Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy

Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy - [2009] NSWIRComm 126 - NSWIRComm 1999 case summary — Zoe

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Australian Workers' Union v BlueScope Steel Limited [2006] NSWIRComm 1092 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 In re Building Workers' Industrial Union of Australia, New South Wales Branch 1954 AR (NSW) 516 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; 105 IR 325 Caltex Petroleum Pty Ltd v Harmer (unreported, Matter IRC 2576 of 1999, 16 November 1999) Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 Coal & Allied Operations v Australian Industrial Relations Commission [200] HCA 47; 203 CLR 194 Dlugolecka v Todber Pty Ltd t/as Leisure Lea Gardens Retirement Village [2008] NSWIRComm 113; 174 IR 73 The Electricity Commission of New South Wales v The Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and Other Unions 1956 AR (NSW) 629 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Hadgkiss v CFMEU (No. 4) [2007] FCA 425 Hillier v The Australian Stevedoring Industry Authority (1963/4) 105 CAR 901 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282; 47 NSWLR 151 Hornsby Shire Council v Hunt [2002] NSWIRComm 158; 115 IR 461 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; 150 IR 263 CASES CITED: House v The King (1936) 55 CLR 499 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211; 128 IR 37 Hyde v Chrysler (Australia) Ltd (1977) 30 FLR 318 Leadbetter v Qantas Airways Limited [2009] AIRC 131 Lewis v Qantas Airways Ltd (1981) 54 FLR 101 New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; 112 IR 212 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Re Dismissal of Union Delegates at Homebush Abattoir 1966 AR (NSW) 371 In re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No. 2) 1961 AR (NSW) 48 Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 Re Shop Employees (State) Award and Shop Employees Confectioners, etc (State) Award [1976] IAS Current Review 384 Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; 151 IR 396 Seamans' (sic) Union of Australia (on behalf of Graham Levy) v Sydney Ferries Corporation [2009] NSWIRComm 8 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 The Minister of State for the Navy v The Federated Engine Drivers' and Firemen's Association of Australasia (1964) 107 CAR 806 Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; 109 IR 359

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5 At [8] of the Deputy President's decision, his Honour summarised an incident earlier in the day of 23 July 2008, in which an elderly passenger had fallen down three or four stairs (wrongly assumed by Mr Levy to be the full flight of stairs) on board a Manly ferry. Mr Scott, who holds high level first aid qualifications, had been called to the incident and after examining the passenger concluded that he had no fractures. During the assessment of the passenger, Mr Levy arrived and proceeded to involve himself in the management of the injured passenger. While Mr Levy was trained in first aid it was not to the level of Mr Scott and, as his Honour observed, Mr Levy considered, (wrongly) that his level of competence in first aid to be far greater than that of Mr Scott. Mr Scott had decided to transfer the passenger by wheelchair from the vessel to ambulance officers who had been called. Mr Levy insisted that the passenger should not be moved until first attended by ambulance officers and he proceeded to loudly question the passenger who was becoming visibly upset. Mr Scott claimed Mr Levy became hostile towards him and had said 'What do you think you are, a fucking doctor?' 6 Mr Levy claimed that Mr Scott came over and covered the passenger with his urine soaked coat; pushed Mr Levy out of the way and had said 'I don't care, I have a ferry service to run. He's only got broken ribs'. Mr Scott denied these allegations and the Deputy President found Mr Scott's actions to be not unreasonable and perfectly understandable given his position as Manager, Marine Operations. His Honour did not accept that Mr Scott placed the vessel's return to operations ahead of the passenger's welfare. The incident caused tension and hostility between Mr Levy and Mr Scott, which led to what transpired about an hour later. 7 Mr Scott was inspecting work on No 5 Jetty at Circular Quay with Mr Fitzhenry, the appellant's Facilities Manager and Mr Ruman, an employee of the appellant. Access to the jetty was through barriers where Mr Levy and Mr Maguire, another General Purpose Hand employed by the appellant were on duty. The Deputy President found that Mr Levy had said 'You're a fucking joke' as Mr Scott went through the gates. The Deputy President relied on Mr Scott and Mr Fitzhenry's evidence that they had heard these words. Mr Maguire said he did not hear anything. Mr Levy denied using these words, but did admit he called Mr Scott 'a goose'. Mr Scott denied grimacing at Mr Levy as he approached the gate and said that when he heard the words spoken by Mr Levy ('You're a fucking joke') he had turned around and said 'what did you say'. His Honour discussed the evidence concerning an allegation that Mr Levy had then spat on Mr Scott's back. The Deputy President found that this allegation was not proven. In the appeal the appellant did not challenge this finding of the Deputy President. Accordingly, we need not elaborate on the evidence in that regard. 8 At [21] to [23] the Deputy President quoted from a statement of Mr Scott and Mr Levy as to their versions of what had occurred and from a contemporaneous incident report made on the day by Mr Scott. The Deputy President concluded that: [24] Having carefully considered the totality of the evidence given and in the case of the video film, the evidence seen in relation to the events of 23 July 2008, I am satisfied on balance and find accordingly that the applicant probably did use the words " you're a fucking joke " as Mr Scott walked past him through the barrier.

