[1] Mr Ben Starkey ('the applicant') was employed as a fuel tanker driver by Cootes Transport Group Pty Ltd ('the respondent'). He commenced employment with the respondent on 20 November 2008. He was dismissed on 31 March 2010, after being observed on 25 March 2010, by three employees from two different organisations, talking on a handheld mobile phone, while driving through the town of Greta, New South Wales. His letter of dismissal was in the following terms:

As discussed on Wednesday, 31st March, this letter is to confirm that your employment with Cootes transport has been terminated with immediate effect.

This is a result of your actions on Thursday 25th when you where (sic) observed talking on a handheld mobile phone whilst driving a company owned fuel tanker. This demonstrates wilful disregard for company policy and local legislation and is considered gross misconduct.

This incident follows a similar occurrence in August last year and after our discussions on 7th September last year, you personally assured me, on no less than two occasions, that this type of behaviour would not happen again.

Cootes Transport has a duty of care under OH&S and road transport legislation to ensure the highest level of safety for our staff, customers and the public. This latest occurrence is possible only when a conscious decision to breach known policy and legislation is taken, subsequently compromising our ability to maintain our duty of care responsibilities.

Your entitlements and payment in-lieu will be processed on the first pay run after you return all company owned equipment and PPE.

[2] The applicant lodged an application for an unfair dismissal remedy, under s 394 of the Fair Work Act 2009 ('the Act'), on 29 June 2010. The application was listed for telephone conciliation on 20 July 2010. However, the conciliation proved unsuccessful. At some point, it appears the applicant had engaged an agent, a Mr A Kelemen, to represent him. However, Mr Kelemen did not appear for him at the conciliation or at any other time subsequently.

[3] It will be immediately apparent that the application was lodged outside the 14 day time limit set by s 394(2) of the Act. The respondent objected to Fair Work Australia (FWA) dealing with the application on these grounds and the matter proceeded to a jurisdictional hearing on 17 September 2010. The applicant was unrepresented at the hearing and Mr M Callanan, Solicitor, appeared for the respondent. On that day, Raffaelli C extended the time for filing the application, under the discretion available to FWA, pursuant to s 394(3) of the Act. In his decision, the Commissioner found that 'exceptional circumstances' were established by the applicant due to the failure of his representative (Mr Kelemen) to lodge his s 394 application within the prescribed time.

[4] The matter was allocated to the Tribunal, as presently constituted, and listed for hearing on 7 December 2010. The applicant represented himself and Mr Callanan continued his appearance for the respondent. In view of what I was informed of at the commencement of proceedings, I directed the parties to confer as to a possible settlement of the matter. Upon resumption, I was advised that, despite various offers of settlement being made, the applicant wished to proceed to hearing.

[5] At this juncture, I would observe that the applicant had not filed a statement in these proceedings. This, I must say, was highly unusual and unprecedented. Indeed, I do not recall in my 12 � years on the Bench, having ever proceeded to a formal arbitration of an applicant's claim of unfair dismissal, in the absence of any statement or affidavit from the dismissed employee. Nevertheless, the applicant agreed to give oral evidence in the proceedings and was questioned by Mr Callanan. However, the applicant also relied on three statements from fellow employees of the respondent. It is as well that I deal with these statements from the outset because, as Mr Callanan correctly observed, they were of limited, if any, relevance to the issues to be determined in this case. None of the three witnesses were eyewitnesses to the incident on 25 March 2010, at Greta.

[6] The first statement of Mr Adrian O'Neill, dealt with a conversation he had on 1 April 2010, with the Union delegate about the applicant's dismissal. Mr O'Neill was very critical of the Union's lack of representation of the applicant.

[7] A statement from Mr Darren Pauling also recited a conversation he had with the Union delegate on 1 April 2010. He was also very critical of the Union and made allegations of the Union 'colluding' with the respondent to get rid of drivers who were not part of a 'favoured clique'. Neither of these statements are relevant to my determination of this matter, in accordance with the relevant tests, under the Act, of whether the applicant's dismissal was unfair. More crucially, they do not deal, at all, with the incident at Greta on 25 March 2010.

