DECISION NO:72/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - VALID REASON - SERIOUS MISCONDUCT - REINSTATEMENT - COMPENSATION - BREACH OF CONTRACT. Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) ss 170DB(b), 170DC, 170DE(1), 170DF, 170EDA, 170EE, s 347(3) AMFEU v ACL Bearing Company, Ryan JR IRCA 173/94 15 January 1995 unreported Bartucciotto v Euro Printing Company Pty Limited, von Doussa J IRCA 72/96 21 February 1996 BP Refinery (Westernport) Pty Limited v Shire of Hastings [1977] CLR 266 Briginshaw v Briginshaw [1938] 60 CLR 336 Byrne & Frew v Australia Airlines [1995] 131 ALR 422 Carydias v The Greek Orthodox Community, North J IRCA 31/97 20 February 1997 unreported Church of Scientology of California v Kaufman [1973] RPG 635 Daniel v Real Estate Netword, Millane JR IRCA 496/96 18 October 1996 unreported Denise Thomas & Marsden Glyn Thomas v Ralph Lynch T/A Bellingen Grocery, Wilcox CJ IRCA 627/96 20 December 1996 unreported Fargie v Freedom Foods, Parkinson JR IRCA 498/96 14 October 1996 unreported Gibson v Bosmac 130 ALR 245 Gooley v Westpact Banking Corporation [1995] 129 ALR 628 Hacksalls v McDowell [1930] AR NSW 620 Imogen v Anthony Sangwin unreported, IRCA 20 December 1996, per Wilcox CJ at 8 - 9 Jones v Dunkel [1959] 101 CLR 298 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR, 264 - 265 Kenefick v ASC [1995] 62 IR 107 Kerr v Jaroma, Marshall J IRCA 470/96 7 October 1996 unreported Laws v London Chronicle (Indicator) Newspaper Ltd [1959] 2 all ER 285 Lupoi v Phillips Fox, Ritter JA IRCA 485/96 3 October 1996 Nettlefold Pty Ltd v Kym Smoker, Lee J IRCA 469/96 4 October 1996 Nicolson v Heaven & Earth Gallery Pty Ltd 126 ALR 233 North v Television Corporation Limited 11 ALR 599 Selvachandran v Petron Plastics Pty Ltd [1995] 62 IR 371 State of Victoria v Commonwealth [1996] 138 ALR 129 Law of Employment . Macken, McCarry and Sappideen COOK v AUSTRALIA POST NI 4428 of 1995 Before: LOCKE JR Place: SYDNEY Date/s of hearing: 23, 24 APRIL 1996, 4, 5, 6, 7, 11,1 2 JUNE 1996, 4,11,12 JULY 1996, 13 SEPTEMBER 1996 Date of judgment: 17 MARCH 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 4428 of 1995 BETWEEN: QUENTIN REDVERS COOK Applicant AND AUSTRALIA POSTAL CORPORATION Respondent MINUTES OF ORDERS 17 March 1997 LOCKE JR THE COURT ORDERS THAT: 1. The termination of the applicant's employment was unlawful in that the respondent was in contravention of section 170 DE (1) of the Workplace Relations Act, 1996. 2. The respondent to reinstate the applicant by appointing him to another position in the Penrith delivery area, on terms and conditions no less favourable than those on which the applicant was employed immediately before his termination. 3. The employment of the applicant is, for all purposes deemed to have been continuous in the position in which he was employed before the termination of his employment. 4. The respondent to pay compensation to the applicant pursuant to section 170 EE (2) of the Workplace Relations Act, 1996 in the sum of $32,830.00 less that sum he received as a union organiser, when he was acting in that capacity pursuant to the direction of Moore J. Such sum to be paid within 28 days of this order. 5. There be liberty to apply as to the terms of these orders. 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 NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: QUENTIN REDVERS COOK Applicant AND AUSTRALIA POSTAL CORPORATION Respondent REASONS FOR DECISION LOCKE JR Having been employed for 18 years by the respondent, the applicant's employment came to an end at the initiative of the employer on 15 November 1995. He now alleges the termination of his employment was unlawful in that it contravened Division 3 Part VIA of the Workplace Relations Act 1996 (the sometime Industrial Relations Act 1988) (the Act). He seeks both reinstatement and compensation. During the course of his employment with the respondent the applicant worked at various postal depots in the metropolitan area and beyond. At the relevant time, that is when the conduct of the subject matter of his dismissal occurred he was employed at Blaxland in the Blue Mountains of New South Wales which was part of the Penrith Delivery Network. In his several work places over the years the applicant was the elected authorised union representative. This situation, prevailed at the time of his dismissal. It would appear the applicant was a passionate, articulate and forthright (if somewhat imperious) representative of his fellow workers. In the election for an office in the Communication Worker's Union of Australia, Postal and Communications Branch New South Wales (the union) conducted in about July 1994 the applicant sought to become an organiser of that body. He was defeated in his endeavour, but was the recipient of some two thousand votes, garnered as a candidate on two tickets - the Better Deal Team and the Liberal Team. As a result of action taken by the applicant and other defeated candidates, an inquiry was instituted in this Court as to the regularity or otherwise of the election. In a judgment delivered by Moore J on 10 May 1996, it was found that irregularities had occurred in the election process and that circumstances existed which gave rise to a likelihood that similar regularities may have happened affecting the results of all the elections to which the inquiry related. His Honour went on to direct a fresh election be held making other orders, the most pertinent of which so far as the present case is concerned is the appointment of the applicant as an organiser pending the result of the election which took place in September 1996. On about 3 July 1995, following notification of a dispute between the union and Australia Post, Penrith Network, the Blaxland Postal Delivery Officers joined the disputants. In agreeing to do so, the applicant, as the representative of his fellow workers informed the union official making the following request:- "......We also have a log of local issues which we would like to add on to those....." The official acquiesced in this request as did Mr Bob Cornish, the President, when the proposition was put to him in the following terms: "We have a number of local issues to add to the dispute. That are problems associated with the new PDCI position at Blaxland. It seems to us that the S.P DD3, Mr Walters has been cheated out of his job. It also concerns a B class position being wrongly filled, overriding in the present delivery area, loss of annual leave entitlement and loss of extreme cold weather gear which they have been receiving for the last 10 years and now suddenly has been taken away. Written notification of those local grievances were sent to the union after consultation with all Postal Delivery Officers at Blaxland, who gave the document their unanimous support." A record of these concerns was annexure "B" to the applicants supplementary statement of 4 June 1996 - exhibit "H". Whilst the Court was ultimately satisfied that Mr Walters was not cheated out of his job as alleged, it is indubitable that the person who became the incumbent of that position was not welcome. This person was one Mr Victor Bowen and on 26 June 1996, the delivery staff held a meeting giving expression to their objections. Minutes of this conversation became exhibit "A" in the proceedings. Mr Walters was not present to register a vote one way or another. Suffice to say eight out of ten members of staff were in attendance and voted. It is against this background that Mr Bowen arrived at Blaxland Post Office on 10 July 1995 as a postal delivery officer class 1 after being on the unattached list due to redundancy since 1995. About eight months prior to his transfer from Springwood to Blaxland Mr Bowen ceased being a member of the union. Less than one week after he commenced work at Blaxland, Mr Bowen received a telephone call from the President of the union, whereupon he rejoined that organisation. Relations between the applicant and Mr Bowen appeared always to be uneasy, although, superficially, at times, they maintained a civil mien. Of course, this standard broke down from time to time, as was the case when the two men worked together at Blaxland after July 10. It is to be noted, that apart from the background already set out, the conditions in which the postal delivery officers worked when not attending to deliveries was close and cramped as is corroborated by the oral evidence and exhibit "I". It was the applicant's evidence that any disagreement which arose between him and Mr Bowen was as a result of representations made in his capacity as the union delegate. In short, they were work related and justified given the position he held in the workplace. This included being one of the workers who voted on the motion of 23 June 1995 at the monthly meeting of the Blaxland Delivery Staff, objecting to Mr Bowen's appointment - exhibit "A". Mr Bowen on the other hand interpreted the applicant's behaviour as amounting to insubordination and harassment. Beginning on 19 July 1995, Mr Bowen made a series of complaints against the