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The second reason for dismissal 9 The second reason said by the appellant to be a ground for Mr Levy's dismissal was his decision on 9 March 2007, during an industrial dispute, to direct fellow general purpose hands to 'open the gates' at Manly Wharf. The incident was the subject of a warning letter issued by Mr Denis Mole, the appellant's General Manager - Operations Division, dated 20 June 2007, in the following terms: Warning - Graham Levy I write to you to confirm the outcome of the disciplinary meeting which was held today to consider the allegations made against you regarding your actions on 9 March 2007. As stated at the meeting it was alleged that on 9 March 2007 you directed other employees at the Manly Wharf to cease selling tickets, to open the gates and allow passengers onto ferries and travel free of charge. I considered your denial of the allegation, as well as the information provided about the matter by Mr Glen Wood (Deputy Sydney Branch Secretary, Maritime Union of Australia) and the SFC Controlling Officer, who was at Manly Wharf on 9 March 2007. I am satisfied that the allegations are confirmed. As stated at the meeting your actions are unacceptable and warrant disciplinary action. I therefore formally warn you that unacceptable conduct will not be tolerated by Corporation. Any further unacceptable conduct will result in more serious disciplinary action, possibly including termination of your employment. A copy of this letter confirming the warning will be placed on your personal file. 10 It is to be noted that the warning letter was issued some three months after the incident to which it referred and following dispute proceedings in this Commission about the issue of the warning letter to Mr Levy (Matter No IRC 1033 of 2007). 11 At [34] to [36] of the decision, his Honour outlined Mr Levy's version of events of 9 March 2007 and the uncontested evidence of Mr Paul Garrett (Assistant Branch Secretary, Maritime Union of Australia, Sydney Branch). Mr Garrett's evidence was that on the day in question the appellant had acted outside the terms of its industrial agreement by unilaterally changing the policy of providing taxis to employees who worked after midnight. When management refused to revisit the decision, the Sydney Branch of the Union directed its delegates to 'freewheel' the passenger turnstiles. This allowed passengers to board the ferries and travel for free. As a result of the appellant's management agreeing to a meeting to discuss the issue later that day, Mr Garrett rang the delegates to direct them to cease any further industrial action. The Union understood from the meeting that no disciplinary action would be taken against Mr Levy for 'freewheeling' the gates at Manly for around seven minutes. 12 Three months after the incident the appellant had sought to reactivate the change it sought to the Taxi policy and raised again Mr Levy's actions on 9 March 2007. The Union had a further meeting with management and raised objections over the Taxi policy changes and the treatment of Mr Levy. Nevertheless, Mr Levy received the warning letter on 20 June 2007. The matter was referred to the Industrial Relations Commission and Grayson DP convened a number of conferences, but did not progress the matter beyond a recommendation. While there was no written record of that recommendation, it was the Union's understanding that the warning, (as disclosed by the terms of the letter itself) was not a final warning. The matter was not progressed further as it had become an item of interest to the Special Commission of Inquiry into Sydney Ferries being conducted at the time by Mr Brett Walker SC. 13 As to the appellant's reliance on the warning letter for dismissing Mr Levy, his Honour concluded: [42] I do not think on balance, that the respondent has established misconduct on the applicant's part on 9 March 2007 and as earlier observed I have formed that view on the basis that, in opening the gates that day the applicant was not acting on his own motion but rather in furtherance of a direction by his union to take that form of industrial action and notwithstanding the potential for loss of revenue of which he was probably well aware, his sole motivation was observance of his union's direction. I do not accept on the evidence presented that there was any consequential risk of physical harm to those on board the ferry let alone a risk of which the applicant was or should have been aware. The respondent is therefore not entitled in terminating the applicant's employment, to rely upon a warning given in relation to the events of 9 March 2007. 14 The Deputy President observed that his finding of whether Mr Levy's dismissal was harsh, unreasonable or unjust 'rests on a very fine balance'. He described Mr Levy's conduct on 23 July 2008 as inappropriate and deserving of strong condemnation. However, two matters had 'tipped' the decision in Mr Levy's favour in that his Honour found the dismissal to be 'harsh' and disproportionate to the gravity of the misconduct. These matters were, firstly, Mr Levy's abusive conduct towards Mr Scott having its genesis in his genuinely held belief that the injured passenger should not have been moved and, secondly, Mr Scott's reactions to Mr Levy's taunts could have been more measured and less confrontational. 15 At first instance, the appellant had argued against Mr Levy's reinstatement for the following reasons: the 23 July 2008 incident was not an isolated one; Mr Levy's actions were serious; he was shown to be a person who was unwilling to accept lawful direction; he had compromised passenger safety; and had not demonstrated any real contrition. Despite these submissions, his Honour did not consider the appellant's arguments against reinstatement to be persuasive and made the following orders: 1. That the applicant be reinstated to his former position on terms not less favourable than those that would have been applicable if he had not been dismissed. 2. That the period of employment of the applicant with Sydney Ferries be taken not to have been broken by the dismissal. SUBMISSIONS ON APPEAL Appellant's submissions

