Schokman v RTA

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

CASES CITED: Laws v. London Chronicle (Indicator Newspapers) Limited 1 WLR [1959] @ 698 Alexander v Commissioner of Police [2009] NSW IRC Com3, Boland J President

HEARING DATES: 11 December 2009, 28 January 2010

APPLICANT Mr M Gibian, Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr D Davies, Solicitor

Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf of Carl Stanley Schokman) and Roads and Traffic Authority of NSW Division of NSW Government Service.

Application by Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of its member Carl Stanley Schokman re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 This matter involves a claim for unfair dismissal made pursuant to the provisions of Part 6 of Chapter 2 (ss.89 - 90) of the Industrial Relations Act 1996 [NSW], (the Act). 2 The claim was filed on 7 September 2009, by the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales, (the PSA) and was made on behalf of Carl Stanley Schokman, (the applicant). The application named the respondent employer as the Roads and Traffic Authority of NSW Division of NSW Government Service, (the RTA).

3 The matter was the subject of unsuccessful conciliation proceedings conducted before Bishop C. Subsequently the Hearing of the Arbitration of the claim has involved two days, 11 December 2009 and 28 January 2010. BACKGROUND 4 The applicant is a male who was some thirty four years of age at the time of his alleged unfair dismissal. The applicant was advised of his dismissal on 28 August 2009, by way of a letter dated 25 August 2009. The applicant had been employed for a period of approximately four and a half years. The applicant was employed in a position described as Registry Services Officer - Driver Testing. The applicant worked at the Hornsby Motor Registry of the RTA. 5 The applicant was summarily dismissed for misconduct relating to an incident that occurred at the Hornsby Motor Registry on 10 December 2008. The misconduct incident of 10 December 2008, involved the applicant accessing a computer record system referred to as DRIVES. The applicant accessed the DRIVES computer system for an unauthorised and non-work related purpose. This incident of misconduct on 10 December 2008 was investigated by the RTA and ultimately established the reason for the applicant's summary dismissal over eight months after the misconduct had occurred. 6 It is necessary to outline a chronology of important events commencing with the misconduct event on 10 December 2008, involving the applicant's unauthorised and non-work related access to the DRIVES system and culminating in the applicant's summary dismissal effective 28 August 2009.

The Misconduct Incident of 10 December 2008 7 At some time shortly after 1.00 pm on 10 December 2008, the applicant commenced his "lunch hour". At this time he noticed that he had received numerous missed calls on his mobile telephone which were identified as coming from his wife. He telephoned his wife who informed him that she had been involved in a car accident earlier that morning. The circumstances of the car accident were discussed between the applicant and his wife. Although sometime had elapsed since the accident had occurred, the applicant and his wife gave evidence that she was still in a highly anxious state at the time of the telephone conversation. 8 The applicant's wife was not injured in the motor vehicle collision and it appeared that the other driver was at fault. However, the applicant's wife had only obtained the mobile telephone number of the other driver involved in the collision. The applicant took the telephone details of the other driver and told his wife that he would contact the other driver and obtain the further details regarding the motor vehicle accident. 9 The applicant then telephoned the driver of the other vehicle, a Mr Fatiaki. Mr Fatiaki confirmed that he had been the driver of the other vehicle involved in the collision earlier that day. Mr Fatiaki gave further details to the applicant including his full name and address, his driver's licence number and the registration number of the motor vehicle. The applicant then asked Mr Fatiaki about the make and model of the motor vehicle. Mr Fatiaki said that he did not know the details of the motor vehicle and that as the car was parked some distance away he would have to go to the vehicle in order to provide the further information that had been sought by the applicant. 10 The applicant was under some time pressure as his "lunch hour" was to conclude at 2.00 p.m. at which time he had a driving test booked for an RTA customer. At this point the applicant advised Mr Fatiaki that he worked for the RTA and that he could, if Mr Fatiaki approved, look up the details of the motor vehicle on the RTA computer system (DRIVES). Mr Fatiaki apparently indicated no objection to this and the applicant then made the unauthorised access to the DRIVES system. This access to DRIVES was clearly for a non-work related purpose, and solely for the personal purpose relating to the motor vehicle accident involving the applicant's wife. 11 The applicant obtained the relevant details of the motor vehicle via access to the DRIVES system. In the course of obtaining this information the applicant noticed that the motor vehicle was not registered in Mr Fatiaki's name. The applicant confirmed with Mr Fatiaki that he was not the owner of the vehicle that he was driving when the collision occurred. Mr Fatiaki confirmed the name and relevant details of the owner of the vehicle. The applicant made further access to the DRIVES system in respect to information concerning Mr Fatiaki's driver's licence number and any linked information that the DRIVES system may have contained. The DRIVES system did not provide any further linked information to Mr Fatiaki's licence number and during the course of the ongoing telephone conversation Mr Fatiaki confirmed the details of the motor vehicle as sought by the applicant. 12 The telephone conversation between the applicant and Mr Fatiaki concluded and the applicant exited the DRIVES system and conducted the driving test as scheduled for 2.00 p.m. The applicant did not make any report of the unauthorised use of the DRIVES system for a non-work related matter.

