New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of Gary Patrick Mealey) and the Council of the City of Sydney [2004] NSWIRComm 306 - NSWIRComm 2004 case summary — Zoe

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New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of Gary Patrick Mealey) and the Council of the City of Sydney [2004] NSWIRComm 306

[2004] NSWIRComm 306

Industrial Relations Commission (NSW)|2004-07-27|Before: Sams DP, Mr J, Grayson DP, Honour Grayson DP

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-27

Before

Sams DP, Mr J, Grayson DP, Honour Grayson DP

Source

Original judgment source is linked above.

Judgment (160 paragraphs)

[1]

CITATION : New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of Gary Patrick Mealey) and the Council of the City of Sydney [2004] NSWIRComm 306 APPLICANT: PARTIES : New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union RESPONDENT: Council of the City of Sydney FILE NUMBER: 3807 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - whether dismissal harsh, unreasonable or unjust - City Council employee - serious and wilful misconduct - excessive absenteeism - failure to honour Behaviour Agreement - failure to notify absences - failure to attend medical assessment - alcohol problem and illiteracy - failure to attend employee assistance program - provision of medical certificates - award provisions on sick leave - conflict of evidence between Doctor and patient - implausiblility of evidence - eight warning letters - effect of dismissal on employee and his family - one last chance - reinstatement sought. CATCHWORDS : Held, employer's directions not unreasonable - applicant's history of absences taken into account - applicant willingly entered into Behaviour Agreement - no breach of the Award - applicant failed to notify absences - applicant failed to attend medical assessment - applicant failed to attend counselling sessions - Behaviour Agreement not complied with - serious doubts as to Doctor's evidence - Commission not satisfied that applicant was genuinely sick - no medical certificate - employer's actions not unreasonable - employer entitled to dismiss the applicant - no issues of procedural unfairness - dismissal not harsh, unreasonable or unjust - application dismissed. LEGISLATION CITED : Occupational Health and Safety Act 2000 Industrial Relations Act 1996 Bankstown City Council v Paris (1999) 93 IR 209 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Giannone v Australian Workers Union, New South Wales Branch [2003] NSWIRComm 418 Hornsby Shire Council v Hunt (2002) 115 IR 41 CASES CITED : Outboard World v Muir (1993) 51 IR 167 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273

[11]

7 As a result of the disciplinary meeting, the applicant was dismissed for misconduct on 27 June 2003 with payment of two weeks pay in lieu of notice. His letter of termination was expressed as follows: I am writing to advise you that the City of Sydney is terminating your employment as and from 27 June 2003 for continued misconduct. At a meeting on 27 June 2003, attended by yourself, Greg Rhodes (Employee Relations Coordinator) and Chris Saunders (Manager Employee Relations) you were provided with the opportunity to respond to a number of allegations regarding continued breaches of your Award and of your Workplace Conduct and Behaviour Agreement. These allegations included: Your Continued failure to notify your absences from work in accordance with Award provisions and your Workplace Conduct and Behaviour Agreement. Your continued failure to report to the Employee Relations Section on Level 5 Town Hall House for referral for a medical assessment in accordance with your Workplace Conduct and Behaviour Agreement. Your failure to improve your work attendance in accordance with your Workplace Conduct and Behaviour Agreement. I am advised that you could offer no reasonable excuse in response to these allegations or for your continued non-compliance with your Workplace Conduct and Behaviour Agreement. You made no attempt to personally notify your supervisor of your absences nor did you attempt to attend or contact Employee Relations to discuss your non-attendance and medical referral. I am also advised the nature of your responses raises serious concerns regarding the candour of the matters raised by your during the disciplinary process. The City found your explanations to be lacking in credibility. Moreover, you were unable to offer any further credible comments or reasons when asked why your employment should not be terminated. I have also considered your employment history and I am disappointed you have failed to realise the opportunity I extended to you on 20 September 2002. As an alternative to terminating your employment on 20 September 2002 you were issued with a final written warning for continuing misconduct in relation to excessive sick leave, unauthorised absences and failure to notify your absences in accordance with the Award. I gave you this opportunity on the clear understanding that you sign a behaviour agreement committing to the immediate and sustained improvement in your behaviour to work and to your compliance with your Award and employment obligations. Prior to your final written warning on 20 September 2002 you received four written warnings for similar breaches of the Award relating to excessive sick leave and failure to notify your absences. On each of these occasions you made a commitment to improve your attendance and to comply with notification requirements. Disturbingly, since 20 September 2002, when I gave you the opportunity to salvage your employment with the City, you have received two further written warnings for your continued failure to meet the commitments specified in your behaviour agreement. You have confirmed to me that you are incapable of complying with your stated intentions to comply with all of your employment obligations and that your behaviour would improve. Accordingly, after careful consideration of the facts and information presented and after taking into account your responses, I am of the opinion your conduct has resulted in a fundamental breach of the duties you owe the City as your employer. I no longer have the trust and confidence in you that is necessary for you to meet your obligations as an employee. As a result of your continued misconduct that has occurred over a sustained period of time the City is terminating your employment as and from 27 June 2003 and you will be paid two (2) weeks in lieu of notice. Payroll Services will be advised of your termination and any monies owing to you will be deposited to your bank account.

