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

AWARDS: City of Sydney Wages/Salary Award 2002 (340 IG 810) HEARING DATES: 07/27/2004; 08/16/2004 DATE OF JUDGMENT: 10/15/2004

APPLICANT: Mr A Rich of Counsel SOLICITORS: Leitch Hasson Dent LEGAL REPRESENTATIVES: RESPONDENT: Mr J H Pearce of Counsel SOLICITORS: PricewaterhouseCoopers Legal

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 15 October 2004 Matter No IRC03/3807 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of Gary Patrick Mealey) and Council of the City of Sydney Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of its member Gary Patrick Mealey re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 306

1 This matter was remitted to me by the Full Bench of the Commission following a successful appeal by Mr Gary Patrick Mealey ('the applicant') against a decision of Grayson DP. His Honour had dismissed the applicant's claim for relief from his alleged unfair dismissal by the Council of the City of Sydney ('the respondent') on 1 July 2003.

2 It is unnecessary for the purposes of this decision to refer to the conclusions of the Full Bench or the proceedings before his Honour Grayson DP. It is sufficient to observe that the appeal dealt with procedural matters and did not determine the merits of the applicant's claim. Those matters will be considered in this decision.

3 The applicant is fifty years of age and married with six children. He is illiterate and has an acknowledged problem with alcohol. The applicant commenced employment with the respondent as a casual streetsweeper in December 1996 and was appointed a full time employee on or about 4 June 2001. He was employed under the terms of the City of Sydney Wages/Salary Award 2002 (340 IG 810)

4 Prior to his dismissal, the applicant was working a night shift commencing at around 11.30pm and finishing around 5.50am. From an assessment of his full time employment from June 2001, it is undisputed that the applicant received eight warning letters concerning excessive sick leave, his failure to attend meetings with Council officers and his failure to notify of absences in accordance with the Award. During this period, he had 45 days absent on 24 separate occasions.

5 The applicant was suspended on 26 June 2003 and directed to attend a disciplinary meeting on 27 June. The meeting was to deal specifically with the following matters: Your failure to notify your absences from work in accordance with Award provisions and your Workplace Conduct and Behaviour Agreement on the following shifts commencing at 11.00pm: Sunday 22 June 2003 Monday 23 June 2003 Tuesday 24 June 2003 Wednesday 25 June 2003 Your 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 following your absences on the shifts commencing at 11.00pm: Sunday 22 June 2003 Monday 23 June 2003 Tuesday 24 June 2003 Wednesday 25 June 2003 Your failure to improve your work attendance in accordance with your Workplace Conduct and Behaviour Agreement. Your failure to follow a reasonable direction to attend a meeting in Employee Relations on Wednesday 25 June 2003.

6 The applicant was warned he may be terminated and was invited to have a union representative present at the meeting.

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.

8 The applicant's evidence may be dealt with under the following headings: i. The final episode of ill health - Sunday, 22 June to Thursday, 26 June 2003. ii. The Behaviour Agreement and the failure to improve attendance. iii. Effect of dismissal on the applicant and his family.

9 The applicant deposed that on Sunday 22 June 2003, he attended the surgery of Dr Bartipan and was issued with a medical certificate declaring him as unfit for work from 22 June to 26 June. He was diagnosed with "exacerbation of acute tonsillitis and influenza."

10 The applicant claimed that he was unable to personally notify the Council of his illness as his home phone had been disconnected. He said his wife went to the depot around 11.00pm that night and notified Council on his behalf. In a later affidavit, the applicant said that his wife drove his son to the depot and it was his son who informed the supervisor of his illness. It was Mrs Mealey's evidence that she had phoned the depot at around 10.00pm that night, but as there was no answer, she and her son drove to the depot.

11 The applicant said his condition worsened the next day and his wife drove him back to Dr Bartipan. The doctor issued another medical certificate. The applicant deposed that when he spoke to his supervisor, Mr Mieni on 25 June, he told Mr Mieni he would bring his certificate in on Thursday night (26 June). Mr Mieni simply told him to get in touch with Employee Relations when he came in. On Thursday 26 June, the applicant was suspended for failing to report to the Employee Relations Section for a medical assessment. He claimed he had not been instructed to do so and had not refused to undergo a medical assessment.

12 In oral evidence, the applicant said his medical certificates covered him from Sunday night to Wednesday night and he was fit for work on Thursday. However, on that day he was suspended. On the Thursday he went back to Dr Bartipan for a vitamin injection and told him he was fit for work. However, Dr Bartipan's notes for that Thursday disclose that he diagnosed the applicant with "exacerbation of tonsillitis and influenza" and gave him another medical certificate. In cross examination, the applicant could not recall being given this certificate.

13 In oral evidence, the applicant was questioned as to why he didn't personally notify Council of his absence as he had promised when he signed the Behaviour Agreement. He believed that sending a message through his family was the same thing. He reiterated that his supervisor had been notified, he had sick leave available and he had medical certificates for the relevant period.

14 The applicant agreed that he did not report to Employee Relations the next day. He claimed he didn't do so because he was too sick. He did however, go to his own doctor. He agreed his wife could have dropped him to the Town Hall. Eventually, the applicant conceded he had only kept half his agreement with the respondent. He didn't think the rest was necessary as he believed there would be no repercussions if he was legitimately sick.

15 The applicant was asked about his movements on Sunday 22 June. He was asked if he went to watch the junior rugby league and then to the pub. He denied doing so. He said he had walked to the Doctor's surgery from Glebe to Alexandria and back. This was not unusual as he walked seven hours a day, on the job as a street sweeper. The Doctor's practice was not open, but the Doctor was usually there doing paper work.