The RTA Investigation Process 13 The applicant's access to the DRIVES system shortly before 2.00 p.m. on 10 December 2008 was witnessed by another RTA employee. That employee reported the matter and following some confirmation that the DRIVES system had been accessed at the time observed, the matter was reported to more senior RTA officers. 14 By about 19 December 2008, the RTA Manager of Workplace Practices became aware of the incident and the nature of the allegation made against the applicant that, some nine days earlier, he had without authorisation, accessed the DRIVES system for a non-work related matter. Further investigations were undertaken by relevant RTA officers and on or about 18 January 2009, the applicant was asked to attend a meeting scheduled for 21 January 2009. The applicant was interviewed by relevant RTA Officers on 21 January 2009, and asked about his apparent unauthorised access to DRIVES for non-work related purposes. 15 At the interview held on 21 January 2009, the applicant immediately confirmed that he had accessed the DRIVES system without authorisation and for a non-work related purpose. He explained to the relevant RTA investigators that the circumstances at the time gave rise to his actions which he acknowledged were in breach of clearly established code of conduct and protocol relevant to access for the DRIVES system.

16 On the following day, 22 January, the applicant had his access to the DRIVES system removed. The applicant continued to work and perform the duties associated with his position as a Registry Services Officer - Driver Testing, subject to having to make alternative arrangements with other RTA employees to overcome any work requirements that were impeded by the removal of his access to the DRIVES system. 17 The applicant continued to work under the rearrangements associated with the removal of his access to the DRIVES system until he was contacted in late May 2009, and asked to attend a disciplinary interview that was initially scheduled for 4 June 2009. This interview was rescheduled and ultimately held on 18 June 2009. 18 On or about 4 August 2009, the applicant received undated correspondence from Ann King, Director, Licensing, Registration and Freight of the RTA which inter alia, advised that she was considering termination of the applicant's employment. This correspondence also provided the applicant with an opportunity to make a submission to Ms King within seven days of receipt of the letter in regard to the proposed penalty of termination of employment. 19 The PSA, on the applicant's behalf, made a written submission to Ms King in correspondence dated 7 August 2009.

20 At approximately 4.25 p.m. on 28 August 2009, Messrs Partridge and Johnson, RTA Officers involved in the investigation of the applicant's misconduct, handed the applicant a letter dated 25 August 2009, signed by Ms King, and which advised of the summary dismissal of the applicant. The applicant was subsequently escorted from the RTA Hornsby premises.

21 The applicant has challenged the dismissal primarily on the basis that the decision to dismiss summarily was disproportionate to the nature and extent of the misconduct of the applicant. Further challenge was also made in respect to the procedure that the RTA had adopted to investigate and ultimately determine the dismissal of the applicant.

THE EVIDENCE 22 The evidence presented in this matter has not involved significant factual conflict requiring resolution in order to determine the claim. There were some issues of minor contest such as the suggestion that the applicant's wife and the applicant himself had elevated the extent of the applicant's wife's anxiety at the time of the telephone call on 10 December 2008. This anxiety on the part of the applicant's wife was said to have contributed to the spur of the moment actions of the applicant where he committed the act of misconduct by accessing the DRIVES system without authorisation and for non-work related purposes.

23 Although this issue was not fundamental to the determination of the claim, having observed both the applicant and his wife provide witness evidence, I have no reason to doubt the veracity or accuracy of the recount that they provided about the tension that was associated with the telephone call between the applicant and his wife on 10 December 2008. Although some time had elapsed since the collision had occurred, the applicant's wife had failed to obtain all of the details of the other driver, and this mistake on her part would have clearly contributed to her anxiety. 24 The applicant and his wife were the only witnesses called to provide evidence in support of the claim. The applicant and his wife were witnesses who gave credible and straightforward evidence that wherever it differed from the evidentiary position provided by the RTA should be preferred. As mentioned earlier this preference has been made in respect of matters which are at best ancillary to the primary Determination of the claim. 25 The witnesses that gave evidence on behalf of the RTA provided broadly credible testimony which in the absence of significant factual contests is unnecessary to examine in detail. There were two notable points of detail regarding the evidence provided by the RTA.