[49]

44 Annexed to Mr Chris Saunders' affidavit was the City of Sydney Wages/Salary Award 2002. The relevant clause dealing with sick leave is found at cl.20: 20.2 The above entitlements are subject to the following conditions: (a) sick leave entitlements shall be cumulative from year to year so that any balance of leave not taken in any one year may be taken in subsequent years; and (b) Council shall be satisfied that the illness or injury is such that it justifies the time off work; and (c) an employee, who is not an In-Patient in a hospital, shall provide Council with a medical certificate of illness at intervals of no greater than 7 days; and (d) the illness or injury does not arise from engaging in professional (fee/monetary gain) sport activities; and (e) proof of illness shall include appropriate certification from a qualified medical practitioner dated no later then the third day of the employee's illness or injury; and (f) a medical practitioner's certificate shall be provided where an employee's period of absence is in excess of two ordinary working days or after 3 unsupported periods of absence each not exceeding 2 days; and (g) the certification from the medical practitioner shall clearly state the: (i) name of the employee; (ii) nature of the employee's illness, injury or treatment (iii) date of the first consultation with the medical practitioner; (iv) period for which the employee is unfit for work; and (v) signature and qualification of the person issuing the certification. 20.3 Notification of Absence An employee, who does not report for duty an (sic) any day for any reason, shall, as soon as practicable after normal starting time on that day, notify the Council or its authorised representative as to the reason for and prospective duration of their absence. This clause should be read in conjunction with clause 6.5 (Hours of Work-Attendance). 20.4 Council Assessment Council, at any time, may require employees to attend a qualified medical practitioner nominated by Council at Council's cost to assess the employee's fitness for work. The City will arrange medical assessment services at Campbelltown, Liverpool, Parramatta, Wollongong, Gosford, Penrith and the City for the convenience of the employee for the purpose of this sub-clause. 2.5 Public Holidays shall not be counted as sick leave as provided for in this clause. 2.6 Where an employee is on annual or long service leave and produces appropriate medical certification of illness or injury that has led to their confinement for a period of at least 7 consecutive days shall, if the employee elects, be granted addition annual or long service leave with pay equivalent to the period of confinement (subject to a time convenient to Council). 2.7 Where an employee is receiving a higher grade duties allowance and has been in receipt of the allowance for a period of 3 months or more the employee shall be entitled to the higher rate of pay while on sick leave for a maximum period of 20 days. 2.8 In the event of an employee disputing the certificate of Council's nominated medical representatives under the provisions of this clause, a duly qualified medical practitioner shall be sought as a referee. The medical practitioner shall be agreed upon by the General Manager of Council and the Secretary of the relevant Industrial Organisation. The certificate of the referee medical practitioner shall be accepted by all parties as final and conclusive as to the matter in dispute. Fees for the referee: - shall be paid by Council if the decision of the medical referee is in favour of the employee; or - shall be paid by the employee if the decision is against them.

[132]

126 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne v Australian Airlines Limited where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 127 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

[159]

