C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether there was PROCEDURAL FAIRNESS - VALID REASON - whether HARSH, UNJUST OR UNREASONABLE - REMEDY INDUSTRIAL RELATIONS ACT 1988 Ss 170DB, 170DC, 170DE, 170EA, 170EE David Scott Ingster v Broken Hill Pty Company Limited, Steel Rod Bar Products Division Industrial Relations Commission of New South Wales, Matter No. IRC 2165 of 1993, Commissioner Harrison, 8 October 1993 R v Jiminez 23 NSWLR 394 Jiminez v The Queen 173 CLR 572 Nicolson v Heaven and Earth Gallery 126 ALR 233 Ward v CT Freight Pty Ltd VI 149/95 Murphy JR 4 July 1995 Byrne v Frew v Australian Airlines 120 ALR 274 Stevens v ALHMWU v Courtaulds Pty Ltd VI 2034/95 Parkinson JR 27 July 1995 North v Television Corporation (1976) 11 ALR 599 at 608 to 609 Laws and the London Chronical Indicator Newspapers Limited 1959 2 AER 285 Williams and Kirmans Crane v Trucks Melbourne Pty Ltd (1995) AILR 3 - 05 Willcocks v Makfren Holdings Pty Ltd WI 1329/95 Lee J 22 August 1995 Nicolas John Music v Wormald Security Industrial Relations Commission of New South Wales, Matter No. IRC 1468/93, Commissioner Buckely, 9 August 1993 Federated Clerks' Union of Australia, Industrial Union of Workers (Western Australia Branch) v Wormald Security Pty Limited (1993) 74 WAIG 134 James Lewis Aitkin v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, unreported, IRCA No. 352/95, Lee J, 7 August 1995 DAVID EDWIN BARBER -v- MSS SECURITY AND MAYNE NICKLESS LIMITED - WI 1718 of 1995 BEFORE: McILWAINE JR PLACE: PERTH DATE: 29 SEPTEMBER 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1718 of 1995 BETWEEN: DAVID EDWIN BARBER - Applicant AND: MSS SECURITY AND MAYNE NICKLESS LIMITED ACN 004073410 - Respondent MINUTE OF ORDERS BEFORE: McILWAINE JR PLACE: PERTH DATE: 29 SEPTEMBER 1995 THE COURT ORDERS THAT: 1. The respondent pay to the applicant the amount of $2,501.80 in lieu of the required period of notice pursuant to Section 170DB(2), within 14 days of the date of this order. 2. The respondent pay to the applicant the sum of $10,000 as compensation pursuant to Section 170DE(2), within 14 days of the date of this order. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1718 of 1995 BETWEEN: DAVID EDWIN BARBER - Applicant AND: MSS SECURITY AND MAYNE NICKLESS LIMITED ACN 004073410 - Respondent BEFORE: McILWAINE JR PLACE: PERTH DATE: 29 SEPTEMBER 1995 REASONS FOR JUDGMENT This is a claim under Division 3 of Part VIA of the Industrial Relations Act 1988. The claim made by Mr Barber is for reinstatement and compensation in respect of the loss of his employment with MSS Security Services. I note at the outset that the parties have advised me that the correct title for the respondent is MSS Security, a Security Service of Mayne Nickless Limited, ACN 004073410. Therefore the court record should be amended to reflect that in the following way: MSS Security and Mayne Nickless Limited, ACN 004073410 I am satisfied that there has been a mediation conference which was conducted according to the Court record on 18 July 1995. The matter is properly before me. Mr Barber was born on 19 September 1939 and he is currently 56 years of age. He commenced his employment with MSS Security Services in August 1989 and the last day on which he worked for that firm was 10 June 1995. Although no specific date for the commencement of his employment is able to be agreed on between the parties nothing much turns on it as it is conceded that he had a lengthy period of service. Whilst it may not be considered by MSS Security Services to be an unblemished period of service. it appears to me on the facts as I find them to be the case. At the outset I want to make it clear that I regard the issue of sleeping on the job in a security service as a most serious matter. I accept what the employer says that all of its employees should understand the seriousness of that occurring. In this regard I have considered David Scott Ingster v Broken Hill Pty Company Limited, Steel Rod Bar Products Division 8 October 1993, No IRC 2165 of 1993. This case was an application by Mr Ingster regarding unfair dismissal pursuant to Section 246 of the Industrial Relations Act of New South Wales. In his judgment Commissioner Harrison refers to a decision of Justice Cahill, in Matter No. 114 of 1976. In that decision made on 7 April 1976, his Honour declined to intervene in favour of the applicant in circumstances which, according to the Commissioner, were similar to the case that the Commissioner was considering. The Commissioner records his Honour as finding: I am also satisfied (a) that there was work waiting to be done by the crane at the time in question; (b) that Mr B had deliberately made preparations to go to sleep on the cabin floor; and (c) that Mr B fully understood how seriously the company regarded an employee's action while on shift of deliberately making preparations for sleeping and going to sleep thereafter........ If an employee feels sick while on duty there are procedures to be followed such as reporting to the foreman and in appropriate cases attendance at the sick bay or medical centre. It is certainly not a permissible course without reporting the matter to anybody deliberately to bed down and go to sleep at a place of work which in this case, of course, was the cabin of an overhead travelling crane stopped in a position where access by others could be obtained only with a fair amount of difficulty. I think that Mr B's action was taken deliberately in the full knowledge of the probable consequences if he were to be found out. The importance of referring both parties to that aspect of the judgment is to highlight the use of the word "deliberately" which implies, as has been suggested to me by the company, an element of wilfulness; and also full knowledge of the probable consequences of sleeping on duty. I turn now to the facts of this case. Mr Barber gave evidence that he commenced working for MSS Security Services on a part-time basis at the