Rowan Hutchinson v Walcha Council

Rowan Hutchinson v Walcha Council - [2016] NSWIRComm 1006 - NSWIRComm 2015 case summary — Zoe

[3]

Council's Reasons for Dismissal

Shortly stated, Mr Hutchinson's termination followed Council's consideration of an extensive range of conduct and performance issues that had been raised with him over the course of his employment, including the following: 1. Performance Management that gave rise to the first and second formal warnings. 2. Failure to comply with directions generally. 3. Works Program Development - not completed despite three extensions during October 2014. 4. Works Roster - requirement to present to the Director Engineering Services a weekly roster displaying all Council works resources split into crews with individual resources, weekly tasks, work order number and task completion dates was not completed by 14 October 2014 and the extension date of 24 October 2014. 5. Personal appearance and corporate image - Council acknowledged that some improvement made concerning the requirement to attend work in a neat and tidy fashion, including Mr Hutchinson not wearing a creased shirt and a hat whilst in the office. However, Mr Hutchinson's comments made in correspondence dated 10 October 2014 concerning the improvements sought demonstrates that he has no respect for Council's corporate image, customer service or representing Council in a professional manner. 6. RMS Contract - Council contended Mr Hutchinson's statement that there was no prior indication RMS would terminate its contract with Council was incorrect. Rather, the comments raised by RMS solely related Mr Hutchinson's poor performance and his failure to communicate with that organisation as demonstrated below: At a meeting held with RMS and Council Wednesday 22 October 2014 Council, Mr O'Hara was advised the following: "I am going to be brutal with what I have to say: RMS has no confidence Walcha Council is performing in any way and whether it can perform the RMCC contract. RMS has not received Q4 (June 2014 documentation). RMS has not received RMAP 2014/2015 Q1-Q4 Projections requested in June. RMS have not received Q1 (September 2014 documentation). RMS have received no resurfacing or heavy patching schedules which were requested for the second time 24/9/14. RMS have not received any information that was requested for the pricing of the rehabilitation works which was requested 5 weeks ago. G Registration still outstanding. Effectively Council has not communicated with RMS - what's the go. Should you not be able to demonstrate you can perform the works will be issued to others." 1. 2013/14 RMCC Reporting - a very poor attempt was made to provide a summary of the 2013/14 RMCC works including cost over-runs and the reasons for such over-runs by 1 October 2014. Such information is contained within the Council's finance system. Mr Fanning was required to complete this task. Council considered Mr Hutchinson's show cause response "no accountability for management of your projects and budget control" had not been satisfactorily addressed by Mr Hutchinson. 2. Completion of 2014/15 RMAP Q1-Q4 Projections - this task was not completed as required by 31 July 2015 despite an email request from RMS dated 19 June 2014 and further requests on 25 September and 16 October 2014. Council considered Mr Hutchinson's response, "It is not my responsibility to determine the costs" demonstrated a lack of responsibilities and his show cause response did not demonstrate why this particular task was not completed. 3. Resurfacing or Heavy Patching Schedules - Council considered Mr Hutchinson's failure to provide these schedules to RMS as requested by 23 September 2014 demonstrated a complete lack of accountability, responsibility and respect for process and requests from other government departments. Council also considered the standard of Mr Hutchinson's "paperwork" concerning this task demonstrated incompetence and a lack of understanding "how the contract works". 4. Segment 3340 - Narrow Section Widening Works - Council's request for Mr Hutchinson to provide preliminary estimates for these works to RMS by 29 August 2014 was not completed. Mr Hutchinson's response dated 4 November 2014 explaining why this commitment was not delivered "blamed everyone else" for the lack of action. 5. G Registration - Mr Hutchinson's failure to complete the outstanding G Registration following requests made by Council on 17 December 2013, 26 March and 19 May 2014 and brought to Mr Fanning's attention on 5 August 2014 "clearly demonstrated" his incompetence as a Works Manager and complete lack of understanding of the process and responsibilities of the role. 6. Demonstrating how you schedule works and perform estimates - Council contended that Mr Hutchinson's failure to comply with a direction to provide a works schedule and costings and how he proposed to man, schedule, resource and cost control for three bridge projects by 13 and later 20 October 2014 (following a discussion on 1 October 2014) demonstrated: * He failed to show how a job was planned. * The standard and level of effort performed was not of the standard expected by a works manager. 1. Moreover, Mr Hutchinson's claims that he had successfully completed three bridges and achieved a margin of $150,000 were false as the works were incomplete. The bridges were well over budget reflecting Mr Hutchinson's lack of planning skills. 2. In relation to a cycle event conducted in the Walcha Council area, Council contended Mr Hutchinson did not obtain written approval from the NSW Police as directed or the Uralla Shire.
Council also contended Mr Hutchinson had no authority to exceed budget expenditure approvals without further approval. This concern was also addressed during a meeting between Mr Hutchinson and Mr Fanning on 5 August 2014.
Council considered Mr Hutchinson's contention that a guard rail was not required on Blake's Bridge was inconsistent with the Ausroads Standardised Bridge Barrier Design Guide 2013 as AS5100 and was evidence of his lack of consideration and professional diligence.
It was against the above backdrop that a third and final warning was issued to Mr Hutchinson on 22 October 2014 for his failure to comply with reasonable directions. That warning (Attachment "L" to Ex 1) also stated Mr Hutchinson was required to carry out the following directions by the close of business on 24 October 2014:

Present to the Director Engineering Services a works program developed in MS Project for all capital works for the 2014/15 financial year. This program was to include scope, estimates, and proposed delivery times and resourcing for all projects. Estimates were required in excel format and designate resource levels for staff, machinery and materials.
Present to the Director Engineering Services a weekly works roster displaying all Council works resources split up into crews with individual resources, weekly tasks, work order number and task completion dates. This particular warning also stated that Mr Hutchinson's failure to comply with the 24 October directions would result in further disciplinary action "and is likely to include termination of your employment." The requirement for compliance was subsequently extended to 27 October 2014.

In correspondence dated 5 November 2015 (Attachment "P" to Ex 1), Council considered Mr Hutchinson's response to the directions issued on 22 October 2014. Council determined that Mr Hutchinson had not demonstrated a reason why he had not complied with the previous directions and perform his role as Works Manager to a satisfactory standard. Mr Hutchinson was formally requested to show cause why his employment should not be terminated as a result of his failure to comply with reasonable directions and to perform his duties as Works Manager.
Council considered Mr Hutchinson's conduct demonstrated that he had refused to take directions or any responsibility or accountability in exercising his role as Works Manager. Council also advised Mr Hutchinson that his poor performance concerning the RMS contracts could result in the overall loss of $1 million in works and 4 EFT staff.
The show cause request squarely noted that Mr Hutchinson had shown complete disrespect towards Mr O'Hara and the organisation in general.
Mr Hutchinson's response to the show cause was due by 5:00 p.m., 12 November 2014. In the interim, Mr Hutchinson was stood-down on full pay.

[4]

Mr Rowan Hutchinson

Mr Hutchinson provided his show cause response in correspondence to Council dated 12 and 13 November 2014.
Mr Hutchinson prefaced his response by stating that Mr O'Hara should disqualify himself for making any further decisions concerning his employment and Council's concerns about his performance on the grounds of bias. He further observed that Mr O'Hara could not decide the matter in a manner "that will stand up under scrutiny in the Supreme Court or New South Wales Industrial Commission". He further stated that he had only spoken briefly with Mr O'Hara concerning his employment and any comments made verbally or in written form were not intended to be disrespectful to him. Rather, they were presented in his defence and were intended to be "as factual as possible".
The show cause response alleged that Mr O'Hara himself was "completely and directly responsible for any problems with presenting costs to RMS." In that regard, Mr Hutchinson alleged that the Council's accountant did not provide the required costs and "neither did you (Mr O'Hara) in his absence and Council's financial systems has major problems." He further alleged that Mr O'Hara gave him the incorrect costs for the routine maintenance for the RMCC contract for 2013/14. He further stated that actual costs were required to be reported to RMS.
Mr Hutchinson contended that since commencing his employment in December 2013 he had successfully delivered and managed the following projects:

The construction of three bridges, those being Blake's Bridge, Bergen Bridge and Glen Morrison Bridge. He noted that the estimates for these bridges had been produced by Mr McCoy.
The RMS/RMCC contract achieving a margin of at least $150,000 for Council on the RMS "ordered works". Such works included bitumen resealing, heavy patching, guard rail and signage work. Over-expenditure on routine maintenance works in 2013/14 had enabled Council to be "bailed out" financially as it lacked funds at the time to keep Council employees in a job.
There was no indication from RMS that they proposed to terminate the RMCC contract with Council.
The failure to finalise the routine maintenance cost for the RMCC contract for 2013/14 was the responsibility of Mr O'Hara on the grounds that he had failed to provide the relevant financial data. Accordingly, the RMCC/RMAP for routine maintenance over 2014/15 could not be completed until the cost of the 2013/14 works had been finalised.
The Council and RMS bitumen resealing program for 2013/14 were both successfully completed.
The necessary approvals for the Walcha area cycle event had been obtained as required by Mr O'Hara.
The RMS repair works for the Thunderbolts Way was completed in record time over 4 days with a 6% cost over-run. Mr Hutchinson considered this project as one of the best ever completed by Council. However, he noted that both Mr O'Hara and Mr Fanning were critical of the result.
The Streetscape Project for 2013/14 was successfully completed.