16 The applicant said he received two medical certificates - one to cover Sunday night and the next day he obtained one for the Sunday night through to Thursday night. The applicant agreed that his wife had not given the certificate to Mr Mieni on the Sunday night and it was now misplaced.

The Behaviour Agreement and the failure to improve attendance

17 The applicant attended a meeting with the Council's General Manager, Mr Domm and the General Manager, Employee Relations, Mr Saunders on 17 September 2002. He was informed that Council considered his level of absenteeism to be unacceptable and that he needed to improve.

18 The applicant agreed that it was very serious to have a meeting with the General Manager. Mr Domm had told him that Council was giving him an opportunity to explain why he should not be dismissed.

19 In response the applicant said he was experiencing domestic difficulties arising from an alcohol abuse problem. He agreed to participate in an Employee Assistance Program (EAP) and undergo counselling. The applicant explained that he had a drinking problem and on most Sundays he usually ends up at the pub after watching local football and by 10.00pm he is not fit for work.

20 The applicant agreed that Mr Domm was helpful and considerate of his situation. Mr Domm told the applicant that this was his last chance. He must promise to commit to the EAP and notify Council of any absence. The applicant agreed that he understood that he had to improve his sick leave record and notify Council of any absence. The applicant had promised there would be no more problems.

21 Arising from this meeting, the applicant signed a Behaviour Agreement in the following terms: As a result of my continued misconduct and unacceptable behaviour in the workplace, I acknowledge my continued employment is conditional on me complying with the following requirements: 1. I will attend (in my own time) and fully cooperate with all counselling sessions arranged by the City of Sydney through ACCESS. The intent of the counselling sessions is to address my alcoholism. 2. I will comply with all recommendations and requests made by the employee assistance provider ACCESS. 3. I authorise ACCESS to discuss my program and progress at any time with the Manager Employee Relations. 4. I will improve my attendance at work. 5. I will personally notify my supervisor as early as possible on the day of absence from work on sick leave, including the reason for my absence. 6. After I report my absence I will then report to Employee Relations at 8am at level 5, Town Hall House on the morning immediately following each occasion I am off on sick leave the previous night. Arrangements will then be made for me to attend the City's nominated doctor for assessment. 7. I will obtain prior approval for any future annual leave, PH day or other leave, excluding sick leave, as required under the Award. 8. I will attend all meetings and medical assessments to which I am directed to attend.

22 However, in later evidence, the applicant said he did not understand the contents of the Agreement and it was not explained to him. As he was illiterate he couldn't read it and it was not read to him. He claimed that as it was late in the day and he wanted to leave, he just signed the document. In cross examination, the applicant changed his evidence and said he was "pretty sure" the Behaviour Agreement was read to him.

23 The applicant believed that his supervisors (Mr Carroll and Mr Oliver) knew of his illiteracy. He had generally operated on what he was told, rather than relying on written documents.

24 Nevertheless, the applicant agreed he had promised to personally notify Council of any absence and attend Council's medical examiners. The applicant understood that these were special arrangements in order for him to keep his employment and he promised to stick to those arrangements.

25 The applicant later claimed to have been intimidated by Mr Saunders. At the meeting Mr Saunders was banging the table and speaking "like a copper." In oral evidence, the applicant said that no one likes going to see Mr Saunders. He speaks abruptly and not in a civil tone. The applicant said he asked if signing the documents would affect him "down the track." He claimed that Mr Saunders assured him that if he was legitimately sick, then there would be no problem if he had a doctor's certificate. He said that in a meeting with Mr Saunders after he was suspended, Mr Saunders had said his doctor was a fraud and his medical certificate was not worth the paper it was written on.

26 The applicant stated that, contrary to his letter of dismissal, his attendance record improved "markedly" after September 2002. In any event, at the time he was dismissed he had 15 days sick leave, two weeks annual leave and a couple of accumulated days for working on public holidays.

27 In cross examination, the applicant agreed that over 2.5 years he had received eight warning letters concerning his sick leave record, unauthorised absences and a failure to notify Council of his absences. He also agreed that on 14 May 2003 he received a written third and final warning, which he had signed.

28 The applicant said that his dismissal has had a detrimental impact on his economic and domestic circumstances. He is illiterate and has had great difficulty obtaining alternative employment. He has had his car repossessed and his credit record is ruined. He said he could not provide a 21st birthday party for his daughter.

29 The applicant's wife deposed that the financial pressures on the family had caused problems for their relationship and at one point she had asked him to move out of the family home. He was forced into a boarding house at Redfern, but has now returned home. The applicant's wife earns around $400.00 net per week. Their rent is $240.00 per week. He was previously earning around $600.00 net per week. He now receives Centrelink payments of $240.00 net per week.

30 Finally, the applicant said he was proud to work, he missed his work colleagues and now suffered low self esteem. If reinstated he believes there would be no difficulty in reestablishing the work relationship. In oral evidence, the applicant said that he would make a big effort and turn up every day.

31 Mrs Veniana Mealey gave oral evidence concerning the events in June 2003. Mrs Mealey said that she was at church between 9.00am and 8.30pm on Sunday 22 June. When she arrived home she woke her husband. He said he was feeling sick and she would need to report it to the depot. She reaffirmed that she drove her son to the depot and her son went in and informed Mr Mieni of his father's illness. Mrs Mealy deposed that her husband did not tell her he had been to the Doctor when she woke him up. He had not given her a medical certificate to take to the depot.

32 In cross examination, Mrs Mealy said she did not know if her husband went to the Doctor on Sunday afternoon, because she wasn't at home. She conceded that her statement was wrong when she had said it was she who had made sure her husband went to the Doctor on 22 June. Mrs Mealey said that she knew her husband had a drinking problem, but couldn't tell when he drank too much. She did not know if he had been to the football that day or if he had been drinking.