[8] A third statement from another driver, Mr Peter Smith, was even more remote from the issues I am required to consider in this matter. Mr Smith described an incident in which he was pulled over by a highway police officer at Ravensworth for allegedly using a mobile phone whilst in motion. He explained to the officer that he had not been on the phone, as it was in his bag, and the truck phone could not operate unless the truck was 'in park'. He showed the officer his personal mobile to demonstrate he had not received, or made any calls. He then realised he had been resting his arm on the arm rest, with his hand on his head, and this had been what had alerted the police officer. The applicant sought to use this statement as evidence that he had been doing exactly the same thing at 12:08pm on 25 March 2010. Mr Smith's statement is entirely irrelevant to the issues to be determined in this matter.

[9] The applicant also relied on photos of a re-enactment he staged at Hexham, near Newcastle, of what he was doing at 12:08pm on 25 March 2010 in Greta. Similarly, these photos are of no assistance to the Tribunal's determination of this matter.

[10] The respondent's Policy on mobile phones while driving is referred to in two documents tendered in evidence. They are very similar. The Mobile Phone and Other Devices whilst Driving Policy - 28 April 2008, provides as follows:

The International Energy Services group of companies ('IES') is committed to providing a harm-free working environment. We recognise driving can be hazardous and the use of communication and similar technology places the driver and other road users at increased risk of danger from physical and cognitive distraction.

Whether driving for personal, work or leisure purposes, using a hand-held mobile phone whilst driving is illegal in Australia and many other countries we operate in such as; Singapore, India and certain USA states. The use of hands-free technology is allowed in most countries, however we acknowledge it can still interfere with the maximum concentration needed for safe driving.

IES professional transport drivers are prohibited from using hand-held devices whilst driving. Trucks had specialised communication technology installed to negate the need for hands-free phone use, except in an emergency situation.

• Consult IES people and HSSE representatives in the development, communication and implementation of the policy. Raise awareness about the dangers and provide adequate information through induction, training and HSSE briefings.

• Assess the hazards/risks involved with people required to drive for work purposes. Determine all "reasonably practicable" controls to manage those risks. For professional transport drivers, there is communication technology fitted to the vehicle to enable contactability for family, operations and/or customers which can only be activated for use when the vehicle is stationary.

• Ensure all other company vehicles are fitted with hands-free technology to support contactability whilst driving for work purposes. Reviewing work practices to ensure they do not encourage or pressure staff into having to make or receive calls whilst driving.

• Monitor conformance to legislative and IES policy requirements such as investigating work related driving incidents to determine whether using communication technology may have been a contributing factor or not. Any breach of IES policy or legislation that is substantiated may result in disciplinary action that could lead to dismissal or termination of contract.

• Encourage people to raise any issues, concerns and new ideas to continually improve and reduce risks.

• Take action on any unsafe attitudes and behaviours, encourage people to drive safely and lead by personal example. People should be under no obligation or expectation to make or receive calls whilst driving.

ALL EMPLOYEES, CONTRACTORS AND VISITORS HAVE RESPONSIBILITY TO:

• Be familiar and comply with the IES policy, local legislation and undertake training/induction as required. Co-operate with any IES monitoring, reporting and investigation processes.

• Acknowledge that anyone who drives for work purposes must do so safely with extreme care and attention to avoid unnecessary distractions, especially when driving in adverse conditions, poor weather or in an unfamiliar place.

• Plan safer journeys to include time and places to stop for rest and to check messages or return calls if need be.

• Be courageous and challenge any unsafe attitudes and behaviours you observe privately with the person directly - it could save a life. Encourage others to drive safely and lead by personal example.

• Be involved in improving driver safety by raising any issues or new ideas with your Manager of local HSSE representative.

[11] The applicant made the following concessions during his oral evidence:

• He was aware of the respondent's Policy that it was not permitted to use a mobile phone while driving;

• He had a support person with him at his disciplinary meetings with Mr Coleman on 31 March and 6 April 2010;

• He had been warned previously, in August 2009, about using his mobile phone while driving;

• His truck had a GPS tracking system which shows the speed and at what time he was driving the truck; and

• He accepted that if the phone records and the GPS system demonstrated that he was sending an SMS, or making a phone call while driving, it would not be acceptable to the respondent and would be a breach of its Policy.