Mr Hutchinson's show cause response dealt with the particular allegations raised by Council in a detailed form. However, prior to formally dealing with those issues, he informed Council: A. I will bring and and (sic) action for unfair dismissal seeking reinstatement and compensation. B. You will generate a large amount of adverse publicity for Council. C. There will be a public hearing of the case in Walcha or Tamworth. D. I query whether you can successfully complete the scheduled works on Thunderbolts Way and Oxley Highway as you will not have the necessary engineering expertise and management to do so. Unless of course you think you or Fanning can do it. And in case you had not noticed, engineering staff did not want to come to Walcha.
Referring to the specific concerns of Council, Mr Hutchinson prefaced his comments by stating that Mr McCoy was very pleased with his services. However, Mr O'Hara and Mr Fanning claim that he had failed to adequately respond to what was termed "reasonable directions" which, in his view, simply amounted to bullying by Mr O'Hara. In that regard, Mr Hutchinson contended that Mr O'Hara had overloaded him with work and given unreasonable and unagreed deadlines. He further contended that Mr O'Hara had virtually no understanding of road maintenance or construction work or the management of the RMCC road maintenance contract.
Mr Hutchinson stated that the 6% expenditure overrun on the Thunderbolts Way project was due to additional traffic control and diversion costs that were not originally allowed for. He stated that Mr McCoy had authorised the additional traffic control and diversion.
Shortly after Mr Fanning commenced with the Council, he asked Mr Hutchinson to undertake certain estimating work. However, Mr Hutchinson stated that he was unable to undertake much of this work because the projects had not been "scoped". He further contended that he was unable to scope RMS projects by himself as he required considerable input from RMS. Despite these explanations Mr Fanning remained critical of his performance.
Mr Hutchinson considered Mr O'Hara did not understand what was required of "scoping the work" because he was not a professional engineer.
Mr Hutchinson contended he had responded to the Work's Supervisor, Mr Paul Lordanic's grievance and that response "will be determined by a Commission / Court to be NULL AND VOID AND OR NO EFFECT". Mr Lordanic was provided with the correct bridge guarding drawings in accordance with the relevant RMS standard.
There was no requirement to put a guard rail on Blake's Bridge because it was not a new bridge. Rather, the bridge deck was replaced and it did not previously have a guard rail.
Mr Hutchinson contended that by providing him with deadlines in the absence of his agreement to them and by passing his supervisor, Mr Fanning, Mr O'Hara was providing those directions for his own purposes. Mr Hutchinson regarded this action by Mr O'Hara as bullying.
Mr Hutchinson contended his various responses to Mr O'Hara could not be regarded as an indication that he was unwilling to accept reasonable directions. In that regard, Mr Hutchinson asserted:

The direction that he wear an ironed shirt and not wear a hat inside the office was unreasonable.
Council estimations can be undertaken manually with a "pen and paper or by utilising an estimating software package.
Council did not have a proper estimating package for large projects.
It was not his job to set up an estimating package using Microsoft Excel.

In relation to deadlines, Mr Hutchinson stated he could not be held accountable for deadlines that he had not agreed to. Moreover, it was his view that Mr O'Hara could not unilaterally determine such deadlines.
In relation to his alleged failure to comply with reasonable directions, Mr Hutchinson contended the direction that he clean up his desk had been met.
Mr Hutchinson further informed Council that he would not be held accountable for any "unreasonable or unagreed deadlines." Unilaterally determined deadlines were in his view, "meaningless".
The 1 October 2014 meeting between Mr Hutchinson and Mr O'Hara was evidence of the fact many of the Council's capital works projects could not be estimated because they required design and other scoping.

[8]

Completion of 2014/15 RMAP

Mr Hutchinson contended that this particular matter confirmed that Mr O'Hara had "no idea about the RMCC Contract". In that regard, Mr Hutchinson explained in his show cause response: The 2014/15 RMAP cannot be completed before the 2013/14 costs for routine maintenance have been finalised. This I understand has only just occurred and I am not sure if the final costs have been accepted by RMS. There were still ongoing issues in the week you suspended me. Funds available are reduced by the over expenditure for the 2013/14 financial year. You had been informed of this and the importance of finalising the routine maintenance costs for 2013/14. Clearly, this task could not be completed.
In response to alleged over-expenditure on RMCC works, Mr Hutchinson told Mr O'Hara: Your comments demonstrate that you are not in the real world - only Council World. The costs may exceed the budget on RMCC works for numerous reasons. You do not understand the contract and are essentially a counter of beans. The incorrect funds cannot be used as they determine what work can be planned. If the wrong funds are used the RMAP is essentially useless. The problem was clearly caused by you in not trialling the costs for 2013/14, so don't try and transfer that problem to me - I WILL NOT ACCEPT IT.
Mr Hutchinson considered the expenditure problems were caused by Council diverting labour and other resources to the "RMCC routine maintenance works" because it had expended all of its own funds prematurely. In that regard, Mr Hutchinson contended Council was relying on RMCC over-expenditure to keep its own staff productive. He identified that the cause of Council's over-expenditure was their accounting system because it was unable to provide "all inclusive up-to-date costs". Mr Hutchinson also suggested the problem was not helped by the fact that Council's accountant was on extended leave.
Mr Hutchinson asserted Mr O'Hara's statements concerning cost over-runs on the RMCC contract "is just nonsense as I would expect".

[11]

Demonstrating how I schedule works and perform estimates

Mr Hutchinson contended Mr O'Hara was wrong concerning the bridge project estimates. Mr McCoy had provided those estimates and he simply provided those estimates for the Blake's Bridge project to Mr O'Hara.
Mr Hutchinson stated he had provided cost estimates for the completion of the three new bridges which was a significant achievement for Council.
In relation to the allegation that he had not complied with Council's purchasing policy, Mr Hutchinson stated: It is not my job to prove to you that I have complied with Council's purchasing policy. If you have allegations - make them. You are too frightened to do so because either you don't have them or you know you will be shot down in flames on those allegations.
Mr Hutchinson contended Mr O'Hara was a bully and the various directions given to him were, on the whole, unreasonable, particularly given the unilaterally determined time frames. Mr Hutchinson considered he had carried out the duties of the Works Manager in a satisfactory manner and "most of the work you directed me to do was a waste of time".
Mr Hutchinson stated that up until the time Mr McCoy left the Council in August 2014, he had not received any communication that he was not performing his duties competently. He did, however, note that his probationary period was extended for two months for reasons related to his personal computer use at work and the making of personal calls on his Council provided mobile phone. He defended the use of the personal computer on the basis that there were a number of websites that he was required access to during the course of his work and they could not or were difficult to access through the Council system. He further considered his personal calls made during work time were minimal.
The following correspondence concerning Mr Hutchinson's conduct and performance was attached to his Statement:

Correspondence from Mr O'Hara dated 24 September 2014 concerning a grievance complaint by a co-worker. That correspondence also alleged Mr Hutchinson had demonstrated further poor performance and conduct which was "frankly disrespectful".
Correspondence from Mr Hutchinson to Mr O'Hara dated 25 September 2014 in response to Council's correspondence dated 24 September 2014.
Further correspondence dated 25 September 2014 from Council to Mr Hutchinson.
Correspondence from Mr Hutchinson to Mr O'Hara dated 26 September 2014 concerning the grievance made by Mr Lordanic.
Correspondence dated 1 October 2014 addressed to Mr O'Hara concerning the misconduct allegations and a further letter the same day dealing with some additional matters related to those allegations.
Correspondence dated 8 October 2014 from Mr O'Hara to Mr Hutchinson.
Correspondence from Mr Hutchinson to Mr O'Hara dated 8 October 2014.
Correspondence from Council to Mr Hutchinson dated 9 October 2014.
Correspondence dated 22 October 2014 from Council to Mr Hutchinson wherein he was advised that further disciplinary action arising from his failure to comply with reasonable directions was being considered.
A copy of an email sent from Mr Hutchinson to Mr O'Hara dated 22 October 2014.
A further email dated 23 October 2014 addressed to Mr O'Hara.
Correspondence dated 23 October 2014 from Council to Mr Hutchinson.
Council's show cause letter sent to Mr Hutchinson on 5 November 2014.
Correspondence addressed to Mr O'Hara dated 12 November 2014 which set out Mr Hutchinson's reply to the show cause letter.
Correspondence dated 17 November 2014 which sets out Council's decision to terminate Mr Hutchinson's employment.

