C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Misconduct - Unlawful Possession - Adequate Investigation - Employer informed of admissions of employee to Supervisor and Police - Employee Declines Opportunity to discuss alleged misconduct - Fidelity and Good Faith Industrial Relations Act 1988, CASES: Selvachandran v Peteron Plastics Pty Ltd (7 July 1995, not yet reported). Kenefick v Australian Submarine Corp (1995) 131 ALR 197 Gibson v Bosmac (1995) 130 ALR 245 Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 12 ALR 233 Byrne and Frew v Australian Airlines (1994) 120 ALR 274 Byrne and Frew v Australian Airlines High Court of Australia (1 October 1995 not yet reported) Byrne and Frew v Australian Airlines (Matters S132 and S133 of 1994) Shop Distributive and Allied Employees Association NSW Branch v Jewel Food Stores (1987) 22 IR 1 HEF v Western Hospital (1991) 4 VIR 310. Parker v Clifford Dunn Ltd (1979) IRLR 56 Carr v Alexander Russell Ltd (1975) IRLR 49 Johns v Gunns Ltd 18 May 1995 (unreported) at 25 and 26 Cornall v A.B. (1995) VR372 Blyth Chemicals v Bushnell (1933) 49 CLR 66 COLLEEN SANDRA HEARD v MONASH MEDICAL CENTRE No. VI-95/1005 Before: Ryan JR Place: Melbourne Date: 12 October 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-95/1005 B E T W E E N: COLLEEN SANDRA HEARD Applicant AND: MONASH MEDICAL CENTRE Respondent RYAN JR MINUTES OF ORDER 12 OCTOBER 1995 THE COURT ORDERS THAT: The application is 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 VICTORIA DISTRICT REGISTRY Matter No VI-95/1005 B E T W E E N: COLLEEN SANDRA HEARD Applicant AND: MONASH MEDICAL CENTRE Respondent COURT: RYAN JR PLACE: MELBOURNE DATE: 12 OCTOBER 1995 REASONS FOR JUDGMENT EX TEMPORE On 3 January Colleen Sandra Heard lodged a claim of unlawful termination of employment. At that stage she sought reinstatement or compensation and claimed that her employer had unlawfully terminated her employment on 23 December 1994. Her counsel repeated the claim for reinstatement at the commencement of the hearing. On 13 January the employer's solicitors filed a notice of appearance. On 8 March the Industrial Relations Commission certified that it had been unable to settle the matter by conciliation within a reasonable period of time. By consent and after application to this Court the proceedings were deferred until the resolution of related proceedings in the Magistrates Court. On 1 August the solicitor for the applicant advised the Court that the police proceedings in the Magistrates Court had been concluded and at a Directions Hearing on 8 August the matter was fixed for trial on 28 and 29 September with the parties consenting to the applicant filing an affidavit by 5 September and the respondent filing a reply by 19 September. Again by consent the hearing was adjourned to 10 October because of the unavailability of a respondent witness. The applicant's affidavit sworn 4 September 1995 indicates that the applicant is 34 years old and commenced employment with the respondent on 8 August 1989 as a nursing attendant. In February 1991 she was promoted to a position of operating theatre technician and continued to work in that capacity until served with a written notice of termination on 23 December 1994. The notice of termination reads as follows: "Dear Ms Heard As you have failed to attend an interview today at the Medical Centre at 9.00 am the Medical Centre is left with no alternative but to proceed with your dismissal on the grounds of serious and wilful misconduct. Your dismissal, effective Friday 23 December 1994 relates to the possession of stolen Medical Centre property. I understand you have been interviewed by the police in relation to this matter. Any outstanding monies covering entitlements that may be due to you will be credited to your bank account. B. STRANGE Manager, Employee Relations" The applicant has stated that the nature of her duties at the Monash Medical Centre were the transportation of patients into the operating theatre, positioning the patients for the operating procedure and fulfilling the role of theatre orderly and general hand during the operating procedures and the cleaning of the theatre after the operation. The applicant has also described her duties as a nursing attendant, prior to promotion to theatre technician, as restocking the theatres with medical equipment, removal of the trolleys and the cleaning of operating theatres. From October 1993 to October 1994 the applicant undertook a correspondence course with the Mayfield Education Centre and on successful completion was promoted to theatre technician Grade 2. However, in late 1994 the respondent issued a notice inviting employees in selected areas to make application by way of an "expression of interest" for voluntary departure packages. The applicant lodged such an expression of interest in about October 1994 and on 12 December 1994 she formally made application for a voluntary departure package with her anticipated departure date being designated as 16 December. On 14 December a search warrant was executed at her home. The applicant states that the police executing the warrant were looking for a Toshiba Lap Top 3200SX computer and that she showed the police a computer in her possession which she states "apparently matched the serial number of a computer stolen from the Monash Medical Centre