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Appeal ground one - Responsibilities and liabilities of a Union delegate 17 Mr Saunders outlined the circumstances surrounding the events of 9 March 2007, which led to the warning letter of June 2007. He said that Mr Levy, in giving the instruction to 'open the gates' and allowing passengers onto ferries to travel free of charge, was unlawful. As such, he cannot have immunity for his involvement in such conduct. Mr Saunders said that the time of the action (which was agreed to have been around seven minutes), was irrelevant. Counsel submitted that a dispute concerning the warning had been referred to the Commission by the Union. It was the subject of a number of conferences before Grayson DP, but did not progress beyond the recommendation stage; although it was unclear as to what recommendation, if any, had been made. Nevertheless, the warning letter was not retracted, it remained valid and was applicable at the time of Mr Levy's termination. 18 In his written submissions, Mr Saunders analysed a number of decisions of this Commission, other courts and tribunals in relation to the role, responsibilities and liabilities of Union delegates. He commenced with the Full Bench decision In re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No. 2) 1961 AR (NSW) 48 ('Broken Hill Steel Works'), and submitted that case was authority for the following propositions: (a) It is the duty of the responsible officers of a union such as delegates to see that the law as to meetings of employees and industrial action is observed and to bring to the attention of members of the union employed at a particular workplace what their responsibilities in that regard are and to see that they are carried out. (b) Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union. (c) However, union delegateship is not a "magic cloak" conferring on the wearer immunity from liability for wrongful actions. (d) It is the responsibility of a union and its delegates to have industrial disputes settled by resort to constitutional processes and not by direct action or job control. On his or her appointment a union delegate becomes not only a representative of the members appointing him or her but a representative of the union. It is the delegate's responsibility, if a stop work meeting takes place, to forthwith advise the principal officers of the union and to take all reasonable and proper steps to secure a speedy resumption of work. (e) It is a complete misconception of the position of a delegate that the delegate is no more than a mouthpiece for the men and women he or she represents. A delegate has a duty to do all within his or her power to prevent the resort to direct action by the members of the union whom he or she represents. (f) It is plainly wrong for a union delegate to arrange a stop work meeting. Furthermore, if the act of arranging a stop work meeting is followed by the taking of active steps to ensure the attendance of other employees at the meeting, the wrongdoing is taken a step further.