Mr Hutchinson considered that his position with Council was that of a Senior Engineer and as such his principle job was to manage the roads and bridges program for Council. He considered that he undertook his duties with competence and efficiency throughout his term of employment with Council. Mr Hutchinson also stated that his position required him to prepare certain financial documents, including estimates for work to be undertaken and the supervision of costs claimed or incurred by Council in undertaking a number of programs with RMS. In that regard, he conceded that he was responsible for the requirements, particularly the financial requirements of those programs. However, he also considered that he "was being overloaded with this particular type of work and was not being provided with any assistance. Mr O'Hara was placing deadlines for my work to be completed when there was no possible way that such work could be completed within the time frames provided". In a second statement in reply filed on 27 April 2015, Mr Hutchinson also stated he had identified a number of quality issues related to State Asphalt Service.
Mr Hutchinson denied that he had used his personal computer or any Council computer for his own consulting work whilst employed by Council.
Mr Hutchinson contended that he faced "real difficulties" in meeting Mr Fanning's direction to scope, program and estimate upcoming jobs on the grounds that Council had failed to provide him with its Capital Works list. In that regard, he referred to a document which stated that the 2014/15 Capital Works Program for Council had been created on 27 October 2014. Accordingly, he stated the required Capital Works Program could not have been provided to him any earlier than that date and as most, if not all of those works were in the process of being designed and scoped, it therefore follows that they could not be estimated at that time. The balance of Mr Hutchinson's statement in reply filed on 27 April 2015 largely set out his defence to the allegations against him.
In cross-examination, Mr Hutchinson stated he had considerable experience in delivering local government engineering services. He also stated that he did not complete the G Registration as requested because he considered it unnecessary when the RMS contract was coming to an end. He acknowledged that when the RMS contract was extended he was required to pursue G Registration. He also agreed that he did not make the necessary submissions required for the RMS to determine whether or not Council should be afforded G Registration status.
Mr Hutchinson agreed that when working with Council he had prepared budgets, completed estimates of costs and managed Council projects. He agreed that he was able to use the Council's financial system to determine "what costs comes up on Council's system for a certain cost allocation".
Mr Hutchinson agreed that the preparation and completion of the RMAP was one of his duties. Mr Hutchinson explained RMAP was essentially a planning tool for costs and quantities of work to be accomplished by Council. It is also used to facilitate claims made by Council to RMS.

[12]

Mr Matthew Fanning

Mr Fanning is a qualified Civil Engineer with over 25 years' experience in Local Government. He is a chartered professional engineer and has held Director positions on both the New South Wales and Queensland Board of the Institute of Public Works Engineers Australia. Between 2005 and 2014, he achieved 10 industry engineering excellence awards. As Director, Engineering Services, Mr Fanning is responsible for a range of transport services including roads and bridges, contract services to RMS, the maintenance of an aerodrome, the operation of Council-owned gravel quarries, provision of water, sewerage, storm water and waste services, the operation of a commercial concrete batching plant and community services including the Walcha Swimming Pool.
Mr Fanning's evidence was that the position of Works Manager is a very senior position within Council. The position is responsible for managing staff, engineering works and completion of contractual documentation, costs estimates, quotes and private works documentation. The position also involves a significant level of customer service dealing with the public, subcontractors, government agencies and suppliers. He disagreed with Mr Hutchinson's opinion that "the principle job was to manage the roads and bridges program for the Council". In that regard, he contended the roads and bridges program was only one aspect of the position.
Mr Fanning explained the Works Manager role was responsible for the following tasks:

Preparation of the Annual Works Program.
Preparation of a Weekly Works Roster which is used to allocate resources for the following week and ensure that previous tasks have been completed.
Prepare and complete estimates and monitor allocated budgets for the RMCC contract works - and ensure that such works do not exceed the allocated budget.
Prepare and complete RMCC reporting which includes the completion of the quarterly RMAP claims for payment and the preparation of all relevant documentation.
Prepare and complete RMAP projections which are required for quarterly claims and form the basis for future annual programs.
Prepare and organise heavy patching which is an annual program for both the RMCC and the local and regional roads renewal program as allocated from time to time in the Annual Works Budget.
Prepare and organise road renewal work such as RMCC specific road widening works and other renewal works in accordance with the Annual Works Budget. This responsibility included repair program renewals and the Regional Development Australia Renewal Works on Thunderbolts Way.
Prepare and complete all necessary quality documentation and management planning processes such as G Registration which relates to traffic control on construction works.
Manage the Works Supervisors.
Manage Council accounts and contracts such as the RMCC contract.

Mr Fanning contended that the Works Manager role also included responsibility for ensuring works were performed in line with Council's commitments to its rate payers and that such works were delivered on budget.
Mr Fanning stated Council provide staff with access to Microsoft Project which he considered was the most commonly used planning tool for engineers. In that regard, he stated that he used this particular program in his current position as Director Engineering Services and had used it to perform tasks within the responsibility of Works Manager.

[15]

Annual Works Programs and Weekly Rosters

Mr Fanning asked Mr Hutchinson to prepare the annual works program in July 2014. He also asked Mr Hutchinson to ensure estimates were prepared for every job that formed part of the program.
Mr Fanning met with Mr Hutchinson on 1, 4 and 14 August 2014 in an attempt to get the process of developing a works program and weekly roster going. On 4 August 2014, he provided Mr Hutchinson with example estimates sheets and further details of what was required of him. Moreover, Mr Fanning also recalled that during one of the August 2014 meetings, Mr Hutchinson asked him words to the effect: Why have I not received a pay increase?
During the course of subsequent meetings, Mr Fanning considered Mr Hutchinson was preoccupied with the pay issue. Accordingly, he subsequently met with the Human Resources Manager, Ms Nadean McKenna and Mr O'Hara to discuss the concerns. Mr Fanning ultimately informed Mr Hutchinson with words to the effect: You are currently on Band 3 Level 4 Step 1 - Grade 10. Further progression along the Salary System involves demonstration of skills and competencies and performance of these skills and competencies. Once your performance measures are set which will reflect these skills and competencies you can start working towards progression. Progression through the steps of the Walcha structure will occur through the process of annual assessment. Assessors need to ensure that employees can demonstrate the skills required at their current step before any assessment that may lead to progression within the System. In addition progression from Grade 8 and above positions will be through skills recognised as being relevant to the position (derived from or equivalent to the successful completion of units within a degree level qualification) or through the achievement of performance requirements as agreed between the position incumbent and the relevant manager. Mr Hutchinson replied in words to the effect: As far as I am concerned I should be on the top step. Council agreed to review the step level after 3 months employment which it has failed to do. Council is on the back foot. Council have failed to even provide me with the relevant documents. I am referring the matter to APESMA as I don't believe I will get anywhere with this Council unless this is done or they are taken to the Commission. I don't accept steps are only assessed annually and that is certainly not in accordance with the Award. Council is not paying a lot of money and this is one issue, in my case that needs to be addressed. Council has learnt the lesson the hard way with Dillon and Council needs to note that there are plenty of other better paying jobs out there. Mr Fanning further responded with words to the effect: Regarding your comments about the salary / progress I was only reiterating the Council's processes to you so you were familiar with these. I am happy to discuss these further should you not understand the process. I am somewhat confused about your statement "Council have failed to even provide me with the relevant documents". If you mean a copy of your PD and Probationary Reviews I can get you a copy of these should you request these. As advised in person the next steps are to establish your performance targets and a training plan. These will form the basis of any future performance appraisals.
Mr Fanning stated Mr Hutchinson was required to provide customer service to the general public, contractors and suppliers and the fact that he wore non-ironed shirts and a hat in the office concerned him.
At the 5 August 2014 meeting with Ms McKenna and Mr Hutchinson, Mr Fanning raised the following concerns:

He considered it was important that Mr Hutchinson understood his expectations concerning the role of Works Manager.
It was inappropriate for Mr Hutchinson to write emails using capital letters.
There was a requirement to scope works, develop a works program and produce estimates for all pending jobs.
The requirement to clean his office and use Council's electronic filing system, TRIM. A file note concerning this meeting created by Ms McKenna was attached to Mr Fanning's Statement.