in or about November 1992." The applicant further states "the computer did not have any markings on it indicating that it was the property of the Medical Centre." Later that day the applicant was interviewed by the police. She now claims that she denied any knowledge of the handling or theft of the computer or that the computer was stolen or unlawfully obtained. She informed the police that she had purchased the computer for the sum of $500 from a person by the name of Ricky Boyd who had been previously employed at the Monash Medical Centre. The applicant claimed that it was explained to her at the time of purchase that the computer belonged to Mr Boyd's brother-in-law and that he wanted to sell it. On 22 December the applicant was charged by way of summons with: (a) handling the computer (b) theft of the computer (c) unlawful possession of the computer The applicant further states that on 15 December 1994 she was contacted by Mr Bruce Strange, Manager, Employee Relations Department, Monash Medical Centre. In response to his request the applicant attended Mr Strange's office whereupon he questioned whether she had been interviewed by the police in relation to the theft of property. The applicant acknowledged that she had been interviewed but at that stage had not been charged. Mr Strange informed her that she would be placed on suspension and that her voluntary departure package would also necessarily be suspended. The applicant claims that Mr Strange was not interested in hearing any explanation in regard to the circumstances and that she was informed to "get my stuff and get out". The applicant states that on 22 December Mr Strange contacted her again at her home and requested that she attend at his office at 9:00 am on 23 December. She claims that she indicated to him that she was unable to do so because of a pre-existing medical appointment and that it was unlikely that she would be able to attend his office in the forenoon. She states that she inquired whether it would be possible for her to attend in the afternoon but that he informed her that he was unavailable. She claims she inquired of Mr Strange the purpose of the meeting and that he informed her that it was "to sack her". Later that day (23 December 1994) the notice of termination was couriered to her address. The applicant claims that she was at no stage interviewed, counselled or consulted with regard to her work performance or indeed any alleged poor work performance. It is her understanding that it is the policy of the respondent that an employee is entitled to three verbal warnings and then three written warnings with regard to any poor work performance. She claims that she has not at any stage received any such warning. It is also the applicant's belief that a warning is required to be given in the presence of herself and a representative from the Health Services Union and that this did not occur at any stage. The applicant claims that she has not been afforded any opportunity to answer the allegation that gave rise to the alleged grounds of serious and wilful misconduct which resulted in her termination. On 25 July at the Dandenong Magistrates Court she pleaded not guilty to charges of handling and theft and guilty to unlawful possession. She claims that the charges of handling and theft were dismissed without conviction and that she was placed on a good behaviour bond for 12 months with a special condition that she pay $300 to the court fund within one month in relation to the unlawful possession charge. The applicant also claims that "it was accepted by the Court that at the time I purchased the computer I was unaware of (it) being stolen, nor did I suspect that it was either stolen or unlawfully obtained". This Court notes that this is no more than a claim by the applicant and that Senior Constable Doswell described the handling and theft charges as withdrawn rather than dismissed. In any event, it seems unlikely that the Magistrates Court would make any findings in respect of charges which did not proceed or indeed any finding other than penalty in respect of the plea to unlawful possession. The applicant further claims that she has not received any monies in lieu of notice of termination and that she has not received any termination package or any payments that were due to her pursuant to the voluntary redundancy package and that she has been unemployed from the date of termination and has not been in any position to actively seek employment while the criminal proceedings were pending. On 1 August 1995 the Monash Medical Centre was incorporated into the Southern Health Care Network and the Centre is the major agency in the network. The manager of Employee Relations at the Monash Medical Centre, Mr Bruce Strange, has filed an affidavit in which, in many respects, he agrees with the sequence of events as set out by the applicant in her affidavit. However, Mr Strange has expressed the view, based on police advice, that the applicant "became aware in July 1994 that the computer in her possession was stolen and that she did not want to return it as she thought she would lose her job". Mr Strange has also expressed the view, again based on advice given to him, that the applicant knew in July 1994 that the computer in her possession was the property of the Monash Medical Centre and further that the applicant