Paris v Bankstown City Council - [2002] NSWIRComm 46 - NSWIRComm 1999 case summary — Zoe

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Paris v Bankstown City Council

[2002] NSWIRComm 46

Industrial Relations Commission (NSW)|1999-01-22|Before: Sams DP, Grayson DP, Sheppard J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-01-22

Before

Sams DP, Grayson DP, Sheppard J

Catchwords

01/31/2002
02/01/2002 DATE OF JUDGMENT: 03/20/2002

Source

Original judgment source is linked above.

Catchwords

01/31/200202/01/2002 DATE OF JUDGMENT: 03/20/2002

Judgment (200 paragraphs)

[1]

CITATION : Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 APPLICANT PARTIES : The Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis RESPONDENT TNT Australia Pty Limited trading as TNT Express FILE NUMBER: 6551 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - serious misconduct - harassment and intimidation of supervisor - employer policies - procedural fairness - misconduct admitted - whether dismissal harsh - practicality of reinstatement. CATCHWORDS : Held, misconduct "out of the ordinary" - isolated incident - no evidence of similar past behaviour - conduct inappropriate and unacceptable, but not harassing or intimidatory - employee's otherwise good record of employment not given sufficient weight - concern at level of harassment policy training - dismissal found to be "harsh" and disproportionate to gravity of conduct - reinstatement ordered on conditions LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Paris v Bankstown City Council [1999] NSWIRComm 10, 22 January 1999 Electricity Commission of New South Wales t/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 Franklins v Webb, 72 IR 257 Standley v Electronics Boutique Pty Ltd (unreported, Sams DP, IRC4516 of 1999, 18 March 1999 Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000 Blyth Chemicals Ltd v Bushnell, 49 CLR 66 Hunt v Hornsby Shire Council (unreported, Grayson DP, NSWIRComm 242, 12 October 2001) John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) Jupiter Insurance Co., Ltd v Ardeshir Bomanji Shroff, All ER 1937 CASES CITED : Byrne & Anor v Australian Airlines (1995) 185 CLR 410 Burke v McGirr (1995) 87 IR 54 Oswald v New South Wales Police Service (1999) 90 IR 42 Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 5 Abboud v The State of New South Wales (Department of School Education), 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Wilson v Department of Education and Training, 100 IR 1 Leeds & Northrup Australia Pty Limited v Hull, 46 IR 11 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Hollingsworth v Commissioner of Police, 88 IR 282 HEARING DATES: 01/30/2002; 01/31/2002; 02/01/2002 DATE OF JUDGMENT: 03/20/2002

[32]

28 The applicant said he thought he was making phone calls to a friend as a joke. He thought the calls were funny. He didn't know if Mr Davis was asleep at the time. However, he knew Mr Davis had to start work at 4.00am. He was cross-examined on the contents of the messages and identified which messages were his. For relevant purposes the applicant identified the following extracts from the recorded messages as being his voice: 12.41am Voice 1 (Male): KFC again. We are just ringing about this molested chicken. (Background: [Stop it]) We are trying to find out what the problem is. Um, I think personally (Background: unclear) myself the chicken, the chicken, the chicken, the chicken cross…., never crossed the road. I don't know why it didn't cross the road but Baz will give you the information now. Voice (Female): (Background: Is that him?) Voice (Male): (Background: Why did the chicken cross the road?) 12.46am Voice 1 (Male): Al, we got three molested turtles. One, one has Kentucky Fried chicken stuck up of it; the other one has got a strap on and the other one has got me up it. I don't know what I'm going to do. I have never had a turtle before. (Background laughter and noises) I have never [indecipherable] Al. I need therapy. I need something, Al I'm telling yah, I can't take it any more (laughing in the background). Barry, Barry wants the fourth one. If you get one that's pregnant, Barry wants it - cause he loves them, badly. Sorry about, sorry about the slight inconvenience and I, I apologise, Barry (background noise). I apologise about the strap on. I will never use it again. Mate, if you need a bit of blue vein cheese, I will supply it. Over and out, bye. 1.27am Voice 1 (Male): Mrs Al, we are just ringing to apologise for any inconvenience we've caused. Um, I hope you understand but, um, you are a good lady and your husband is a good man and we are just having a bit of a um, aye yeah and um, yeah you know. We didn't mean any harm about all this and hopefully you will see the funny side of it and um, your husband is a good man and you are a good lady and I personally think yous are, you know, a good bunch of people and we, we, apologise if we did inconvenience you and Al can slap me around tomorrow if he finds me, or the day after, whatever, and um, as I said we were just having a bit of fun that's all. Have a good day, life or whatever and um, Pete said Al, Al, Pete said he loves you too, so does Barry - he wants your body. Barry says he wants your body. I don't know why but I reckon, I reckon he likes the bulge in your pants, personally, yeah but you know we got no control over the chicken and the turtles (music in background).

[189]

172 It is this remedy that Mr O'Brien pressed the Commission to order. I have had regard for what was said in Perkins v Grace Worldwide and applied in Hollingsworth v Police Commissioner 88 IR 282 as to the practicality of reinstatement: Finally on this aspect of the practicability of reinstatement of the appellant we refer with agreement to what was said by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive . Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. (Emphasis added.) That passage was applied by a Full Bench (Fisher P, Hungerford J and Bishop C) of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 and by another Full Bench (Hungerford and Schmidt JJ and Murphy C) in Oswald v New South Wales Police Service (unreported, NSW Industrial Relations Commission, IRC97/4130, 11 March 1999, pp50-51). It is appropriate to apply it again in the instant case.

Paris v Bankstown City Council

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Judgment (200 paragraphs)

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Cases Cited (8)