applicant. One of the incidents was witnessed by a Mr Roche, area postal manager, to whom most of Mr Bowen's complaints were addressed and who was not called to give evidence. Counter allegations were made by the applicant and others against Mr Bowen in a document which became part of exhibit "C". Resolution of the Penrith Delivery Network dispute took place between the parties on 27 July 1995, leaving those matters of a local nature still outstanding (union matters). This subject was discussed with a Mr Slight, the deputy state manager of mails NSW, requesting he come and speak with postal delivery officer's at Blaxland on the following Monday. According to the applicant, this he agreed to do, but failed to appear. This heightened the workers resolve to continue the dispute. This discord caused a large backlog of mail deliveries which was the subject of complaint by residents in the mail area including the local member of the House of Representatives. Not surprisingly, this state of affairs evoked the interest of the local press, whose representatives sought interviews with Australia Post personnel at Blaxland. The applicant made various statements two of which appeared in "Blue Mountains Gazette". On one occasion he had the permission of Mr Bowen to do so and gave evidence that any interview he granted was in his capacity "as the union rep". In evidence the applicant said he put restrictions on the interviews in that anything he would say would be limited to the dispute and no discussion could take place that related to the mail and its passage. What it is perceived the applicant was saying was that in the circumstances, he discharged the obligation he had to Australia Post and its customers and had ensured that their confidentiality had been preserved. On 10 August 1995, when the applicant returned to the post office after completing his afternoon deliveries he was met at the back door by Mr Roche, who accompanied him upstairs to the delivery section. Mr Roche then handed the applicant a letter told him to clear out his drawers and locker, otherwise he would be escorted off the premises. The applicant complied with the direction. Having completed what he was directed to do, the applicant read the letter which was a notification of an inquiry into his conduct. It also enumerated several general charges and informed the applicant he would be suspended with pay until further notice. This missive is attachment 1 to exhibit "A". At this particular point in time the respondent had set in place an Award Discipline Process ("the process") and (exhibit "F") which provides for a series of counselling procedures for employees who are deemed to be recalcitrant in their work place behaviour. Part of Section 1 introduction of exhibit "F" reads: "The ultimate sanctions of dismissal or transfer will only be used when employees fail to respond to counselling or engage in serious and wilful misconduct". Exhibit "F", is the process which sets out the canon to be adopted when reviewing possible misconduct on an employee. It is based upon a system of counselling, informal counselling for such misconduct as work disruptions, absenteeism, and unsafe work practices. More severe breaches attract formal counselling in three stages; The second of which, the process specifically refers to refusal of orders and abuse of supervisors. Warning counselling is given at the third stage. Exhibit "F" also refers to suspension and misconduct which sets out charges of a criminal kind, such as serious assault, fraud, theft, damage to property are some examples. Thus, despite the level of gradation of misconduct, the respondent went to the most serious in the first instance. It was argued by the applicant that it was a serious and heavy handed response to matters when placed in the background of events then occurring at the time at Blaxland, and were relatively minor. It is difficult, in all the circumstances of the case, to resist this submission. When first tendered, exhibit "F" was described as being the Award Discipline Process valid at the time the applicant was suspended from duty. At a later stage, it was submitted, that some variation had taken place to the document in 1991. This modification became part of the documentary evidence as exhibit "2". Mr Boulten, for the respondent, submitted that the most important amendment was that the informal and formal counselling stages had been replaced by what has been described as face to face discussion and consultation at various levels. One thing is quite clear, on no view of the evidence, was this process undertaken with Mr Cook. Nor does the evidence support a finding that any informal or formal counselling sessions took place in respect of the applicant's conduct or performance. One incident has been described thus, but I am not satisfied that what occurred on 18 July 1995, could correctly bear the appellation of a counselling sessions as the respondent's witness would have it. The facts and circumstances which formed the basis of this incident were that there was disquiet among some of the work force in the area Mr Bowen's wife became an employee of the respondent at Springwood. This had been described as a back door deal and was one of the complaints put by members to the applicant who, in turn, put the issue to her husband. Apros of the foregoing uneasiness, the applicant was called to a meeting the next day with Messrs Bowen and Lennon, the latter being the respondent's operations manager of metropolitan delivery since March 1995. From about 13 July 1995 Mr Lennon had been in attendance at Blaxland, intermittently to have a look at the operations and what might need to be put into place to assist clearing the mail and investigate what was causing the delay. In short what took place at this meeting was that the applicant was told if he pursued the matter of Mrs Bowen's employment any further he would face an harassment charge. It was Mr Bowen who did the speaking backed up by Mr Lennon. The applicant demurred so far as harassment was concerned saying the making of representations did not fit the category described. This evidence is accepted. Even if what occurred on this date could clearly be described as counselling as Mr Bowen would have it, the circumstance of 18 July was not of type envisaged by exhibits "F" or "2". On or about 17 August 1995, the applicant received correspondence from Mr Barry Molyneux, Manager of the respondent's Canberra mail centre, notifying him that he had been appointed to conduct the inquiry referred to in the notification of 10 August - part of exhibit "J". He also expressed a wish to have a preliminary discussion with the applicant in connection with the process. He appointed Monday 21 August 1995 as the date they should meet. Mr Roche, the respondent's Area Manager, Penrith Delivery Network was the author of exhibit "J" which reads as follows: "This is formal notification that an Inquiry will be held into your conduct as an employee of Australia Post. The subject of the Inquiry will be that you: - failed to treat members of the public, customers, and fellow employees with proper courtesy; - failed to observe confidentiality in regard to any information concerning Australia Post or its customers that is gained during the course of your employment, and - failed to comply with oral or written official directions given by a person authorised to issue such directions. The name of the officer selected to conduct the Inquiry will be advised to you at a later time, the Inquiry Officer will interview you during the Inquiry and you will have the opportunity to put your views. If you wish further details of the subject of the Inquiry you may contact the Inquiry Officer in due course. You have been suspended with pay until further notice. If the Inquiry Officer finds your misconduct proven the following disciplinary action may be recommended - dismissal - transfer to another position at the same or a lower level, - counselling. On the nominated date Messrs Molyneux and Cook convened. Upon being asked in evidence-in-chief what details of any allegations that were being made against him this is how the applicant responded: "I had received no details at that stage. I was completely in the dark.....I told him (Molyneux) I didn't know anything about the assertions that had been made, that I am not guilty of anything and that I conducted myself in an exemplary fashion, both as a union representative, as an employee that there were only two things that I was in fact afraid of which was (a) railroad between management and the union and the manufacturing of evidence, were my only two concerns". Continuing, the applicant then gave evidence that his concerns were that the Inquiry was still under way regarding the union elections of 1994, and at that stage the people who won the elections still controlled the union. This had left him feeling stressed. Despite the applicant's disavowal of knowledge of the allegations which were to be the subject matter of the inquiry, at no stage during the interview did Mr Molyneux give