had demonstrated to an employee of the hospital the means by which computers and other hospital property were taken out from the Medical Centre to a car park and taken away by employees. Mr Strange concedes that he terminated the applicant's employment by letter dated 23 December 1994 after she failed to meet with him on that date to discuss the matter of serious and wilful misconduct. Mr Strange states that all outstanding monies covering entitlements due to the applicant as at 23 December were credited to her bank account and he submits that the employer was entitled to summarily dismiss the applicant for misconduct in that an act of dishonesty had occurred involving medical centre property stolen from the medical centre. Mr Strange further submits that the applicant took advantage of and abused her contract of employment with the medical centre by acquiring goods which belonged to the Centre and keeping them in her possession when she knew them to be stolen. Alternatively, Mr Strange contends that the applicant had a duty to return the computer to the Centre upon learning that it was the employer's property and property which had been stolen. In essence the employer is taking the position that the applicant's misconduct had a direct and fundamental relation to the performance of her work as an employee such as to disentitle her to a voluntary departure package and render her employment contract at an end. The employer's position is that the applicant has destroyed the trust and confidence which was required between her and the Monash Medical Centre. POLICE INVESTIGATION Malcolm Doswell, Senior Constable, Oakleigh CIB, gave evidence of: 1. matters referred to him to investigate in respect of reported thefts from the Monash Medical Centre 2. inquiries initiated after the police took possession of a tape recording of a discussion between the applicant and John Stuart, now an Anaethestic Technician at Melbourne Private Hospital but then a supervising Theatre Technician at Monash Medical Centre 3. the execution of a search warrant at the applicant's residence on 14 December 1994 4. the seizure at the applicant's residence on 14 December of a Toshiba Lap Top computer T3200SX 5. an interview and record of interview with the applicant at Mornington Police Station on 14 December 6. discussions with agents and employees of Monash Medical Centre WORKPLACE SUPERVISION John Stuart gave evidence of: 1. requests to him while at Monash Medical Centre to be alert for information as to reported thefts over a considerable period of time from the theatre suites, changing rooms and the intensive care unit 2. conversations in which he participated and/or overheard involving the applicant and another theatre technician, Gary Sheldon, and in which reference was made to the theft of computers and disparaging remarks were made about hospital security 3. an arrangement between him and the manager of security and communications at Monash Medical Centre for Mr Stuart to tape conversations which might provide information in respect of missing property 4. a recorded conversation with the applicant on a Saturday afternoon in early September 1994 part of which is transcribed in Exhibit R4 and recorded on tape in Exhibit R5 SECURITY MANAGEMENT Douglas John Finning, Manager, Security and Communication, Monash Medical Centre gave evidence of: 1. the arrangement whereby Mr Stuart taped a conversation with the applicant 2. the referral of the tape via a security consultant to the police 3. brief follow-up conversations on the progress of the police investigation with the hospital security consultant, Richard Murray, and with the Oakleigh police 4. brief conversations with Messrs Strange and Stuart and a senior hospital executive, Ms Liz Maddison, in which he detailed in brief terms the reported progress (such as it was) of the police investigation and mentioned that the applicant and Mr Sheldon were the subject of police inquiries EMPLOYEE RELATIONS AND THE TERMINATION Bruce Leslie Strange, Manager, Employee Relations, Monash Medical Centre gave evidence consistent with his affidavit sworn 14 September 1995 (Exhibit R6). The Court has already referred to some of this evidence. Mr Strange's evidence included: 1. reference to the termination of Mr Ricky Boyd for stealing money from the men's changing room in the theatre suite at the hospital 2. advice provided to him in mid-December 1994 that the applicant and Mr Sheldon had been found in the possession of stolen property belonging to the Monash Medical Centre 3. separate interviews with the applicant and Mr Sheldon on 16 December in which he (Strange) suspended both employees on full pay and suspended the planned payment of Voluntary Departure Packages to both employees, which packages were scheduled to be paid on that day i.e. 16 December 1994 4. advice conveyed to him by Senior Sergeant Dolman of Oakleigh CIB on 21 December or 22 December that the applicant had, on 14 December, admitted that in July 1994 she had become aware that the Toshiba Lap Top computer in her possession had been stolen from the hospital 5. further advice also conveyed by Senior Sergeant Dolman on 21 or 22 December that the applicant would be charged with offences in relation to the possession of the computer 6. advice conveyed to him (Strange) by Mr Finning of an admission made by