On 20 August 2014, Mr Fanning was given a number of emails between the Corporate Services Manager and Mr Hutchinson seeking reasons from him as to why the Derby Street Project was over budget. Mr Hutchinson refused to provide the information and responded to the Corporate Services Manager with words to the following effect: I don't believe you do need to provide any explanation to RMS. RMS is only responsible for meeting half the estimated/approved costs. While RMS may meet extra costs if it has funds available, RMS does not care how mush (sic) extra Council spends on the project from its own funds.
At the request of the Corporate Services Manager, Mr Fanning sent an email to Mr Hutchinson requesting that he provide the information sought. A copy of that email was attached to his Statement. Shortly thereafter, Mr Hutchinson came into Mr Fanning's office and said words to the effect: You don't know what you are talking about.
Mr Fanning subsequently told Mr Hutchinson that Council was contractually obliged to provide the reasons for the Project exceeding its original budget. Mr Hutchinson was directed to provide the information requested. Mr Fanning later advised Mr O'Hara that he considered Mr Hutchinson's initial response a performance issue.
Mr Fanning recalled that on 22 September 2014, Mr Lordanic came into his office and said words to the effect: I have asked Rowan for the setout plans for the installation of guard railing for the Blakes Bridge so that my crew can perform the works. Rowan is not providing me the information I need. He has given me incorrect plans and hand scribbled notes. Later that day, Mr Fanning made a verbal complaint to Mr O'Hara concerning Mr Hutchinson's performance stating words to the effect: Rowan was unable to produce the necessary documentation or information in relation to a project he is responsible for managing, which raises significant safety and competency concerns. Having seen the plans and hand scribbled notes given to Paul Lordanic, my view is that the information provided was not the standard of work of a professional engineer. He subsequently approached Mr Hutchinson and said words to the effect: Rowan, you need to give Paul the information he is requesting for the Blakes Bridge project. Mr Hutchinson subsequently chuckled and said the works were "self-evident".
Mr Fanning stated Mr O'Hara informed him on 24 September 2014 that he had issued Mr Hutchinson with a direction to tidy his desk and office, present a works program using MS Project and present a weekly works roster. These directions were similar to those Mr Fanning had put to Mr Hutchinson on 5 August 2014.
Mr Fanning considered Mr Hutchinson made no real attempt to comply with the directions given to him on 5 August and 24 September 2014. In that regard, he had considered Mr Hutchinson had made an attempt to clean his office - however, post dismissal, it was discovered that Mr Hutchinson "had put all the papers which were on his desk into a cupboard in no apparent order". Mr Fanning also contended that Mr Hutchinson had failed to enter these records into TRIM consistent with Council policy.

Full comprehensive estimates for the works and detailed designs.
A program for the works, including resources.
Plans for the proposed works including Traffic Management Plan, Environmental Management, Quality Management and Safety Management.

Mr Hutchinson was absent on sick leave from 7-10 October 2014 inclusive.
On 23 October 2014, the Work's Supervisor sent Mr Fanning an email concerning "complaints from RMS that relate to matters which are within Mr Hutchinson's role and had not been completed or attended to". The RMS had also advised that it considered Council's performance "was extremely poor" and it was considering giving the RMS work to other organisations to complete.
Mr Fanning stated he was aware that Mr O'Hara had directed Mr Hutchinson to prepare weekly works rosters. In that regard, Mr Fanning received the weekly works rosters from Mr Hutchinson in an email dated 27 October 2014. However, those rosters were generic pro-forma documents under the name of the relevant works supervisor and contained no detail. Mr Fanning subsequently directed Mr Hutchinson to provide a works roster outlining the following information by the close of business on 28 October 2014:

A weekly works roster displaying all Council works resources split up into crews with individual resources, weekly tasks, work order number and task completion dates. The rosters should also identify staff on leave. Mr Fanning further explained to Mr Hutchinson that "Council resources" means staff, plant and equipment, contractors and the budget for the works.

Shortly thereafter, Mr Hutchinson sent Mr Fanning a set of hand written documents that showed works completed rather than works "that needed to be completed". Mr Fanning considered them inadequate on the grounds that the purpose of a roster "was to allocate future resources (and) not for the purpose of recording achievements". Mr Fanning considered it would have been reasonably apparent to Mr Hutchinson at the time that the rosters were inadequate because they were "not what was requested" and were incapable of being used to program works. Mr Fanning regarded the instructions to prepare a weekly works roster was a core task for a professional engineer.
Mr Fanning stated that prior to Mr Hutchinson being stood down with pay on 5 November 2014, he and Mr O'Hara "had discussed" Mr Hutchinson's inadequate performance and apparent refusal to comply with directions issued to him to perform tasks that were within the responsibilities of his position and within his skills. In that regard, Mr Fanning was aware that Mr O'Hara had issued Mr Hutchinson with warnings on 24 September, 8 and 22 October 2014 for failing to complete tasks without reasonable explanation within the arranged deadlines or reasonable time limits. Mr Fanning was also aware that Mr O'Hara had formally put to Mr Hutchinson that he was required to show cause why his employment should not be terminated.
On 17 November 2014, Mr Fanning met with Mr O'Hara and Ms McKenna to consider Mr Hutchinson's show cause response. The meeting reached a consensus "that of the tasks allocated… between 5 August and 22 October 2014, the only task which at that time appeared to have been successfully completed by Mr Hutchinson was the tidying of his office". However, Mr Fanning conceded this task was later found to have been done inadequately.
The meeting also discussed the tone of Mr Hutchinson's correspondence to Mr O'Hara and others. Copies of the minutes of the meeting were attached to Mr Fanning's Statement.
Mr Fanning contended he completed many of the works tasks allocated to Mr Hutchinson due to their urgency of the reporting requirements of RMS. These tasks included:

Heavy Patching Schedules and Works Proposals.
G Registration submission.
Resurfacing Works and Seal Designs.
RMAP 2014/15.
Q4 2013/14 claim sent to RMS on 23 October 2014 (originally due early July).
Q1 2014/15 claim sent to RMS on 21 November 2014 (due early October 2014). Mr Fanning noted the Q3 2013/14 claims were completed by Mr Hutchinson on 16 July 2014 rather than the due date in or around early April 2014. Mr Fanning also stated that the completion of these tasks was "extremely difficult due to the lack of and disorganised documentation managed by Mr Hutchinson".

In cross-examination, Mr Fanning confirmed that the Works Manager Position Description did not specifically state that the incumbent was required to "Prepare the End of Works Program". He also considered the requirement that Mr Hutchinson "Prepare the Weekly Works Roster" was in his opinion a requirement of a professional engineer to deliver engineering services tasks. Mr Fanning also confirmed that whilst there was an intention for he and Mr Hutchinson to sit down in or around August 2014 and set some performance objectives, including works programs and budgets, the performance objectives were never set because Mr Hutchinson would not comply and do anything asked of him. Accordingly, the performance objectives were issued to him as instructions.
Mr Fanning elaborated in considerable detail the performance concerns put to Mr Hutchinson in his show cause letter. He was also aware of the various letters of warning issued to Mr Hutchinson by Mr O'Hara. In that regard, he confirmed that he had discussed the issues put to Mr Hutchinson with Mr O'Hara prior to the letters being sent. Mr Fanning could not specifically recall whether he had informed Mr O'Hara that the proposed meeting with Mr Hutchinson to set performance objectives never occurred. However, he was adamant that Mr Hutchinson was told that he was required to produce a works roster and a works program using Microsoft Project by late July 2014. That time frame was subsequently extended to 13 August 2014.
Mr Fanning provided a copy of the Council's Budget to Mr Hutchinson which also set out the proposed capital works program. Mr Fanning denied that Mr Hutchinson had informed him that he could not find the required details in the budget documents. However, on or around 24 October 2014 he provided Mr Hutchinson with a copy of the Capital Works Program for 2014/15.
Mr Fanning stated that he was aware of the issues raised by Mr O'Hara concerning Mr Hutchinson's performance and the various tasks he was required to perform within set deadlines.
Mr Fanning was unaware the Council's accountant had determined Mr Hutchinson required training to "access financial figures". However, he did recall that Mr Hutchinson required training on TRIM and in that regard he "made sure he had training on TRIM". He further understood that Mr Dylan Reeves provided training to Mr Hutchinson on how to access work orders in the Council financial system. Mr Fanning later acknowledged that Mr Reeves was a graduate engineer and to the best of his knowledge had no understanding of accountancy.
It was Mr Fanning's understanding that Mr Hutchinson was issued with warnings concerning his performance and was given clear time frames to rectify those performance issues.
It was also Mr Fanning's evidence that Council did not seek to establish performance criteria for Mr Hutchinson. Rather, Mr Fanning said he was "establishing directions for Mr Hutchinson to perform prior to establishing performance criteria because he was not performing". He further explained that if a professional engineer does not do a task as instructed, then that particular engineer was not performing.