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19 Mr Saunders also cited Hillier v The Australian Stevedoring Industry Authority (1963/4) 105 CAR 901; The Minister of State for the Navy v The Federated Engine Drivers' and Firemen's Association of Australasia (1964) 107 CAR 806 at 810; Re Dismissal of Union Delegates at Homebush Abattoir 1966 AR (NSW) 371 at 385-6; Re Shop Employees (State) Award and Shop Employees Confectioners, etc (State) Award [1976] IAS Current Review 384 at 388-389; and Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 at [122]. 20 Mr Saunders submitted that the principle that Union delegateship is not a 'magic cloak' to absolve an individual of his/her accountability for their own conduct has also been applied in Hyde v Chrysler (Australia) Ltd (1977) 30 FLR 318 at 332; Lewis v Qantas Airways Ltd (1981) 54 FLR 101 at 113 - 114; Australian Workers' Union v BlueScope Steel Limited [2006] NSWIRComm 1092 at [37] - [41]; Hadgkiss v CFMEU (No. 4) [2007] FCA 425; Leadbetter v Qantas Airways Limited [2009] AIRC 131 at [118] - [120]. 21 Applying these authorities, Mr Saunders submitted that the Deputy President had erred in finding that Mr Levy could not be held personally responsible as a Union delegate for ordering the opening of the Manly gates because he was implementing a decision of the Union. It was his submission that if a Union delegate is involved in unlawful industrial action, including organising a stop work meeting, or instructing employees to refuse, or not undertake, their normal duties, then the delegate will not have any immunity for their actions. He contrasted this to where a delegate expresses the views of, or makes representations to management, on behalf of members, or is involved in 'protected action' under the Workplace Relations Act 1996 (Cth). In these circumstances he/she should not be penalised for legitimate lawful activity. It was the lawfulness of the activity which is the dividing line between permissible and impermissible conduct. 22 Under questioning from the Bench, Mr Saunders said it may be assumed that no prosecution was initiated by the appellant against the Union or its officers for the direction given to Mr Levy to open the gates. However, Mr Saunders said that the fact no action may have been taken against the Union, its other delegates or members did not change the action from being unlawful to lawful. He submitted there is no right at common law, or under statute, to engage in an organised industrial action, other than protected action, under the Workplace Relations Act . 23 Mr Saunders put that Grayson DP's findings as to Mr Levy's personal responsibility in implementing a Union direction was contrary to the following accepted principles: (a) it is a complete misconception of the position of a delegate that the delegate is no more than a mouthpiece for the men and women he or she represents. A delegate has a duty to do all within his or her power to prevent the resort to direct action by the members of the union whom he or she represents; (b) union delegateship is not a "magic cloak" conferring on the wearer immunity from liability for wrongful actions; (c) it is the responsibility of a union and its delegates to have industrial disputes settled by resort to constitutional processes and not by direct action or job control. On his or her appointment a union delegate becomes not only a representative of the members appointing him or her but a representative of the union. It is the delegate's responsibility, if a stop work meeting takes place, to forthwith advise the principal officers of the union and to take all reasonable and proper steps to secure a speedy resumption of work; (d) it is plainly wrong for a union delegate to arrange a stop work meeting ( Hillier v The Australian Stevedoring Industry Authority (1963/4) 105 CAR 901 at 905). Furthermore, if the act of arranging a stop work meeting is followed by the taking of active steps to ensure the attendance of other employees at the meeting, the wrongdoing is taken a step further; (e) refusal of duty or other such serious matters are not the prerogative of a delegate; (f) delegates represent their union and they have a duty not only to refrain from leading the members whom they represent into any breach of the law but also to counsel them against any such breach, and, if a breach occurs, to be active to bring it to an end as soon as possible; and