the applicant to Mr Stuart that the applicant knew at least as early as July 1994 that the computer in her possession was the property of the Monash Medical Centre 7. a telephone discussion with the applicant on 22 December in which she declined to attend at his office at 9:00 am or 11:00 am in the morning of 23 December or in the afternoon of 23 December 8. Mr Strange's attempts in the telephone conversation on 22 December to persuade the applicant to attend on 23 December and take the opportunity to comment on and explain her position in respect of the Toshiba Lap Top computer 9. the preparation and delivery of the letter of termination on 23 December THE EVIDENCE OF THE APPLICANT The applicant gave evidence. It was not always consistent and it was at times inconsistent with and conflicted with statements in the record of interview (Exhibit R2) and with statements on the tape (Exhibit R5) and the transcript (Exhibit R4) of the conversation with Mr Stuart. The taped conversation with Mr Stuart reveals that the applicant knew about property which she suggested had been stolen by Ricky Boyd and David Knox. She also took Mr Stuart on a guided tour of what she called "the nooks and crannies" and demonstrated routes in the hospital where video surveillance was avoided or was inadequately supervised. At the very least she implied that computers and other equipment were taken from the hospital without authorisation by such routes. Until then, she appears to have done nothing to prevent this alleged removal of hospital property. She may well have connived in this illegal traffic but, at the least, she stood by and did nothing to stop it. She claimed in her evidence at the hearing that she did not really know thefts had occurred and that it was just suspicion and gossip. She claims in the record of interview (Exhibit R2) that she bought a computer for $500 from Ricky Boyd and that this was the computer located at her home on 14 December 1994. She stated in evidence at the hearing that she trusted Ricky Boyd when he stated that it was the property of his brother-in-law but both in the taped conversation with Mr Stuart (Exhibits R4 and R5) and in the record of interview (Exhibit R2) the applicant is recorded on several occasions as indicating that she never trusted Ricky Boyd. The applicant informed the Court that, while she had told the police in her interview at the Mornington Police Station that she learned that the computer was the property of the hospital in a conversation with Gary Sheldon in July 1994, she should have also told the police that she never really believed Gary Sheldon in the first place. She also claimed that the real position is that she never knew the computer was or was likely to be the property of the hospital until the police matched the serial number with that in the search warrant when the computer was located at her home on 14 December. The applicant claimed in her evidence that the straightforward and direct statements on the tape of the discussion with Mr Stuart that: "he (Rick) gave me a computer one day....he gave it to me" were no more than her way of speaking. "That is how I speak" she said. This seemed to be an explanation for what she claims was really a reference to the purchase of the computer for $500. She seems to be saying in her evidence to the Court that when she said that Rick "gave her" the computer that really means "she purchased the computer for $500". The applicant states that she was taking things more seriously when interviewed by the police than when speaking to Mr Stuart and being recorded without her knowledge. The Court accepts that. However, the Court also notes that the applicant indicated that while on oath giving evidence she was taking things more seriously again than when being interviewed by the police. She conceded in evidence that some of her answers to the police were incorrect and some incomplete. The applicant told the police she had used the computer and made a similar statement which was recorded in her conversation with Mr Stuart. In her evidence, she dismisses these statements as merely the way she speaks. She claimed that she really intended to say that her sister had used the computer but, again, at one stage of the record of interview, she seems to say that the computer was never used by anyone. The applicant gave evidence on oath at the hearing which was inconsistent with and conflicted with statements in the record of interview (Exhibit R2) and with statements made to Mr Stuart and recorded on tape (Exhibit R5) and in the transcript of the tape (Exhibit R4). The tape was played during the hearing and the transcript of part of the tape (Exhibit R4) was generally consistent with the tape itself. The applicant also gave evidence at the hearing which could not be easily reconciled with certain evidence in her affidavit sworn 4 September 1995. Where the evidence of the applicant conflicts with the evidence of the respondent witnesses (and particularly the several conflicts with the evidence of Messrs Strange, Smart and Doswell) the Court unhesitatingly prefers the evidence of the latter. However, the preference for and acceptance of respondent evidence does not automatically result in dismissal of this application. The respondent must demonstrate a valid ground for termination and the applicant, like any applicant