particulars of the charges. On 16 August 1996, solicitors' for the applicant sought further and better particulars of the charges (as well as other matters) outlined in the respondent's letter to the applicant dated 10 August 1996. No further and better particulars of the allegations were included in the response of Australia Post dated 21 August 1996. The only inference that might be drawn from this letter is the apparent determination of the respondent's personnel to do whatever possible to curtail the applicant in the preparation of his defence. Messrs Paul Etherington & Associates, representing the applicant, wrote yet again to Australia Post on 2 August, charging that the said particulars had not been supplied and, that as a matter of fairness their client had an entitlement to be furnished with such information. Details were also sought of the date of the inquiry and its venue. It was not until 6 September that a response requested by the solicitors was received; but not by them. The correspondence was addressed to and delivered to the applicant. I do not propose to make by further narrative, finding of fact if they have already been given, however, the inquisitor said under cross-examination, it was not possible to provide particulars as he had not completed the interviews. He further testified he had formed no view about lack of counselling pursuant to the terms of the process. When questioned on this point, Mr Rae, manager, metropolitan delivery, provided no explanation either. Subsequently on 20 March 1996 - part of Exhibit "J", Messrs Sparke Helmore, solicitors for the respondent in an answer to questions identified three instances in which counselling is alleged to have taken place. Yet the information supplied was against the weight of the evidence in respect all matters. The Mrs Bowen incident has already been canvassed and considered not probable. As to what occurred on 18 July is the subject of an (internal) conflict between what Mr Bowen says occurred and the reason given by Mr Lennon. Attachment 15 to exhibit "B" sets out the only advice given during that confabulation. It refers to the matter of the union and that matter concluded amicably. Mr Lennon's evidence accords with that given by the applicant and does not verify Mr Bowen's version of what took place on this point. It would be useful to set out fully the document containing the alleged particulars. 6 September 1995 Mr Quentin Cook 9 Leumeah Road WOODFORD NSW 2778 RE: NOTIFICATION OF INQUIRY Further to my notification date 17 August 1995 concerning an Inquiry into your conduct as a officer of Australia Post under the Code of Employee Conduct, you are hereby advised of the following further details of the nature of this Inquiry:- That you failed to treat members of the public, customers and fellow employees with proper courtesy in that; At approximately 2.30pm on Friday 21 July 1995 you were discourteous to your Supervisory Officer, Mr Victor Bowen, by verbally abusing and shouting at him in front of the work group in such a way that you showed a distinct lack of respect for Mr Bowen. Also, that your behaviour and manner were threatening towards Mr Bowen and made other members of the work group feel uncomfortable. At approximately 10.15am on Tuesday 8 August 1995, you were discourteous to your area Postal Manager, Mr James Roche, in that you interrupted a discussion between Mr Roche and the Acting Postal Manager at Blaxland, Mr Thomas Bulburt by entering the Postal Manager's office, standing over Mr Roche in an aggressive manner, pointing your finger and raising your voice at Mr Roche. Your behaviour and manner were threatening towards Mr Roche and made Mr Bulburt feel uncomfortable. Also these actions took place whilst a National Parks and Wildlife Officer, Ms Lett, was present and she was made to feel uncomfortable. Accordingly, you failed to show proper courtesy to this member of the public. At approximately 10.30am on Tuesday 8 August 1995, approximately 11.30am on Wednesday 9 August 1995, and at approximately 6.20am on Thursday 10 August 1995, you were discourteous to your Supervisor, Mr Victor Bowen, by abusing and shouting at him in front of the work group and in such a way that you showed a distinct lack of respect for Mr Bowen. Also, that your behaviour and manner were threatening towards Mr Bowen and made other members of the work group feel uncomfortable. On 19 July 1995, you failed to treat a fellow employee with proper respect by trying to intimidate Mr Collier into joining the CEPU. You had been advised previously that he did not wish to rejoin the Union. That you failed to observe confidentiality in regard to any information concerning Australia Post or its customers that is gained during the course of your employment in that; Between approximately 1 August 1995 and 9 August 1995, you provided a journalist with information regarding the operations of Australia Post at Blaxland. You did not have any authority to speak publicly in respect of the operations of Australia Post, but you were quoted in the "Blue Mountains Gazette" as the source of information in relation to Australia Post. Furthermore, the information alleged to have been provided by you was grossly inaccurate and misleading. That you failed to comply with oral or written directions given by a person authorised to issue such direction in that; You were advised by your Supervisor, Mr Victor Bowen, on numerous occasions between 21 July 1995 and 10 August 1995 during the incidents related to discourtesy outlined above, to cease your verbal actions, return to your work station and resume work immediately, but you failed to comply with these directions. As advised previously, you have the opportunity to put forward your views during the Inquiry, and for this purpose, would you please attend at the office of the Area Postal Manager, 1st Floor, South Penrith Delivery Centre, at 2.00pm on Monday 11 September 1995. If you require any further information in the meantime, please contact me on telephone number 015 272 926. As you know, the Code of Employee Conduct and the Inquiry process is concerned with an employee's conduct, not any related legal questions, and legal representation is not appropriate. As indicated previously, if the Inquiry Officer finds misconduct proven, the following range of action can be recommended:- - Dismissal - Transfer to another position at the same or lower level - counselling Barry Molyneux INQUIRY OFFICER This correspondence forms part of exhibit "J". What is noteworthy about these allegations is that the applicant was required to explain and put forward a responsive case to these broad allegations described as: "verbal abuse"; "threatening"; "uncomfortable"; "standing over"; "lack of proper courtesy"; "abusing"; "discourteous"; "proper respect"; and "threatening". In my view, it would be difficult to be responsive. From the purport of the evidence which fell from Mr Rae in cross-examination, it would seem that he was not so seriously concerned with what was occurring between the two protagonists, Cook and Bowen, but with the fact "mail was being seriously delayed". This involved the tardy delivery of many articles of mail. In stating the foregoing, Mr Rae could only be speaking about the industrial dispute not the Bowen / Cook alleged rupture. This being so, in Mr Rae's mind, the reason for Mr Cook leaving his work place of eighteen years was because of the backlog of mail. Yet at no time was this allegation particularised, notified or put to the applicant. How this could be so in the light of Mr Bowen's evidence that the back log of mail had been cleared on 7 August - three days prior to Cooks suspension. The applicant attended at the office of the area postal Manager at 2.00pm on 11 September 1995. At this point, the applicant had not received "J", (in accord with his solicitors' request) a copy of the code of conduct or a copy of the rules under which he had been charged. Nor was he given the opportunity to see the evidence which had been presented against him, so that it might be tested by him, or on his behalf. He was further denied legal representation although a reading of the code does not necessarily preclude such representation at any stage of the process. Given the seriousness with which the respondent viewed the applicant's conduct and the serious consequences which could flow to the applicant as articulated through the respondent's counsel - "misconduct easily equates to some form of criminal behaviour such as for instance, petty theft at work or a conviction for a high range PCA driving offence" - it would be thought in the interests of fairness, leave ought to have been given to the applicant to be properly represented. Instead he was represented by Mr Cornish, a man who could only be described as an adversary and whose very office he was about to challenge in this Court. The respondent raised no objection to this form of assistance yet it must have been within its knowledge what was occurring in the union which covered thousands of its employees. Having