33 Mrs Mealey said that she only drove her husband to the Doctor on 23 June and could not explain why she had used the word "again" in her statement that she drove him to the doctor "again" on 23 June.

34 The applicant's Doctor, Dr Mel Bartipan was summonsed to give evidence.

35 Dr Bartipan recalled that he saw the applicant on Sunday 22 June at around 2.00pm when he presented himself at his surgery with tonsillitis and flu like symptoms. Dr Bartipan said that he was working in his surgery doing paperwork on this day. Patients knew he did so, as he had worked in the area for twenty years.

36 Dr Bartipan said there was nothing unusual about writing more than one certificate for the same period of absence. However, one certificate for the period 22 to 26 June was missing. Dr Bartipan deposed that he could not recall the details of the applicant's visits to him in the week of 22 June 2003.

37 Dr Bartipan was asked about a gap in the applicant's medical records from 1995 to April 2003. He agreed that he had not seen the applicant during this period and was not surprised when the applicant returned after an eight year break.

38 Dr Bartipan explained that the initials 'WC' in his notes meant a work certificate was issued. Dr Bartipan said he always made a note when a certificate was issued. When asked about the certificates for June 2003, Dr Bartipan said that although he wrote certificates on 23 and 26 June, he had seen the patient on 22 June. This practice was not unusual. He agreed that it should have been noted differently, such as to explain that it had been rewritten. However, he did not believe the certificate was misleading.

39 Dr Bartipan said he issued a certificate on 22 June, but he did not have a copy of it. He agreed he did not write 'WC' against the entry for that day and said he may not have issued the certificate until the next day. Dr Bartipan agreed that he did not note the applicant's symptoms and treatment against the entry for that day.

40 Dr Bartipan agreed that the entry was written in capital letters and in the past tense. Dr Bartipan was asked if he wrote in capital letters when he wished to emphasise a point. He said he didn't know. However, he denied writing this entry some time after 22 June.

41 Dr Bartipan was asked about another clinical note he had written around 26 June 2003, when he commented on the applicant's dismissal. He did not believe anyone should have had these notes, as they were confidential. Dr Bartipan could not recall if he had discussed unfair dismissal with the applicant. Dr Bartipan said he did not know what unfair dismissal was, but he had discussed how the applicant was treated by the Council. Dr Bartipan then agreed he did discuss the applicant's unfair dismissal with him on 12 July 2004.

42 Dr Bartipan agreed that on 12 July 2004 he and the applicant had discussed him giving evidence in the proceedings. He didn't know if they discussed the nature of his evidence. The Doctor couldn't recall if the applicant had said he was the only person who could "save" him (this was recorded in his note). The Doctor did not want to give evidence and believed it was very unfair that he was required to do so. When pressed Dr Bartipan said they "possibly" had discussed this case, but he couldn't recall.

43 The following Council Officers gave evidence on behalf of the respondent: 1. Mr Chris Saunders, Manager, Employee Relations 2. Mr Robert Domm, General Manager 3. Mr Gregory Rhodes, Employee Relations Manager 4. Ms Angela Carmel-Maree Jones-Blayney, Organisational Development Coordinator 5. Mr David Jelfs, Employee Services Advisor 6. Mr Andrew Mieni, Team Leader, Cleansing & Waste

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.

45 Mr Saunders gave details of each of the counsellings and warnings issued to the applicant from 11 December 2001 until his dismissal on 27 June 2003. As this history was largely not in issue, I annex to this decision a chronology of events tendered by the respondent.

46 Mr Saunders said he gave instructions to other officers to correspond with the applicant. They provided him with reports of meetings and other actions taken. Again, these matters are not in dispute and I need not repeat them.

47 Mr Saunders recorded details of the two meetings he held with the applicant. On 17 September 2002, he and Mr Domm met the applicant. Mr Saunders said that Mr Domm asked the applicant why he didn't turn up for work on 1, 2 and 3 September and why he didn't call in. The applicant had replied that on Sunday nights he ends up at the pub. He has a drinking problem and before he knows it, its 10.00pm and he's unfit for anything.

48 Mr Domm advised the applicant of Council's EAP which can be used free of charge to help with his drinking problem. Mr Domm had said that Council would have assisted him earlier if it had known of his problem. When asked why he simply didn't ring in, the applicant said that sometimes the phone is cut off, he was at the pub and just forgot.

49 Mr Domm had said that the applicant needed to commit to the EAP and have no more problems. It was his last chance. The applicant had responded, "I really need this job. I promise there will not be any more problems, you wont see me here again, I promise."

50 Mr Saunders could not recall the applicant asking him whether he would suffer any repercussions as a result of signing the Behaviour Agreement. Mr Saunders agreed that he may have said something to the effect of, if he was legitimately sick, it would be okay.

51 Mr Saunders' version of the meeting with the applicant and the Employee Relations Manager, Mr Rhodes on 27 June 2003 was different to that of the applicant. Mr Saunders denied banging the table or acting aggressively.

52 The applicant had said he was incapable of going to Employee Relations on 23 June and couldn't find the number to ring. His union representative had told him that if he had sick leave he would be right. He said, "if he was crook he was entitled to stay home and fix himself up. He had 15 sickies a year and everybody takes them." Mr Rhodes had then explained that even if he had 15 sickies, the applicant was obliged to honour his Behaviour Agreement and report to Employee Relations.

53 Mr Saunders did not deny that the applicant's son had contacted the depot on 22 June, that the applicant had a doctor's certificate for the requisite period and that he had sick leave credit at the time. However, Mr Saunders did not accept that the applicant went to great lengths to ensure Council knew what was going on.