within jurisdiction, may be able, in certain circumstances, to discharge the burden of proof that her termination in other ways valid was nevertheless harsh, unjust and unreasonable. GROUNDS FOR TERMINATION In this case Counsel for the applicant asserts that there was no valid reason for termination associated with the capacity and conduct of the applicant. Sub-section 170DE(1) forbids an employer to terminate an employee's employment unless there was a valid reason for the termination. Northrop J referred to the meaning of "valid" in this context in Selvachandran v Peteron Plastics Pty Ltd (7 July 1995, not yet reported). After referring to dictionary definitions, he said: "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 S170DE(1)" The Chief Justice of this Court has agreed in Kenefick v Australian Submarine Corp (1995) 131 ALR 197 at 208. He said: "I think it follows that the reason must be genuine, that there must be a causal relationship between the reason and the termination and that the termination must be a logical response to the employee's capacity or conduct or the employer's operational requirements. Of course, there is often more than one logical way of dealing with a problem. While the sub-section requires the employer to establish that the termination was a logical way of dealing with the problem of employee capacity or conduct, or operational requirements, that gave rise to it, it does not require proof that this was the only logical course. The sub-section was designed to inhibit capricious terminations, not to put the Court in the employer's managerial chair." Counsel for the applicant here, as in Gibson v Bosmac (1995) 130 ALR 245 at 251 argues termination was unlawful first because his client was denied an opportunity to defend herself and secondly that the termination was harsh, unjust and unreasonable. As Wilcox CJ states at 251 in Gibson: "The first submission depends on S170DC of the Industrial Relations Act. That section provides that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless...the employee has been given an opportunity to defend himself or herself against the allegations made or the employer could not reasonably be expected to give the employee that opportunity. There is no doubt that Mr Gibson's employment was terminated for reasons related to his conduct." Here too the applicant was terminated for reasons related to conduct. Indeed for what the letter of termination calls "serious and wilful misconduct'. Wilcox CJ continues in Gibson at 251 (line 48): "Counsel for the respondent submits that the respondent gave Mr Gibson an adequate opportunity to defend himself. I think this submission is correct. In Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 120 ALR 233 at 243 I discussed the significance of S170DC. I observed that 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. That was the situation in the present case." Likewise, that was the situation in the case before the Court today. The applicant knew the employer's concern. I accept Mr Strange's evidence on this aspect and reject the evidence of the applicant. Furthermore, the applicant refused the opportunity offered by Mr Strange to attend on him on 23 December and explain her position and respond to the extent that she could respond, to the charge of dishonesty, of serious and wilful misconduct. Counsel for the applicant argued that termination is no mere matter of detail. It is a fundamental matter. He cited Black CJ in Byrne and Frew v Australian Airlines (1994) 120 ALR 274 at 281 (line 23). While the High Court yesterday (11 October 1995) delivered judgment on appeal in Byrne and Frew (Matters S132 and S133 of 1994), allowed cross appeals and remitted the matter back to the Full Court of the Federal Court for reconsideration in the light of the Court's reasons for judgment and while the focus of Black CJ as cited by Counsel for the applicant, was on the contract of employment, there is nothing in the High Court decision yesterday which would disturb the submission of Counsel for the applicant that termination is no mere matter of detail. He is correct. Counsel for the respondent did not argue otherwise. Counsel for the applicant moved from that to the proposition that the investigation of his client's perceived misconduct was inadequate because he claims that the only relevant investigation made by Mr Strange prior to terminating the applicant was a telephone call to Senior Sergeant Dolman. This is not correct but even if this was the totality of the investigation by Mr Strange it would not follow that the investigation in the circumstances was inadequate or that the termination was harsh, unjust and unreasonable. Mr Strange had been informed by Mr Finning of the general nature, if not the detail, of admissions made by the applicant in the taped conversation with Mr Stuart. He had spoken to the applicant by telephone on 22 December. She made it abundantly clear that she knew the allegation of possession and retention of a hospital computer was a serious matter and she indicated then and indicated again yesterday in evidence that she expected that a meeting on 23 December with Mr Strange would result in her termination. She had an opportunity to attend on 23 December. The Court finds, contrary to her claim that she was given two opportunities to attend on 23 