CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - Refusal by employee to participate in multi-skilling - whether the employment was terminated for a VALID REASON - meaning of "valid reason" discussed - whether the termination was HARSH, UNJUST OR UNREASONABLE - whether the employee was afforded PROCEDURAL FAIRNESS Industrial Relations Act 1988 ss 170DC, 170DE, 170EA, 170EDA, 170EE, 377 Johns v Gunns Ltd, 18 May 1995, unreported, Northrop J Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, Wilcox CJ Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 WORDS AND PHRASES Valid reason SENATHIRAJAH SELVACHANDRAN v PETERON PLASTICS PTY LTD No VI 1322R of 1994 NORTHROP J MELBOURNE 7 JULY 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No VI 1322R of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N : SENATHIRAJAH SELVACHANDRAN Applicant A N D : PETERON PLASTICS PTY LTD Respondent COURT: NORTHROP J PLACE: MELBOURNE DATE: 7 JULY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for review be allowed. 2. The order of the Judicial Registrar dated 19 December 1994 be set aside. 3. In lieu thereof, the application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No VI 1322R of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N : SENATHIRAJAH SELVACHANDRAN Applicant A N D : PETERON PLASTICS PTY LTD Respondent COURT: NORTHROP J PLACE: MELBOURNE DATE: 7 JULY 1995 REASONS FOR JUDGMENT On 2 August 1994, Peteron Plastics Pty Ltd ("the respondent") as employer terminated the employment of its employee Senathirajah Selvachandran ("the applicant). On 10 August 1994 the applicant made an application to the Court under subsection 170EA(1) of the Industrial Relations Act 1988 ("the Act") for a remedy in respect of his termination of employment. The substantive remedies sought were for an order requiring the respondent to reinstate him in his employment and an order that the respondent pay him compensation. On 19 December 1994 the Court, constituted by a Judicial Registrar, following a hearing of the application at which the respondent did not appear, by a decision, ordered that the respondent pay compensation to the applicant in the sum of $11,520.00 within 14 days. By motion, notice of which is dated 20 January 1995, the respondent, pursuant to section 377 of the Act, sought a review of that decision. The review is by way of a rehearing of the application. Although no direction was given at the directions hearing of the motion, the parties sought the review on oral evidence to be presented to the Court as presently constituted. In conformity with the Rules of Court in operation when the application was issued, the affidavit in support of the application stated that the reason given by the respondent for dismissing the applicant was the applicant's performance and attitude. The affidavit filed on behalf of the respondent stated that the applicant was an employee of the respondent, that his employment had been terminated by the respondent and that the reason for the termination arose out of the fact that "the applicant was one of several staff in stage one of our multi-skilling program". When the matter came on for hearing, the Court requested counsel for the parties to identify the issues raised for determination. The issues identified were: (a) whether there was a valid reason or valid reasons connected with the applicant's capacity or conduct or based on the operational requirements of the respondents business for the termination: subsection 170DE(1) of the Act; (b) if yes, having regard to the applicant's capacity and conduct and those operational requirements, whether the termination was harsh, unjust or unreasonable; subsection 170DE(2) of the Act; (c) if the termination had been for reasons related to the applicant's conduct or performance, whether he had been given the opportunity to defend himself against the allegations made: paragraph 170DC(a) of the Act; ("procedural fairness"); and (d) if there had been a contravention by the respondent of section 170DE or 170DC, the parties agreeing that the reinstatement of the applicant was impracticable, the amount of compensation to be paid to the applicant; subsections 170EE(2) and (3). When this matter was heard, I had not published my reasons for judgment in Johns v Gunns Ltd, 18 May 1995. In those reasons, I expressed the opinion that in cases where these issues arose, particularly where, as here, the employment and termination were not in issue, because of the effect of section 170EDA of the Act, the employer should commence by presenting its case to establish a valid reason or valid reasons for the termination. After the issues had been identified in the present case, the Court suggested that the respondent should call its evidence first. The parties were not ready to do this so the Court adopted the customary procedure. I shall refer to this matter later, but it would be helpful if in all cases under section 170EA of the Act, the Court, either at the directions hearing after the Australian Industrial Relations Commission conference or when the matter comes on for hearing, should direct the parties to identify the issues raised and determine which party should begin. This should be the party who has the immediate evidentiary onus of proof. The Court should ignore issues which appear to be not genuine. In the absence of appropriate Rules of Court on this matter, the general adoption of this procedure should result in the more efficient and speedy resolution of the application before the Court and would relieve the applicant from leading evidence in the attempt to prove the reasons of an employer for terminating the employment, those reasons being solely within the knowledge of the employer. In the present case, the applicant did not allege that the termination was for a reason prohibited by subsection 170DF(1) of the Act ("a prohibited reason"). Thus subsection 170EDA has no application. Although the applicant, in evidence, mentioned that at some time before the termination, a union representative had spoken to him, the respondent's establishment being a "non-union shop", it was never suggested to the