54 Mr Saunders was shown the applicant's sick leave record which disclosed that in a 12 months period prior to September 2002, the applicant had 34 days off and in the nine months after September 2002, he had 14 days. Mr Saunders agreed that this was an improvement.

55 Mr Saunders said that Council had waived the five days free visits to the Chief Psychologist, Brian Finton and asked that a longer program be put together to assist the applicant. He later learnt that the applicant had only attended one session of counselling.

56 In oral evidence, Mr Saunders deposed that the ultimate responsibility for terminating an employee's employment rests with the General Manager. In this case, Mr Saunders had made the recommendation after receiving a report from Mr Rhodes.

57 Mr Saunders said that when he recommended the applicant's dismissal, he took into account that he was legitimately sick in the four days from 22 to 26 June, that he had two doctor's certificates and that his family had contacted the Council on three occasions during the period. Mr Saunders agreed these matters were not included in the recommendation to Mr Domm.

58 Mr Saunders rejected a suggestion that Council acted on a technicality, in that the Award does not say an employee must personally notify Council of an absence.

59 Mr Saunders also rejected the proposition that the applicant was honest and open in his dealings with Council. Mr Saunders said the fact that the applicant was sick was not the point. He had failed to comply with his obligations under the Award and his Behaviour Agreement. This was at a time the applicant had been given considerable latitude. His responses about having 15 sickies and "when you're crook, you are crook" were unacceptable in this context.

60 Mr Saunders emphasised that the last four days of sick leave (which was regarded as unauthorised) was not the only issue relevant to the applicant's dismissal. He had been given numerous opportunities and warnings over two years. Mr Domm was aware of the applicant's history and circumstances when he made his decision.

61 Mr Saunders rejected a suggestion that Council was focusing more strictly on employees' sick leave records in recent times.

62 Mr Gregory Rhodes, the respondent's Employee Relations Manager, was the Council officer who had most contact with the applicant.

63 Mr Rhodes referred to a meeting with the applicant on 14 December 2001 in which the applicant acknowledged he had a drinking problem and that this was the reason for his absences. Mr Rhodes told him that a medical certificate must be provided for future absences and that the EAP was available free of charge for any personal or work related problems. At this time, the applicant was issued with a written warning.

64 Mr Rhodes met the applicant again on 14 January 2002 concerning a further absence about which he did not notify Council. The applicant said he had slept in, lost his medical certificate, taken pain killers and he didn't wake until 1.00am. Mr Rhodes told the applicant his attendance record was unacceptable and any further incidents would result in disciplinary action. He told him his job was on the line. A further written warning was issued.

65 Another meeting was held on 18 June 2002, which Mr Greg Golledge from the Union also attended. The applicant offered the following excuses for his continued absences. White ants ate my house and I had to move to a place in the next street..., I had a skin cancer cut off my back, I got mugged. I couldn't send my kids out to ring up at night because it's a bad area... none of the phones around here work, they're all broken..., I can never get on to Ray Oliver (Supervisor) when I need to let him know I won't be in.

66 The applicant failed to turn up to work on 6, 7, 8 and 9 August 2002. He was directed to attend a meeting with Council officers on 14 August, but failed to do so. He attended a meeting on 19 August. The applicant was asked why eleven absences in the previous two months were on a Monday. He was informed that he must personally ring and attend a medical assessment. He received a further second final warning.

67 The next month, the applicant's supervisor advised Mr Rhodes that the applicant had not turned up for work on 1, 2, 3 and 4 September and failed to notify his absences. The applicant was directed to attend a Council nominated doctor, but failed to attend. Mr Saunders directed Mr Rhodes to prepare and send the applicant a show cause letter. This resulted in the 17 September meeting with Mr Domm and Mr Saunders and the applicant signing the Behaviour Agreement.

68 On 19 January 2003, Mr Rhodes was advised that the applicant had failed to turn up for work and failed to attend the Employee Relations Section.

69 On 11 February 2003, Mr Rhodes met with the applicant again and asked why he hadn't complied with the Behaviour Agreement. The applicant claimed he was incapacitated with arthritis and couldn't move or walk. Mr Rhodes said he reread the Behaviour Agreement to the applicant. A final written warning was issued.

70 The applicant breached his Behaviour Agreement again on 13, 14, 15 and 16 April 2003 and failed to attend a meeting he was directed to attend on 29 April. The meeting was finally held on 2 May. The applicant said he had a doctor's certificate and had thought his daughter had phoned Council. Mr Rhodes told him that "it was not good enough and he remained unreliable despite all attempts to assist him." He received a final warning and was advised that a further failure to meet his obligations would result in him being dismissed.

71 The applicant failed to notify Council of further absences on 22 to 26 June. As a result he was suspended and directed to attend a meeting on 27 June. The applicant was asked to explain why he hadn't personally notified his absence or reported to Employee Relations. He said his son informed Mr Meini and he was "too crook to go to Employee Relations." His wife had phoned and told Council that he was going to the doctor the next day. Mr Rhodes reminded the applicant he had been warned on three separate occasions about complying with his obligations under the Behaviour Agreement. He had replied "when you're crook you're crook." Mr Saunders questioned the applicant further, to which he replied, "I have 15 sickies a year, why can't I take them, everybody else does."

72 Mr Rhodes replied that even if he had 15 sickies, he was still obliged to contact Employee Relations. The applicant was subsequently dismissed on the recommendation of Mr Saunders. Mr Rhodes had prepared the memo for Mr Saunders.

73 Mr Rhodes said that the applicant's attendance record had not markedly improved in the last 12 months of his employment. His sick leave record was unacceptably high throughout his employment from September 2002 to June 2003 as he had taken 14 sick days and 4 days without pay.