26 Firstly, the evidence disclosed that there were two versions of the RTA discipline policy guidelines. Unfortunately the initial evidentiary material provided on behalf of the RTA incorrectly referred to version 6 of the discipline guidelines as having been applicable to the circumstances of the applicant. However, it was subsequently revealed that an earlier version of the guidelines, version 5 was relevant to the applicant's case. 27 Secondly, the evidence provided by Ms King who was the person who made the decision to dismiss the applicant, included an unfortunate "misdating" of a document that recommended the dismissal of the applicant. This apparent "misdating" involved the hand written alteration of the date of 26 August to 25 August, and was ultimately a matter that was not satisfactorily resolved by the evidence that was provided. 28 Although these aspects of the evidence were unfortunate, they were not matters that became crucial to the resolution of the claim and did not detract from the broadly uncontested chronology of relevant events. THE CASE FOR THE APPLICANT

29 At the Hearing the applicant was represented by Mr M Gibian, barrister. Mr Gibian provided an outline of written submissions made on behalf of the applicant. He made supplementary oral submissions. Mr Gibian commenced his submissions by stating that the applicant's case was principally advanced on the basis of the harshness attached to the dismissal. Mr Gibian submitted that the applicant's misconduct involved one momentary lapse of judgement and that it was harsh and disproportionate to summarily dismiss the applicant for one such lapse in judgement. 30 Mr Gibian further submitted that there were numerous factors which operated to support the applicant's claim and which contributed to the harshness that he alleged to be attached to the dismissal. Mr Gibian submitted that at no time did the applicant act dishonestly and that as soon as he was questioned about the unauthorised access to DRIVES on 10 December 2008, he admitted his actions. 31 Mr Gibian further submitted that the applicant had an exemplary work record and that the absence of consideration of other disciplinary penalties not involving dismissal, created further basis upon which to find that the decision to dismiss was harsh and disproportionate.

32 Mr Gibian made a further submission which criticised the procedure that the RTA had adopted in respect to the investigation process which ultimately led to the dismissal of the applicant. The procedural matters that Mr Gibian said were relevant firstly involved the two versions of the discipline guidelines which were identified.

33 Mr Gibian noted that the version 6 of the disciplinary guidelines which although it had been promulgated by the RTA at the time of the applicant's dismissal, was not the version of the document that was operational for the purposes of the applicant's case. Mr Gibian noted that version 5 of the discipline guidelines had apparently been relevant to the applicant's circumstances. In this respect Mr Gibian noted that version 6 which has subsequently been adopted by the RTA, has replaced the disciplinary panel process with an Ethical Standards Committee. Mr Gibian suggested that the applicant may have received what the RTA by its own admission recognised to be a deficient or inadequate process, rather than, the version 6 disciplinary policy and guidelines which established an Ethical Standards Committee. 34 Mr Gibian made further criticism of the RTA procedure which involved the ultimate decision maker Ms King never actually meeting the applicant. Mr Gibian submitted that there had been no opportunity for the applicant to put his case face to face with Ms King. Mr Gibian said that Ms King simply looked at a few documents and then made the decision to dismiss the applicant.

35 Further, Mr Gibian said that the evidence revealed that none of the various members of the discipline panels that had been involved in the procedure investigating and considering the applicant's misconduct included anyone that at any time had met or worked with the applicant. Mr Gibian submitted that there was a fatal flaw in the process that had been adopted in this matter when none of the people who were involved in the decision making process, particularly, including the final decision maker, had never "set eyes upon the man". 36 Mr Gibian made further submissions which referred to Authority in regard to the requirements to provide for procedural fairness involving a proper opportunity for the applicant to put his case to the decision maker in person if need be, and before the decision to dismiss was taken. Mr Gibian made further detailed submissions which identified particular aspects of mitigation which he said the RTA had failed to give due consideration to and which thereby constituted the basis upon which the Commission could establish the harshness that he alleged.