respondent, in cross-examination, or to the Court, that the termination was for a prohibited reason; compare Johns. Before turning to the facts of this case, reference should be made to aspects of the provisions of the Act relevant to this case. I discussed a number of those provisions in Johns. Those comments are not repeated here, but they can be taken as being incorporated in these reasons. In Johns, the employer failed to prove that a reason for the terminations did not include a prohibited reason, see paragraph 170DF(1)(a) and subsection 170EDA(2). The provisions of Division 3 of Part VIA of the Act do not abolish the right of an employer to terminate the employment of an employee. Those provisions, however, impose restrictions on that right. In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee's capacity or performance or based on the operational requirements of the employer. Even if one of those reasons is established, the respondent is not, as of right, free to terminate the employment of the employer. A termination is effective in the sense that it has legal effect but the Court has power, in an appropriate case, to order the employer to reappoint the employee to the position in which the employee was employed immediately before the termination and to make orders to maintain the continuity of the employment, see subsection 170EE(1). Where reinstatement is impracticable, the Court has power to award compensation, see subsections 170EE(2) and (3). The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in section 170EDA. Subsection 170DE(1) refers to "a valid rason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is "2 Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason." In its context in subsection 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 subsection 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, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when considering the construction and application of section 170DC. The requirements of subsection 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee. Nevertheless, in cases similar to the one before the Court, the application of s170DE(1) should always be considered and decided before consideration is given to the additional limitations on the right of an employer to terminate the employment of an employee imposed by section 170DE(2) and subsection 170DC. The purpose of these two provisions is to confer a greater protection on employees from termination of employment. In this regard the provisions are not very different from the consequences flowing from an award provision similar to that considered in Byrne v Australian Airlines Ltd (1995) 120 ALR 274 and discussed in Johns. There procedural fairness was held to have been imported by implication as well as the substantive protection conferred by the award. The statutory provisions now apply, by reason of the Act, with minor exceptions, to all employees. The construction and application of section 170DC and subsection 170DE(2) were considered by Wilcox CJ in Gibson. His Honour discussed section 170DC under the heading "Procedural fairness". With respect, I agree with his opinion on this matter. I expressed similar views in Johns. But with respect, for reasons already expressed, the question of procedural fairness arises only after a finding has been made that the employer has established a valid reason or reasons under subsection 170DE(1). His Honour the Chief Justice discussed subsection 170DE(2) under the heading "Substantive fairness". With respect, for reasons already expressed, the question of substantive fairness arises only after a finding has been made that the employee has established a valid reason or reasons under subsection 170DE(1). Under this heading, his Honour discussed the question of the construction and application of subsection 170DE(2) and in that discussion expressed the opinion: "In this situation, it seems to me that Mr Ehsman, and anyone else who was involved in the decision to terminate Mr Gibson's employment, was entitled to reason that, if Mr Gibson was not prepared to explain any difficulty he had in working on a Saturday, in the circumstances it was better to dispense with his services. That decision was based on a valid reason based on the operational requirements of the respondent's business. The limitation imposed by subs(1) of s170DE was satisfied. And, having regard to the size and nature of the respondent's business, it seems to me the decision was not harsh, unjust or unreasonable." Implicit in this discussion is the view that the adjective "valid" when used in subsection 170DE(1) is to be given a meaning similar to the meaning I would give to it as set out earlier in these reasons. In coming to his conclusion on this aspect, his Honour had regard to the nature of the employer's business and the need for the employer to provide services to its customers. A refusal by the employee to work the overtime directed, without saying why, was relevant both to the issue of a valid reason and to substantive fairness under both the subsections of section 170DE. I do not necessarily disagree with this approach but normally the issue of whether a reason for termination is valid or not should be considered primarily from the employer's perspective while the substantive fairness issue should be considered primarily from the employee's perspective even though the perspective of the employer may be of importance also. The differing onus of proof provisions support this approach. Evidence was given at the hearing by the applicant, by Peter Lawrence Carroll, the managing director of the respondent at the time of the termination of the applicant's employment and who made the decision to terminate his employment, by Ann Marie Carroll, the human resources officer of the respondent but often referred to as the personnel officer and Diane Muriel Morris, the then floor lady of the respondent. Mrs Carroll is the wife of the managing director of the company. In addition a number of exhibits were tendered. The applicant is from Sri Lanka. He has been in Australia for many years. He speaks the English language