74 In cross examination, Mr Rhodes said that the applicant's excuses were not credible and he lacked candour. These views were part of the recommendation to the General Manager. Mr Rhodes did not think the recommendation would have been different if these views weren't expressed. The reasons for the dismissal were the applicant's history of ongoing breaches of the Award and his employment obligations.

75 Mr Rhodes conceded that the applicant may have been truthful, but his responses were not credible. Mr Rhodes gave evidence that Council did not seek to prove the applicant's excuses. It was up to the applicant to provide the proof. Mr Rhodes said it was possible all the applicant's excuses were true, but they were unacceptable. Mr Rhodes added that it was the applicant's view that if he had 15 sickies a year, he could take them.

76 Mr Rhodes said he was aware the applicant had an alcohol problem. He said he did not take into account whether the applicant was attending the EAP. Mr Rhodes agreed that the applicant did provide medical certificates for some of his absences.

77 Mr Rhodes agreed that in the last three to four years, Council had focused on excessive sick leave and implemented counselling and if necessary, disciplinary action. He said a Behaviour Agreement was a last resort.

78 Ms Angela Jones-Blayney provided an affidavit, but was not required for cross examination. Her evidence dealt with the two meetings she attended with Mr Rhodes and the applicant - 14 December 2001 and 14 January 2002. Ms Jones-Blayney's recollection of these meetings corroborates the evidence of Mr Rhodes and it is unnecessary to repeat it.

79 Mr David Jelfs gave evidence that from February 2002 to June 2002 he assisted Mr Rhodes in dealing with employment issues in relation to the Street Cleaning and Waste Services Department. During this period he reprimanded and counselled the applicant in respect to absences from work and/or failures to notify Council of his absences.

80 In June 2002, Mr Jelfs advised Mr Saunders of the applicant's absence without authorisation on 30 May 2002. On or about 18 June 2002, Mr Jelfs attended a meeting with Mr Rhodes, the applicant and his union representative, Mr Greg Golledge. His recollection of the meeting corroborated Mr Rhodes' evidence. On 19 June, Mr Jelfs advised Mr Saunders of the outcome of this meeting.

81 In cross examination, Mr Jelfs could not recall if steps were taken by Council to verify the explanations given by the applicant as to his absences, such as white ants had eaten his house, he had a cancer cut off his back, he had been mugged or whether his supervisors were uncontactable.

82 Mr Jelfs said he did not know if the applicant's supervisor, Mr Oliver, had specific instructions in relation to the applicant.

83 Mr Andrew Mieni was the applicant's supervisor. He gave detailed evidence of his contact with the applicant's family during the applicant's final absence between 22 to 26 June 2003.

84 At around 11.20pm on 22 June the applicant's son arrived at the depot and reported that his Dad was not well and was unable to work his shift. At no time had the applicant's wife notified the depot on 22 June. However, she did so the next day and said that her husband was sick with the flu and would be going to the doctor the next day. Mr Mieni said that, at no time, had the applicant's wife informed him that the applicant had already seen a doctor and obtained a medical certificate for 22 June.

85 Mr Mieni sent an email on 24 June to Mr Lutz Heimann, Supervisor, Cleaning and Waste Services. He sent another email on 25 June advising the applicant had failed to contact him or attend work on 24 June. At around 10.20pm, Mr Mieni received a phone call from a member of the applicant's family advising the applicant would not be at work on 25 June. Mr Mieni asked to speak to the applicant who said he was still unwell. Mr Mieni told him he was to contact Employee Relations. The applicant said he would do so the next morning.

86 On 26 June, Mr Mieni was instructed that if the applicant reported to work that night he was to be told he was suspended. On 27 June, Mr Mieni advised the Manager and the Department that the applicant failed to contact him or attend work on 26 June.

87 In cross examination, Mr Mieni said that when employees call in sick they normally indicate their illness. If not, he would ask the nature of the illness and for how long they might be expected to be off.

88 Mr Mieni said that when employees are sick or absent, they are not replaced and the other employees take up the gap. The streets still have to be swept and the Council is obligated under its contract to do all the work.

89 Mr Rich of counsel submitted that the applicant's termination of employment was harsh, unreasonable and unjust within the meaning of the expression considered in Byrne v Australian Airlines Limited (1995) 185 CLR 410 .

90 Mr Rich put that there was nothing about the applicant's last period of illness (22 - 26 June 2003) which justified the respondent's actions in dismissing the applicant. Moreover, the requirement of the respondent that the applicant enter into a Behaviour Agreement was in breach of the relevant Award provisions.

91 Mr Rich said that the effect of the dismissal was to impose substantial hardship on the applicant and his family. He is illiterate and has a problem with alcohol. There was no question that the applicant knew that sick leave was an issue. On the evidence, his sick leave record was improving. The applicant had an understanding that if he was legitimately sick everything would be okay. This understanding was critical to what occurred during his last illness. His supervisor knew he was sick and he had obtained medical certificates. Mr Rich submitted that if there was a breach of the Behaviour Agreement, it was a technical breach and should not have resulted in dismissal.

92 Mr Rich put that despite confusion about the medical certificates issued by Dr Bartipan, there could be no doubt that the applicant was genuinely ill from 22 to 26 June. Regardless of whether the certificates were wrongly backdated, the fact was that the applicant visited the Doctor on three occasions during that period.

93 Mr Rich questioned the reasons for the applicant's dismissal as set out in the letter of termination. He particularly took issue with the claim that the applicant's attendance record had not improved. Mr Saunders conceded that it had. Twelve months prior to September 2002 the applicant had 34 days off on 19 separate occasions and in the nine months after, 14 days on 4 occasions. This was a drastic improvement and demonstrated compliance with the Behaviour Agreement.