37 Mr Gibian identified that the applicant had acted completely in the heat of the moment and his misconduct was in no way premeditated or planned. Mr Gibian also mentioned that the applicant had sought and obtained permission from Mr Fatiaki before he actually accessed the records on the DRIVES system. Further, Mr Gibian said that the applicant had obtained no real financial advantage from his misconduct. Mr Gibian submitted that the applicant was merely seeking to establish details which unfortunately, his wife had not obtained at the time of the motor vehicle collision. Finally, Mr Gibian mentioned that the matter had come to the attention of the RTA via the observations and report of another RTA employee, rather than by way of external public or customer complaint. 38 Mr Gibian made a further submission which related to the inconsistency that he said existed between the summary dismissal and the nature of the single incident of misconduct. Mr Gibian said that the RTA had approached the matter without recognising that the actual misconduct of the applicant was at the "lower end of the scale" and should have been compared and contrasted with unauthorised access to DRIVES that would have been premeditated, and specifically, in pursuit of financial gain. Mr Gibian said that these matters which mitigated again a decision to summarily dismiss were paid scant regard by the RTA. 39 Similarly, Mr Gibian said that the RTA appeared to have little or no regard for the exemplary employment record of the applicant. In this regard Mr Gibian said that the evidence revealed that the applicant didn't have just an unblemished employment record, but that he had a demonstrated record of high commitment, enthusiasm and dedication to his work with the RTA. According to Mr Gibian the RTA appeared to have given no consideration for any mitigation in respect to the outstanding performance record of the applicant. 40 In conclusion Mr Gibian submitted that there was no impracticality to reinstatement, and that given the nature of the circumstances, particularly involving the applicant's exemplary work record, reinstatement should be the appropriate remedy for the applicant's unfair dismissal. THE CASE FOR THE RTA 41 At the Hearing the RTA was represented by Mr D Davies, solicitor. Mr Davies made submissions which were directed at five principle issues that he said which were relevant to the applicant's case. 42 Firstly, Mr Davies said that the reason for the dismissal was "crystal clear". Mr Davies said that the misconduct of the applicant involved a breach of the code of conduct, and that there was no evidence to suggest that there was any ambiguity or confusion about the stringent requirements that the RTA insisted upon in respect to the access of the DRIVES computer system.

43 Mr Davies submitted that the claim in this instance was very much a matter of whether the punishment fitted the crime. In this regard he rejected the criticisms made in respect of the procedure that the RTA had applied. Mr Davies submitted that the applicant had been involved in two disciplinary interviews and provided with an opportunity to make a written response which was made on his behalf by the PSA. 44 The third aspect of the submissions made by Mr Davies detailed the clear policy communication that had been made by the RTA to the applicant and all other employees regarding the DRIVES computer system. Mr Davies said that there was no evidence upon which there was any basis to suggest that the applicant was unaware or in any way unclear, about the stringency that the RTA adopted in respect of the access to DRIVES policy. In this respect Mr Davies submitted that the RTA established that the access to DRIVES was a "sacrosanct area" and therefore it was entitled to act in the way that it had.

45 Mr Davies made further submissions which asserted that there had been an irretrievable breakdown in the employment relationship. Mr Davies said that the employer had lost trust and confidence in the applicant as a result of the misconduct that had occurred on 10 December 2008. In this respect Mr Davies said that it should be recognised that the applicant was not a junior employee who made some silly mistake but, he was a more senior member of the RTA staff who from time to time acted in Assistant Manager positions. Mr Davies submitted that this more senior status of the applicant created significant difficulties in respect of the breakdown of trust and confidence issue. 46 Mr Davies made further submissions which challenged some aspects of the submissions made on behalf of the applicant. Mr Davies submitted that the matters which were said to mitigate in respect of the applicant's misconduct could be discounted. Mr Davies said that the issue of consent from the customer was irrelevant, and that the applicant himself would have been aware that any consent did not necessarily permit a breach of the RTA code of conduct in respect to access to DRIVES. Further Mr Davies said that the benefit that the applicant obtained involved the provision of information which assisted in his insurance claim in respect of the accident that his wife had been involved. In this regard Mr Davies said that the applicant had acted so that "the wheels were appropriately greased toward the insurance claim". 47 Mr Davies made further submissions which related to the summary or instant dismissal of the applicant. Mr Davies said that there had been established strong law to ensure that there was no fixed or defined rule that established the degree of misconduct that could justify summary dismissal. Mr Davies said that it was clear that one act of disobedience or misconduct could justify summary dismissal, if that act went to the heart of the employment contract. 48 Mr Davies then made further submissions which involved reference to a number of other decided cases which involved circumstances of employees obtaining or accessing confidential information in various employment circumstances. Mr Davies said that it was important that the actions of the applicant needed to be considered in the context of the RTA's sacrosanct treatment of access to the DRIVES system. Consequently, according to the submissions made by Mr Davies, the actions of the applicant in accessing the DRIVES system for a personal matter went to the very heart of the employment contract and thereby justified the summary dismissal. 49 Mr Davies made further submissions which rejected the notion that the applicant had not been provided with a proper procedure involving natural justice. Mr Davies said that the applicant had attended at two disciplinary interviews and his Union had provided a written submission before Ms King made the decision to dismiss. Mr Davies further submitted that Ms King had not acted in a manner which was akin to an automatic rubber stamp dismissal but, had carefully considered the circumstances that were involved and the uncontested evidence of the applicant's misconduct.