December (at 9:00 am and 11:00 am), that in fact she was given three opportunities (at 9:00 am, at 11:00 am and in the afternoon). She did not attend. She could have attended. The Court notes also her own evidence that her union organiser, Charlie Naylor, told her (possibly after her telephone conversation with Mr Strange on 22 December, but nevertheless on 22 December) that she was not obliged to attend a meeting on 23 December and that it was Mr Naylor's view that the respondent intended to terminate her employment on 23 December and that written notice of the termination would be couriered to her. The union organiser's advice of termination on 23 December turned out to be correct but the fact remains that the applicant chose not to attend on 23 December and conceded in evidence that in making that decision she relied at least in part on the advice from the union. Mr Strange's investigation was confined to consideration of advice from Mr Finning and Senior Sergeant Dolman. He offered the applicant a final opportunity to explain her possession of the hospital computer. Counsel for the applicant also cited Byrne and Frew at 301 (line 10) were Beaumont and Heery JJ said: "It is further submitted that in making observations on credit, His Honour addressed the wrong issue. The question to be decided was not whether, in His Honour's opinion (formed by reference to the evidence given at the trial) the appellant's were guilty of misconduct but whether, on the material available on 28 March 1989, the respondent then terminated the appellants' employment harshly, unjustly or unreasonably." Irrespective of the effect, if any, of the High Court judgments yesterday, I will find before I conclude that the investigation was as full and extensive as was reasonable in the circumstances. Of course, in any event, the Full Court of the Federal Court on 7 February 1994 and the High Court yesterday were considering an Award Clause not Division 3 Part VIA of the Industrial Relations Act 1988. Having said that, leave was granted today for counsel to address further in the light of the High Court decision and there is much in that decision yesterday which fortifies me in the view that the investigation by Mr Strange on behalf of the respondent was adequate in the circumstances. Furthermore, the Court has no difficulty in reconciling a conclusion of adequate investigation in this case with comments such as the following from the Industrial Commission of New South Wales in court session in Shop Distributive and Allied Employees Association NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2: "We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out." However if the Court is wrong is assuming such reconciliation, it should be noted that this Court is dealing with different legislation and, in the main, is relying on recent authorities from this Court itself and indeed, although it is unnecessary, on the High Court in the judgments yesterday in Byre and Frew and especially pages 15 and 16, 22 and 56 to 61 of that decision. The Court too has considered HEF v Western Hospital (1991) 4 VIR 310. The Court has noted but has not relied on the comments on investigation and opportunity to state a case as set out in the English cases of Parker v Clifford Dunn Ltd (1979) IRLR 56 and Carr v Alexander Russell Ltd (1975) IRLR 49. On the other hand, the Court has relied on Northrop J in Johns v Gunns Ltd 18 May 1995 (unreported) at 25 and 26 in respect of S170DC and S170DE and S170CA and notes in particular the comment that S170DC is to be applied in practical situations of employer and employee and decisions on whether an employer has observed the obligation imposed by S170DC must be made having regard to the practical circumstances of the relationship of employer and employee. In that respect, and because Counsel for the applicant cited the case, the Court would draw a distinction between those obligations under the Industrial Relations Act 1988 (Commonwealth) and the obligations imposed on the Law Institute of Victoria under vastly different State legislation in the case of Cornall v A.B. (1995) VR372. DUTY OF FIDELITY AND GOOD FAITH I have no doubt that the possession and retention of the hospital computer breached the common law obligation imposed on the applicant of fidelity and good faith. See Macken, McCarry and Sappideen - The Law of Employment (3rd Edition) at 129 and 130. See also Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81 where Dixon and McTernan JJ said: "Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal... but the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises. In this case, even if the most favourable light is cast on the employee and even if her culpability is restricted to the retention of the computer after July 1994 the conduct is incompatible with fidelity and good faith." FINDING The respondent terminated the applicant's employment for valid reason and the termination was not harsh or unjust or unreasonable. The application is dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 17 October 1995 Appearances: Counsel for the Applicant : Mr A J Parnell Solicitor for the Applicant : David Gibbs & Associates Counsel for the Respondent : Mr L Kaufman Solicitor for the Respondent : Phillips Fox Date of Hearing : 10, 11 and 12 October 1995 Judgment : 12 October 1995