94 As to the applicant's failure to report to Employee Relations for referral for a medical assessment, Mr Rich said that such a requirement was contrary to the Award. In any event, the applicant was genuinely sick and it was unreasonable and inappropriate to require him to attend work for the purposes of an assessment, which he already had from his own doctor.

95 As to his failure to personally notify his absence, this was a mere technicality as the respondent knew he was ill and the reasons for his illness.

96 Mr Rich was critical of the proceedings in the final meeting between the applicant and Council officers. While the applicant was offered an opportunity to have the Union present, the fact was that he was on his own and the reactions and responses of an illiterate man must be seen in the context of the power relationship.

97 Mr Rich was critical of the General Manager's decision to dismiss the applicant in circumstances where the recommendation from Mr Saunders omitted matters such as the medical certificates, notification of the illness by his family and his sick leave credits at the time.

98 Further, the recommendation said that the applicant's responses were "lame" and "lacked candour" without the Council ever testing the applicant's excuses. The applicant was never told his excuses were not believed, nor was he given an opportunity to explain himself further. Mr Rich submitted that to the contrary, that the applicant was always open and honest - possibly too honest. He admitted to his alcohol and domestic problems.

99 Mr Rich said there were a number of matters which Council did not take account of, and should have. Firstly, that it was okay if he was legitimately sick to obtain medical certificates and inform Council of his illness. Secondly, that the respondent did not have due regard for the applicant's alcohol problem and relied on technicalities to dismiss him.

100 Mr Rich submitted that the applicant knew he was on his last chance, but that chance had been wrongly taken from him. He now seeks reinstatement and compensation for lost remuneration.

101 In supplementary submissions, Mr Rich made further comments on certain aspects of the evidence. He put that the difference in Dr Bartipan's handwriting in his notes of 22 June could be explained by the Doctor taking time, after his running notes during a consultation, to add to his notes. Mr Rich said that despite the Doctor's unusual practices and his evasiveness, his ability as a doctor was not in question.

102 The Doctor's later notes in July 2004 do not reveal the Doctor as an advocate in the applicant's cause. On the contrary, he was reluctant to come to the Commission as a witness.

103 Mr Rich addressed again the Award requirements on sick leave. He said that even though the employer could offer better conditions than the Award provides, it cannot derogate from the conditions in respect to sick leave. Notwithstanding any role of the Union, the applicant signed the Behaviour Agreement because he was under pressure and wanted to keep his job. Mr Rich said it must be unreasonable to terminate an employee's employment for a failure to meet requirements that derogate from the Award. Moreover, the applicant had met all of his obligations.

104 Finally, Mr Rich said that when examining the chronology of events, it was not every occasion where he was absent that the applicant did not contact the respondent or have medical certificates. Nevertheless, the record clearly shows the applicant's attendance record had dramatically improved.

105 Mr Pearce of counsel, opened his submissions by putting that there were three issues to be decided in this case. Firstly, was the respondent entitled to summarily terminate the applicant's employment? Secondly, if the answer is yes, was the termination harsh, unreasonable or unjust?; and thirdly, if the answer to question 2 is yes, was the applicant entitled to a remedy under Pt 6 ch 2 of the Act?

106 Mr Pearce put that the issue was not whether the applicant was sick on the days of his absences. Rather, it was the applicant's continued failure to adhere to agreements he had made and his wilful disobedience of the lawful and reasonable directions of his employer. See The Law of Employment (James J Macken et al, The Law Book Company Ltd, 3rd Edition, 1990). In any event, one would have thought that if he was genuinely ill on all the occasions he was absent, the applicant would have produced more than three medical certificates.

107 Mr Pearce elaborated on the three reasons for the applicant's dismissal. He said that the applicant had not met his obligations under the Award or the Behaviour Agreement, freely signed by him in September 2002. There could be no doubt that the applicant's conduct was wilful. He had been warned on numerous occasions as to what was expected. He had signed a third and final warning knowing his continued employment was at risk.

108 Mr Pearce said the applicant's own evidence demonstrated his wilfulness. He deliberately chose not to comply with the Behaviour Agreement because he had an entitlement to sickies and he was intent on using them. Mr Pearce added that the Behaviour Agreement was completely consistent with the Award and its generous sick leave provisions. The obligation under the Award plainly states that it is the employee who is to notify Council of any absence. The requirement to attend a medical assessment is open, at any time, under the Award. Of course, these provisions would be read reasonably. They were reasonable and necessary having regard to the history of the applicant's unauthorised absences.

109 Further, Mr Pearce put that the requirements under the Behaviour Agreement were reasonable, having regard for: 1. The applicant's agreement to comply with its terms. 2. The applicant waived his right to Union representation at the time he agreed to the Behaviour Agreement. 3. The applicant understood the seriousness of the situation. 4. The applicant never disputed whether the Agreement was unfair or unreasonable. He always made other excuses. 5. The evidence was that the applicant was not singled out for special treatment. Other employees were on similar agreements.

110 Even in the last episode of absence, the agreement was not unreasonable as the applicant went to his own doctor. There was no reason why he couldn't go to the Council's doctor.

111 The other requirement, that the applicant attend counselling, was also not unreasonable, bearing in mind particularly the employer's responsibilities under the Occupational Health and Safety Act 2000.

112 Mr Pearce submitted that the applicant's intention to repudiate his employment contract was evident almost from the time he was made a permanent employee. When dismissing the applicant it was permissible for the respondent to have regard for that history of incidents, see Hornsby Shire Council v Hunt (2002) 115 IR 41.