50 In addition Mr Davies said that the RTA had followed an established procedure that involved careful and methodical investigation of the allegations of misconduct, and ultimately these matters were placed before two disciplinary review panels and then the recommendations subsequently made were considered by the final decision maker Ms King.

51 Mr Davies made a further alternative submission which noted that if it was held that the punishment did not fit the crime in this case, the employer's loss of trust and confidence in the applicant meant that reinstatement would be impractical. In conclusion Mr Davies submitted that the level of punishment in this case was appropriate as the applicant had made a most serious breach of the RTA code of conduct, and that breach went to the heart of the employment contract. Therefore, according to the submissions made by Mr Davies the dismissal should be found to be appropriate in the circumstances and the application dismissed. CONSIDERATION 52 The consideration of this matter can commence with the issue of the nature of the dismissal. This was a case where the applicant was summarily dismissed, no notice was provided, nor payment given in lieu of notice. Summary dismissal, as opposed to dismissal with notice, is the most severe form of disciplinary action that an employer could take against an employee. Much of the considerable case law that has developed in the area of summary dismissal has related to the evidentiary onus that must be discharged in respect to any gross and wilful misconduct that the employer relies upon as the basis for summary dismissal. In this instance there was no evidentiary contest at all, instead, the summary dismissal was said to be inappropriate or disproportionate to the nature of the misconduct that was not in question. 53 Essentially the issue involves the nature of any misconduct that could justify summary dismissal as opposed to dismissal with the required notice. Much of the more recent case law on this particular question has developed a line of authority that for present purposes can be conveniently traced back to the case of Laws v. London Chronicle (Indicator Newspapers) Limited 1 WLR [1959] @ 698. . Although this was an English case from 1959, it established that a prerequisite to any misconduct which is said to provide basis for summary dismissal must "... have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions." Ibid @ 701. 54 Consequently if the decision of the RTA to summarily dismiss the applicant because of his misconduct on 10 December 2008, satisfied this established basis, the RTA must have concluded that the applicant's actions were a deliberate and wilful act that was aimed at the heart of the employment contract. 55 It was advanced on behalf of the RTA that the actions of the applicant did represent a deliberate and wilful breach of a code of conduct, and that as such, it represented proper basis for summary dismissal. In this regard there was great emphasis placed upon what was said to be the sacrosanct way in which the RTA dealt with the DRIVES computer system. The evidence revealed that the RTA does treat the DRIVES computer system with great importance and is clearly concerned about any breach of policy or protocol regarding access to the information that is contained within the DRIVES system.

56 An employer is entitled to establish stringent requirements in respect to particular aspects of its operations, such that a single breach of a particular requirement could be justifiable basis for summary dismissal. This can lead to differing standards applying in different workplaces such that, for example, in one workplace misconduct involving unauthorised access to a computer data base might result in a warning or some other minor disciplinary action as opposed to the situation said to be relevant in the RTA, whereby unauthorised access to DRIVES constitutes gross and wilful misconduct that provides basis for summary dismissal. 57 In circumstances where an employer establishes some stringent requirement that is said to provide basis for summary dismissal, it is important to ensure that such stringency is genuine, and not something that has been elevated beyond the gravity which the employer in practice applies to the misconduct. It would be plainly unjust if an employer promulgated a level of stringency attached to certain misconduct, but in reality acted either inconsistently in respect of the application of such stringency or generally without application of that level of stringency. 58 When an employer becomes aware of misconduct which it says by way of application of its stringent requirements could justify summary dismissal it must in fairness, act consistently by treating the misconduct with that level of stringency. In effect an employer will condone the misconduct if, having been made aware of the alleged nature of the misconduct, it does not treat that misconduct with the seriousness that it subsequently imposes by way of penalty of summary dismissal. In effect the employer's failure to act as soon as practically possible after it becomes aware of the alleged severity of misconduct creates a waiver that does not permit the employer to subsequently rely upon the misconduct as establishing basis for summary dismissal. 59 Senior Officers of the RTA were aware of the applicant's misconduct, albeit as untested allegations, as early as 19 December 2008. The applicant's access to the DRIVES computer system was not removed until more than a month later. The applicant continued to work for the RTA albeit without access to the DRIVES system, up until his dismissal on 28 August 2009. The dismissal on the 28 August was then summary in nature. That summary dismissal was plainly inconsistent with the way that the RTA had continued the applicant at work both firstly with access, and then subsequently without access to DRIVES for the preceding nine months.