[16]

Mr Paul Lordanic

Mr Lordanic is a Roads Supervisor with Council and Chair of the Workplace Health and Safety Committee. Prior to his current position, Mr Lordanic was Council's Bridge Supervisor. From time to time, he acts in the position of Works Supervisor. Part of Mr Lordanic's duties include the requirement to supervise road resurfacing works.
Mr Lordanic's evidence was critical of Mr Hutchinson's performance and approach to work in a number of respects. Mr Lordanic deposed that in or around January 2014, he asked Mr Hutchinson for the approved scope of works including seal design, locations and lengths, job specifications, conformance details and reseal record sheets which he was required to provide to Council's road resurfacing contractor. In response, Mr Hutchinson provided Mr Lordanic with "a pile of disorganised papers of around 30 pages of documents in no order which I then needed to sift through to figure out what needed to be done". Mr Lordanic also cited an example whereby Mr Hutchinson sourced stone from a quarry approximately 150 kilometres from the road site when at the time "left over materials" located closer at Yarrowitch could have been used.
In relation to the Bergen Bridge repair work, Mr Lordanic stated that Mr Hutchinson required fire buckets to be placed around a newly poured concrete slab for the base of the Bergen Bridge culvert works. As a result of that decision, staff were required to man the fire buckets all night at significant cost to Council. Further, staff could not work the following day as they were required to take a 10 hour break, which resulted in the work crew being short staffed the following day. Mr Lordanic stated that at the time he had suggested to Mr Hutchinson that Council hire a large heat blower from Tamworth and use a generator to run the blower to dry the concrete. He believed this suggestion would have required fewer staff and cost the Council less. He also recalled that at the time, Mr Hutchinson hired two additional concrete vibrators which were not required as Council had its own concrete vibrators to use on the project.
Mr Lordanic stated that during the first week of November 2014, he was assigned to the Bergen Bridge Project where he was required to establish certain levels in order to calculate the length of the proposed guard rail posts. He subsequently discovered that Mr Hutchinson had ordered posts of the incorrect length. In response, Mr Hutchinson suggested an appropriate remedy was to cut the base plates off the posts and re-weld the plates to the posts, an option that would require the posts to be returned to the manufacturer for quality assurance. Mr Lordanic stated that he suggested it would be more appropriate to simply reduce the length of the post and redrill the rail attachment holes. He further stated that Mr Hutchinson agreed to this suggestion but it was, in his view, an example of Mr Hutchinson not planning a job properly.
In relation to the Blakes Bridge Project, Mr Lordanic stated that on 22 September 2014, he arranged for a works crew to install guard railing on the new bridge. Shortly before leaving to supervise the work, Mr Lordanic asked Mr Hutchinson for a copy of the drawings for the guard rail installation. Mr Hutchinson subsequently replied that there were no drawings. Mr Lordanic then stated that he required the post base, fixing details and general layout plans for the guard rail installation. In response, Mr Hutchinson drew a drawing on a piece of paper and gave it to him. Mr Hutchinson subsequently informed Mr Lordanic the bolt installation was "a standard installation". Mr Lordanic subsequently arranged to meet Mr Hutchinson at the depot and on route, he decided to speak with either Mr Fanning or Mr O'Hara as he was upset with Mr Hutchinson's response. Mr Fanning told him that there would be plans available and he should contact the supplier to obtain further details.
Shortly thereafter, Mr Lordanic met with Mr Hutchinson and showed him the bolt components and asked him how they should go together. Mr Hutchinson's response was simply that "they bolt to the ferrules" and it was "self-evident". Mr Lordanic stated that he subsequently walked away in disgust and was disappointed that Mr Hutchinson did not care about work quality or the risk to the public if the guard railing was installed incorrectly. There were further complications with the drawings provided by the supplier and as a result, two days had been wasted. Mr Lordanic subsequently made a formal complaint concerning Mr Hutchinson's conduct.
In relation to the Glen Morrison Bridge, Mr Lordanic stated that he raised a safety concern with his supervisor, Mr Wayne Brennan following a discussion with an excavator contractor on 30 July 2014. Mr Lordanic stated the contractor was concerned about the depth of an excavation and the lack of shoring or battering to make certain the embankment did not collapse into the site. The contractor was also concerned about the lack of a rigid barrier at the excavation so as to prevent fall incidents, given the excavation was over two metres in depth. Mr Lordanic raised this issue at the weekly works meeting shortly thereafter and recalled Mr Hutchinson's response was words to the effect "this is not a safety issue. I've had issues with that contractor and we shouldn't use him again." Mr Fanning subsequently asked Mr Lordanic to further investigate the requirements for such excavations and inform the works crew "as a learning experience".
Mr Lordanic contended that his subsequent investigations demonstrated that the contractor's concerns were well founded. This incident reinforced his view that Mr Hutchinson had little care for his fellow workers and no regard for workplace health and safety requirements.
In cross-examination, Mr Lordanic stated he had included in his Statement all matters that he considered were of a major concern regarding Mr Hutchinson when employed by Council.

[17]

Mr Jack O'Hara

Mr O'Hara stated that as General Manager of Walcha Council, he was responsible for the efficient and effective operation of Council's business and for implementing Council's decisions. In terms of road and bridge maintenance, Mr O'Hara stated that Council provides contract services to RMS under the RMCC arrangements, which include rehabilitation works, heavy patching works and resurfacing. The Council also operates its own gravel quarries.
The position of Works Manager involved the management of works, staff management, and preparation of contractual documentation and costs estimates, quotes and private works documentation. The position also involved a significant level of customer service dealing with the public, subcontractors, government agencies and suppliers. A minimum requirement for applicants was that they held an engineering degree with ten years' experience in Local Government engineering services.
When applying for the position, Mr Hutchinson expressed the view that he had significant experience in the industry, including engineering management positions within Coolah and Warrumbungle Shire Councils. He also stated he had experience in the preparation of management plans for the RTA and Council works. The position description was attached to Mr Hutchinson's subsequent Letter of Offer and in that regard, Mr O'Hara stated the only change to the position description was that the title had been changed to Works Manager. Mr Hutchinson accepted the Letter of Offer and commenced employment with Council on 10 December 2013, reporting to the Director Engineering Services who was at the time, Mr McCoy.
Mr O'Hara disagreed with the proposition advanced by Mr Hutchinson that "his principle job was to manage the roads and bridges program for the Council". Rather, as the position description for the Works Manager role stated, Mr Hutchinson's task was to "manage works associated with the delivery of local government engineering services". Following his appointment on 7 July 2014, Mr O'Hara stated that Mr Fanning had raised a number of difficulties he was experiencing with Mr Hutchinson's performance during July and early August 2014. In particular, Mr Fanning stated that he had been unable to get Mr Hutchinson to "prepare a Works Program or to properly estimate jobs that he was responsible for". Mr O'Hara recalled that on 5 August 2014 Mr Fanning met with Mr Hutchinson and directed him to:

Scope Works Program and produce an estimate for all upcoming jobs.
Clean up his office and use Council's electronic filing system known as TRIM.

The thrust of Mr O'Hara's evidence in chief concerned the various performance-related issues set out in Council's show cause letter sent to Mr Hutchinson on 5 November 2014.
It was Mr O'Hara's evidence that he considered the professional relationship between Mr Hutchinson and himself had completely broken down due to his continued disrespect for him personally as General Manager and further, he had no confidence in Mr Hutchinson's ability to carry out his duties to a reasonable standard. Against that backdrop, Mr O'Hara believed Mr Hutchinson's reinstatement to the position of Works Manager would have a major detrimental effect on the morale of the work force.
In cross-examination, Mr O'Hara confirmed that Mr Hutchinson was provided with a position description and following an interview, was subsequently provided with a Letter of Offer for the position of Works Manager, rather than the advertised position of Senior Engineer.
In response to questions concerning Mr McCoy's probation interview with Mr Hutchinson on 10 March 2014, Mr O'Hara stated that at that time he was not aware of any issues relating to Mr Hutchinson's performance. Nor was he aware whether or not Mr Fanning had established any performance measures with Mr Hutchinson subsequent to August 2014. In relation to the preparation of a Works Program in or around July and early August 2014, Mr O'Hara stated Mr Fanning had not told him that Mr Hutchinson had refused the task but rather he was having trouble getting Mr Hutchinson to complete the task. He further confirmed that previous engineers in Mr Hutchinson's role were required to prepare Works Programs.
Mr O'Hara acknowledged that there was no requirement to produce a Works Program in Mr Hutchinson's position description. However, he considered the task was covered by the requirement within the job description for the Works Manager to ensure compliance with Council's management plan, budget, procedures and other government regulations.
Mr O'Hara stated that in or around July and August 2014, he was aware from discussions with Mr Fanning that Mr Hutchinson had been directed to prepare a Works Program on a number of occasions. He was also aware at the time Mr Hutchinson was also directed to provide proper estimates, clean up his office and use the TRIM system for all documentation. Mr O'Hara was unaware that Mr Fanning had told Mr Hutchinson that he would sit down with him to prepare a set of performance objectives during the week commencing 12 August 2014. He was unaware as to whether those performance objections had been set down.
In relation to allegations that on occasions Mr Hutchinson had been late for work, it was Mr O'Hara's evidence that he relied on Mr Fanning and Ms McKenna for that advice. He agreed that he had not raised the issue with Mr Hutchinson to establish whether or not he had contacted his supervisor as requested or had given him an opportunity to explain himself. Mr O'Hara further agreed that he did not advise Mr Hutchinson that he would be given a formal warning in the event that he did not conform to the requests to prepare a Works Program and a proper budget.