113 Nothing could be clearer from the letters to the applicant as to what was expected of him. The applicant was given more than one "last chance." Council had weighed up the applicant's personal circumstances and the fact he had eight warnings. It wasn't correct, Mr Pearce said, to put that his record was improving. His sick leave was excessive. He simply went from a hopeless situation to a semi hopeless one.

114 Mr Pearce put that in light of the applicant's frequent expressions of wanting to improve, the Commission could not be satisfied that he would. He demonstrated no remorse. He might feel sorry for himself, but he made no effort to appreciate the problems he had visited on his wife and children.

115 Mr Pearce referred to the only medical certificate for the last period and the absences on 6 August to 12 August and 28 August to 2 September, 2002. Obtaining other medical certificates would not have been difficult. The onus was on the applicant to obtain them. In the end however, this was not a case about an employee's excessive absenteeism.

116 Mr Pearce criticised Mr Rich's conclusions on the applicant's sick leave record in Annexure T to Mr Rhodes' affidavit. The only conclusion to be drawn was that the applicant very rarely produced medical certificates to explain his absences.

117 Mr Pearce put that the Commission was entitled to have regard for matters which became known after the applicant's dismissal. He said it had become known that the applicant had failed to attend counselling sessions as required by the Behaviour Agreement.

118 As to the applicant's medical condition, the respondent could not say that his condition didn't exist, as it had no opportunity to have him medically examined. However, given the unconvincing evidence of Dr Bartipan, there must be real doubt as the applicant's medical condition. Mr Pearce referred to the curious entries in Dr Bartipan's notes, the backdating of certificates, that the applicant knew Dr Bartipan would be in his surgery on a Sunday and walked from Glebe to Alexandria when he hadn't been near him for eight years. In light of this evidence, it was the respondent's submission that the visit to the Doctor on 22 June did not occur.

119 Moreover, Mr Pearce put that Dr Bartipan was unprofessional and disrespectful and was prepared to be less than truthful when he denied having a conversation with the applicant only two weeks earlier. He denied such a conversation until confronted with his own notes.

120 It was open therefore, to question the bona fides of the applicant's medical condition on that day and conclude that he simply got drunk and was unable to attend for work. Finally, Mr Pearce said that the applicant's claim for reinstatement, or any other relief under Pt 6 ch 2 of the Act, should be dismissed.

121 Mr Rich submitted that even if the direction to attend the respondent's doctor was lawful, it was not reasonable in circumstances where he had attended his own doctor and obtained a medical certificate. It was not reasonable to expect him to attend work to see a doctor during the course of his illness.

122 Further, Mr Rich put that there was no basis for requiring the applicant to personally notify the Council of his absence. The purpose of the clause in the Award is to put the employer on notice. That is what occurred during the last episode of illness. In these circumstances, a failure to personally notify was a technicality and did not go to the heart of the employment contract, let alone justify summary dismissal.

123 Moreover, the applicant believed that if he was legitimately sick everything would be okay. He did not think that he could take sick leave merely because he had an entitlement. The respondent had not fairly characterised what the applicant had said.

124 As to the lack of evidence concerning medical certificates, Mr Rich said that the respondent had been efficient in prosecuting each of the applicant's alleged Award breaches, but hadn't done so in respect to the medical certificates. This goes some way to demonstrating that medical certificates may have been provided.

CONSIDERATION Meaning of harsh, unreasonable and unjust

125 Where the employer discharges the onus to prove allegations made against an employee, it is then incumbent on an applicant to discharge the onus of satisfying the Commission that his/her dismissal was harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273). A finding of whether a particular dismissal is harsh, unreasonable or unjust is a mixed question of fact and law. In my view, there can be no doubt that the respondent has discharged the onus of proving the allegations against the applicant.

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'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

128 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: 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.

129 In this case, the Commission found the applicant's circumstances to be very sad and distressing. He is illiterate and has a serious alcohol problem which, in truth, cost him his job. The consequence of this was a bust up of his marriage in which he was forced to leave his wife for some months. The only bright spot is that the applicant and his wife are now reconciled. The applicant has not found any work since his dismissal on 1 July 2003. He has received some income through sickness benefits. He and his wife support six children who live at home, four of whom are dependant. His age and lack of skills make it difficult for him to obtain future employment.

130 I agree with Mr Pearce that there is reasonable cause to have some sympathy for the applicant's circumstances. I too feel very sorry for the applicant and sympathise with his personal and employment history. However, notwithstanding my sympathy for the applicant, the Commission must apply itself to an objective assessment of ensuring justice is afforded to all parties. This will require a judgment of the respective parties' duties and obligations in the employment relationship and a balancing of their respective interests.

131 During two and a half years the applicant had 45 days absent on 24 occasions. He received eight written warnings about his attendance record. He was placed on a Behaviour Agreement which he failed to honour less than two months later. The question must then arise, at what point can an employer's tolerance of an employee's poor work attendance and his broken promises to improve and seek counselling, be exhausted?

132 In my judgment, no strict or rigid test can, or should be applied. Factors to be taken into account include inter alia, the reasons for the absences, the employee's record and length of service, whether a notable (and, I emphasise, notable) improvement has occurred and the personal and family circumstances of the employee.

133 In my assessment, the respondent displayed commendable patience and tolerance in respect to the applicant's attendance record. Despite continued promises to notify Council of his absences, attend medical assessments and counselling, he simply failed to keep his side of the bargain. The respondent understood he had an alcohol problem and offered him assistance through the EAP. By giving him eight written warnings, the respondent was, in my view, demonstrating a more than sympathetic approach to the matter.