but his mode of expression is not always clear. He appeared to understand the English language reasonably well. He appeared to be an honest witness but was concerned to present each fact in a way to support his version of the history. As a result he presented as devious using his lack of knowledge of the language as an excuse to avoid giving frank answers. In my opinion, he knew what was being done at the respondent's workplace, did all he could to avoid complying with the changes being introduced and adopted a course of action designed to achieve monetary gain from a termination of employment which he sought to obtain under the guise of the contravention of the provisions of the Act by the employer. Very early in the relevant history he sought legal advice and although the solicitor then consulted did not institute the application, it cannot be said the applicant did not know the consequences that could flow from his conduct. The other three witnesses presented as witnesses of truth giving evidence to the best of their ability. Mrs Morris, in particular, presented as a patient and capable person who counselled and encouraged the applicant in the performance of the new skills for which the applicant was receiving instruction in circumstances where the applicant, having in my opinion the capacity to perform those duties, wilfully refused to perform them effectively. In order to avoid the new procedures being introduced, with the result that he would be required to widen the area of his skills, the applicant had the intention of forcing a termination in an attempt to receive monetary compensation. Mrs Morris is to be commended for her perseverance and patience. I accept her evidence. Mr Carroll had a number of conversations with the applicant relating to his conduct or performance. Apart from one aspect where Mr Carroll said another person was present who in fact was not present, I accept the evidence of Mr Carroll. Mrs Carroll was charged with the responsibility of introducing the employees to new work practices to improve the productivity of the respondent with the possibility of the respondent entering into an enterprise flexibility agreement. She had constant contact with the employees, prepared the written notices given to the applicant, and encouraged him to accept the new system. I accept her evidence. Wherever there is any conflict between the evidence of the applicant and the other three witnesses, with the exception of the one matter mentioned, I accept the evidence of the other three witnesses. In these circumstances, I should state immediately that, on the whole of the evidence, the Court is satisfied that the respondent had valid reasons connected with the applicant's conduct for terminating the applicant's employment. Likewise, the Court is satisfied that the applicant had been given the opportunity to defend himself against the allegations made. Likewise, the Court is satisfied that having regard to the applicant's capacity and conduct the termination was not harsh unjust or unreasonable. Having regard to these findings, I do not intend to refer to the evidence in any great detail. The respondent is a fairly small company employing some 60 to 65 employees. It should be noted that the respondent employed persons from a number of different ethnic backgrounds including several Sri Lankans. It manufactured PVC and HD products by a blow moulding process. The products essentially are plastic bottles (for drinks) and plastic containers used for various purposes. A high standard of production was required since marks in the products could result in rejection of products by buyers. The respondent operated 24 hours a day in three eight hour shifts. The applicant worked the midnight shift from midnight to 8.00 am. About 17 persons worked this shift. Mrs Carroll normally arrived at work before 8.00 am in order to see and speak to the employees working the midnight shift and stayed until after 4.00 pm to see and speak to those working the night shift. Normally she was present at work during the day shift. By this practice she was able to keep in touch with all employees. On the midnight shift there was a foreman, a forelady, Mrs Morris, and a leading hand. There were two grindermen and one powderman. The applicant was the powderman. His duties were to take the raw materials in measured volumes, add them together and put them into a machine for mixing prior to the moulding process. There was no discretion in the exercise of these functions, the amounts being identified by some other person. Ability to lift weights was necessary which could make the job difficult for females. Some dust was involved in this job, but it was not a dirty job. The finished products were fed onto belts where operator/packers removed defective products and packed the others ready for stacking and removal. A forklift device was used to move the packed products. The operators were required to notice any major defects suggesting malfunctions in the process to enable corrective measures to be taken. Operators put their identifying number in each package so errors could be traced to particular operators. Too many errors passing undetected lead to serious loss of business to the respondent. Because of the system, the applicant was required to spend some time as an operator packer each shift to ensure continuous production to proceed. He used the identifying number of the operator he replaced during these short periods. There was no suggestion he did not do this task satisfactorily. The respondent and its employees were bound by the Rubber, Plastic and Cablemaking Industry (Consolidation) Award 1983 (Cth). When the applicant commenced his employment he was engaged as a powderman, a classification specified in that Award. This classification structure was replaced in 1991 by a new classification structure containing a number of levels with specified criteria to enable persons performing identified functions to be placed in identified levels and paid accordingly. One aspect of this new classification structure was to enable establishments to introduce multi-skilling features whereby the employees