Mr Bowman's experience and Union involvement, he would have been under no illusion that dismissal was a possibility. 114 Mr Barnes was also critical of the fact that Mr Bowman was not able to plead his case before the final decision maker, the General Manager. While I accept that the General Manager was acting on a recommendation from Mr McGee and Mr Saunders, it would be most unusual for the General Manager to be physically and personally involved in the process.

One might speculate as to whether the General Manager sought access to the applicant's personal file and whether upon reviewing the file, his decision might have been different. On the other hand, one must assume that in framing his recommendation, an experienced Mr Saunders took into account all the mitigating circumstances, including the applicant's age and length of service. In any event, little turns on this matter. 115 Mr Barnes criticised the fact that Mr Bowman did not have the questions he was to be asked in writing. I note the Union did not press the point and I accept, had it done so, Mr Saunders would have complied. 116 It is unnecessary to make findings on the process as the Commission is content to find unfairness in respect to the allegations made against the applicant and his subsequent dismissal. 117 In view of these conclusions, I do not find it necessary to refer to the various authorities which have discussed the principles of procedural fairness.

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.

FINDINGS 125 The Commission is satisfied that the dismissal of the applicant was "harsh, unreasonable and unjust" within the meaning of Pt 6 ch 2 of the Act. Specifically, I find that:

1. The allegations of misconduct, on the balance of probabilities, were not proven.

2. The employer's decision was based upon inferences which could not be reasonably drawn from the evidence it had available or was based on assumptions later found to be incorrect.

3. The dismissal was "harsh", having regard for the gravity of the matters alleged against the applicant and admitted by him.

4. The respondent did not give appropriate or sufficient weight to mitigating factors such as the applicant's age, period of service, record of employment and economic circumstances.

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.

134 I intend to apply these observations to the evidence and circumstances disclosed in this case. Mr Inverarity's reliance on Brooks v Watling is not particularly to point. As I understand that case, it dealt, inter alia, with the notion of impracticality where the employer's business had ceased to exist. The circumstances here are plainly, not analogous. 135 It is materially relevant, it seems to me, that Mr Saunders was the only witness for the respondent to give evidence as to the impracticality of Mr Bowman's reinstatement. In this respect, it is obvious from Mr Saunders' position in management, that he had, and would have, limited contact with the applicant. Mr Bowman was, and if reinstated, an operational employee, far removed from Mr Saunders' sphere of contact; let alone direct supervision. There was no evidence advanced that Mr Skimmings, his direct supervisor, or Mr Loumanis, his work colleague, could not resume a working relationship with the applicant.

136 As to sending a "very bad message" to the rest of the workforce, this would only be relevant if the applicant was reinstated in circumstances where the respondent's allegations had been fully made out and proven. In view of my contrary findings, sending a "very bad message" in the circumstances disclosed in this case, simply does not arise. 137 The applicant claimed not to have accused Mr Saunders of being a racist, but merely asked if he was. It doesn't matter which version of the conversation is correct. To my mind, neither version of Mr Bowman's intemperate and ill considered remarks can be condoned. I accept, however, that the applicant's accusation was made in the heat of the moment. He was understandably upset and distressed at having lost his job and livelihood. While his allegation was baseless and totally unacceptable, I accept that Mr Bowman does not harbour such a view of Mr Saunders and no doubt regrets his outburst. In any event, in the context of the circumstances, I do not believe that the remarks constitute an impediment to reinstatement. 138 For the reasons I have discussed, I am not convinced that the employer has made out a case that reinstatement is impractical. 139 Nevertheless, I do not believe that full reinstatement without loss of income is appropriate in this case. I have also taken into account, pursuant to s89(6) the remuneration earned by the applicant since dismissal (Ex"18"). 140 I have also taken into account that the dates for hearing this matter in late November were vacated at the request of the applicant's solicitor. However, I note that the adjournment was for a little over two weeks. The major delay results from both legal representatives underestimating the time necessary to complete the case.

ORDERS 141 The Commission makes the following orders:

1. Pursuant to s89(1) of the Industrial Relations Act 1996 that the City of Sydney Council reinstate Mr Greg Bowman to his former position as Works Co-ordinator, on terms no less favourable to those which would have applied had he not been dismissed on 17 July 2000.

2. That Mr Bowman be reinstated within seven (7) days.

3. Pursuant to s89(4) of the Industrial Relations Act 1996, that Mr Bowman's period of service be treated as not to have been broken by the dismissal.

4. Pursuant to s89(3) and (6) of the Act, that the City of Sydney Council shall pay to Mr Gregory Bowman an amount equivalent to his weekly rate of pay from 4 December 2000 to his reinstatement.

5. The amount in Order (4) shall be paid within twenty-eight (28) days of today.

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.