134 The issue, of course, is not only that the applicant had numerous sick leave absences, but that when he took leave, he failed to notify the Council. In the last few months of his employment, the applicant breached the very undertaking he committed himself to in his Behaviour Agreement; namely that he would personally notify the Council of any absence.

135 I would reject Mr Rich's proposition that it was unreasonable for the applicant to attend Council's doctor during his period of illness. It would be unreasonable if the employee was incapacitated. But in this case, the evidence was he had attended his own doctor, on at least two occasions during the final episode of illness. This begs the obvious question - if he was capable of visiting his own doctor, why couldn't he have complied with his obligations under the Behaviour Agreement? The point is even more forcefully made, in circumstances which the applicant knew were most serious and might result in disciplinary action.

136 Mr Rich submitted that the directions of the Council and the Behaviour Agreement if not unlawful, were certainly unreasonable having regard for the Award provisions. I do not accept this contention.

137 Firstly, the express provisions of cl20.3 make it plain that it is the employee who is to notify the Council of any absence - no one else. Of course, this provision should be applied sensibly and reasonably. However, the applicant was under no illusions that his attendance record was being closely monitored and he must ensure compliance with the terms of the Agreement he freely entered into. In passing, I should note that I do not accept that the applicant was unaware or unsure of the terms of the Behaviour Agreement.

138 Secondly, cl20.4 of the Award allows the respondent "at any time" to direct attendance to its own doctor. Again, as I said earlier, the provision should be applied sensibly and reasonably.

139 Thirdly, the applicant was required to attend counselling for his alcohol problem. It was not disputed he had attended only one session. It seems to me that the applicant made little or no effort to address his underlying poor attendance record - his alcohol problem.

140 Having regard for all the circumstances, I am satisfied that the respondent's reasons for dismissal have been demonstrably made out and there were no breaches of the Award.

141 Even accepting that the applicant might have been genuinely sick between 22 and 26 June 2003, I have some doubt as to whether the applicant had obtained a legitimate medical certificate for the full period. The applicant's explanation of his movements on Sunday 22 June are implausible.

142 He claimed he was sick with influenza and acute tonsillitis. However, he said he walked to his Doctor from Glebe to Alexandria on a Sunday, not knowing whether the Doctor was even there. I am profoundly troubled by the doctor's notes tendered as photocopies in Exhibit 5. The entry of 22 June says, "I was doing paperwork when patient came to see me at 2pm." That was the extent of the entry - no reference was made as to why the applicant attended, nor what was prescribed. Significantly, the note is written in the past tense. It would not take a handwriting expert to conclude that the entry is in a completely different style and form than every other entry on that page of the notes. There is no explanation as to why this was so.

143 Two medical certificates were produced in evidence for this period. Dr Bartipan said there were three - the missing one is that for 22 June. In view of what I have just described, I do not believe there was any medical certificate issued on 22 June, because I doubt the applicant attended on the Doctor on that occasion. It also seems particularly curious that the Doctor would issue two later medical certificates for the same condition to cover the same period of absence.

144 Moreover, the Doctor's notes disclose that when a certificate was issued he wrote 'WC' in the entry. The applicant said he received a certificate on 22 June. Indeed, the certificates do show he was sick from that day. It is curious, however, that 'WC' is not notated for the entry of 22 June. It is however, noted in the Doctor's usual handwriting for a consultation the next day, 23 June.

145 There are other inconsistencies in the evidence of the applicant and Dr Bartipan. The applicant said he visited the Doctor on 26 June for a vitamin injection and he told the Doctor he was fit for work. However, the Doctor's notes for that visit record a diagnosis of exacerbation of tonsillitis and influenza for which he issued a medical certificate.

146 The applicant provided only three medical certificates for 45 absences on 24 occasions. The onus was on the applicant to secure the evidence that there existed other medical certification. For the applicant to say that there may have been medical certificates is not good enough.

147 Notwithstanding these comments, whether the applicant had taken excessive sick leave or not, is not the decisive influence in this case, nor was it for the Council. What was, and must be considered is the applicant's totality of employment in the context of the promises he had made to comply with his Behaviour Agreement and the terms of the Award.

148 I deal lastly with Mr Rich's submission that, contrary to the respondent's allegation, the applicant had in fact drastically improved his absenteeism record. Mr Rich contrasted 34 days off in the 12 months prior to September 2002 with 14 days off in the nine months after.

149 Strictly speaking, whether the applicant's record had improved was not the substantial reason for his dismissal. True it is, that Mr Rich's assessment is technically correct. However, I agree with Mr Pearce that this difference merely represented a shift from a "hopeless situation to semi hopeless one." As I said in Giannone v Australian Workers Union, New South Wales Branch [2003] NSWIRComm 418: In my opinion, the applicant's behaviour was consistent with a pattern of absences which rightly gave cause for alarm. Mr Law emphasised that the applicant's attendance record improved from the time she received the verbal warning in October to December 2002. Strictly speaking, that was so. However, the flaw in Mr Law's submission can be seen by observing that if an employee took 19 days off in a three month period compared with 20 in an earlier period, would that be found to be an " improvement ?" I hardly think so. I am inclined to agree with Mr Sparkes' comment " that it depends on what you mean by improved ." Even so, I do not believe, on any view of it, it could be said that the applicant's later record represented a " drastic" improvement in his absenteeism.

150 For completeness, I should say that there were no issues of procedural unfairness identified in this case. The applicant was fully aware of the allegations against him, had every opportunity to address the allegations, and in all formal disciplinary meetings, he was invited to have a union representative present. The fact that he chose not to cannot be held against the respondent.

151 In summary then, I find that the applicant's dismissal on 1 July 2003 was neither harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act. Accordingly I would decline to intervene in the respondent's decision to terminate the applicant's employment. The decision should stand.

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.

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