Co-operative Bulk Handling Centre ("CBH") at Kwinana and that he was worked there on 12-hour shifts. He was in a static guard position, which involved logging the registration numbers of vehicles visiting the centre and performing patrols of the jetty and buildings. He worked alternative shifts on a day or night basis. When he was patrolling the buildings he keyed in his position on a recording device. He would then go to a centre, where there would be a box with a key and he would insert the key into the recorder that he carried. He had worked at the CBH site without a reported adverse incident for 5˝ years. He said that he felt he was getting stale in this job and he spoke to Mr Graham Drury, the State Operations Manager, and asked if a new position could be found for him. He went on holiday and Mr Drury rang him and asked him if he was interested in working at the Hi-Smelt facility at Leath Road, Kwinana. Mr Barber gave evidence that he went to the site and examined it. He then telephoned Mr Drury and advised him that that he was prepared to accept the position. He thinks the date of the conversation was possibly around November 1994. In any event, he changed sites before Christmas 1994. As far as he was aware, he left the CBH site on good terms with the senior guard there, a Mr Les Crowe. I will come back to this matter as Mr Crowe gave evidence in these proceedings. Mr Barber said he had received no disciplinary warnings over the period of employment. However, he conceded that he had brought a portable television set on to the CBH site and that Mr Donaldson, I think it was, the then Senior Night Guard, had reminded him that he was not allowed to have it on site. Mr Barber reported his words as: "Well, I have not seen that". The unchallenged evidence from Mr Barber is that he complied with that request and that he took the television set away. Mr Barber gave evidence that at some sites televisions may be allowed although I note that in the Security Officers' manual which was produced in evidence ("Exhibit A") the Standing Orders prohibits such a practice by the guards. Mr Barber gave evidence about the night of the particular incident relied on by the respondent. Mr Barber, on the evening of 9 June 1995, was on site for a considerable period of time without incident. He worked 12-hour shifts; 3 nights on, 2 off, 2 on, 3 off. The shifts were from 6 pm to 6 am and there were no official breaks during that time and no relief was provided. Mr Barber was obliged to sign on in a log book and to update it during his shift. There is no dispute between the parties that he did so at the times shown in that book. When he came on duty at 1750 on 9 June 1995, Mr Barber had a conversation with Rhonda Smythe, the security guard who was completing the day shift. Ms Smythe told him that she had heard from some of the employees of Hi-Smelt that the contract which MSS Security Services had for that site was under review and may not be renewed. This caused much concern to Mr Barber, no doubt because relatively speaking, he had only recently moved to this site. Mr Barber rang his control centre and asked for Mr Donaldson to visit the post to inform him of what he had heard. He was told by his control centre that Mr Greg Bridge was the supervising officer and that he would be notified of his request. I note that Mr Barber has mentioned that there had been no visit by a supervisor to the plant since 14 May 1995. Nothing turns on that issue. Exhibit 1 in the proceedings is a sketch plan of the site. It is obviously a large industrial site. The guard or security hut appears to be in the middle of the smelter area. Mr Barber has circled and made various marks on the sketch plan to indicate where the car park and the office section are located. This enabled me to follow the evidence as to the patrols which he made during the night. Mr Barber stated that he had to do about six to eight patrols per night. The office complex was included in the patrol and there he had to record his attendance on a recording device that was located on the building. He also had to do perimeter patrols, and as well, he had to make a computer operated "VRT" check which involved him ringing in to the central MSS Security Services control room between 10 to and 10 past the hour in order to record that he was alert. The log book records these checks were made on 9 June by Mr Barber. The original log book has not been produced, however, there is no allegation that Mr Barber made any false or delayed entries. It is I think relevant at this stage to record what Mr Bridge and Mr Barber recorded on the daily report of MSS Security Services for Friday, 9 June 1995. The report is "Exhibit 2" and it is in two columns and I will read part of it. I do not intend to incorporate the whole of the document, but just what appear to me to be important and relevant entries. That extract is as follows: 2340 Completed office and site patrol 2350 VRT routine call. - Saturday, 10 June 1995 - I interpose, which is not recorded in the book, the time 0015, because this is the time that the company maintains was the first occasion on which Mr Barber was seen to be asleep: 0040 Completed office patrol 0041 Field supervisor on site - - and there is a signature from Mr G Bridge - ...0050 VRT routine call - MSS, 0145 Completed office and site patrol 0155 VRT routine call - MSS. I again interpose times which are not part of the original record on the basis that at these times, it is alleged that Mr Barber was again seen to be asleep. 0220 and 0228. 