60 I believe it to be unjust and unreasonable to continue an employee in engaged employment for an extended period with the knowledge of the nature of the misconduct that is being investigated during that period and then decide to dismiss summarily, as opposed to dismiss with the required notice. The injustice arises because if the applicant's access to the DRIVES system was as serious as it was treated on 28 August 2009, then the RTA should have suspended the applicant from work as soon as practical after it became aware of the allegations. Instead it took over a month before the applicant's access to DRIVES was removed, and then another eight months before the dismissal was invoked.

61 It must be recognised that this difficulty arises because the dismissal was summary, as opposed to dismissal with notice. It has been difficult to understand why the applicant was summarily terminated, rather than terminated either with notice, or payment in lieu of notice. The applicant had been working as normal, other than without access to DRIVES, for the preceding 8 months while the RTA investigation procedures slowly progressed. How could it be that suddenly on the 25 August the applicant could not remain for a minute longer as an employee? The somewhat unusual leap to summary dismissal may be in part, explained by the disciplinary guidelines documents. 62 As mentioned earlier, the RTA evidence initially supplied version 6 of the discipline guidelines as being relevant to the applicant's circumstances. Subsequently during the Hearing of the matter, the RTA provided the earlier version 5 of the discipline guidelines which was said to be that version actually used in the applicant's case. Strangely however version 6 refers to termination of employment and excludes any termination other than immediate termination on receipt of notification of termination. In the earlier version 5 document under the heading Termination Of Services, there is mention of termination without notice in certain circumstances, and then it states, that in all other instances termination of services will be given with the minimum period of notice. 63 Consequently it would seem that Ms King's dismissal of the applicant might have more likely been made in accordance with the provisions of version 6 of the discipline guidelines, rather than version 5. However it was the case put by the RTA that version 5 was applicable to the applicant's case and not version 6. 64 Whatever may have been the underlying basis for the decision to summarily dismiss, as opposed to dismissal with notice, the circumstances of the single act of misconduct, and the subsequent manner that the RTA treated the matter could not provide for proper basis for summary dismissal. Unfortunately the summary nature of the termination of the applicant's employment was not the only erroneous feature of the dismissal. 65 Regrettably the procedure that the RTA adopted when dealing with the misconduct of the applicant that occurred on 10 December 2008, did not follow either version 5 or version 6 of the discipline guidelines. It was the RTA's case that version 5 of the discipline guidelines was applicable to the applicant's circumstances. On page 8 of 10 of discipline guidelines, version 5, under the heading "Principles of Natural Justice", there is mention that a person's interests who will be adversely affected by a decision, must be given an opportunity to be heard. There is also a sub-heading of the word "Timeliness". Regrettably the evidence in this instance does not confirm that those matters mentioned as part of the paragraph headed "Principles of Natural Justice" in the RTA discipline guidelines were applied. 66 On the question of timeliness there was no evidence to establish any particular complexity or sensitivity about the allegations of misconduct made against the applicant, and which he openly admitted on 21 January 2009. There was no evidence provided to establish an explanation for the delay that occurred between 21 January when the applicant in recorded interview, made admissions about the nature and extent of misconduct which remained unaltered, and which then provided the basis for the dismissal some seven months later. 67 Perhaps the most disturbing aspect of the procedure that was adopted in this instance involved the absence of any face to face contact between the applicant and any members of the two disciplinary panels and the ultimate decision maker Ms King. Perhaps it was unfortunate that the version 5 discipline guidelines made mention of "Principles of Natural Justice" on page 8 of 10, almost at the end of the process that is set out therein. Further I note that the version 6 discipline guidelines have dispensed with the disciplinary panel process and apparently that has been replaced with the Ethical Standards Committee. Hopefully this change may represent an improvement. Certainly the evidence in this instance reflects poorly upon the disciplinary panel process. 68 It is difficult to comprehend how there could be any semblance of natural justice when a disciplinary panel meets and takes submissions which lead to a recommendation to dismiss the applicant without giving the applicant any opportunity to appear before the disciplinary panel. Although the applicant was given an opportunity to provide written submissions (and did via the PSA), before the final decision was made by Ms King, neither Ms King, nor any of the disciplinary panels as variously constituted, provided an opportunity for the applicant to plead his case in person. This represents an absence of an essential component of natural justice.