[12] Despite these concessions, the applicant maintained that he was not using his mobile phone at the precise time of 12:08pm on 25 March 2010. He said he was cradling his head in his right hand and it may well have appeared as if he was using a mobile phone. He conceded that this would have meant he would have been driving with one hand. I note that he also criticised the respondent for not providing him with the statements of the three persons who saw him using the mobile phone.

[13] The applicant questioned his three support witnesses. I would observe that most of his questions were obviously leading and Mr Callanan helpfully did not take objection on every occasion he was entitled to. Mr O'Neill said that he drives the same model truck as the applicant and he had to alter his driving position, because it did appear he was using a mobile phone. During this evidence, Mr Callanan acknowledged that the phone records of the applicant do not disclose any calls or texts being made at 12:08pm on that day. However, the records show he was using the phone at other times that day, and on the day before and the day after. In any event, Mr Callanan observed that the phone records would not disclose a call made to his phone and answered by him.

[14] Neither Mr O'Neill nor Mr Pauling were required for cross-examination. Mr Smith repeated his written evidence and indicated that the company phone in the trucks will not operate while the truck is in motion. During the evidence, the applicant alleged that Management contacted drivers on the truck phone, during work hours, and thereby contravened their own Policy.

[15] Mr Ross Coleman is the New South Wales Manager of the respondent. Mr Coleman said that on 25 March 2010, he was contacted by Mr Garry Ehsman, a Caltex Fleet Supervisor, who advised him that he, Mr Glenn Douglas, a Cootes Driver, and Mr Dave Jackman, Caltex Regional Manager, had been in Greta that day and had observed the applicant driving through town and talking on a handheld mobile phone. Mr Coleman spoke to Mr Douglas and Mr Jackman, both of whom confirmed what Mr Ehsman had reported to him.

[16] Mr Coleman confronted the applicant the following day with the allegation. The applicant claimed that he would not be 'silly enough' to do it again after the earlier warning he had received, and denied using his mobile phone at that time.

[17] On 31 March 2010, the applicant attended a meeting with Mr Coleman, Mr Warren Jenner, Transport Workers' Union representative, and Mr Carl Snoboda, New South Wales Operations Manager. The allegations were put to the applicant again and he requested to see the witness statements. Mr Coleman refused and said the issue was not about the statements, but whether he had been using the mobile phone. Mr Coleman reminded him of the earlier warning and the applicant's assurance that it would not happen again. Mr Coleman told him that he had decided to terminate his employment, with immediate effect. When the applicant asked when he had made this decision, he said he had done so after he had spoken to him and received his version of events.

[18] Mr Coleman later agreed to meet the Union in Newcastle on 6 April 2010, to discuss the applicant's termination of employment. He met the applicant, Mr Jenner and Union Organiser, Mr Bill Patterson. During this meeting, the applicant offered to obtain his telephone account to prove that he was not on the mobile phone at 12:08pm on 25 March 2010. Mr Coleman told him the account would only show phone calls made, not those received. In any event, Mr Coleman said that call logs can be modified, and even deleted.

[19] Attached to Mr Coleman's statement were GPS reports and National Driver Work Diary Daily Sheets showing various times the applicant was on the phone, or sending text messages while driving. These records disclose that on 25 March 2010, the applicant was either making calls, or texting, on nine occasions while driving. They were identified as a:

• Text message at 10:05am whilst travelling at 96kmh.

• Text message sent at 11:16am whilst travelling at 100kmh.

• 7 second phone call made at 05:06am whilst travelling at 78kmh.

• 11m 39s phone call made at 05:23am whilst travelling at speeds ranging from 79 to 100kmh.

• 3m 19s phone call made at 07:03am whilst travelling at speeds ranging from 44 to 65kmh.

• 6m 11s phone call made at 10:27am whilst travelling at speeds ranging from 0 to 100kmh.

• 2m 34s phone call made at 11:34am whilst travelling at a speed of 99kmh.