0238 Field supervisor on site - - and that was signed by Mr G Bridge - 0245 Completed office check 0300 VRT check MSS, 0307 Field supervisor off site - - and also signed by Mr G Bridge - 0345 Completed office and site patrols 0345 Completed trip to AMPOL to fuel ute 0355 VRT call - MSS 0445 Completed office patrol 0455 VRT call - MSS 0500 Completed site patrol, 0520 Completed office patrol 0550 D. Barber - off duty. Mr Barber gave evidence that, when he went out to start the office patrol which he has recorded as 0040, he walked out of the building and he came in contact with Mr Bridge, who was somewhere between the guard hut and his car. There was a short exchange between the parties. Mr Bridge said that he had arrived on site, he had seen Mr Barber sitting at the table - I think he originally suggested that he had his feet up on the desk - and he was shocked because he felt that Mr Barber was asleep with his head laid back. His evidence was that in order to record the incident he then went back to his car to retrieve a camera so that he could take a photograph of Mr Barber in this reclining state. Mr Bridge said he was surprised because before he could come back with the camera Mr Barber emerged from the security hut. In the light of this evidence and the consistent story from both Mr Barber and Mr Bridge, as well as my observations of Mr Barber, I have formed the opinion that he was not asleep. Mr Barber wears quite thick glasses, and it subsequently emerged very late in the hearing that those glasses are tinted. My observations of him whilst sitting immediately behind his union advocate during the hearing are that he has a practice of leaning forward with his head down and even though the court is well-lighted court, I had difficulties from time to time seeing whether his eyes were closed or not. He has bifocal glasses and he has a disease called glaucoma, which is under control and being treated. It seems to me that on this first occasion that Mr Bridge arrived on site, he may well have been mistaken as to whether or not Mr Barber was asleep. He may simply have been lying back in the chair. I think it would be difficult for Mr Bridge to have looked in at night through the guardhouse window with the light on inside the hut and to determine the position of Mr Barber's eyelids. I cannot find that Mr Barber was asleep on the first occasion. Mr Bridge gave evidence that on his arrival in the security hut he talked to Mr Barber about everything else except the fact that he thought he was asleep. Mr Barber had recently been on a proficiency course conducted by Mr Bridge as the Training Officer for the company. Mr Bridge seemed to me to be genuine in his regard for Mr Barber and indicated that he was surprised and shocked when he first came on the scene. However, as I say, I do not find that Mr Barber was asleep on the first occasion, and I am fortified by the view I have formed from observing him in a well-lighted situation. Mr Bridge then left the site without referring to the fact that he felt that Mr Barber was not alert or had been sleeping. I am assuming that Mr Bridge had formed the view that he would come back again to see if he could catch Mr Barber. I think that was a mistake on the part of Mr Bridge. I am not saying it was a mistake in the sense that there was something wrong with that decision or that it was not open to him as a supervisor to take that course. However, there are other things that he could have done in terms of ensuring that this incident did not re-occur and as a supervisor he had a responsibility to provide assistance to a subordinate rather than to endeavour to catch an employee out doing something wrong. In my view, Mr Barber's actions were in no way deliberate, that there was no evidence of any wilfulness, and therefore Mr Bridge, to my mind, acted incorrectly in not taking some other action to ensure that Mr Barber was given additional or adequate resources to enable him to do his job properly. There was other support he could have been given by the company to ensure that on a lonely site at night he remained alert. There is no dispute that the smelter was not working to its normal level on 9 June 1995; it was closed down for maintenance purposes. Mr Barber's evidence was that if the smelter was operating there were people and vehicles coming and going, and that he had to do things and be up and around. His evidence also was it was an extremely cold night and that he had shut the doors and turned the air-conditioning up high. None of that evidence was in any way challenged. It seems to me that there was another way that Mr Bridge could have ensured that this incident did not re-occur. I believe - and I do not mean this in a derogative fashion because Mr Bridge impressed me as a witness - that he could have, for instance, used the standing orders in the security officer's manual, and I refer in particular to 4.4.4, which is in the following terms: Periodic reports: routines from operatives must be made as per the instructions applying to the particular post at that time. All such reports are subject to random ring-back verification by the control operator. Then there is set out under 1 to 4 the various levels of reporting back. In some cases it is every two hours but certainly at this time of night it was to be every hour and in particular it refers to Saturday, Sunday and public holidays. It occurs to me that Mr Bridge could have rung his control and said: "Look, what I want you to do is institute a few random call-backs to Mr Barber". He need not have even indicated what his concern was but that would have been one way of immediately assisting Mr Barber to remain alert. I was impressed by the evidence, which the respondent called, of Mr Byfield of Bainbridge Holdings Pty Limited trading as MSA Guards and Patrols. Mr Byfield testified that his firm has a concept of mobile guards who are available to go and relieve a static guard on a 12-hour shift for a short time. The security industry generally may not agree with my view that a 12-hour shift without a person having an adequate break during a night-shift is a dangerous practice. However, that is the view that I have formed in the light of this case and the way in which the incident has occurred. There are many examples on a daily basis on the roads where it is reported that people driving for short or long periods, particularly