69 The opportunity for the applicant to be heard was confined to a written submission that was required within seven days after he was advised that the decision maker was contemplating termination of the employment. This procedure would be akin to the Commission reading the filed documents in one of these cases, giving indication of the decision and orders that were to be made, and then offering the loosing party an opportunity to convince the Commission to change its mind. The opportunity to be heard must be given at a time in the process when it could in practice and appearance, impact upon the outcome. Further, the opportunity to be heard should involve a hearing either by way of written submission or/and, hearing in person. 70 Regrettably in this instance, by the time Ms King gave the applicant an opportunity to make a written submission, the first discipline panel had already met and made findings and recommendations in the absence of hearing from the applicant except by way of report conveyed by RTA investigators involved in the earlier interviews of the applicant. 71 The absence of an important element of natural justice providing for the applicant to be heard at an appropriate time, and in person, was further compounded by the haste with which the final decision was taken by Ms King. There was some disturbing evidence provided by Ms King about what I have referred to as the "misdating" of the disciplinary panel recommendation (Exhibit 8 - Attachment AK2).

72 The letter of dismissal given to the applicant on 28 August 2009 was signed and dated by Ms King on 25 August 2009. Consequently the apparent date of 26 August made by Ms King on the disciplinary panel recommendation led to the following evidence provided by Ms King during cross-examination:

"Q. You appear to have signed that on 26 August, is that right?

A. If we look at - it says 25th/26th, I've clarly [sic] got the date wrong on that, if you see what I mean. Like, it was clear to me that I didn't know what I was writing, so it could have been -

COMMISSIONER: Q. Sorry, what did you say then? A. Could I show you?

COMMISSIONER: Q. Yes, I have it. What did you say just then? A. 25th/26th, I don't know which one is the most accurate. I clearly got the - looking at the dates, it would have been signed at the same time as the letter, your Honour. So I don't know whether the 25th was the correction or the 26th was the correction. Transcript of proceedings (11/12/09) @ page 88.

73 An inadvertent mistake with the dating of a document is an understandable human error. However it must be acknowledged that these documents relate to the very serious matter of termination of employment of an individual. Regrettably when Ms King was asked further about her consideration of the final decision to dismiss, she gave evidence which when considered in the context that she had never met the person that she was dismissing, provided serious concern. This concern, when carefully reflected upon, and with the benefit of observations of Ms King as a witness, has established the unfortunate conclusion that her approach to this matter was detached and perfunctory. 74 These concerns were further exacerbated when Ms King confirmed that at no stage did she contemplate any penalty other than dismissal. Consequently the process that led to the decision and the decision to dismiss the applicant itself, failed to include essential elements of natural justice. 75 The final aspect of consideration of this claim has involved the alleged harshness of the decision to dismiss. This aspect of the matter was submitted as the primary basis for the applicant's claim. In many respects the assessment of harshness in any unfair dismissal claim involves a contextual analysis. This contextual analysis is a well established principle for consideration of any claim for unfair dismissal. Indeed, Justice Boland, President, conveniently summarised this aspect of consideration in Alexander v Commissioner of Police wherein his Honour stated: "…what has become a fundamental guiding principle that even if there are grounds for terminating a contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence:" Alexander v Commissioner of Police [2009] NSW IRC Com3 @ paragraph 39. 76 In this instance there were a variety of matters which represented relevant contextual considerations in relation to the issue of alleged harshness. 77 The applicant had more than a good work record. There were numerous examples of the applicant's exemplary work record and his dedication and commitment to the RTA. In particular, it is a reflection upon his general work conduct and commitment that even after he had been dismissed he continued to arrange for the Christmas party for the RTA staff at the Hornsby Motor Registry.

78 The applicant's presentation and demeanour both as a witness and throughout the Hearing proceedings, confirmed the evidence regarding his diligence and dedication to his role as a Registry Services Officer - Driver Testing for the RTA. The Commission was left with no doubt that the applicant genuinely cherished this work and that he was devastated that the one act of inadvertent but admitted misconduct would lead to the loss of employment.

79 There was of course no capacity for Ms King or any of the members of the discipline panels to make proper assessment as to the mitigation that might be provided by this and other aspects of the applicant's commendable character as broadly reflected in his employment record.

80 One further factor that may operate in mitigation for the applicant involved his open admission when initially interviewed about the access to DRIVES on 10 December 2008. The applicant at no stage sought to conceal what had occurred when asked about the events of 10 December. Balanced against the admissions, the applicant did not report what had occurred on 10 December and he should have approached his superiors and provided the information rather than have it emerge by way of a report from another RTA employee.