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d) when Mr Levy had lied when he said he had done nothing to provoke Mr Scott, but then conceded he had and when he made a false allegation of having been assaulted by Mr Scott. 32 In light of these matters it was submitted the Deputy President had wrongly exercised his discretion in terms of the principles in House v The King (1936) 55 CLR 499. 33 Mr Saunders submitted that Mr Levy had not demonstrated any real contrition in relation to his actions. The most he had done was to acknowledge he should not have called Mr Scott 'a goose'. He had not apologised for his swearing in the presence of other staff and a passenger, for directly swearing at Mr Scott and for opening the gates at Manly Wharf. He had not acknowledged his disrespect for Mr Scott in his position as supervisor. 34 Mr Saunders suggested that Mr Levy's reinstatement would send three wrong messages: firstly, to himself in that he could conduct himself in the manner identified without any penalty; secondly, to other staff, in that they could similarly act in the manner Mr Levy had done; and thirdly, to existing and potential managers in that they could not effectively manage employees under their supervision. For the respondent 35 Mr R Reitano of counsel submitted that the appellant's appeal largely turned upon the Deputy President's findings as to the seriousness of Mr Levy's misconduct. He put that the 2007 warning was a subsidiary, but largely irrelevant, issue in circumstances which had been exaggerated out of all proportion. Mr Reitano submitted that the appellant's reliance on the 2007 warning letter was misguided and failed to properly understand the position and role of industrial organisations, delegates and union members in relation to industrial disputes. The appellant had misapplied authority from a bygone era to make good a case that was not put at first instance. Mr Reitano submitted that the main authority relied on by the appellant - Broken Hill Steel Works - arose in circumstances which were a far cry from what occurred on 9 March 2007. The delegate in that case had engaged in 'wildcat' industrial action on his own initiative and without union support. He was not acting in any representative capacity. By contrast, in this case, there was an organised and orchestrated campaign, endorsed by Mr Levy's Union and participated in by its members. 36 Similarly, Mr Reitano said Hillier, Re Dismissal of Union Delegates at Homebush Abattoir and Re Shop Employees (State) Award and Shop Employees Confectioners, etc (State) Award, were concerned with industrial action taken by union delegates without the support and backing of their representative organisations. The recent case in Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation, referred to inappropriate individual action. Mr Reitano put that all of the decided cases involved 'wildcat' or unilateral action by delegates abusing their positions. 37 Mr Reitano submitted that the Deputy President correctly applied the principles to the accepted evidence and found that Mr Levy had not acted on his own initiative, but was implementing a union direction in the circumstances then applying. It could not be regarded as misconduct, given no other member, official or the Union was sanctioned; little wonder, he said, considering the gates at Manly Wharf had been only opened for seven minutes. Mr Reitano maintained that this issue was a 'sideshow' to the proceedings and really had nothing to do with the real reason for Mr Levy's dismissal. 38 Mr Reitano submitted that the events on 23 July 2007 were exaggerated and blown out of all proportion to portray Mr Levy as a violent and aggressive malcontent. If, as the Deputy President found, the 2007 warning could not be relied upon and the allegation of spitting could not be proved, then Mr Levy's outburst of anger was the only issue remaining. As such, it could not possibly justify dismissal. 39 Mr Reitano said that the appellant's submission alleging some matters were given too much weight and others were given insufficient weight, invited no more than a reconsideration of the Deputy President's exercise of discretion. It did not demonstrate appealable error. Submissions on cross appeal 40 Mr Reitano contended that his submissions on the Union's cross appeal were also submissions in answer to the appellant's case that Mr Levy's dismissal was not harsh, unreasonable or unjust. 41 Mr Reitano submitted that the Deputy President made no findings on all the relevant matters he was required to, and had he done so, he would not have penalised Mr Levy by denying him payment for lost remuneration: See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588. For example, the Deputy President made no findings as to whether Mr Scott grimaced or pulled a face at Mr Levy when he walked through the barriers, or on whose version of events involving the injured passenger should be believed. Further, the Deputy President had no basis to conclude that non-threatening words such as 'you're a fucking joke' were a factor against Mr Levy. 42 Mr Reitano submitted that Mr Scott had given two different versions of the incident on 23 July 2007. The first version's omissions demonstrated Mr Scott's untruthfulness and were not mere technical differences. Mr Scott had claimed he felt something on his back (the spitting) but recanted when he knew it was absurd to suggest he felt it through a heavy woollen coat. Mr Scott had said he had behaved in a calm and professional manner, but then conceded that he had been neither calm nor professional. Mr Reitano said that Mr Scott's evidence was both construed and rehearsed to fit what was on the CCTV footage. It was not evidence at all, but a description of what he had seen on the CCTV footage. He should have been honest about his use of the CCTV footage to prepare his statement. In light of this, the Deputy President should have preferred the evidence of Mr Levy. Mr Reitano also noted that Mr Scott's evidence in the witness box was disturbing in that he would deny things, then recant them. Another example of the absurdities in his evidence concerned Mr Maguire's involvement. He claimed that immediately after Mr Levy spat on him, he said to Mr Maguire 'Are you listening to this?' The Deputy President should have rejected Mr Scott's evidence about spitting and this would cast doubt on his version of events. If the matter was to be held against Mr Levy for any reason then specific findings should have been made. He added that despite Mr Levy being cast as the aggressor, Mr Scott returned to chide him on seven or eight occasions. It was inappropriate for the Deputy President to conclude that Mr Levy was the aggressor in these circumstances. 43 Mr Reitano submitted that just because the appellant did not like the Deputy President's decision to reinstate Mr Levy does not mean it was impracticable to do so. The decision was a discretionary one and plainly open on the findings of no serious and wilful misconduct. 44 Mr Reitano said the appeal should be dismissed, the cross appeal upheld and orders made for lost remuneration. 45 In oral submissions, Mr Reitano said that there was also procedural unfairness in the dismissal of Mr Levy. He was never given an opportunity to answer the allegations against him and the Deputy President had not dealt with this aspect of the matter. 46 Mr Reitano put that, on the one hand, the appellant said that Mr Levy should not be reinstated for lying to the investigation, but when Mr Scott was found to have lied about his version of events, a different standard was applied to him. He got off 'scot-free' and was 'backed in all the way' by the appellant, even when the spitting allegation was found to be unsubstantiated. 47 Mr Reitano informed the Full Bench that Mr Levy had not been a delegate at the time of his dismissal and ceased being so about the time of Grayson DP's recommendation in the dispute proceedings in 2007. 48 In reply, Mr Saunders distinguished two cases referred to in the Broken Hill Steel Works case which both dealt with the responsibility of a union to take all reasonable steps to stop industrial action once it had occurred. This case dealt with a delegate who organised and instructed others to undertake industrial action, pursuant to a direction from a union. 49 Mr Saunders said that as to procedural unfairness, Mr Levy attended an interview with his Union representative present and there was a full opportunity for him to explain what had occurred. 50 Mr Saunders submitted that while the Deputy President made no express credit findings, for or against Mr Levy or Mr Scott, he had clearly made findings on five of the six contested issues in favour of Mr Scott. It was simply unnecessary for the Deputy President to make findings on each and every aspect of the conversation during the incidents. 51 Mr Saunders put that Mr Scott had done no more than refresh his memory by viewing the CCTV footage and he should not be criticised for that. He had readily conceded he had done so in cross-examination.