driving at night or in the early morning, find that they suddenly fall off to sleep. The recommendation by every transport authority, every report that I have seen, is that there ought to be a break in driving taken after each two hour period when driving at night. Here you have a person who is left on his own guarding a high security premises and working a 12-hour shift which to my mind, is not conducive to a person remaining awake. I referred the advocates to the case of R v Jiminez 23 NSWLR 394 which then went on appeal to the High Court as Jiminez v The Queen 173 CLR 572. I immediately concede that the Jiminez decision involves a criminal case and that different standards apply but there are very helpful discussions as to what are the causes of people falling asleep. There was only one question from Mr Joyce on behalf of the respondent put to Mr Barber to the effect that he had two days off before he came on shift. This was not sufficient to allow me to find that Mr Barber had improperly prepared himself for his night shift. In any event I regard a 12-hour night shift as being a very difficult period to get through without the intervention of some breaks away from the workplace. The justification that has been given here today is that the employees want this arrangement so that they can have additional time off. However, if the company wants to agree to those shifts, then it must take the consequences. Apparently MSS Security Services did not use the system used the MSA Guards & Patrols system, as explained by Mr Byfield. Mr Byfield in his evidence said that one of the factors that he would take into account in determining whether or not a person should be dismissed for sleeping on duty was the company's contribution to the problem. The fact that there was no relief provided is in my view a significant contributing factor. Mr Bridge said in evidence that he came back onto the site somewhere round about 0220, although the log book he has signed records that he is on site at 0238. There is a difference between what has been put to me by the witness and the company's own record in terms of this particular incident of some 18 minutes. If Mr Bridge was on site at 0220 then I would have thought that it would be the time which was recorded. In fact what is recorded is that Mr Bridge was there at 0238 and that at 0245 Mr Barber completed an office check. Mr Bridge says that he came onto the site, he looked in the security hut and he found Mr Barber with his head back in the chair but not with his feet on the desk. Two photographs were tendered to the Court as part of exhibit D. Both of these photographs, unfortunately, were not tendered through Mr Bridge, he being the person who took them. Mr Bridge could have given very helpful evidence as to how he took them. Looking at the photograph from one direction, it appears that Mr Barber is laying flat although it would be virtually impossible to see his eyes; if you look at the photograph another way he appears to be sitting upright and again it is impossible to see his eyes and determine whether he is asleep. Mr Barber admitted to the company at an early date that he must have been drowsy. In any event, Mr Bridge did not show Mr Barber these photographs at the time. Mr Bridge, having taken the photographs, went back to his car to replace the camera. Why he would do that I do not know except that he may well have been aware that to have a camera on this site was unauthorised by Hi-Smelt. Although the camera may be authorised by his employer, the instruction from Hi-Smelt was clear that the security officer was to ensure only cameras authorised by Hi-Smelt came on site. Mr Bridge said that after he placed the camera in the car, he then turned around and was surprised to see that Mr Barber was emerging from the hut, without any intervention by himself, to complete a patrol of the site. This patrol is recorded as being complete at 0245 . Around that time Mr Barber was then told by Mr Bridge that he had found him asleep and that he was suspending him. A discussion between Mr Barber and Mr Bridge followed. Mr Bridge formed the view that Mr Barber was capable of successfully completing his shift and he allowed him to remain on duty. As I have already outlined above, he successfully completed his office and site patrols. He left the site and went down the road to fuel the ute that was made available by Hi‑Smelt. He made his VRT calls, he completed another office patrol and he then went off duty at 0550 when Rhonda Smythe came on duty to relieve him. In all of the circumstances, I am unable to conclusively determine whether Mr Barber was asleep. However, I do feel that it was open for Mr Bridge to form the view that at certain periods that night, particularly in the latter instance, Mr Barber was not as alert as he was required to be as a security officer. In defence of his position, Mr Barber has indicated it was a cold night, that he shut the doors and turned the air conditioner up and that there were not many other personnel on site to keep him active attending to the normal duties involved with his work. So in all the circumstances whilst I am unable to find that Mr Barber was asleep, I do find that he was not as alert as he should have been at the times when he was observed by Mr Bridge in a laid back position in his chair. I have taken into account Mr Barber's admission, made when he looked at the photograph which is Exhibit 2, that it was not appropriate conduct on his behalf. The standard of the photographs is not good enough to enable me to see whether his eyes were closed or what the real situation was at the time. I observe that if Mr Barber was really asleep or Mr Bridge had any real fear about him remaining alert after the second incident he would not have allowed him to remain on site. In making that finding, I have carefully considered the submissions on behalf of the applicant in referring me to the case of North v Television