• 6m 21s phone call made at 11:41am whilst travelling at speeds ranging from 70 to 100kmh.

• 1m 25s phone call made at 11:48am whilst travelling at a speed of 69kmh.

[20] In oral evidence, Mr Coleman confirmed that he only sampled one day (25 March 2010) when comparing the GPS records with the applicant's phone records. He agreed the records do not show the applicant making a call at 12:08pm, but they do not record whether he had received a call and answered it during that time. Mr Coleman said the accuracy of the GPS is within 10 to 20 metres, speed is accurate, (plus or minus three kilometres per hour), and time recording is synchronised with a satellite automatic clock. Mr Coleman added that the GPS in all the trucks may not be working 100% of the time. However, if the GPS had not been working in the applicant's truck that day, it would have recorded a nil result for the whole time, with no data returned.

[21] The three eyewitnesses, Messrs Ehsman, Jackman and Douglas all provided short statements which confirmed that they believed the applicant was using a hand held mobile phone around midday on 25 March 2010, while driving through Greta.

[22] In oral evidence, Mr Douglas, who has worked for Cootes Transport for 11 � years, said he and the two Caltex employees were parked in the southbound lane and were sitting in the car. He said to the others 'here comes one of our trucks' and as it passed he saw the applicant with his hand to his ear and with his mouth moving.

[23] Mr Ehsman has worked for Caltex for 29 years. In oral evidence, he said he could not be sure how far they were away from the applicant's truck, but he was certain that the applicant had been on the phone and his mouth was moving. Mr Ehsman said he could not see what size or colour the phone was.

[24] Mr Jackman also said he was 100% certain the applicant was on a mobile phone. However, he could not say what colour it was.

[25] The applicant made short oral submissions in which he accepted that the phone records demonstrated that he was using the phone while driving. However, his argument was that he was not dismissed for these occasions, but for a time of 12:08pm and he insisted he was not using the mobile phone at that time. The applicant queried the statements of the three eyewitnesses, on the basis that they had been made many months after 25 March 2010. The applicant submitted that there 'was too much reasonable doubt' with the circumstances on the day and time in question such as to prove the allegation. He claimed he was unfairly dismissed and sought three weeks pay for the time he was out of work until he secured alternative employment.

[26] Mr Callanan, in written submissions, referred to the matters the Tribunal is to take into account under s 387 of the Act, as to whether the applicant's dismissal was 'harsh, unjust or unreasonable'. Mr Callanan accepted that the phone records do not disclose the applicant as using the mobile at 12:08pm on 25 March 2010, but what the records do show is that on nine other occasions that day, the applicant was either making a call, or sending a text message. FWA could be satisfied that it was more than likely he was receiving a call at 12:08pm and this is what the three eyewitnesses had observed.

[27] Mr Callanan put that the applicant's conduct was not only in breach of the respondent's Policy, but also the Australian road rules. He had been trained in the Policy and was aware of its details. Moreover, he had been specifically warned for a similar incident in August 2009. A breach of the Policy is a valid reason for the applicant's dismissal in that it was a lawful and reasonable policy and the dismissal was sound, defensible and well founded: See Woolworths Ltd t/a Safeway v Brown (2005) AIRC [PR963023]. Mr Callanan said it was plain (and the applicant had conceded as much), that an investigation into the initial reporting of the incident, revealed he had breached the policy on numerous occasions.

[28] Mr Callanan put that the applicant had an opportunity to respond to the allegations on two occasions and he was assisted and represented by the Union. His dismissal was not disproportionate to his conduct, given the danger of a fuel laden tanker being involved in a collision: See Selvachandran v Peterson Plastics Pty Ltd (1996) 62 IR 371. The applicant's misconduct struck at the heart of the employment contract, namely the daily professional skill and attention in transporting dangerous goods: See North v Television Corporation (1976) 11 ALR 599 and Concut Pty Ltd v Worrell (2000) 103 IR 160. Mr Callanan also relied on Mihajlovski v I R Cootes Pty Ltd [2004] AIRC 173 and submitted that the respondent took account of all relevant factors and conducted a full and thorough investigation. The applicant had been afforded procedural fairness.

