Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 - [2002] NSWIRComm 8 - NSWIRComm 1972 case summary — Zoe

NSWNSWIRComm

Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70

[2002] NSWIRComm 8

Industrial Relations Commission (NSW)|1972-09-14|Before: Sams DP, Sheppard J, Harrison DP, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1972-09-14

Before

Sams DP, Sheppard J, Harrison DP, Mr J

Catchwords

02/27/2001
04/05/2001
04/06/2001
04/26/2001

Source

Original judgment source is linked above.

Catchwords

02/27/200104/05/200104/06/200104/26/200107/11/200107/12/2001 DATE OF JUDGMENT: 02/06/2002

Judgment (184 paragraphs)

[1]

CITATION : Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 APPLICANT PARTIES : Jacqueline Youssef RESPONDENT Western Sydney Area Health Service FILE NUMBER: 4193 of 2000 CORAM: Sams DP Termination of employment - unfair dismissal - failure to follow lawful and reasonable directions of employer - employer's duty to employee - complaints against employer - misconduct - weight of evidence - witness credibility - procedural fairness - onus on employer. CATCHWORDS : Held, applicant's vendetta against other employees - applicant's improper conduct - failure to comply with lawful and reasonable directions - non co-operation of employee - applicant's evidence not credible - respondent entitled to take account of past behaviour and conduct - respondent's evidence preferred - respondent's duty to employee discharged - no matters of procedural unfairness - dismissal not "harsh unreasonable or unjust" - termination of employment warranted - application dismissed. Industrial Relations Act 1996 LEGISLATION CITED : Freedom of Information Act 1989 Occupational Health and Safety Act 1983 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Izdes v L G Bennett & Co Pty Ltd (1995) 61 IR 439 North v Television Corporation Ltd (1976) 11 ALR Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Byrnes v Treloar (1997) 77 IR 332 Day v Lumley Life, 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1999) 48 IR 296 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 185 CLR 410 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) Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287 Outboard World v Muir (1993) 51 IR 167 CASES CITED : Bankstown City Council v Paris (1999) 93 IR 209 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 57 Abboud v The State of New SouthWales (Department of School Education) (1999) 92 IR 32 Myers v New South Wales Police Service, 93 IR 123 National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported, Sams DP, IRC2056 of 1999, 9 February 2000) Herson and One.Tel Ltd (unreported, Sams DP, IRC5181 of 1998, 18 February 2000) Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported, Sams DP, IRC4592 of 1998, 7 May 1999) Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Wells and Lloyd Moffat Investments (uneported, Harrison DP, Matter IRC5662 of 1997, 6 May 1998) Franklns v Webb, 72 IR 257 Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000) HEARING DATES: 02/26/2001; 02/27/2001; 04/05/2001; 04/06/2001; 04/26/2001; 07/11/2001; 07/12/2001 DATE OF JUDGMENT: 02/06/2002

[108]

71 1) The onus is on the employer to prove the misconduct which it alleged. As a result of a number of decided cases of the Commission, this proposition is now well settled. The most oft referred to is in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70, and I quote from it: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

[110]

72 2) Did the applicant refuse a lawful and reasonable direction of the employer? It is trite law that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer. A failure to do so may constitute a repudiation of the contract and lead to the employer summarily dismissing the employee. In Izdes v L G Bennett & Co Pty Ltd (1995) 61 IR 439, Beazley J said at p451: In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct. In Clouston and Co Ltd v Corry [1906] AC 122, Lord James of Hereford stated at 129: There is no fixed rule of law defining the degree of misconduct which will justify dismissal". In Laws v London Chronicle (Indicator) Newspapers (Ltd) [1959] 1 WLR 698, Lord Evershed MR (Jenkins and Willmer LJJ agreeing) stated at 70: The question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. In Pastrycooks Employees v Gartrell White (No 3), Hungerford J in reviewing these, and other authorities stated at 74: Permeating all of those earlier cases on this aspect of the law was the concept that the act of misconduct or of disobedience had to strike at the fundamental aspect of the relationship of employer-employee so as to make it plain that the conduct complained of was such that the non-offending party may properly conclude that the offending party no longer intended to be bound by the provisions of the employment contract. In other words, so it seems to me, the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future. His Honour then said at p78: Summarising the law, then, as I see it according to the authorities, conduct justifying summary dismissal arises where the employee concerned has wilfully failed to obey the lawful and reasonable orders of the employer in such a way as to amount to an intention by the employee no longer to be bound by an essential condition of the contract of employment; in assessing an employee's intent, consideration needs to be given to whether he is acting reasonably, that is, with full knowledge of all the circumstances and in an honest and respectful way.