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Whether dismissal was harsh 71 The appellant contended that Grayson DP erred on three primary bases. The first was his Honour's wrong interpretation of the evidence regarding the events that occurred on 23 July 2008 and, secondly, his Honour's failure to have proper regard to the unlawfulness of Mr Levy's conduct as a union delegate in directing the gates to be open on Manly Wharf on 9 March 2007 and the damaging consequences of that direction. The third basis was the Deputy President's decision to reinstate Mr Levy. 72 The respondent also contended his Honour erred by interpreting events of 23 July 2008 wrongly, except the respondent's case was the complete opposite of the appellant in that it was claimed the evidence did not support a finding of serious misconduct on Mr Levy's part. 73 Our view of the evidence relating to the events of 23 July 2008 and his Honour's treatment of that evidence is as follows: (1) Mr Levy's disgust and annoyance towards Mr Scott and abusive language were completely inappropriate responses to what occurred on board the ferry on 23 July 2008. He had no authority or proper reason to intervene in the care of the passenger in the manner he did. Mr Levy had an overblown sense of his own importance and authority. We note that Mr Levy is no longer a union delegate, which is appropriate; (2) we agree with his Honour's findings that: (a) Mr Levy did use the words 'you're a fucking joke' as Mr Scott walked past him through the barrier at Circular Quay; (b) Mr Levy 'probably did continue to taunt Mr Scott, a fact which explains more readily than the alternative Mr Scott's repeated departures from and returns to close quarters with the applicant'; (c) during the investigation into the incident at Circular Quay Mr Levy lied by initially denying that he did or said anything to provoke Mr Scott and then later admitting the contrary; (d) the coat Mr Scott placed over the injured passenger was damp with coffee, rather than soaked in urine as alleged by Mr Levy; and (e) Mr Scott did not assault Mr Levy. 74 The Deputy President's assessment of the question whether Mr Levy's dismissal was harsh, unreasonable or unjust was that it rested on 'a very fine balance'. Given Mr Levy's conduct on 23 July 2008 reasonable minds might differ on whether that conduct was sufficiently serious and wilful as to justify summary dismissal. His Honour chose the course of giving Mr Levy the benefit of the doubt. Whilst we might have taken a different view, ultimately the question of whether the dismissal in this case was harsh was a matter of fact and degree and it was open to his Honour to take what might be perceived as the more cautious approach that he did having regard to Mr Levy's 'genuinely held belief that the injured passenger should not have been moved off the ferry prior to being seen by ambulance personnel' and to Mr Scott's conduct during the confrontation at Circular Quay, which his Honour said should have been 'more measured and less confrontational'. We have reservations about Mr Levy's 'genuinely held belief' and about the mitigation the Deputy President allowed because of Mr Scott's conduct. But those reservations are not sufficient to overturn his Honour's findings. 75 Counsel for the respondent was highly critical of Mr Scott and the evidence he gave. It was submitted he gave significantly different versions of events and that his evidence was contrived and rehearsed according to what could be seen on the CCTV footage. Counsel contended that Mr Scott was not a credible witness. 76 There were inconsistencies in the evidence of both Mr Scott and Mr Levy, but when the evidence is considered as a whole there can be little doubt that Mr Levy behaved reprehensibly. That evidence includes the CCTV footage, Mr Fitzhenry's testimony and the evidence regarding Mr Levy's conduct in relation to the injured passenger, including his own admission that he challenged Mr Scott using abusive language in public that was entirely inappropriate to be directed at a senior manager. There was also evidence that Mr Levy lied by initially denying that he did or said anything to provoke Mr Scott and then later admitting to the contrary and that he falsely accused Mr Scott of assault. 77 The Deputy President preferred the evidence of Mr Scott over that of Mr Levy on five out of six contested issues of fact. His Honour's findings in those respects were open to him. The one contested issue of fact in which the Deputy President preferred the evidence of Mr Levy over Mr Scott was in respect of the allegation that Mr Levy spat on Mr Scott. The respondent sought to contend that the spitting allegation was concocted by Mr Scott and, therefore, undermined his whole testimony. 78 It was not open to find that on the balance of probabilities Mr Scott invented the spitting allegation in the same way it is not open on the evidence to conclude Mr Scott was genuinely mistaken about being spat on. Whether Mr Scott originally believed he was spat on or whether he invented the allegation lies entirely in the realm of conjecture and the fact the allegation was abandoned on appeal following his Honour's findings at first instance cannot be used as the basis of a finding that Mr Scott was not credible.