Corporation, where it is suggested that the test in these types of matters is whether the applicant could be characterised as manifesting an intention to repudiate the contract. While I make the finding that he was not sufficiently alert, I am not satisfied that he was manifesting an intention to be no longer bound by his contract of employment. Mr Bridge told Mr Barber he would be reporting the incident and it would be dealt with in due course. At approximately 2.25 pm on Saturday 10 June 1995, Mr Barber received a telephone call from the control room of MSS Security Services. He was advised that he was being relieved of his duties for the weekend. In effect, the penalty was the loss of two days' pay. Mr Barber was to report to the office on Monday at 9.00 am. Mr Barber gave evidence that he attempted to contact the union on the Saturday; he found an officer there who said that she would get a message to the appropriate union organiser, Mr Wilfred Hunt. Mr Hunt gave evidence that he discussed the matter with Mr Barber, including what was to occur at the interview which Mr Barber was to attend. I will come back later to what happened as a result of that discussion as this issue relates to a conversation between Mr Wilfred Hunt and Mr Dennison, the State Manager for MSS Security Services for Western Australia. Mr Barber gave evidence that on Monday attended the meeting at which Mr Drury and Mr Bridge were present. He says that he could read out a letter, which is Exhibit 3. In that letter, Mr Barber made the following admission. He initially gives an outline of the reason Mr Bridge was on site and then goes on to say: VRT calls were up to date. Greg arrived twice between 0030 and 0215. I had closed the doors and windows as it was cold and put on the air-conditioner in the hut. This must have made me drowsy, as Greg feels I was asleep and had my feet up when he arrived. I deny being asleep, but do admit to laying back between my patrol. The word "drowsy" is defined in the Macquarie Dictionary as: drowsy: inclined to sleep; half asleep; marked by or resulting from sleepiness; dull; sluggish; inducing sleepiness. In the light of that admission by Mr Barber, I find that he was not sufficiently alert at the time as he should have been. I have heard from both Mr Drury and Mr Bridge in relation to what happened next. There was a discussion about the matter. I am convinced that Mr Drury indicated that it was a serious matter; however, they would go away and think about it and that Mr Barber was to be contacted to come back later that week. The evidence of Mr Drury was clear and forthright, and I formed a similar view about Mr Barber and Mr Hunt. In light of evidence from Mr Hunt that he was left with the impression that as a result of a telephone conversation with Mr Dennison, it was unlikely that the employment of Mr Barber would be terminated over the incident, I think it was most unwise of Mr Drury to conduct the next meeting without making an offer to Mr Barber to have a union official present. Mr Drury admitted that he did not make that offer or give Mr Barber the opportunity of having somebody there to assist him. It is my belief that had the union organiser been informed that there was only going to be an offer of one job made or in the alternative a dismissal, then he would probably have made the effort to be there or alternatively, as both Mr Dennison and Mr Hunt agreed, would have approached the company to defer this meeting to enable him to be present. In all the circumstances, I have come to the view that the second interview lacked an element of procedural fairness and I say that reluctantly because it seems to me that in all of this matter Mr Drury has acted appropriately. I was impressed with the evidence he gave of the attempts he made to find another job for Mr Barber, particularly as the easy way out for the company would have been instant dismissal, based on their understanding of the incident. I accept his evidence that he went to another security officer and asked him if he would transfer to Hi-Smelt. This site was now one which, in my view, Mr Barber could not be returned to by the Respondent; it was largely unsupervised and in the light of the finding I have made, that Mr Barber was not sufficiently alert, he would have to go back to a position where he could be supervised. I can understand Mr Barber's reluctance to accept the alternative job offered by the respondent to work in a position of a car park security officer. It is common knowledge, for instance, that these centres can be a high risk area from a personal safety point of view. It was quite clear from the evidence that the supervising officer had told Mr Barber the Perth City Car Park was "a bit hairy". However, Mr Barber was wrong if he felt that, in the circumstances of his failure to be completely alert, he had any entitlement to nominate to the company unilaterally where he would work. Mr Barber, at the same time, deserved a proper opportunity to put his point of view, and he probably would have been able to do that had the union been present. Mr Drury gave no evidence of having fully outlined his reasons for the particular offer of work. I suspect that after going to some effort to find a job for Mr Barber, the rejection of it by Mr Barber did not impress Mr Drury and this led him to go to Mr Dennison and indicate his concern at the way in which the job was rejected. Now I think there is a series of events that have occurred here which could have been avoided by some precautions being taken. The original undertaking that had been given to Mr Hunt, that the job of Mr Barber was not at risk, should have been kept. In my view, Mr Dennison should have phoned Mr Hunt and said, "Look, he has just rejected our job offer and we are thinking of dismissing him, don't you think you should come in and talk to him?" or "We will give you another chance to talk to him". In that respect, I find there has been a lack of procedural