[29] In respect to the respondent's three eyewitnesses, Mr Callanan said that they gave frank and plausible evidence of what they had observed on the day. Their observations were confirmed by the applicant's similar conduct on other occasions that day. His criticism of not receiving their written statements at the time was irrelevant, in that it was patently clear as to what their evidence was. Their statements in these proceedings were identical to what they told Mr Coleman in March 2010. Mr Callanan concluded by submitting that the applicant's dismissal was not 'harsh, unjust or unreasonable' and the application should be dismissed.

[30] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by FWA. The applicant was a person protected from unfair dismissal (see s 382 of the Act) and was dismissed within the meaning of s 386 of the Act. Section 387 of the Act mandates FWA to take into account the following matters when determining whether the applicant's dismissal was 'harsh, unjust or unreasonable':

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[31] It seems to me that the decision of Lawler VP in Mihajlovski v I R Cootes Pty Ltd, is particularly apposite to the issues I am required to consider in this case. At par [42] his Honour said:

[42] Moreover, where, as here, an employee works in a position that involves activities that call for a high degree of professional skill and where the consequences of even a small departure from that high standard are potentially disastrous, there are a number of circumstances which may legitimately bear upon the decision of an employer to terminate the employment of such an employee for even a small departure from those standards of care and skill. A failure to terminate employment in such cases:

• may, given an insured's duty of disclosure to his or her insurer, adversely impact on the insurance premiums payable by the employer or even give rise to a potential for an insurer to decline indemnity in the event of an accident giving rise to a claim;

• may impact adversely impact on the employer's reputation and thus upon its business (in the present case there was evidence of the Respondent's legitimate concern that speeding and other driving infractions could jeopardise the Respondent's chances of securing contracts with major customers);

• may have adverse consequences in relation to the employer's duty of care and other obligations to fellow employees and members of the public including, potentially, exposing the employer to liability for continuing the employment of the employee in the position (this would have been a distinct risk in the present case).

Taking proper account of such matters is required by the "fair go all round" principle laid down in s.170CA(2).

[32] It is critically important to stress that the applicant readily acknowledged that he was using his handheld mobile phone while driving his truck on no less than nine occasions on 25 March 2010. One call lasted 11 minutes. I accept that his phone records do not disclose any received calls. Surprisingly, the applicant's defence was that because these nine occasions were not the times identified by the respondent as the basis for his dismissal (i.e. when he was seen by the three eyewitnesses at 12:08pm), then he had been dismissed for the wrong reason and consequently his dismissal was unfair. He also criticised the three eyewitnesses' evidence. He believed that they had seen him merely cradling his head in his hand, which was his usual mode of driving. He relied on his phone records to demonstrate that he did not make a call which was recorded at 12:08pm. As earlier mentioned, the phone records do not show whether he had received a call and was speaking on the phone at that time.

[33] The applicant's arguments were boldly breathtaking - some might say, even quite ingenious. However, in my view, they are completely irrational and utterly implausible. The propositions he advanced only need to be stated to demonstrate how ludicrous they are. Given the applicant's own admissions, it is patently obvious that he was in flagrant breach of the respondent's Policy, and the law, on numerous occasions. I suspect that this one day was but a snapshot of his regular behaviour of using his handheld mobile while driving. Even if he had not been using the mobile phone at the exact time the respondent had alleged (which I very much doubt), it is simply nonsense to submit that the respondent 'got it all wrong' and he had been unfairly dismissed. In any event, given the numerous occasions recorded on that day of him being on the mobile while driving, I find, on the balance of probabilities, that he was answering a call at 12:08pm, which was obviously not recorded on his phone records, but which was observed by the eyewitnesses. It cannot be emphasised enough that the applicant's repeated and flagrant breaches of the respondent's Policy and the driving laws, are extremely serious matters and must, on any objective view, constitute gross and wilful misconduct. His misconduct not only put his own safety in peril, but that of the road travelling public and the general community. It is perhaps more good luck than good management that this conduct, seemingly over a long period of time, has not resulted in a disastrous outcome. It cannot be condoned or explained away by implausible and ridiculous explanations.