[20]

Alleged failure to abide by lawful and reasonable directions

Mr O'Sullivan submitted that Mr Hutchinson had endeavoured to comply with the directions given to him by Council to the best of his ability. However, that response was frustrated by his lack of access to appropriate information and resources.
In correspondence dated 22 October 2014, Council acknowledged and accepted that Mr Hutchinson had cleaned up his office and there was also some recognition that he had made an improvement with respect to his personal appearance. It was also accepted by Council that Mr Hutchinson had provided the 2013/14 RMCC documentation. In that regard, Mr O'Sullivan acknowledged that Mr O'Hara considered Mr Hutchinson's RMCC response poor. Mr Hutchinson subsequently produced the weekly roster as required and with respect to the Works Roster, Mr Hutchinson formally requested a list of the Capital Works be provided on 24 October 2014 so as to enable him to finalise the Works Roster. The required Capital Works list was not provided to Mr Hutchinson until 27 October 2014.
In correspondence dated 29 October 2014, Council issued a further set of directions to Mr Hutchinson concerning some RMS issues allegedly raised at a meeting on 22 October 2014. Mr O'Sullivan submitted these directions were complied with by Mr Hutchinson in correspondence sent to the Council dated 4 November 2014. Accordingly, as at 5 November 2014, the only outstanding direction was that Mr Hutchinson provide the Capital Works program which he was unable to complete prior to his termination due to the failure of Council to provide the necessary information for him to complete that task. Accordingly, Mr O'Sullivan submitted there was no proper basis to determine that Mr Hutchinson had failed to abide by the directions given to him and accordingly, his dismissal was unjust and/or unreasonable.
Mr O'Sullivan submitted that given Mr Hutchinson was 60 years of age and resided in a rural area and evidence before the Commission concerning his difficulty in obtaining alternative employment, the dismissal was harsh. He further noted that the cross-examination of Mr O'Hara and Mr Fanning revealed the fact that Mr Hutchinson's age was not considered in the meeting that immediately preceded his termination.

[21]

Submissions - Council

Ms Gaul urged the Commission to dismiss the application with costs. Ms Gaul submitted that during July and early August 2014, Mr Fanning observed a number of problems concerning Mr Hutchinson's work performance and subsequently informed Mr O'Hara of these issues. Mr Hutchinson was subsequently put on notice concerning his work performance in early August 2014 when he was instructed to prepare a draft Works Program using MS Project including, detailed estimates for projects and resourcing together with a roster for maintenance and capital works for supervisors. In that regard, on 5 August 2014 there was a meeting between Mr Fanning, Ms McKenna and Mr Hutchinson where Mr Hutchinson was directed to scope pending jobs, produce and estimate a Works Program, clean his office and use Council's electronic filing system, TRIM.
As a result of his non-conformance, Mr Hutchinson was given written warnings in relation to his performance and directions concerning compliance to perform certain work on 24 September, 8 and 22 October and 5 November 2014. A verbal warning was also given to Mr Hutchinson during a meeting with Mr O'Hara and Ms McKenna on 1 October 2014 concerning his performance.
Ms Gaul submitted that a number of complaints concerning Mr Hutchinson's behaviour and performance had been made by staff members or clients including:

A complaint from Mr Brian Hoad in or around July and August 2014 that Mr Hutchinson had been abusive to other staff.
A complaint from Mr Wayne Brennan that in or around July and August 2014 Mr Hutchinson had not provided necessary information to staff.
A complaint from Mr Paul Lordanic on 22 September 2014 in relation to Mr Hutchinson's lack of planning and disrespectful attitude toward staff.
A complaint from Mr John Brazel, the State and Regional Road Supervisor for RMS on 23 October 2014 in relation to Mr Hutchinson's failure to provide appropriate documentation works.

Ms Gaul submitted that Mr Hutchinson had an opportunity to comply with Council's performance concerns or complaints and on some occasions, he had sought clarification. For example, on 6 November 2014 Mr Hutchinson made a request to Mr O'Hara concerning the particulars of the allegation raised by Mr Lordanic that his conduct was exceptionally disrespectful.
Ms Gaul submitted that at all times Mr Hutchinson has been afforded procedural fairness and despite the various warnings and directions given to him, he continued to either fail entirely to perform tasks as directed or made poor attempts to complete assigned tasks. Moreover, his general responses suggest an unwillingness to accept directions. The evidence before the Commission also suggests he was disrespectful towards Mr O'Hara.
On 17 November 2014, Mr Hutchinson's employment was terminated. In reaching that decision, Council considered that Mr Hutchinson had failed to properly comply with numerous reasonable directions and had failed to perform his role as Works Manager to a satisfactory standard. Council also considered Mr Hutchinson had not demonstrated any reason, despite being given multiple opportunities to do so, why he had not met these requirements of Council.

[24]

Was Mr Hutchinson's termination harsh, unjust or unreasonable?

Ms Gaul submitted that Mr Hutchinson had repeatedly refused to take directions and had also shown complete disrespect toward his supervisors including Mr Fanning and Mr O'Hara. In some cases his action or inaction may have exposed Council to liability, endangered others or caused Council considerable financial loss on particular projects.
Mr Hutchinson was given numerous warnings, directions and opportunities to improve his performance over a period of approximately three months - however, he failed to do so. Ms Gaul submitted the three month period was reasonable in all the circumstances, particularly given the fact that many of the tasks that he was directed to undertake were ultimately completed by Mr Fanning in the relevant time frame as the work had become urgent. Ms Gaul further submitted that detailed and cogent reasons were given to Mr Hutchinson with respect to the various warnings and he was also provided with an opportunity to respond.
Formal performance objectives were not established as Mr Hutchinson was unable to comply with basic directions. Shortly stated, Mr Hutchinson was not performing the tasks and responsibilities required of the position, Works Manager. Ms Gaul submitted that given Mr Hutchinson resided at Katoomba, there was no evidence before the Commission that he had applied or could apply for positions in nearby Penrith, some 47 kilometres from Katoomba, or Parramatta, a distance of approximately 80 kilometres. Despite Mr Hutchinson's age and place of residence, the serious and continuing nature of his poor performance must render his dismissal not harsh, unjust or unreasonable.
Ms Gaul further submitted that it would be inappropriate for the Commission to order reinstatement on the grounds that there has been a clear loss of trust and confidence between the parties so as to make the restoration of the employment relationship impracticable. In that regard, Ms Gaul noted that there was unrefuted evidence before the Commission concerning Mr Hutchinson's rude, aggressive and abusive conduct towards Mr O'Hara and Mr Fanning. Such conduct demonstrates Mr Hutchinson is, and remains unwilling and unable to work with Council staff, including Mr Fanning and Mr O'Hara. In relation to the alternative remedy pressed by Mr O'Sullivan, it was Ms Gaul's submission that the dismissal was not harsh, unjust or unreasonable. Mr Hutchinson was not entitled to compensation.

[25]

Consideration

Mr Hutchinson was dismissed with notice on 17 November 2014 for reasons related to his unsatisfactory performance and conduct in the position of Works Manager, a role he commenced on 10 December 2013. Mr Hutchinson sought reinstatement with no loss of entitlements and in the event the Commission determined that reinstatement was impracticable, a compensatory order amounting to 24 weeks pay.
Council strongly opposed reinstatement. Council also contended Mr Hutchinson's conduct and performance were both serious matters which struck at the core of the employment relationship and was therefore destructive of the implied duties at common law of mutual trust and confidence.
Mr Hutchinson's initial three month probationary period was extended by two months due to the excessive use of time that he spent on personal calls and use of his personal laptop during working hours.
On 5 August 2014, Mr Hutchinson met with his supervisor, Mr Fanning, Director of Engineering Services and the applicant's supervisor to discuss a number of concerns Council had with his performance. A human resources representative was present at that meeting.
Arising from the 5 August meeting, Mr Hutchinson was directed to perform three tasks:

Produce records showing scope, works programs and estimates for upcoming jobs.
Tidy his office and improve his personal appearance.
Use Council's electronic filing system known TRIM. Council considered these particular were tasks which were part of the ordinary performance of Mr Hutchinson's role and should not have required any additional work on his part to undertake.

In response to his failure to comply with the 5 August 2014 directions, Council issued a written warning on 24 September 2014. Mr Hutchinson was warned that his failure to complete a set of directed tasks could lead to further disciplinary action including dismissal. Mr Hutchinson was also cautioned that his conduct was unsatisfactory - he had "laughed at a staff member stating the works were self-evident" and "provided two hand drawings which could only be described as scribble and unprofessional". It was further alleged that he had treated his work colleagues in an inappropriate and disrespectful manner.
A further warning was given to Mr Hutchinson in correspondence dated 8 October 2014. That warning also informed Mr Hutchinson that he was required to treat work colleagues with respect and cooperation. He was further required to refrain from "mocking or belittling" employees and warned that if his conduct and performance did not improve, further disciplinary action may be taken.
A final warning was given to Mr Hutchinson on 22 October 2014 for his continued failure to comply with directions given to him by Mr Fanning on 5 August 2014 namely, that:

Upcoming jobs be scoped, a works program produced and estimated.
Tidy his office.
Use the TRIM electronic filing system.