fairness. It is not a major deficiency and I do not think it was intentional. I should deal with one other aspect of the matter. And I accept Mr Drury's evidence on this issue. Mr Drury admitted that at some later time he became aware that there had been another suggestion of Mr Barber sleeping on duty and that this occurred about twelve months beforehand at the CBH site. Mr Crowe, a senior guard, gave evidence that he had noticed Mr Barber sitting forward in his chair giving the appearance of being asleep. He had made a note in his personal diary at the time although he made no official report about it. He forgot to bring his diary to Court. I understand that there was discovery in this matter and that the diary was not discovered to the applicant. So the applicant was taken by surprise by this matter which should not happen in proceedings of this nature. In any event, given the view that I have formed about Mr Barber's personal demeanour in relation to his eyes and the way in which he often sits, I am unable to find that there is any substance in the claim by Mr Crowe that he saw him asleep on that occasion. I think that the company was wrong to take account of that incident without giving Mr Barber the opportunity of an early response. I have had extensive submissions by both advocates and I found them very helpful. I do not propose to go into them in any depth except to record the cases which were cited to me as some effort has gone into compiling a list of authorities which might be relevant to a sleeping situation. The authorities cited were: (1) Nicolson v Heaven and Earth Gallery 126 ALR 233 (2) Ward v CT Freight Pty Ltd VI 149/95 Murphy JR 4 July 1995 (3) Byrne v Frew v Australian Airlines 120 ALR 274 at 327 (4) Stevens v ALHMWU v Courtaulds Pty Ltd VI 2034/95 Parkinson JR 27 July 1995 (5) North v Television Corporation (1976) 11 ALR 599 at 608 to 609 (6) Laws and the London Chronical Indicator Newspapers Limited referred to in 1959 2 AER 285 (7) Williams and Kirmans Crane v Trucks Melbourne Pty Ltd (1995) AILR 3 - 05 (8) Willcocks v Makfren Holdings Pty Ltd WI 1329/95 Lee J 22 August 1995. In addition, I was referred, by the respondent, to the case of Nicholas John Music v Wormald Security which was an application by a Mr Music regarding his unfair dismissal pursuant to Section 246 of the Industrial Relations Act 1991. This was a decision of Conciliation Commissioner Buckley in the Industrial Relations Commission of New South Wales (Matter No. IRC 1468/93 - 9 August 1993). It is pointed out in that case at page 2 that Mr Phillips, Operations Manager of Wormald Security, testified: Mr Phillips, Operations Manager of Wormald Security, testified it was company policy to dismiss a employee for having been asleep on duty and that in conversation with Mr Music the latter did not deny he was sleeping on the job. He indicated the company would distinguish between nodding off for a minute and the situation in which Mr Music was found; that is, being clearly asleep until woken by Mr Hutchinson after 12 minutes. Mr Phillips indicated that the company policy in relation to sleeping on duty is an industry standard specified as such in a Company manual, Guards' Handbook, which every guard site has a copy of. As I said earlier in these proceedings, I regard sleeping on duty as a serious matter. However, it is not clear in this case that Mr Barber was asleep. The support for that view is recorded here in the company's own record in Exhibit 2 as to the various patrols and everything Mr Barber successfully completed after each of the incidents. I was particularly referred by the respondent to the decision in Federated Clerks' Union of Australia, Industrial Union of Workers (Western Australia Branch) v Wormald Security Pty Limited (1993) WAIG 134. However, it can be distinguished from this case on the basis that the particular individual there - a Miss Simons - had only been employed for a period of approximately 12 months on a full time basis, although some 30 months prior to that on a casual basis. However, the evidence in that case was that she had been asleep on duty on a number of occasions prior to 8 October 1993. Also in that case the learned Commissioner found that: There is no evidence that she purposely acted to meet the obligations she had to her employer. In this case, there is ample evidence that Mr Barber continued to carry out his duties to the best of his ability and in a satisfactory way. The company presented to me evidence which I allowed over an objection by the advocate for the applicant of persons experienced in the industry as to whether or not security guards who are caught sleeping on the job are dismissed. The evidence was inconclusive in that regard. Mr Byfield gave evidence to the effect that he was aware of at least one instance where the person had not been sacked for sleeping on duty when regard was had to the surrounding circumstances. I think the evidence of Mr Robins was to the contrary; as his experience was that everybody had been dismissed. I turn now to consider other aspects of this matter. That is, the evidence of Mr Hunt and Mr Dennison. I found Mr Dennison to be not clear and forthright in giving his evidence. He tended not to answer the questions. He seemed to want to give a justification or motivation for the decision of the company. He was not specific and often generalised. It seems to be that when he became aware that there was a proposal to terminate Mr Barber he should have rung the Union and told Mr Hunt what was now proposed. I am satisfied on the evidence of all the witnesses that, it is unlikely that, although this was his evidence, that Mr Dennison used the phrase "serious and wilful misconduct" at the initial phone call with Mr. Hunt. I accept Mr Hunt's version that he was told that: It was a serious situation and the company would be taking some action but he did not contemplate termination. I accept Mr Hunt's version rather than Mr Dennison's. I