received the brief from Mr Rae, who had found a prima facie case against the applicant, Mr Molyneux set about fulfilling his appointed task. When shown exhibit "F" (Award Discipline Process) by Counsel for the respondent in the course of giving his evidence, Mr Molyneux agreed that it was his understanding of how the process operated at the relevant time. At the time of his conduct of the inquiry, Mr Molyneux was aware that there had been no warning counselling as provided for in exhibit "F". Notification of the inquiry was not only sent to the applicant but to the union as well. Mr Molyneux said this was done, as it was part of the process that a shop steward or an authorised union representative be involved. Mr Molyneux had previously been a union member; but not since 1980. He was not actively aligned with any group or faction of the union nor in 1995 did he have any affiliation with a particular political organisation. According to Mr Molyneux, the inquiry was to fall into three parts, one showing discourtesy to the supervisor; disclosing information and disobeying a directive. He had previously conduct a half a dozen similar inquiries. Part of Mr Molyneux' evidence of what took place at the interview included his recollection that Mr Cook claimed he had been denied natural justice because he did not know the case against him, yet earlier he had claimed: "I believe the letter outlined the case against him." "Outline" is the operative word for those matters levelled against the applicant. In the letter dated 6 September 1995, contained information that fell well short of the material which would have put the applicant in a position to defend himself. Of course, had the further and better particulars sought by the applicant's solicitors been supplied, less criticism could have been levelled at the respondent. Evidence was taken from various witnesses by Mr Molyneux sometime between 21 August 1995 and the 30th of that month. Most of these persons had provided written statements and not all were adverse to the applicant. Not all members of staff at Blaxland gave testimony, for some reason or other. One thing is certain that whatever personal opinions the local workforce may have had of the applicant, it is open to an inference they had confidence that he would represent their interests adequately and well. The applicant continued to be elected authorised union representative year after year. All these matters are documented in exhibit "B". Messrs de Ridder and Roche who gave evidence before Mr Molyneux, did not appear as witnesses at the hearing. The Court was afforded no explanation why this was so. Arrangements were made to interview the applicant on Monday 11 September 1995. Mr Cook sought to have a union official present as he was informed this would be allowed. However, at the last minute the nominated official became unavailable. Accordingly, the interview was adjourned to the 15th of that month. Appearing with the applicant on the postponed date were Mr Cornish of the state office of the union and a Mr Jim Anderson, Postal Manager Network Support Penrith Delivery. The presence of a rank and file member of the union was sought by Mr Cook but denied. Brief hand written notes of the interview were taken by Mr Molyneux of what allegedly occurred at the meeting. According to him they were later typed by him. This document becoming part of exhibit "2" in the respondent's case, Mr Jim Anderson who as Mr Roche's second in charge at the time, gave evidence. He took notes as to what was said and done at the adjourned meeting from those notes he brought into existence exhibit "K". That document is described as "brief notes". As to that record, it would appear that the applicant generally agreed with the contents of exhibit "2" apart from those matters raised in his supplementary statement of 4 June 1996. Another person whose statement was taken into account by the inquiry was that of Mr Ayres. This statement appears at page 20 of the Molyneux Report (exhibit B). At the time he was the Postal Delivery Officer in charge of Springwood. What he allegedly said was as follows: "He had recently been appointed to the position at Springwood from Penrith. Mr Ayres went on to say that he had the choice of either Blaxland or Springwood and he chose Springwood because he did not wish to work with Quentin Cook". Annexure E to exhibit "H" (Mr Cook's supplementary statement) refutes this in the following terms: "This is to state that the interview between myself and Mr Molyneux is incorrect. In his statement he had said that I had the choice between Springwood and Blaxland Delivery Centres. This is incorrect. Blaxland was never mentioned as an option and to state that I did not wish to work with Mr Cook is untrue". In the light of this evidence, and the fact Mr Ayres was not called at the hearing, an inference could be drawn that the evidence before the inquiry had no substance. In his supplementary statement of 4 June 1996 the applicant stressed the following points: 1. That he informed the inquisitor he wished to know exactly that which was alleged against him and the evidence intended to be led in support, so that he could respond in detail to it. This is how Mr Molyneux responded to this request: "No, you're not allowed to see that evidence". 2. At no stage was the applicant provided with any documents relevant to the inquiry. He was not fully informed of that case. He failed to answer as the witnesses statements were not made available to him. 3. No reason was given him why he had been suspended during the pending and during the inquiry. Whilst Mr Cornish was present on 15 September and did say: "I agree with Mr Cook that he has not been provided with evidence so he can answer any case against him." The applicant had misgivings about the general nature of the support Mr Cornish had rendered to him at the meeting. It also disturbed him that Mr Lennon had notified the union prior to the applicant that he was to be suspended on 10 August 1995. Exhibit "D" to Mr Cooks supplementary statement corroborates this assertion by the use of the words "as discussed earlier". Under cross-examination Mr Molyneux conceded this meeting with the applicant was just another interview he saw himself having to conduct for the purposes of making a report and at no stage did he give Mr Cook any statement by a witness that he had interviewed. This refusal was despite a request for this material by the applicant and previously by his solicitor. ".... people who were involved in the letters, that I received from Mr Cook's supervisor (Mr Bowen) indicated there were certain people involved, after I interviewed him as well... to see if they had a similar understanding of what happened to clear up anything that might have happened. You know it evolved from there and there might have been other people involved..... I was testing one another against the different reasons I had heard to try and work out the facts of the matter." Of course, the primary evidence against the applicant was the letter. Mr Molyneux interviewed Mr Bowen first - then commenced obtaining evidence from other witnesses. When asked in cross-examination, the following question: "Is it fair to say that after the first couple of interviews you felt that the substance to the allegations of the evidence of Mr Bowen?" He responded: "Yes, there was some substance to it." When the question was posed that by the time he interviewed Mr Cook, he knew what he was to say in his report, Mr Molyneux replied: "Well, you know that is correct, the contents of the report". Whilst these inquiries are not conducted with any eye to legal niceties, they are meant to proceed in a fair fashion. It would be unsafe to proceed on the premise that the testing of evidence in the Molyneux inquiry even approached any standard of fairness. Submitting on behalf of the applicant that the investigation conducted by Mr Molyneux, was tainted, Mr King Counsel for the applicant, focused on the provision to the applicant of inaccurate particulars, thus denying him a fair and satisfactory opportunity to present a responsive case. Further, the inquiry refused to entertain any evidence of Mr Bowen's conduct and complaints made in respect thereto (exhibit "C') emphasising that it was an inquiry into the applicant's behaviour. True, this was, but by taking cognisance of such evidence, it may or may not have shed some light as to what Mr Bowen's motives were in complaining as he did. Certain personnel at the Blaxland facility were not interviewed by Mr Molyneux whilst other persons refused to be interviewed. Speculating that reprisals would be the order of the day "if they did so co-operate", Mr Molyneux failed to take into consideration when responding (so unfairly) that the applicant, under suspicion, was barred from his work place, prevented from going to a source of potential evidence in support of his case. Evidence was taken from two persons, Messrs Honeywell and Rudd who had either never met or worked with the applicant whilst Messrs Curran, Refalo and Weshill, who