[34] That said, this case is a stark and unfortunate example of the inherent difficulties faced by an unrepresented litigant in arbitral proceedings under the Act, where an applicant has a single minded objective to 'defend the indefensible'. Not only did he not know how to present his case or what the relevant evidence pertinent to his defence was, but he advanced his arguments from a totally flawed and illogical premise. In addition, he maintained the mantra of the evidence being 'beyond reasonable doubt'; notwithstanding my repeated cautions that these matters are not determined on the criminal standard of reasonable doubt, but on the civil standard of the balance of probabilities.

[35] Regrettably, I feel bound to observe that had the applicant received advice from even the most inexperienced of industrial practitioners, he would have been warned against the folly and hopelessness of pursuing this case in the circumstances now revealed. It is even more incomprehensible that he would do so given:

a) the offers of settlement by the respondent, of which I was made aware;

b) the fact that he secured alternative employment soon after his dismissal;

c) his claim of three week's pay being the loss he occasioned between dismissal and gaining new employment; and

d) the real risk of adverse findings being made against him by FWA.

[36] Nevertheless, I am satisfied that the Tribunal offered the applicant every opportunity and liberty to put whatever he wished in his defence, notwithstanding the general objections, correctly and sympathetically made by Mr Callanan, to the admission of irrelevant evidence. The applicant was given the usual guidance by the Tribunal within the conventional bounds of ensuring justice is afforded to both parties.

[37] Returning then to the specific matters in s 387 of the Act, I make the following findings. The Tribunal must determine whether the applicant's dismissal was for a valid reason. The meaning of the word 'valid', in the employment context, was considered by Northrop J in Selvachandran v Peterson Plastics, where his Honour said:

"In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, …."

In Qantas Airways Ltd v Cornwall [1998] FCA 865, the Full Court of the Federal Court said:

"The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved."

And in Edwards v Justice Giudice [1999] FCA 1836, Moore J said:

"The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination."

[38] I conclude that the applicant's dismissal was for a valid reason, in that he frequently breached the respondent's reasonable and lawful Policy of not using a mobile phone while driving. The seriousness of his misconduct was magnified by the very real risk of endangering his own safety and that of others by doing so (s 387(a)).

[39] The applicant was notified of the reason for his dismissal on 26 March 2010, and fully understood what was being alleged against him. The respondent did not take precipitate action to dismiss the applicant and conducted further inquiries. Moreover, he had received a previous warning for similar conduct and had assured his employer the conduct would not be repeated(s 387(b) and (e)). The applicant was given an opportunity to respond to the allegation and he did so by denying it (s 387(c)). He was represented by the Union in two meetings to discuss his dismissal on 31 March and 6 April 2010. I note that there was no evidence of what the Union's role had been in the meetings, how it had represented the applicant or whether it had argued in support of the applicant's position or raised mitigation issues. Nevertheless, if the Union's position was not to support the indefensible misconduct of the applicant, it cannot be criticised for so doing.

[40] Subsections (f) and (g) are not relevant to this matter. However, I consider the respondent afforded the applicant procedural fairness through a process which was both reasonable and appropriate. I reject the applicant's imputation that he was denied procedural fairness in that the respondent did not provide him with the statements of the three eyewitnesses at an earlier time. I accept it was unnecessary for the respondent to do so. The evidence demonstrated that the three eyewitnesses did not alter their recollection of events from what they had told Mr Coleman in March 2010, to their statements in November 2010. Their observations and the allegation were not unclear or complex. The applicant perfectly understood what was alleged against him and there is no doubt that he responded as he saw fit. In these circumstances, no procedural unfairness issues arise. Even if this complaint could be sustained as a minor procedural fault, the seriousness of the applicant's misconduct far outweighed any failure of the respondent in that respect.

[41] I have earlier canvassed other matters relevant to this case which have influenced my decision in this matter (s 387(h)). There is no doubt, in my mind, that the applicant's dismissal was neither 'harsh, unreasonable nor unjust', within the meaning of s 387 of the Act. Accordingly, this application for unfair dismissal remedy must be dismissed. An order giving effect to this conclusion is published with this decision.

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