81 In addition, he also confessed to the further aspect of his access to the DRIVES system involving the information obtained by using the driver's licence number to see if there was any linkage with the motor vehicle involved in the collision. It is to the applicant's credit that he offered this further information. Although once again this should have been included in a report that he made a day or two after the unfortunate event. 82 The applicant has also repeatedly expressed genuine contrition and apology for his actions. The applicant has also provided sincere undertakings about strict compliance with the RTA's policies and protocols in respect of access to the DRIVES system. Once again in the absence of direct personal observation of the applicant, none of the members of the discipline panels or Ms King could make any valid assessment about the extent to which these issues might militate against the decision to dismiss. 83 The Commission however has had the benefit of observing the applicant closely as he gave explanation for his misconduct on 10 December 2008, and in respect to the issues which were said to provide mitigation against the decision to dismiss. I have not been prepared to accept that all the matters which were said to provide for mitigation are necessarily something that might have represented a proper consideration. However in total, and on balance, I believe that the decision to dismiss was disproportionate to the misconduct.

84 I acknowledge that the RTA can properly attach great stringency to the integrity of the DRIVES computer system, and as such require strict adherence to the policies and protocols that relate to access to the DRIVES system. However the evidence in this instance was that the discipline panel and the determination by Ms King did not properly include a balanced assessment having regard for various mitigating factors that should have been considered. The RTA will not enhance the integrity and confidentiality that it rightly seeks for access to the DRIVES system if it adopts a rigid approach that does not permit careful analysis in order to recognise graduated differences that will always exist in respect to any particular breach of the codes of conduct and protocols for access to the system. There must be capacity for a distinction to be drawn between circumstances where repeated unauthorised access for personal gain can be contrasted against one single event where little if any personal gain was obtained, and certain mitigating factors exist.

CONCLUSIONS 85 The determination of this matter has involved three primary elements of consideration. Firstly, the dismissal of the applicant was summary in nature. The summary nature of the dismissal of the applicant was inconsistent with the manner in which the employer treated the misconduct when it first became of aware of it some nine months prior to the summary dismissal. Consequently the dismissal of the applicant was harsh and unreasonable because it was summary in nature, and yet the misconduct that was said to provide for basis for that summary dismissal was in no way an impediment to the ongoing engagement of the applicant for an extended period. It should be acknowledged that this particular aspect of the unfairness of the applicant's dismissal could have been avoided if the applicant had been dismissed with the required notice rather than with immediate effect. 86 The dismissal of the applicant involved a process which was neither timely nor gave the applicant a proper opportunity to be heard at a relevant time. The absence of these procedural elements occurred notwithstanding that they were specifically mentioned in the RTA discipline guidelines which provided the relevant policy for dealing with the applicant's dismissal. In particular the absence of an opportunity for the applicant to plead his case in person to the decision maker, established important procedural deficiency and thus rendered the dismissal of the applicant unreasonable and unjust.

87 Finally the absence of proper consideration of elements which mitigate against the severity of the penalty of dismissal has created manifest harshness. The absence of proper consideration of the elements that provide for potential mitigation is linked to the deficiencies in process. Upon proper hearing of the elements that were said to provide mitigation, the Commission has concluded that the penalty of dismissal was too harsh a punishment in the circumstances.

88 Consequently the Commission is prepared to find in favour of the applicant.

89 On the question of reinstatement, the assertions made by the witnesses for the RTA regarding loss of trust and confidence are invalidated for the same reasons that have led to the findings regarding harshness of the dismissal. The alleged loss of trust and confidence in the applicant could only properly emerge after having had some direct personal contact with the applicant. Therefore the Commission cannot accept that any impracticality for reinstatement could be established upon a proper basis of there being loss of trust and confidence in the applicant.

90 Accordingly the Commission is prepared to provide for Relief by way of the reinstatement of the applicant, although the Commission will make Orders in respect to remuneration which include financial penalty to the applicant as recognition for the misconduct involving the unauthorised access to the DRIVES system on 10 December 2008 for non work related purposes. 91 The Commission has determined that the dismissal of the applicant was harsh, unreasonable and unjust. The following Orders are now made:

ORDERS 1. The Commission Orders pursuant to section 89(1) of the Act, that the RTA reinstate the applicant to his former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable and within twenty one days from the date of this Decision.

2. The Commission Orders pursuant to section 89(3) of the Act, that the RTA pay to the applicant an amount of remuneration in respect to the intervening period between dismissal and reinstatement, less an amount equivalent to two weeks of the applicant's remuneration. This amount is to be paid to the applicant as soon as practical and within twenty one days from the date of this Decision.

3. The Commission Orders pursuant to section 89(4) of the Act, that the period of employment of the applicant with the RTA shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.