would perform many different skills to increase the productivity of the establishment and to remove the old rigid classification structures. The respondent was proposing to do this. The applicant was opposed to this development and wanted to retain his old classification which he had held since he began employment with the respondent in 1989. The new practice is illustrated by subclause 7(a) of the Award which provides: "7. (a) To become entitled to payment of a weekly wage, an employee must perform such work as the employer shall from time to time require on the days and during the hours usually worked by the class of employee affected and in accordance with the terms of this award. (i) An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with the classification structure of this award, provided that such duties are not designed to promote deskilling; (ii) An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment; (iii) Any direction issued by an employer pursuant to paragraphs (a)(i) and (ii) hereof shall be consistent with the employer's responsibilities to provide a safe and healthy working environment." In early May 1994 Mrs Carroll gave written notice to employees that, as part of the multi-skilling process, certain employees would be requested to attend seminars to widen their skills. The applicant was named as one of nine employees selected for these seminars. Subsequently, Mrs Carroll decided to vary this arrangement and by written notice dated 20 May she informed the applicant as follows: "The management of Peteron Plastics Pty Ltd are in the process of restructuring the shifts. The aim is to multi-skill our workforce, by training our employees in many areas of our production process. As of Monday, 23 May 1994, we are moving you to the position of process worker/packer, where you will receive training appropriate for this position. Your current wage will remain the same. This is purely a lateral move. Due to the fact that your training requirements will now be different, it would be of no benefit to you to participate in the proposed Training Program commencing 14.6.94. Therefore, this position will go to someone else in the reclamation area. We wish you well in your new position." The applicant commenced working as a process-worker/packer. His performance was bad. He did not appear to be trying. He was not removing defective products. He was given a verbal warning. There was no improvement despite repeated efforts by Mrs Morris to guide and encourage him. He appeared to be acting deliberately to show he could not do the work. On 6 July the applicant was given a written warning prepared and signed by Mrs Carroll. Mr Carroll spoke to the applicant. He explained to him what was being done and the need for multi-skilling. After a general discussion he was handed the warning which was as follows: "It has been explained to you that this company is in the process of multi-skilling it's staff and for this reason you were moved to operator statis (sic) to increase your skill. Unfortunately your attitude to this move is worrying management as you appear to be making no effort to adjust to this move. You have been verbally warned about packing reject bottles on several occasions even though you have been given a good deal of assistance by your floor lady as to what is an acceptable bottle and what is not. You also refuse to work with a team spirit. This is to be your first written warning, but your second official warning as you have been verbally warned, previously." There was no improvement. The applicant consulted his solicitor who sent to the respondent by fax a letter dated 12 July alleging victimization and the letter included the following paragraphs: "Further, our client does not accept the reason given to him by your company for the change of his job, as such change has not been effected to other employees of your company. If your company is in the process of multi-skilling its staff, then it should be applicable to all staff. Further, we are instructed to inform you that our client denies the contents of the letter of 6 July 1994 given to him more particularly, our client denies that he was given any warning previously. It is our instructions that your company is treating our client indifferently and subjecting him to severe mental and physical stress and strain. In these circumstances we are instructed to request you that if our client is not restored to his original position as a 'powder man' within seven days of the date of this letter we are instructed to take legal steps against your company in respect of the above and for damages." Mrs Carroll replied to that letter by a letter dated 13 July 1994 sent by fax on that day to the solicitor. The letter read: "I received your facsimile yesterday, 12.07.94, at 3.55 pm, concerning Mr Selvachandran. The information that you have been given is however incorrect. There are a number of our staff involved in stage 1 of our multi-skilling process, Mr Selvachandran is definitely not the only one." Another warning was given to the applicant on 14 July. Mr Carroll spoke to the applicant explaining the position. The applicant told Mr Carroll, in substance "if you don't like it, sack me." Mr Carroll handed the applicant the warning letter which had been prepared by Mrs Carroll: "This is your second written warning and is to be considered a review of your first written warning given to you on 6 July 1994. On several occasions it has been pointed out to you, by your Floor lady and also by your Supervisor, what is considered a reject bottle and what is not. Last night you were warned about leaving your machines unattended (which resulted in a "jam-up") and on Monday 11.07.94 you had to be moved from machine No 14 because you still could not distinguish between a good bottle and a reject bottle. Your performance and attitude are still far from satisfactory and you have 1 (one) week to improve or your future employment will be re-considered." There was no improvement in the attitude or conduct of the applicant despite the counselling and help of Mrs Morris. He accused her of making it difficult for him. On 