regularly worked with him, were not able to be called for interview. Why Messrs Refalo, Curran and Weshill were not called for interview was not a matter of evidence and no plausible excuse was given for their absence. Another person not heard in the proceedings was Ms Letts of "magpie fame." She was one member of the public who had been isolated as been affronted by Mr Cook's conduct. The only inference to be drawn is that she could not have assisted the respondent's case. (Jones v Dunkel (1959) 101 CLR 298). It is difficult to resist an inference that there was a selection process in relation to those called to be interrogated. Having regarded anything Mr Cook had said on 15 September as being important to the inquiry, Mr Molyneux then proceeded to make recommendations based on what had been said to him, including one might think, that which Mr Cook said about not being in a position to mount a case. A recommendation was reached - dismissal. This was arrived at without even hearing evidence from the applicant, or giving him an opportunity to defend himself although Mr Boulton did submit that if he did not have the opportunity on 15 September 1995, he did on 2 November 1995 when he met with Mr Rae at Strawberry Hills. Basis for this submission was the second paragraph of Mr Rae's letter to the applicant which reads: "Should you require further time to consider and respond to the contents we can arrange accordingly." Mr Molyneux' report was sent under the cover of this letter. A meeting had been arranged prior to the despatching of the document. That the applicant had an opportunity to defend himself with any effect on that day is a matter of serious doubt. Mr Rae's evidence supports a finding that the die was cast so far as the continuing employment of the applicant was concerned. He had come to the conclusion that the recommendation of Mr Molyneux was correct and justified and went on to give evidence that in circumstances where persons are guilty of offences that are equivalent with serious criminal conduct then the person must be dismissed without more ado and without regard to any subjective factors. However, the applicant did not come unprepared. This is the evidence he gave in support of his case. "I told him exactly the evidence I had to the contrary that was included in the report; I told him of the fabrications and I demanded from him a proper forum that I could present my evidence to the contrary to the forum." Even at this early stage in the meeting the applicant was informed that it was too late for that. He was not given an opportunity at this stage to present a case as it was intimated he could. Undeterred, the applicant pressed on enumerating other grievances he had with the report, including the use of general words such as "abuse"; "threatened" and "intimidating" without describing the circumstances referrable to those words. Yet again, Mr Rae said, "it was too late for all that". Under cross-examination, Mr Rae said he based his findings that caused the applicant to be dismissed on his acceptance of the recommendations in the report and that he himself made no independent findings. Giving his version of what occurred at the meeting with the applicant on 2 November 1995, Mr Rae had no real recollection of a complaint made by Mr Cook about a man called Mr Riddell, stating: ".... there is a great difference between social introductions and the substance of the conversation. I believe I made a note in my diary at the time about the substance of the conversation". When asked if he had the note with him, Mr Rae responded in the negative. Continuing and echoing what was said in the report on this point the following fell from Mr Rae: ".... I gave him an opportunity to do so (to put his side of the story) it was part of the purpose of the visit, of the meeting, that if he had given me any reason to believe that we had not been thorough, that we had not spoken to certain people, I would have been prepared to enlarge, to continue the inquiry, he had not.... I think (emphasis added) from memory he said he did not wish to discuss the process as it was illegal and defamatory." The answers preferred by Mr Rae on this particular point are unacceptable and designed to neutralise what the applicant said occurred during that final meeting. I am not entirely confident that he was giving a reliable independent recollection of what was said between himself and Mr Cook . On the other hand, I accept the version of what took place given by the applicant. He presented, particularly, and generally as a credible witness who sought to give an honest account of the events in question. This finding is made despite the jotting he made of the conversation did not fully document the detail of the oral evidence given by him on the point. David Gray, who was present with Mr Cook on this occasion gave this evidence: "Mr Rae didn't say much that I recall. He basically gave Quentin a chance to talk, to comment on the interview. He had a copy of it". "He (meaning the applicant) said a lot of things. He was there for about three quarters of an hour. Quenton did most of the talking". Considering his recollection of the meeting was not very clear, Mr Gray did recall that there was mention made of the options open to Mr Rae. Having received the report from Mr Molyneux, Mr Rae had it mailed to the applicant on 30 October 1995, giving him but one day to read and digest its contents prior to appearing before Mr Rae on 2 November 1995. It is assumed delivery was effected on the day dispatch. Exhibit "6" is the letter of termination. It is dated 13 November 1995, and signed by Mr Rae, the same person whose decision it was to go straight to the inquiry stage of the discipline process. Mr Cooks Evidence Having dealt with the allegations made against the applicant, a review of the evidence given by him, so far as he was able to traverse same, is necessary. At the time he was alleging harassment, discourtesy, disrespectfulness and indeed, by implication, insubordination against the applicant, Mr Bowen was aware of the applicant being a party to the proceedings before Moore J in this Court. He also knew the subject matter of the inquiry was alleged forgeries and fraud in relations to the union elections just past. The same union of which he had become a member just a couple of days after he commenced work at Blaxland after Mr Cornish telephoned him. In relation to the issue of Mrs Bowen's employment by Australia Post at Springwood, the applicant gave evidence that he broached this subject because members of the union were of the opinion the position was given to her because a deal had been struck with management and Mr Bowen as a quid pro quo. The deal being he (Mr Bowen) would come down and sought out the postal workers at Blaxland. Whilst this version found no support on the evidence, it was a mistake of fact, honestly held by some of the workers. The applicant promised to look into the matter by taking up the issue with Mr Bowen. Because of what was occurring both at Blaxland and elsewhere at the time, the applicant forgot about the matter until yet another discussion occurred to remind him of it. As a result he had a number of spirited discussions about the matter until the counselling session (so called) took place between the applicant and Messrs Lennon and Bowen. That the meeting which took place was described as a counselling session creates suspicion as to the motives of the persons allegedly admonishing the applicant. No conduct reminder note was brought into existence by either of the applicant's supervisors that counselling had been carried out. Mrs Bowen's employment by Australia Post was not a work related matter as stated by her husband. This being the case, it might be queried how it could become part of the process. However, the employment and ultimate permanency of this female person did create some partisan interest in the matter as the position became hers over the heads of allegedly better qualified and experienced persons. The name Steve Kelly was cited as being the source of the complaint made to the applicant. Attendance at the funeral of an union official raised another point in the alleged dispute between the two protagonists, Cook and Bowen. A couple of days before the funeral was to be held some members of staff at Blaxland indicated their desire to attend and be paid for the absence from the work place. Mr Bowen was informed of this and at the same time an inquiry was made as to the type of leave the workers could avail themselves. The applicant's version (which is denied by Mr Bowen) is that they were informed that sick leave would be the appropriate appellation to describe such leave. According to him, the applicant admonished Mr Bowen for giving that advice and that such leave should only be taken when one was ill not when attending a funeral. He had taken heed of his experience of some years back. As a consequence, the applicant, prior to the contingent departing for obsequies, the applicant inquired of the Postal Manager as to the