[112]

73 3) Did the misconduct constitute a repudiation of the contract of employment by the employee? Although an employee may be guilty of misconduct, non constat that the conduct will be of such gravity as to constitute a repudiation of the contract of employment by the employee. The notion of what might constitute an employee's repudiation of the contract of employment in the context of a summary dismissal has often been referred to. It was helpfully discussed, and I should say with some striking similarities to this case, in a judgment of the New South Wales Court of Appeal in Byrnes v Treloar (1997), 77 IR 332. In the judgment of Stein JA (with whom Gleeson CJ and Powell J agreed), his Honour described certain circumstances which justify summary dismissal (p335): It is clear that an employee may be summarily dismissed if she or he has acted in a manner which is incompatible with the employees' duty, inconsistent with her or his duty to the employer or in a manner which is destructive of the confidence between the parties, Blyth Chemicals Ltd v Bushnell (1953) 49 CLR 66 at 72, 81. It is apparent that the appellant refused to recognise the authority of the acting Executive Director (Mr Atterton) as well as his authority as President of the association. Bearing in mind the provocative content of the allegations the appellant made against him on 19 October 1992 (and its dissemination by the appellant) he was giving her a lawful direction to respond. In effect, she refused to obey any directions given by Mr Atterton in his capacity as President or in his capacity as acting Executive Director. Her refusal was deliberate and intentional and her failure to obey a lawful instruction went to the root or foundation of the contract of employment ( Adami v Maison de Luxe Ltd (1924) 35 CLR 143). Her conduct cannot be regarded as a merely trivial or mild form of insubordination or as a purely personal dispute. It was a direct challenge to the management of the association. Under the contract of employment the appellant was responsible to the Executive Director. … His Honour had the benefit of observing the demeanour of the appellant and the association's witnesses and to judge their respective credibility. His conclusions were well and truly open on the evidence. In particular, his Honour was entitled to conclude that the appellant's "entire course of action" between 19 October and 8 December 1992 was inconsistent with her continuing to be bound by the contract. She displayed intransigence, insubordination and disloyalty. These matters (individually or collectively) are sufficiently serious to justify summary dismissal. I refer also to North v Television Corporation Ltd (1976) 11 ALR where Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The reference to the 1959 English case Laws v London Chronicle (Indicator Newspapers) Ltd makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be "wilful": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (p288).

[114]

74 4) Was the respondent entitled to take account of the applicant's long history of non-cooperation and overall employment record? In cases where misconduct is admitted, or proven to have occurred, a dismissal might still be characterised as "harsh" having regard for the severity of the misconduct and other mitigating factors. Put in common parlance - "did the penalty fit the crime?" This principle was expressed in Electricity Commission of New South Wales t/as Pacific Power v Crump , (1993) 48 IR 296 at p302: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal . The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics) See also Busways v Johnson (1994) 55 IR 255 and Byrne & Anor v Australian Airlines .

[115]

75 Just as the employer is entitled to have regard to, and take account of an employee's otherwise exemplary record of employment when considering whether dismissal is warranted, the reverse must equally apply. In 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) his Honour said: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that here is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. In Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16, Cook J said at p27: … In my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to the observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve, I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement …

[117]

76 4) Was the dismissal "harsh, unreasonable or unjust" within the meaning of the Act? The relevant provisions of the statute - Pt6, ch2 of the Act - describe an unfair dismissal as one which may be "harsh, unreasonable or unjust". It is now well settled that each of these words has its own discrete meaning and has different implications in an industrial context. The lead authority for this proposition is to be found in Byrne and Anor v Australian Airlines (1995) 185 CLR 310, where the High Court considered the expression "harsh, unreasonable and unjust"; albeit in the context of an Award provision. In their joint judgment, McHugh and Gummow JJ said at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its 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. 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'.

[127]

79 The principle has been recently reaffirmed in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 where the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . The Commission intends to apply these principles to the facts and circumstances of this case.

[173]

Rather than summary dismissal, the respondent took the less draconian step of dismissal on notice. Summary dismissal for misconduct has other serious immediate and long term implications for an employee. These implications were discussed in Franklins v Webb , 72 IR 257 at 261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. I also refer to my comments in Hill v Department of Juvenile Justice (unreported, Matter IRC6474 of 1999, 27 July 2000): The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously affect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. The respondent's patience and sympathetic concern has now been turned against it by a claim it breached its own policy. Such a proposition is disingenuous in the extreme. Rather than criticise the respondent, I find it acted with commendable sensitivity and fairness. In any event, as Mr Britt correctly acknowledged, if the applicant's conduct amounted to gross misconduct then three warnings would be unnecessary. In view of my findings as to the applicant's conduct, the failure to issue warnings is moot.

Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70

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