2 August Mr Carroll spoke to the applicant. Mr Carroll asked why there was no improvement. The applicant said he did not like his new job, and to put him back on the old one. Mr Carroll explained again the process the respondent was undertaking and the need for the applicant to be able to do more than the one task and the problems arising from not removing defective products. Mr Carroll asked the applicant if he had problems with his eyesight but was told the applicant's eyesight was perfect. At that stage Mr Carroll had not made up his mind whether to terminate the applicant or not. The applicant told Mr Carroll that if he wanted to sack him, to sack him. Mr Carroll denied this was his intention but the applicant made it clear he only wanted his old job back. Mr Carroll considered that the applicant was capable of performing the packing job but that the applicant would not co-operate. He decided to terminate the applicant. He gave him the written notice which had been prepared by Mrs Carroll which was as follows: "The Management of Peteron Plastics Pty Ltd feel that they have been extremely patient with you while giving you time to adjust to the position of operator/packer. Unfortunately your performance and attitude are still far from satisfactory. You have received verbal warnings, a written warning on the 6 (sic) July 1994 and another written warning on the 14 (sic) July 1994 (a review of the written warning given on the 6 (sic) July 1994). You are still packing reject bottles and this company cannot allow this to continue happening. We explained to you on the 20 (sic) May 1994, both verbally and in a written internal memo that this company is in the process of multi-skilling it's staff, by training our employees in the many areas of our production process. You are in stage one (1) of this training program, along with several others. We felt that we allowed you adequate time to make the adjustment, however you have constantly packed reject bottles and on several occasions you have refused to work at certain machines. When you were asked to do powder for one night, while the current powderperson was absent, you flatly refused, stating that it was not your job. The whole idea of multi-skilling is to be able to slot staff into any position and they will have the skills to do that particular job. Considering the fact that you have previous skills as a "powderperson" we do not expect a refusal to do that job. The Floor lady on your shift has been giving you considerable assistance in teaching you what is a good bottle and what is considered a reject bottle but you are still packing rejects and your attitude to this problem is worrying, to say the least. You received a written warning on the 6 (sic) July 1994 concerning this problem. Another Written (sic) warning was issued to you on 14 July 1994 and Mr Carroll (Director) discussed this warning with you. You told Mr Carroll at the time that you did not want this particular job (operator) under any circumstance and to sack you. Mr Carroll told you that he did not want to sack you, he just wanted you to do the job. In your last written warning it stated that a review of your performance and attitude would be looked into one week from 14 July 1994. We allowed this time to run over to give you every opportunity to settle down to your job. Last week, Wednesday 27 July 1994, your Floor lady pulled a reject bottle out of the box that you were packing. You accused her of planting it there. When you were asked to take your tea break, you refused. You told your Floor lady that you did not want her to relieve you as she plants rejects in your box. This has all been documented. This situation has gone on long enough. Your performance and attitude have not improved and for this reason you leave us with no option but to terminate your employment. All monies owning to you will be transfered (sic) into your bank account as from Thursday 4 August 1994." Counsel for the applicant could not suggests any other reason for the respondent terminating the applicant's employment. In Johns I stressed the need to construe sections 170DC and 170DE in a practical manner. In Gibson, the Chief Justice expressed a similar opinion. With respect to section 170DC his Honour said: "In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243 I discussed the significance of s170DC. I observed that the section imposed an important limitation on an employer's power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section." Earlier in these reasons, I set out an extract from his Honour's decision relating to subsection 170DE(2). I agree with his Honour's approach. In the present case, the applicant was required, in conformity with the requirements of the Award, to accept multi-skilling. He continued to receive the same wage. It was made clear to him that this aspect was just a part of a large restructuring affecting all employees of the respondent. The applicant rejected the need to participate and carried on as if the award had not been varied. He wanted to retain his old classification. In my opinion he wilfully failed to perform his new duties even though he had the capacity to perform them satisfactorily. The applicant was given ample warnings, counselling and help. He persisted in his resistance to change. In these circumstances I have regard to what was said in Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 where Sheppard and Heerey JJ at 28, even though that case was not based upon subsection 170DE(2), in discussing the expression "harsh, unreasonable or unjust" said: "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." In the result, the motion for review must be allowed. The following orders should be made. 1. The application for review be allowed. 2. The order of the Judicial Registrar dated 19 December 1994 be set aside. 3. In lieu thereof, the application be dismissed. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop. Associate: Date: ATTACHMENT Counsel for the Applicant: Mr S. Anger Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: Mr B.D. Lawrence Solicitor for the Respondent: Phillips Fox Date of Hearing: 3 May 1995