Annexure Date Event 4 June 2001 Applicant commences full time employment with the Council. 7 December 2001 Greg Rhodes advises Chris Saunders that the Applicant had been taking excessive amounts of sick leave. 11 December 2001 Letter to Applicant from Council directing the Applicant to attend a meeting at the Council. 12 December 2001 Applicant fails to attend meeting scheduled at the Council. 13 December 2001 Letter to Applicant from Council directing Applicant to attend a meeting at the Council. 14 December 2001 Applicant attends meeting at Council without representation from his Union. 20 December 2001 Written warning issued to the Applicant from the Council. 9 January 2002 Applicant fails to attend work and fails to notify Council of his absence. 10 January 2002 Letter to Applicant from Council directing Applicant to attend a meeting at the Council. 14 January 2002 Meeting held at Council with Applicant, Angela Jones Blayney, Lutz Hienmann and Greg Rhodes. 16 January 2002 Written warning issued to the Applicant from the Council February 2002 - June 2002 Applicant was reprimanded and counselled by David Jelfs for misconduct during this period, including absence from work and failure to notify of absences in accordance with the Award. 4 June 2002 Written warning to Applicant regarding unauthorised absence from work. 11 June 2002 Letter to Applicant from Council directing Applicant to attend a meeting at the Council. 18 June 2002 The Applicant, Mr Greg Golledge (Union), David Jelfs and Greg Rhodes attend meeting at the Council. 20 June 2002 Written warning submitted to the Applicant. 6 August 2002 Applicant fails to attend work and fails to notify Council of his absence. 7 August 2002 Applicant fails to attend work and fails to notify Council of his absence. 8 August 2002 Applicant fails to attend work and fails to notify Council of his absence. 9 August 2002 Applicant fails to attend work and fails to notify Council of his absence. 12 August 2002 Letter to Applicant from Council directing him to attend a meeting at the Council. 14 August 2002 Applicant fails to attend meeting scheduled at the Council. 15 August 2002 Letter to Applicant from Council directing him to attend meeting at Council. 19 August 2002 Applicant attends meeting at Council with Mr Greg Rhodes and David Jelfs. 29 August 2002 Final written warning issued to Applicant. 1 September 2002 Applicant fails to attend work and fails to notify Council of his absence. 2 September 2002 Applicant fails to attend work and fails to notify Council of his absence. 3 September 2002 Applicant fails to attend work and fails to notify Council of his absence. 4 September 2002 Applicant fails to attend work and fails to notify Council of his absence. 4 September 2002 Letter to Applicant from Council requesting he attend the Council nominated doctor. 4 September 2002 Applicant fails to attend appointment with Council nominated doctor. 6 September 2002 Show Cause Letter to Applicant from Council 17 September 2002 Applicant attended a show cause meeting with Mr Saunders and Mr Domm. 20 September 2002 Applicant was issued with a final written warning and signed a Workplace Conduct and Behaviour Agreement. 19 January 2003 Applicant fails to attend work and fails to notify Council of his absence. 5 February 2003 Letter to Applicant from Council requesting attendance at Council meeting. 11 February 2003 Applicant attended a meeting at the Council with Mr Mike O'Hanlon and Mr Rhodes. Applicant issued with a further additional written final warning for 14 February 2003 continued misconduct, breach of the Behaviour Agreement and his obligations under the Award. 13 April 2003 Applicant fails to attend work and fails to notify Council of his absence. 14 April 2003 Applicant fails to attend work and fails to notify Council of his absence. 15 April 2003 Applicant fails to attend work and fails to notify Council of his absence. 16 April 2003 Applicant fails to attend work and fails to notify Council of his absence. 28 April 2003 Letter to Applicant from Council requesting attendance at Council meeting. 29 April 2003 Applicant fails to attend meeting scheduled at the Council. 2 May 2003 Letter to Applicant from Council requesting attendance at Council meeting. 9 May 2003 Applicant issued with a further additional written final warning for continued misconduct, breach of the Behaviour Agreement and his obligations under the Award. 22 June 2003 Applicant's son presents himself at Depot and advised Andrew Mieni that the Applicant was unwell and unable to work his shift. Pursuant to his Award obligations, the Applicant fails to attend work and fails to notify Council of his absence. Medical Certificate from Dr Bartipan from 22.06.03 - 26.06.03. 23 June 2003 Applicant's wife telephones Andrew Mieni to advise him the Applicant was unwell and unable to work his shift. Pursuant to his Award obligations, the Applicant fails to attend work and fails to notify Council of his absence. Medical Certificate from Dr Bartipan from 23.06.03 - 24.06.03. 24 June 2003 Applicant fails to attend work and fails to notify Council of his absence. Andrew Mieni receives a telephone call from an unidentified caller 25 June 2003 advising that the Applicant was unwell and unable to work his shift. Andrew spoke to Applicant who confirmed he would not be working his shift. Applicant directed to call Employee Relations. 26 June 2003 Applicant suspended due to misconduct. Applicant notified via letter from the Council. 27 June 2003 Applicant attended meeting at Council with Mr Saunders and Mr Rhodes. 1 July 2003 Applicant terminated via letter from Council.