classification of the leave intended to be taken. He was informed special leave. Upon returning from the ceremony each attendee found on his desk a facsimile memorandum from Mr Lennon, the Operations Manager, stating there would be no payment for those who had attended the funeral. Taking the issue up with Mr Bowen the union representative complained of the attitude of Australia Post and reminded Mr Bowen of his earlier advice on the subject. The latter denied that he told his subordinates to take the leave stated. This repudiation led to the applicant calling Mr Bowen "a liar" heated discussion then ensued between them. The forgoing events took place on 21 July 1995 and a complaint in writing was made by Mr Bowen to Mr Roche of 24th of that month although the informant alleges he telephoned Mr Roche upon his arrival home that day. What Mr Bowen asserts occurred on this day is contained in attachment 8 to exhibit "B". Two matters of interest emerge on the face of attachment 8. They are: The fact that the scribe was advised to have both Mr Cook and Mr Roche charged with harassment. Secondly, Mr Bowen tendered his resignation from Blaxland. Nothing came of this notice. It was not followed up. One is left with the impression that Mr Bowen was merely bluffing in order to give weight to the allegations he was making. So far as the original advice given to the staff, that sick pay was the claim to be made, Mr Bowen had an interest in changing what he had allegedly said especially after the remonstrations of the applicant (soundly made) and the subsequent advice he obtained from Mr Lennon. Next came the "magpie incident" and its sequelae. The complaint is attachment 9 to exhibit "B" and involved Mr Bowen accompanying an officer of the National Parks and Wildlife Service, ("the service") to catch a magpie which was "dive bombing" the postmen raising occupational health and safety issues. Ms Letts of the Service presented herself at the delivery area so the applicant ushered her down to the Postal Managers' office where there were present were Mr Roche, the acting Postal Manager, Mr Bulbert and Victor Bowen. As he was to enter the door of the office, the applicant heard Mr Roche to pose of Mr Bowen "Did you bring your shotgun to work with you today, Victor"? The applicant reacted to the remark possibly on two grounds. He was of the opinion the incident was being trivialised and some time in the past, Mr Bowen had threatened shoot the applicant whilst the two were present in the car park - a threat the applicant took seriously. But at no time has he alleged that Mr Bowen had threatened to shoot him as Mr Bowen disingenuously stated in evidence. So upset was the applicant he reported the incident, by telephone and facsimile to Mr Peter Burn of the respondent's Human Resources Department. Further and better particulars were sought of the allegations of 8 August 1995, exhibits "D" and "C" respectively. Mr Bowen gave evidence at the hearing of this particular circumstance. However, Mr Bulbert was not a witness nor was Ms Letts. Apart from the alleged incident in the car park when Mr Bowen threatened to kill Mr Cook, another incident occurred where shooting or use of a gun was raised by the former. Six persons including Cook and Bowen were present in the mail delivery section at this time. Among other things they were listening to the radio to a program about stress. The applicant remarked that the effect that stress has on people - how if affects then in different ways. Mr Bowen replied "That's right some people bring guns to work and start shooting." Explaining his reaction the applicant said: "Well it took a couple of seconds to sink in, but to me it was an unambiguous threat seeing as he had done it before some five years ago when he was on holiday relief and he threatened to wait for me in the car park and to shoot me to death." Mr Bowen denied threatening to shoot the applicant or anybody else. However, in the circumstances, it was an unfortunate comment and whatever it was intended to convey it had the possibility of being interpreted as a threat, particularly in the conditions prevailing at Blaxland at the time. The applicant also complained to management about this incident. Apart from the magpie incident another allegation was made by Mr Bowen, said to have occurred on 8 August 1996. "The Cheevers affair". Mr Cheever was a mail contractor . Photographs were taken by person or persons unknown of a pile of mail in the back delivery yard of the respondent's premises. Describing the situation the applicant gave the following evidence: .... "Because of the amount of mail that was in the post office...... could not do his job within....the physical bounds of the post office. So he went out into the back driveway to sort the mail. This was done under the supervision of Mr Bowen who in fact assisted him in sorting the mail out on the back driveway area. When the photo - when the article came out in the newspaper Mr Cheevers shall we say, copped the blame for the lot. He was interviewed by Australia Post investigators in the car park at Macdonald's," As a result of a rule change, parcel contractors such as Mr Cheevers could join the union. He had become or was about to become a member. As was his right the applicant (Ms Deverell was present and corroborates the incident) raised the matter with the Mr Bowen on three consecutive days to no avail - "Keep out of it is none of your business", he was told. In attachment 9 to exhibit "B" ("the complaint") this is how Mr Bowen described the incident. "Cook started to make statements that I had dobbed in the parcel contractor to protect myself". He informed Cook it had nothing to do with him and to knock it off. "He continued to make statements that I was lying to protect myself and I should have been supervising parcel contractors". Ten months later, in evidence, the facts become more fulsome. "Yes we had a bit (emphasis is added) of a dispute downstairs in parcels and he said I'd stabbed the parcel controller in the back and that I told nothing but lies and that I was responsible for what had happened and I should take the responsibility. He blamed me for the parcels that were left downstairs and the photos that appeared in the paper.... I told him that I didn't want to hear any more about it. If he had any more complaints put them to management.... Its not my responsibility to look after parcels". The witness went on to describe the applicant as screaming (no where documented) and pointing the finger at him. What he failed to refute in examination-in-chief is that it was he that assisted Mr Cheevers to sort the mail in the back driveway, giving rise to an inference he was condoned what was occurring. Attachments 10 and 11 to exhibit "B" describe what occurred on the next two days about the incident in more or less the same terms The new material consisted of the applicant asking Mr Bowen if he was sleeping well at night and other remarks which he could not recall as he was under too much stress. As stressful he might be if he were involved in the press reports which emanated from the activities in the back driveway. So far as the applicant's version of events was concerned he was raising legitimate concerns in the interests of a putative member of his organisation and indeed on his definition his representations were necessary as a matter of fairness. It would indeed, be a sorry state, if a union representative was stripped of his rights and privileges in this regard. Allegation number four contained in the Notification of Inquiry of 6 September 1995 reads as follows: "on 19 July you failed to treat a fellow employee with proper respect by trying to intimidate Mr Collier into joining the CEPU, you had been advised previously that he did not wish to join the union" The basis of this allegation is probably attachment 13 to exhibit "B" and is unsigned. The document contains some banter about the author "not being one of us", the applicant being told to shut up and or charges would be laid. The applicant responded "but it". The gauntlet having been thrown down was taken up - a verbal report was made. According to Mr Collier at 11.05am the applicant came up to him and handed him a union form. He did not take it and went on to repeat the applicant knew he was not interested yet continued to harass him. In the interview with Mr Molyneux on 29 August 1995, this version of the allegations was extended by the complainant. This was not able to be tested by the applicant either at the inquiry and, as he was not called as a witness, at the hearing. Giving evidence under cross-examination the applicant denied that he niggled Mr Collier because he was not a member of the union nor was it part of a plan to convince him to join the union. It was incumbent upon him as union representative to ask periodically if non members cared to become members. He continued: That he only approached Mr Collier every twelve to eighteen months and did so in accord with his duty plus the gentleman in question had once been a member and "people change their