thought originally that the best way of dealing with this matter would be to reinstate Mr Barber in a position that would have had some restrictions on it under Section 170EE(1)(a)(ii). The reinstatement I contemplated would have been an order that maintained his continuity of employment but subjected him to a financial penalty, being the loss of a week's pay. In addition, he would be subject to a period of supervision in an appropriate position rather than at the Hi-Smelt site. I consider that the car park situation was perhaps inappropriate for someone of the physique of Mr Barber. However, on the other hand, I have evidence that the person there at the moment is a female and that the previous male occupant was about the same age as Mr Barber. Reinstatement, although ordered by the Court, needs to be a practical remedy. I know that both Mr Drury and Mr Bridge would accept such a decision and endeavour to implement it, subject, of course, to any other legal rights that the company may wish to exercise. I am satisfied that they would, based on their evidence, which I found to be both frank and truthful, do what they could to make the situation work. Mr Dennison, the State Manager in Western Australia, gave evidence that he is totally opposed to reinstatement. In all the circumstances I have given careful consideration as to what I should do in this matter. Exhibits 5 and 6 are two documents issued by the company, one of which is signed by Mr Dennison and is dated 9 June 1995. Mr Dennison acknowledged in his evidence that Mr Barber was being congratulated on achieving a significant milestone in his employment with MSS Security Services by completing five years of service. I assume that Mr Dennison does not sign a letter with sentences in it that he does not mean. In his letter addressed to Mr Barber, Mr Dennison states: Your contribution to the success of the company has not gone unnoticed. MSS recognises such commitment by the presentation of service pins commencing at 5 years service. Mayne Nickless recognises the major milestones with 10, 15, 20, 25 years, et cetera, service pins In all the circumstances it seems to me that I should take account of what Mr Dennison has said in terms of his support for the character, conduct and performance of Mr Barber in that letter. I am also fortified by a letter dated 12 March 1993 in which it is stated that "there has been a recent review of his sick leave records and no days off are recorded over a 12-month period". I do not know what has happened since 1993 but it seems to me that Mr Barber has all the hallmarks of a person who is a decent and loyal employee. In all the circumstances I find that the company has contravened Section 170DC of the Act. The contravention of Section 170DC of the Act occurred at the second meeting when it would have been proper for Mr Barber to be advised that he could have the union representative present or someone there to assist him in what was obviously going to be a difficult situation. I also make the finding in the light of the assurance which was given to Mr Hunt by Mr Dennison. Turning to the question of serious misconduct referred to in Section 170DB(1)(b), I do not, having regard to the fact that Mr Barber was allowed to complete his shift, make a finding of serious misconduct which would have allowed the respondent to withhold payment for the period of notice. It was misconduct but it was not conduct in my view that was deliberate or that was intended to repudiate the contract of employment such that would justify the company acting on that basis. It would not have been unreasonable to require the employer to continue the employment during the notice period. It seems to be that in a company the size of MSS Security Services, Mr Barber could have been employed during the notice period in an alternate position under supervision. He was in fact suspended and lost immediately two days' pay. I have taken that loss into account. I find that the company should have paid him the five weeks' notice period which is required by the provisions of Section 170DB(2) in that he was employed for more than five years and he was over 45 years at the time. I find, in the light of Mr Dennison's remarks, that reinstatement is impracticable. It is also impracticable for a number of reasons besides that, particularly the evidence of Mr Drury that the position that I had contemplated at the Law Courts in unlikely to be there. I now turn my attention to whether Section 170DE applies, that being that "an employer must not terminate an employee's employment unless there is a valid reason or reasons connected with the employee's capacity or conduct or based on the operational requirements of the undertaking establishment of the service". I accept that the company had a valid reason for dismissing Mr Barber on the basis that he was not as alert as he should have been on that occasion. However, when I consider carefully Section 170DE(2), I find that having regard to all the good things that have been said about Mr Barber, including the testimonial from Mr Dennison, that the termination was harsh, unjust or unreasonable. I have carefully considered the submission of the applicant that I should award the full amount of compensation in this matter. In that regard, I refer to the remarks of Lee J in James Lewis Aitkin v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, as follows: The compensation to be ordered to be paid under s.170EE(2) is such amount as the Court thinks appropriate subject to the limit set in ss 170EE(3). It is a statutory remedy for which no assessment criteria are prescribed, other than the requirement in s.170EE(2) that the Court have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment. In assessing the compensation that is appropriate the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened (See: Nicolson v. Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 246 per Wilcox CJ). The Court will consider the detriment occasioned to the employee by employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences. Division 3 of the Act provides the context in which s.170EE is to be construed. It includes provisions intended to protect the dignity of an employee, in particular, s.170EA provides an employee with a right to seek redress in respect of a breach of the Act and s.170EE provides the entitlement to receive compensation as the remedy for such a breach, characteristics of a statutory tort. Therefore, in some cases principles relevant to the assessment of damages in tort may provide assistance in assessing the compensation to be paid under s.170EE(2). That is to say it may be appropriate to include in the measure of compensation to be paid pursuant to s.170EE(2) a sum sufficient to compensate an employee for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment (See: Whelan v. Waitaki Meats Ltd. [1991] 2 NZLR 74 at 90). If guidance is sought from the measure of damages applied in contract for the breach of an employment contract by wrongful dismissal, damages may be awarded for the breach of an implied term that an employer would not so breach the contract to cause vexation, mental distress, disappointment or frustration to an employee where such an adverse consequence for the employee may be said to have been within the reasonable contemplation of the employer and the employee. (See: Cox v Philips Industries Limited [1976] 1 WLR 638; Whelan v. Waitaki Meats Ltd; See also: Heywood v. Wellers [1976] QB 446; Watts v. Morrow [1991] 1 WLR 1421 per Bingham LJ at 1445; Baltic Shipping Company v. Dillon (1993) 176 CLR 344 per Mason CJ at 361-364). It is also appropriate to keep in mind that the purpose of the Act in providing for compensation to be paid to an employee for an employer's failure to abide by the terms of the Act is not only to redress a wrong done to the employee but, in the public interest, to instil greater awareness of, and adherence to, the provisions of the Act. A measure of compensation which addresses the consequences caused by conduct that has breached the Act assists to meet that purpose. I am impressed by Mr Barber's admission of his future expectation of earnings that he is likely to achieve at the Fremantle Hospital. I have considered carefully the submission of the applicant which is set out by way of a "Schedule of Damages" as follows: SCHEDULE OF DAMAGES PECUNIARY LOSS 1. 26 weeks compensation at $570.36 = $14,829.36 (Ordinary week's pay at MSS including shift penalties, on normal roster at date of termination = $570.36) 2. Less earnings at Fremantle Hospital 11 July 1995 (date of commencement) to 17 September 1995 (most recent pay period) at an average of $241.50 a week = ($2415.86) 3. Less expected earnings from 17 September 1995 to 31 October 1995 (approx, 6 weeks) at $409.91 per week = 6 x $409.91 = ($2459.46) Sub Total = $9954.04 NON-PECUNIARY LOSS 4. Compensation for mental anxiety, stress, loss of job security, humiliation = ($5000.00) TOTAL = $14,954.04 I am not be able to award that amount because it is in excess of the 26 weeks' compensation that I am allowed to award if I accept the figure that the applicant has put forward. I have carefully considered the suggestion of the necessity for compensation for mental anxiety and I have already respectfully referred to the judgement of his Honour, Justice Lee in that regard. However, I do not propose to allow an amount of that nature in these proceedings because to some extent Mr Barber contributed to the situation. There is justification for assessing a substantial amount of compensation in this case. I consider that a period of about four months would be appropriate. On that basis I come to a figure of $9,125.76. Under the legislation, I am to have regard to the remuneration that the employee would have received or would have been likely to have received if the employer had not terminated the employment and then the amount is limited. If I return to Section 170EE(2) it says that if I consider that reinstatement is impractical, then the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. I propose to take account of his 5˝ years of unblemished service with the company and the fact that he has lost a permanent job. His present job is not secure in any way. He has volunteered that he expects to be able to achieve a short period of future employment at a hospital. I hope my view is not correct, but, I suspect he will never be able to work in the security industry again in Western Australia. He is 56 years of age suffering from glaucoma although he assures me that the condition is under control. In all of those circumstances I think the amount that is appropriate to award by way of compensation is $10,000. Firstly, I find the respondent to be in contravention of Section 170DC of the Act. I find that the company was not justified in dismissing Mr Barber without paying him the notice which is required under Section 170DB. I find that the company had a valid reason under Section 170DE on the basis of operational requirements for terminating his services, however, I also find under Section 170DE(2) that his termination was harsh, unjust or unreasonable and therefore there was not a valid reason. I find that reinstatement is impractical. I order the company to pay the amount of $2,501.80 in lieu of the required period of notice pursuant to Section 170DB(2). I order $10,000 as the amount of compensation that is to be paid to the applicant pursuant to Section 170DE(2). I order both amounts to be paid within 14 days. I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment of Judicial Registrar McIlwaine. Associate Date: Representative for the applicant: Mr Nicholas Ellery Australian Liquor, Hospitality & Miscellaneous Workers Union Representative for the respondent: Mr Lyndon Joyce Chamber of Commerce and Industry of Western Australia (Inc) Hearing date: 27, 28 & 29 September 1995 Judgment date: 29 September 1995