[43]

79 Mr Reitano submitted that on any view of it, even if Mr Levy called Mr Scott 'a fucking joke' rather than 'a goose', the dismissal was out of all proportion to the gravity of the conduct. Taken in isolation, the incident may have been no more than an outburst of anger, mitigated by Mr Levy's misconception of Mr Scott's first aid credentials. However, the fact remains that the conduct of Mr Levy towards a senior supervisor over two discrete periods of the day, must be viewed as serious and totally inappropriate. This was undoubtedly why the Deputy President expressed his decision as being finely balanced. We also consider it was entirely open for his Honour to make the findings he did and to also have regard for Mr Levy's reasonable length of service and the other countervailing factors which 'tipped' the decision in Mr Levy's favour. We are satisfied that the Deputy President's decision making and the exercise of his discretion in that respect did not miscarry. 80 As to the appellant's submissions about weight, we do not accept that his Honour gave too much weight to some factors and insufficient weight to others such that it led to wrong conclusions. What needed to be demonstrated by the appellant was that in balancing the various considerations, his Honour reached an erroneous conclusion not supported by the evidence. We are unable to find any basis upon which to conclude that the Deputy President made findings that were not reasonably open to him on the evidence. He did not mistake the facts and he took into account all material considerations. 81 Accordingly, we reject the second ground of appeal. Whether reinstatement was the appropriate remedy 82 Both parties accepted that the making of relief orders under s 89 of the Act is a discretionary exercise involving a balancing of a range of considerations. Nevertheless, it should not be forgotten that orders for relief arising from a finding that a particular dismissal was unfair, involve a 'cascading' consideration of three options: from reinstatement, to re-employment, to compensation. Full Bench authorities of this Commission have repeatedly referred to the importance given to the primary remedy of reinstatement in such circumstances: See Budlong; New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89; Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282; 47 NSWLR 151; Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; 105 IR 325; and Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211; 128 IR 37. It is only when the decision-maker finds that reinstatement or re-employment would be impracticable that orders for compensatory relief may be made: See Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; 112 IR 212; Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; 151 IR 396. 83 Mr Saunders submitted that the appellant could have no confidence that Mr Levy would follow lawful and reasonable directions if he was reinstated and that he had not demonstrated any real contrition for his actions. Reinstatement, he submitted, would send wrong messages to Mr Levy, other employees and managers. 84 Mr Saunders' concerns on this issue rather overstate the position. Mr Levy's reinstatement should be seen in the proper context. There are a number of similarities with the circumstances of this case and those which were discussed in Hornsby Shire Council v Hunt [2002] NSWIRComm 158; 115 IR 461. There, the Full Bench was considering an appeal from a decision to reinstate an employee who had acted in an aggressive manner when engaged on his union duties. In dismissing the appeal, the Full Bench said: [45] It was in the role of union delegate that the respondent and the appellant experienced much of their conflict. In particular, the respondent had difficulty in dealing with Mr Amato with whom he would be unlikely to come into contact again and if he did, certainly not be at the same level of intensity.

