Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg and Roads and Traffic Authority of NSW [2009] NSWIRComm 14

195 More recently Boland J, President said in Alexander v Commissioner of Police [2009] NSWIRComm 3 at [39]: 39 Reference should also be made to what Watson J said in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233. His Honour articulated what has become a fundamental guiding principle that 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 and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence: I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] 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 95 at p 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. 196 It hardly needs stating that the summary dismissal of an employee for misconduct can have serious and sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261: 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.

and what Schmidt J said in Owens v New South Wales Police Service at p 12 and 13: I particularly reject the submission that it is not appropriate that Mr Owens' earlier problems in relation to forgery be taken into consideration, because to do so would be to "punish" him twice for the same offence. It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v Federated Ironworkers Association of Australia; Re York [1972] AILR 517 per Sheppard J). It would be in my view as inappropriate to ignore Mr Owens' earlier difficulties as it would be to ignore the commendable way in which his everyday work was performed. That was another practical demonstration of the personal attributes which are so important to the proper carrying out of a police officer's responsibilities. A balanced view of the matter needs to be taken into account. 243 It was further put that the disciplinary matters in 2004/05 had never really produced any final conclusive findings adverse to the applicant. That the applicant and the PSA accepted his transfer to Armidale and the warning letter makes plain that he had accepted his wrongdoings. I ask rhetorically, why would he accept these outcomes if he was totally innocent of the allegations? 244 Mr Gibian submitted that the decision makers in 2008 (Mr Boggon and Mr Stuart-Watt) could not rely on the issues in 2004/05 because they had not been involved at the time, and had relied on these matters as demonstrating patterns of inappropriate behaviour. Such a submission takes the applicant's case nowhere. How else were the 2008 decision makers able to consider earlier conduct, other than by reference to earlier files and reports? It demonstrates the very purpose of having complete and detailed records of an employee's service. 245 In my view, applying a balanced approach to all of the circumstances, the RTA was entitled to regard the applicant's continuing employment as an unacceptable risk to the health and safety of its other employees. Having so found, it had little option but to dismiss him. 246 After carefully weighing up the factors mitigating against the applicant's dismissal, including his age, economic and personal circumstances and the difficulty in finding employment in country locations, I have unfortunately concluded that these factors do not sufficiently outweigh the seriousness of the allegations and the concern as to the health and safety of other RTA employees. I consider that the risk of repeated incidents of the kind discussed in this decision is simply too great under present circumstances. I have also taken account of the two character references provided by the applicant, but note that they relate to the applicant's work performance well before the Grafton and Armidale incidents. 247 For all the forgoing reasons, I am unable to conclude that the applicant's dismissal was 'harsh, unreasonable or unjust' within the meaning of Pt 6 Ch 2 of the Act. In view of my conclusions in this matter, it is unnecessary for the Commission to consider the parties' submissions as to reinstatement, re-employment or monetary compensation.

(1990) 35 IR 70

(1992) 92 IR 32

(1999) 91 IR 385

(2005) 146 IR 113

(1938) 60 CLR 336

(1998) 85 IR 415

(2001) 105 IR 325

(1995) 87 IR 54

(1994) 55 IR 255

(1994) 47 FCR 300

(1995) 185 CLR 410

(1989) 27 IR 299

(2000) 103 IR 160

(2002) 113 IR 344

(1999) 90 IR 70

(1997) 72 IR 257

(2009) 119 IR 122

(1999) 47 NSWLR 151

(2002) 128 IR 37

(1995) 87 IR 57

(2002) 112 IR 212

(2001) 104 IR 415

(2004) 146 IR 441

(2007) 164 IR 225

(1990) 39 IR 46

(1976) 11 ALR 599

(1999) 90 IR 42

(1993) 51 IR 167

(1998) 87 IR 1

(2006) 151 IR 197

(1997) 72 IR 186

(2005) 145 IR 111

(2006) 151 IR 396

(1987) 22 IR 1

(1997) 73 IR 454

(2000) 100 IR 106

(2000) 100 IR 1

(2005) 146 IR 441

(2002) 119 IR 122

(1982) 3 IR 413

(1984) 7 IR 82

(1985) 12 IR 34

(1945) 70 CLR 635

(1933) 49 CLR 66

(1995) 62 IR 436

(1999) 92 IR 32

(2003) 128 IR 37

(1996) 72 IR 257

[2009] NSWIRComm 3

[2006] NSWIRComm 288

[2001] NSWIRComm 333

[2005] NSWIRComm 440

[2001] NSWIRComm 226