minds and change their opinions and that is why it is incumbent to make sure that you ask these people periodically." Denying he said words to the following effect to Mr Collier in reference to another colleague; "Don't bother him. He's not like you. He's one of us." The applicant was pressed to explain why Mr Collier said "Shut up or I'll lay charges" However, he was unable to do so but conceded that Mr Collier was upset about something. Whilst recruitment might well have been high on the applicant's list of priorities, being aware of Mr Colliers sensitivities, he might have been less zealous. However, on no view of this behaviour, could one base a finding of serious misconduct. Mention has already been made of the allegations of failing to observe confidentiality in regard to any information concerning Australia Post or its customers that is gained in the course of his employment. Suffice to say at this point a reading of attachment 10 to exhibit "B" seems somewhat different in character from what fell from the applicant set out in attachments 6 and 7 of the same exhibit. The information sought to be protected is not of a nature and kind for which protection can be claimed. In any case, given the notoriety of the back log, what the applicant said in his parley with the journalist from the Blue Mountains Gazette could said to be in the public interest - Church of Scientology of California v Kaufman (1973) RPC 635. The information given does not contain the quality of confidentiality so as to be referable to attachment 10. Nor should the uncontroverted evidence of permission at least on one occasion be overlooked. Taking cognisance of the evidence that fell on the subject I am not satisfied that what the applicant told the journalist was inaccurate or breached confidentiality. Finally, in what amounts to pleading the general issue, the applicant is accused of discourtesy to Mr Bowen and failure to comply with his instructions between 21st July 1995 and 10 August of the same year. Three incidents have been mentioned. ONUS OF PROOF Pursuant to section 170EDA of the Act, the respondent bears the onus of proving that there existed a valid reason for the termination of Mr Cook's employment - Section 170 ED(1) of the Act. BURDEN OF PROOF The allegations made against the applicant as constituting grounds for termination were characterised as serious misconduct - Ejusdem generis with petty theft or high range Prescribed Content of Alcohol (PCA). This justifies dismissal without notice or payment in lieu of notice. In all the circumstances, serious consequences accrued to the applicant. He has not been able to obtain employment since his termination save for some weeks prior to the union elections. He has a family to support and a mortgage to pay, amongst other things. Thus in all the circumstances, the party bearing the onus of proof must bring evidence of sufficient persuasiveness and cogency to prove its case. That being so the respondent bore the onus to prove the allegations against the applicant on to a standard higher than is required in civil proceedings. Briginshaw v Briginshaw [1938] 60 CLR 336. It is necessary to bear in mind the cautionary words of the High Court in this case and in particular what was said by Dixon J (as he then was) at 362: "It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the facts or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the "reasonable satisfaction" of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect references." Whilst the onus remains a civil one, what has become known as the "Briginshaw onus" requires proof of the allegations "on a very high balance of probabilities indeed" - as per Ryan JR in Lowe and AMFEU v ACL Bearing Company 173/94 15 January, 1995 (unreported). VALID REASON The question to be decided is whether Australia Post had a valid reason for the termination of Mr Cook's employment. Section 170 DE(1) of the Act relevantly provides that an employer must not terminate an employees employment unless there is a valid reason. In the dismissal letter to Mr Cook, Mr Rae notified dismissal on the ground that: "You failed to treat members of the public, customers and fellow employees with proper courtesy; failed to observe confidentiality in regard to information regarding Australia Post that was gained during the course of your employment; and failed to comply with oral directions given by a person authorised to issue such directions". The section implements article 4 of the Convention concerning termination of employment at the initiative of the employer. On this point North J, had this to say in Carydias v The Greek Orthox Community IRCA 31/97 20 February 1997, (unreported): "It may be he argued that in the context of the convention the expression valid reason is used to express the concept of a termination which is justified in all the circumstances". In Selvachandran v Peteron Plastics Pty Ltd [1995] 62 IR 371, Northrop J at 373 referred to some dictionary definitions of "valid" and said: "In its context in s 170 DE(1), the adjective 'valid' should be given the meaning of 'sound, defensible or well founded'. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170 DE(1). At the same time, the reason must be valid in the context of the employee's capacity or conduct, based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the employer and 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 1995 60 IR 1, when considering the construction and application of s 170 DC. Whilst Kenefick v ASC [1995] 62 IR 107, Wilcox CJ, at 116, agreed with the above passage of the judgment of Northrop J in Selvachandran and said: " I respectfully agree, and I think it follows that the reason must be genuine, that there must be a casual relationship between to 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 subsection 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 subsection was designed to inhibit capricious terminations, not to put the Court in the employer's managerial chair." Prior to the decision of the High Court of Australia in The State of Victoria v The Commonwealth 1996 138 ALR 129, because of the operation of section 170 DE(2) of the Act, the scope and extent of the meaning of "valid reason" in section 170DE(1) of the Act had not been judicially interpreted. Cases decided since Victoria v Commonwealth have examined the meaning of the words in greater depth. Lee J in Nettlefold v Kym Smoker Pty Ltd, IRCA No 469 of 1996, 4 October 1996, unreported, in the context of a retrenchment on the basis of a supposed operational requirement, said at page 5 that "the statutory requirement for a valid reason in section 170DE(1), arguably meant that in all the circumstances a termination of employment not be unjust or unfair.". His Honour also said at page 8 that "an employer must prove at the time of dismissal of an employee that the operational requirement of the undertaking provided proper grounds for termination of the employee's employment." In Kerr v Jeroma Pty Ltd, IRCA No 470 of 1996, Marshall J, 7 October 1996, unreported, stated "a decision to terminate employment taken for operational reasons from the subjective point of view of the employer will not necessarily result in a termination for a valid reason. There must still be a reason for such a termination which, on independent objective analysis, is capable of being proved by the employer to be valid." After citing with approval and deciding to follow the approach in Nettlefold and Kerr, Wilcox CJ, had this to say in the matter of Denise Thomas and Marsden Glyn Thomas v Ralph Lynch trading as Bellingen Grocery IRCA 627/96, 20 December, 1996 (unreported): "As I understand Lee J's view it is that the validity of the employers' reason cannot be divorced from its effect." His Honour, the Chief Justice, went on to state that "a decision to terminate an applicant's performance must be 'sound' and 'defensible'." Approving what fell from the Chief Justice in Thomas and Lee J in Nettlefold, North J in Carydias (supra) made the following pronouncement: "On such an argument, a termination which was procedurally unfair, or failed to take account of the personal circumstances of the employee, would not be justified and, hence, would not be for a valid reason." Presciently, Mr King (for the applicant) submitted where there is no finding of serious misconduct, there could be a part encroachment of matters procedural into section 170DE(1). In Lupoi v Phillips Fox IRCA 485/96 3 October, 1996, (unreported), Ritter JR stated that in the case of misconduct the requirement for valid reason entitled the Court to undertake a qualitative approach to the misconduct issue. In the case under review it's failure to observe directions or confidentiality inter alia. Failure to follow the process was justified by respondent as it had already determined that the nature of the applicant's conduct, obviated the need for compliance with ss 2, 3 and 4 of exhibit "F". In Fargie v Freedom Foods (Aust) Pty Ltd, IRCA No 498 of 1996, Parkinson JR, 14 October 1996 