[44]

[46] For that reason, his Honour was of the view that the respondent would be able to reassimilate into the workplace. That conclusion arose primarily from the fact that ceasing union delegate duties would mean that the respondent would not be involved in many dealings with Mr Amato, the works superintendent, and that his inappropriate conduct had largely resulted from his difficulties in balancing the role of delegate with his other employment responsibilities. The evidence revealed that much of the problematic dealings the appellant had with the respondent arose from the interactions between Mr Amato and the respondent. These conclusions were also open. Further, in making the order of reinstatement, his Honour recognised that the respondent must share an element of fault for his dismissal and thereby refused to award to the respondent the total amount of wages lost. It therefore could not be said that the decision encourages or condones misconduct: see Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296. 85 We would make the following observations about the practicality of reinstatement in this case. Firstly, the reinstatement of an employee for misconduct may prove embarrassing or difficult for the employer and may be the cause of some initial friction. That, of itself, should be no bar to reinstating an employee whose dismissal is otherwise found to be unfair: See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. 86 Secondly, Sydney Ferries can surely bear the strain of an incident which occurred over 12 months ago and for which the employee has been duly admonished. 87 Thirdly, Mr Scott was not Mr Levy's direct supervisor, and in the ordinary course of work, would be unlikely to come into contact, on a regular basis, with Mr Levy. 88 As to the 'bad messages' Mr Saunders submitted would result from Mr Levy's reinstatement, we consider that the Deputy President's refusal to award back pay to Mr Levy (with which we agree) and our strong condemnation of his behaviour, should be sufficient to neutralise any adverse consequences in that respect. 89 Finally, as we noted earlier, Mr Levy has not been a union delegate since mid-2007. 90 Accordingly, we reject the third ground of appeal. Lost remuneration

[45]

91 We would address the Union's cross appeal in the following way. It is a common practice in unfair dismissal cases where an order for reinstatement is made, for orders of back pay (or, more correctly described, lost remuneration), to be tailored according to any identified culpability of the applicant as to the circumstances surrounding his/her dismissal. Thus, in cases where misconduct may be found by the Commission to be proven, but not necessarily justifying dismissal (as is the case here), or in circumstances where a dismissal is found to be too 'harsh' (again, as is the case here), a lesser amount, or no amount at all, may be considered as a 'penalty' for the applicant's conduct. There is nothing inherently wrong in this approach: see Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296. In the present case, we do not consider it appropriate or just for Mr Levy to receive back pay given his contribution to the circumstances that led to his dismissal. 92 We consider that the Deputy President's refusal to order back pay constituted an appropriate exercise of the Commission's discretionary powers under s 89 of the Act: See Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; 109 IR 359 at [12]. Unless an appealable error of the kind discussed in House v The King is able to be identified, then there can be no basis for challenging such a decision on appeal: see Coal & Allied Operations v Australian Industrial Relations Commission [200] HCA 47; 203 CLR 194. We do not consider that Grayson DP made any error in that respect. Moreover, we are of the opinion that his Honour's decision was entirely appropriate in light of his findings of fact and, given all the circumstances, was a just and reasonable outcome. 93 Accordingly, we refuse leave to the cross appeal and dismiss the cross appeal. 94 Our decision in this matter should in no way appear as the Full Bench, either expressly, or by implication, condoning Mr Levy's conduct on 23 July 2008. We agree unreservedly with the Deputy President that it was conduct which was both 'inappropriate and deserving of strong condemnation'. Mr Levy should consider himself on notice that any further episode of misconduct of the nature considered in this appeal carries with it the prospect of dismissal.

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