Council had considered Mr Hutchinson's reply dated 25 September 2014 where he stated that he would not be held to Council's deadlines. Council met with Mr Hutchinson on 1 October 2014 to explain to him what he was required to do concerning the direction to perform a costed works program. Mr Hutchinson was further warned that his failure to address Council's directions and concerns may lead to dismissal.
The warning letter also directed Mr Hutchinson to provide Mr Fanning with the following by close of business, 24 October 2014:

A works program developed in MS Project for the 2014/15 capital works financial year, including "scope, proposed estimates and delivery times and resourcing".
A weekly works roster displaying all Council works resources split into crews with individual resources, weekly tasks, work order numbers and task completion dates. Mr Hutchinson was advised that his failure to carry out those directions may give rise to further disciplinary action including dismissal, having regard to his "continued non-compliance and previous warnings".

Mr Hutchinson wrote to Council on 24 October 2014, stating that he had consulted the minutes of the June Council meeting and had been unable to find the "adopted capital works program". It was his view that proposed projects could not be scoped or estimated without that detail. Mr Hutchinson also advised Council that he required training in MS Project and Excel.
Council wrote to Mr Hutchinson on 29 October 2014, stating correspondence had been received from RMS to the effect that RMS had "no confidence in Walcha Council performing in any way… the RMCC Contract." G Registration was also outstanding and certain pricing and scheduling information had not been provided. Mr Hutchinson was directed to provide a detailed response to Mr O'Hara by the close of business on 4 November 2014. Council subsequently considered Mr Hutchinson's response and in correspondence dated 5 November 2014, advised him that he had failed to comply with reasonable directions and perform the duties of Works Manager. Mr Hutchinson was subsequently requested to show cause why his employment with Council should not be terminated.
On 6 November 2014, the General Manager Mr O'Hara provided a response to Mr Hutchinson's request that Council provide evidence of his alleged disrespect to him or Council generally. That response noted that Mr Hutchinson had shown "disrespect" in correspondence to the General Manager, Mr O'Hara dated 25 September, 1, 9, 16, 22, 23 and 24 October and 4 November 2014.
A show cause letter was served on Mr Hutchinson on 5 November 2014 following his noncompliance with previous directions. Mr Hutchinson provided his show cause response on 12 and 13 November 2014.
Following a detailed consideration of his show cause response, Mr Hutchinson was issued with a termination of employment letter on 17 November 2014. He was paid two weeks' salary in lieu of notice and applicable accrued pro rate entitlements.

[28]

Relevant principles

Part 6 of Chapter 2 of the Act requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. The exercise of the Commission's powers in relation to unfair dismissal requires a determination as to whether a particular dismissal was harsh, unreasonable or unjust or all three.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.
In circumstances where the Commission finds that the dismissal of an employee was in all the circumstances of the particular case, "harsh, unreasonable or unjust", the Act provides remedy.
In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: 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. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32].)
Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct or poor performance prior to dismissal. It also requires that where an employee has been warned that their conduct or performance is less than satisfactory or the employee is asked to give an explanation regarding an allegations concerning conduct or performance, the employee must first be given sufficiently detailed information about the nature of the allegations and an adequate opportunity to refute those allegations or remedy the deficiencies alleged by the employer.
Successive Full Benches of the Commission have stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to, and including, the employee's dismissal. The decision of the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211 at [118] reflects that view: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.
The determination whether a particular dismissal can be characterised as "harsh, unreasonable or unjust" requires the Commission to consider whether the applicant has been afforded procedural fairness. Section 88 of the Act provides the statutory basis for considering procedural issues: 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant.
In Antonakopoulos v State Bank (1999) 91 IR 385, the Full Bench considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal. The Full Bench said at 389 and 390: 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. 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.
In Buckman v Burdekin (1998) 85 IR 415 referred to in Antonakopoulos the Full Bench said at 418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter, which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.
Procedural fairness requires the Commission to determine whether a warning of unsatisfactory performance was given before a particular dismissal. In this matter, it is clear on the evidence that Mr Hutchinson received a number of warnings related to his conduct and performance prior to his dismissal.
The principal purpose of issuing a "warning" is to advise the employee that their conduct or work performance is inadequate and in the event they do not raise their level of performance to the required standard, dismissal may follow.
The warning may articulate the employer's expectations, identify what conduct or performance needs to be remedied. The warning may identify a specific aspect of the employee's work that requires attention and propose a course of remedial action the employer considers will enable the employee to perform to the required standard.
As a general rule, verbal warnings generally precede written warnings. Both seek to agitate improvement. The employee's conduct is normally monitored by the employer for a period of time. Where relevant, the employee's role and performance expectations are compared against his or her position description. Employees need to be on notice that non-compliance may lead to dismissal.
In an ideal world, the process is formalised in a performance management policy or procedure underpinned by proposed supervisory arrangements, training plans and monitoring procedures. The employee, now aware of the employer's expectations, is given a fair and reasonable time frame and an opportunity to meet the requirements of the employer. Insufficient warning or time to remedy conduct or performance issues may render a particular dismissal unfair.
The evidence pressed in support of Mr Hutchinson's dismissal points to a line of clear and unambiguous warnings and instructions concerning his conduct and performance commencing in August 2014 and summarised in his letter of dismissal dated 17 November 2014. Those warnings were both general and specific and critically, they clearly explained the degree and level of performance required by Mr Hutchinson to perform his role as Works Manager.
Mr Hutchinson was aware and on notice that in the absence of his significant improvement and compliance with directions, Council would need to consider potential further discipline, including the prospect of dismissal. That said, Mr Fanning did not meet with Mr Hutchinson as agreed in August 2014 to determine some performance objectives and training needs. Had that meeting occurred, Mr Hutchinson may have adopted a more positive response to Council's well ventilated concerns.

[29]

Was the dismissal of the respondent unreasonable or unjust?

The overwhelming evidence in this matter supports the proposition that Mr Hutchinson's conduct between August and October 2014 was below expectations. As a manager, he had an obligation to provide leadership and be accountable for his decision making, conduct and work performance consistent with his position description.
On the material before the Commission, it cannot be said that Mr Hutchinson responded positively to the various warnings put before him by Council. His response as variously described by Council, was non-cooperative as evidenced by his email correspondence and intemperate remarks.
The period between August and October 2014 clearly demonstrates that Mr Hutchinson was incapable of accepting the directions and instructions required of him by Council and made no real attempt, in a rational and orderly way, to explain why he was incapable of complying. His noncompliance was, in his view, generally caused by the fault of others.
The Commission is required to make a judgement based on the credibility of those giving evidence in proceedings. In cross examination, Mr Hutchinson appeared to hold a high value of his own work performance with Council. Mr Hutchinson was resolute that his conduct and performance was not deficient as alleged by Council. Mr Hutchinson failed to directly answer many questions concerning his performance and conduct in cross examination or provide responsive answers. Rather, he responded argumentatively, defending his work ethic and professional conduct at all times or ignoring the point of the question.
For various reasons and perhaps best connected to his perception of his own work performance as a professional engineer, Mr Hutchinson chose not to engage in any self-reflection concerning the gravity of the various allegations put to him by Counsel in cross examination. Instead, his response was largely dismissive.
Having listened closely to Mr Hutchinson's evidence, I do not consider that he gave proper and genuine responses to the questions put to him. That view was reflected in his demeanour and I have formed the view that Mr Hutchinson's evidence cannot be afforded a high level of credence. On the other hand, the evidence of Mr Fanning, Mr O'Hara and Mr Lordanic was straight forward, direct and credible in my opinion.
Throughout the performance management process conducted by Council, Mr Hutchinson's apparent lack of reaction to the gravity of the situation clearly before him is symptomatic of the general attitude he held concerning his own performance and in general, any problem associated with that performance was not of his making. In the end his performance was below the standard to that required by Council.
In Franklins Ltd v Webb (1996) 72 IR 257, a case that dealt with summary dismissal for serious misconduct, the Full Bench at 262 observed that employers: ...need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.
The Full Bench observation in Franklins Ltd v Webb confirm the onus upon an employer to ensure that allegations concerning an employee's performance are investigated in a proper and procedurally fair manner. Given the evidence before the Commission in this matter and the size of the Council, I consider that onus was discharged by the Respondent. There is no evidence that Mr Hutchinson took any immediate action himself to placate Council's cause for concern regarding his appearance, the requirement to tidy his office, be cordial to staff and use the TRIM system.
On the evidence, Mr Hutchinson was aware of Council's concerns and clear instructions had been given to him. Accordingly, it must follow that Mr Hutchinson was conscious of Council's requirements as detailed in various correspondence and warning letters and, even if he disagreed, he was clearly on notice what Council required to bring about a satisfactory level of conduct and performance in his role.
Given the number of occasions where Council raised conduct and performance with Mr Hutchinson over the course of his employment and the fact that he had been repeatedly warned that termination may result if there was no significant improvement, I am compelled to form the view that he was given a sufficient opportunity to improve his conduct and performance and demonstrate to Council that he was capable of satisfying its concerns.
No evidence was brought by Mr Hutchinson that he sought an extension of time to improve his performance on the grounds that he required additional time or that he was stressed as a result of the performance management process.
Council's concern about Mr Hutchinson's general lack of respect towards Council's management is made out on the evidence before the Commission.
The nature of Mr Hutchinson's conduct, including his intemperate remarks put formally to Council following the receipt of the various letters of warning, is relatively straightforward. When that conduct is viewed against his vehement denial that there was any real cause for concern by Council about his conduct and performance, it follows that it is highly probable that he would not have deviated from those strong views even if he had been afforded additional time by Council to consider his position or make inroads towards the improvements sought.
When viewed collectively and in the absence of any admissions, remorse or contrition, Mr Hutchinson's conduct effectively disenfranchised him from any alternative penalty to dismissal with notice, such as a further warning or reprimand. The dismissal was neither unreasonable nor unjust in all the circumstances of the case.

[30]

Was the dismissal of the respondent harsh?

The Commission is required to determine whether or not the applicant's dismissal was harsh as well as whether it was disproportionate to the gravity of the alleged misconduct. The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was, in all the circumstances of the case, too severe. At 302-303, the Full Bench stated: 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 Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 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)
The Commission is required to consider whether in the circumstances if this case, the penalty of dismissal was too harsh, having regard to the mitigating factors concerning Mr Hutchinson's age and potential difficulty in obtaining alternative employment. The Commission is required to consider procedural factors.
In the events leading directly to his dismissal on 17 November 2014, Council provided Mr Hutchinson with an opportunity to explain his noncompliance to the various directions issued to him. It was Council's view that het simply could not provide any reasonable explanation.
Mr Hutchinson was given an opportunity to establish, by way of evidence, that there was nothing controversial about his work performance in the Works Manager role. On the material before the Commission, Mr Hutchinson has produced no credible evidence that his conduct and performance was at a satisfactory level or that he had taken steps to make a satisfactory improvement as required by Council. Simply, nothing was his fault.
On balance, the extended timeframe afforded to him to comply with the original 5 August directions were in my view reasonable and Council provided ample opportunity to Mr Hutchinson to meet the directions timetable, if he wished to, before the show cause letter threatening pending dismissal was issued. Mr Hutchinson was aware that he was under performance management and was on notice from August that if he did not improve his conduct and performance, dismissal was an outcome that Council may consider.
It cannot be said that Council that Council did not follow proper procedures and a fair process in identifying Mr Hutchinson had conduct and performance issues that needed to be addressed and that he was not afforded an opportunity to make those improvements. Council response to conduct and performance issues
Shortly stated, part of Mr Hutchinson's defence was that he could not prepare the Works Program as was unable access and, found it difficult to access the Council's systems to find the relevant information. It was open to Council to simply provide the required information.
The Commission notes that Mr Hutchinson was formally given the list of proposed capital works on 27 October 2014.
On my view of the evidence, it would appear that Mr Hutchinson's computer based search skills were quite limited. During the second probation interview conducted with Mr Hutchinson on 8 May 2014, Mr McCoy determined Mr Hutchinson required training or assistance to access "figures" for the RMS work and training on the TRIM system. In the event Mr Hutchinson had been afforded that favour by Council, what he subsequently did with those skills would have been within his own control and responsibility. However, he was not afforded that opportunity.
Council should have provided Mr Hutchinson with some direct or "hands on" finance related training and assistance in addition to the training given to him on the TRIM system. If Mr Hutchinson subsequently refused that training, it would have been at his own peril.
Rather than simply tell Mr Hutchinson that the Council's Budget materials reside in the "financial system", arrangements in my view should have been made to provide the relevant information to him much earlier than was done.
In or around August 2014, Mr Fanning advised Mr Hutchinson that he would meet with him to develop some performance objectives. That meeting never eventuated for the reasons set out in Mr Fanning's evidence. Whilst speculative, that meeting may have agreed on a different timeframe upon which Mr Hutchinson was required to make the required improvements
On the evidence Council did not specifically consider Mr Hutchinson's age at the time the decision was taken to dismiss him. Nor did it give consideration to the difficulty that he might incur in obtaining further employment given his age and the fact that he resides in Katoomba.
The Commission, having considered all the material in this particular matter, finds that the dismissal of Mr Hutchinson was harsh for the above reasons.

[31]

Is reinstatement inappropriate?

In determining the appropriateness of reinstatement, the Commission is required to determine whether sufficient trust exists to make the employment relationship viable and productive. It logically follows that the Commission is required to assess whether the contention of Council that trust and confidence has been destroyed is soundly and rationally based and sufficient to make the restoration of the employment relationship inappropriate.
Where the Commission determines that reinstatement is impractical, the size of the employer is a significant consideration in determining the practicality of reinstatement. In that regard, the employer in this case is a small rural Council.
It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. In Plummer v Stannard Bros Launch Service [2005] NSWIRComm 301, the Full Bench reinforced that position at paragraph [115]: Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453.
Moreover, in Little (No 2) the Full Bench considered the test to be applied as to the practicability of reinstatement of re-employment at paragraph [91]: It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342).
Where a loss of trust and confidence is asserted, it is not sufficient for an employer to simply assert the allegations that lead to the dismissal support the proposition that there has been a loss of trust and confidence. A proper case needs to be made out.
Council is opposed to reinstatement principally on the grounds that the trust and confidence necessary for an ongoing employment relationship has been irrevocably destroyed. I have given consideration to all the evidence in this matter and determined that reinstatement is not a practical remedy. I also consider the loss of trust and confidence claimed by Council is rationally based. In that regard, I have carefully assessed the various considerations relevant to that determination. These considerations include Mr Hutchinson's relatively short work history with Council, the conduct of both parties that ultimately lead to his dismissal, the nature of the business being a small Council, the requirements of all employees, including managers and professional staff, to work cooperatively and safely in a productive manner, the attitude of the General Manager towards Mr Hutchinson's capacity to work as directed and Mr Hutchinson's lack of common courtesy and respect when dealing with Council managers and employees alike.
There was no evidence pressed before the Commission that an alternative position with Council was available.
The position of Works Manager with Council is a senior position which carries with it responsibility, a certain degree of independence and autonomy. Against the backdrop of the Works Manager Position Description, it is clear to me that the position requires a high level of trust within the employment relationship. As the Full Bench in Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at [191]: "…trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause. . . The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell [1933] HCA 8; (1933) 49 CLR 66 at pp.81 and 82 and North v Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based…"
I have also formed the view that Mr Hutchinson's manner and communications style in dealing with Council staff effectively destroyed that trust and confidence that Council management was entitled to expect in the employer/employee relationship with him. Accordingly, I find that reinstatement is an inappropriate given all the circumstances of this case.
I also consider the requirements of s 88 of the Act have otherwise been met.

[32]

Remedy

The evidence before the Commission supports the proposition that Mr Hutchinson either made a less than satisfactory attempt to comply with the directions given to him by Council or simply failed to complete them at all. The evidence also supports the view of Council that Mr Hutchinson was unwilling to accept directions or show a level of respect to Mr O'Hara specifically and other employees generally.
Mr Hutchinson's position description required him to prepare, amongst other tasks, contract documentation, manage contracts, prepare cost estimates, prepare management plans for various works and ensure compliance with those plans budgets and procedures. The position description also required him to prepare the works program, the weekly works roster and complete quality planning processes such as G Registration.
I have considered all evidence and submissions put to the Commission by the parties. Against that backdrop, I accept Council's view that Mr Hutchinson had failed to comply fully with the directions given to him between August and November 2014, did not perform the inherent requirements of his position satisfactorily or as a defence, demonstrate to Council any substantive reason why he could not comply with those requirements.
There is no firm evidence before the Commission to support the proposition that by residing in Katoomba, Mr Hutchinson faces more difficulty in obtaining alternative employment.
I have considered Mr Hutchinson's age, the provision of financial information to him by Council, the financial training requirements identified by Mr McCoy and the fact that performance objectives were not set as agreed between Mr Hutchinson and Mr Fanning in August 2014.I note Mr Fanning's reasons for not subsequently meeting with Mr Hutchinson and setting those objectives.
I have considered Mr Hutchinson's short service with Council and the provisions of s 89(5) and (6) of the Act. I have also given consideration to Mr Hutchinson's conduct and evidence. I have determined that in all the circumstances of this case, it is appropriate to order the respondent to pay the applicant an amount of six weeks' salary as compensation less appropriate taxation, payable within 21 days.

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Parties

Cases Cited (23)