unreported, the Judicial Registrar said that, "for a reason to be relied upon for terminating a person's employment there must be a proportion between the matter relied upon and the penalty so out of proportion in response to the conduct complained of, such a termination is unlikely, to be for a valid reason." In Daniel v Real Estate Network Pty Ltd, IRCA No 496 of 1996, Millane JR, 18 October 1996 (unreported), the Judicial Registrar referred to the "sound defensible and well founded reason." test for a valid decision as articulated by Northrop J in Selvanchandran (supra). The Judicial Registrar said that "a wrong accusation of misconduct or accusation that is trivial when viewed in the context of an employees entire work record can hardly provide a sound, defensible, or well founded reason for termination". In addition, Parkinson JR (supra) said that, at page 15, "arguably a reason for termination which is harsh (not because of its effect on the employee but because, for instance, it is a trivial one), unjust or unreasonable is not a reason that is likely to justify termination". Examples of the type of inquiry that should have been undertaken in Mr Cook's examination are: a) the effect of the finding of serious misconduct upon the applicant - who is presumably a person of good character. The grounds for dismissal brands him as one who has committed acts of disloyalty not dishonesty or worse; b) the length of service of the applicant with the respondent; his age and prospects of gaining other employment. Mr Cook is thirty-seven years of age, having worked with Australia Post since leaving school. He has no training or qualifications which would be attractive to another employer. His age would also mitigate against any such expectation; c) his personal circumstances, bearing in mind those matters set out in (b). Married with three children, with his wife preferring to be house wife and mother. In addition he has a liability by way of mortgage on his matrimonial home; d) during his many years of service, the applicant has only one matter adverse to his otherwise good employment record,. that was one charge in 1986 under Section 61 of the Postal Services Act, in respect of which he was fined $10.00. It is interesting that in respect of this charge, had he not confessed, the matter would not have been able to be probed. It would appear he was both a satisfactory employee, and a passionate, articulate and effective representative of the employees of the respondent at Blaxland; and e) so far as the applicants performance of his duties, it was generally concede that he carried these out with efficiency and diligence. These factors are not exhaustive. f) The alleged recalcitrance spanned a short period of time and occurred only after Mr Bowen's arrival at Blaxland. The question to be answered is whether Australia Post had a valid reason for termination of Mr Cook's employment. In respect of that which occurred at Blaxland in July/August, 1995, the punishment did not fit the alleged crime. The response of the respondent was so out of proportion, ill-founded, unjust, and illogical that by independent objective standards, it was tantamount to capriciousness and spitefulness. SERIOUS MISCONDUCT When applying the test whether serious misconduct has been committed by an employee it is entirely appropriate to have regard to the notion of what constitutes serious misconduct at common law, the principles which were set on by the Full Court of the Federal Court of Australia in North v Television Corporation Limited 11 ALR 599 as: "The subject matter is a termination by one party against the will of another of a continuing contract of employment on the grounds of breach of one of the terms of the contract, and the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation, it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice, the employer should not be bound to continue the employment. This situation would arise if there was conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law." In the same passage of North, their Honours quoted from the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All E.R. 285 at 287 and 289, where it was said: I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential condition, and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must a least have the quality that it is wilful. It does (in other words) connote deliberate flouting of the essential contractual conditions." von Doussa J, in Bartucciotto v Europrinting Company Pty Limited IRCA 72/96 21 February 1996at page 18, his Honour stated that he thought that section 170 DB(1)(b) was intended to reflect the common law position referred to in the passage, subsection 170 DB(1)(b) refers to serious misconduct. The Court stressed that if adopting this approach one must look at the type of work performed by the employee and (at 609) "what particular obligations the parties have agreed on is vital". For misconduct constituted by disobedience, insubordination or failure to comply with a lawful and reasonable command, whichever way the issue is put one must, to consider whether there has been a valid reason for termination, assess the extent of the particular misconduct in all of the circumstances of the case. In Lupoi v Phillips Fox IRCA (supra) Ritter JR had this to say: "this will necessitate an examination of amongst other things: 1. The extent of the disobedience, in terms of the length of time over which the employee has been disobedient; 2. The nature of the disobedience in relation to the contract of employment; 3. Any warnings that had been given for failing to carry out instructions; 4. The reasonableness of the request, albeit that there is a controversy about whether a request must be both lawful and reasonable - see Macken, at al, The Law of Employment, page 201 and in particular, footnote 47; 5. Whether there has been a calculated and persistent course of disobedience; 6. Whether the disobedience strikes at the essence of the contract of employment in the sense that it is inconsistent with the continuing relationship of employer and employee - see Macken, at al, page 199. At that page, the learned authors quote from the decision of Hacksalls Ltd v McDowell [1930] AR NSW 620 at 629 per Cantor J, where his Honour said that: It is necessary to determine, having ascertained what the contract was between the parties(1), whether the order disobeyed by the employee was one within there terms of scope of the contract and, if so, (2), whether applying the principle laid down in the cases...' the conduct of the party who has broken the contract is such that the other party is entitled to conclude that the party breaking the contact no longer intends to be bound by its provision', or...' whether his conduct was inconsistent with the maintenance of the relation it creates'." Further, von Doussa J, in Bartucciotta v Euro Printing Co Pty Ltd, unreported, [1996] IRCA 72/96, at page 17, albeit in a different context, quoted with approval from the judgment of Gooley v Westpac Banking Corporation [1995] 129 ALR 628 at 636-637, per Wilcox CJ. In that judgment, his Honour referred with approval to a passage from the judgment of Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 (supra). What analysis of the authorities indicates is that, in considering a question of disobedience, one must first consider the terms of the contract of employment. In Bartucciotto v Euro Printing Company Pty Limited, (supra) von Doussa J stated that this was confirmed by section 170 DB of the Act, there is a distinction between there being a valid reason for termination and there being a valid reason for summary dismissal. In evaluating whether these incidents amounted to serious and wilful misconduct account has been taken of all the evidence, both oral and documentary which was given or tendered over the various days of the proceedings and I am not satisfied having regard to all that evidence that the respondents discharged the onus it has to bring cogent evidence of sufficient weight and persuasiveness to justify the adverse finding it sought. These are: a) The nature of the work performed by the applicant in this case the applicants' duties as a Postal Delivery Officer could not exclude his obligation as an authorised union representative. b) A repudiation of an essential condition of the contract on the applicant's part Laws v London Chronicle (Indicator Newspapers) Ltd, (supra) held the test enunciated at page 287 was that: "If summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract." Mere misjudgment will not constitute serious misconduct - as per Wilcox CJ in Gooley v Westpac 1995 129 ALR 628. The following remarks fell from his Honour at page 645: Dismissal for serious misconduct "is likely to be traumatic and damaging to an employee. It brands the employee as someone who has committed an act of gross disloyalty, if not dishonesty. It is not an appropriate way of disposing of an employee who has acted conscientiously and honestly, though with poor judgment." CONCLUSION Even if the so called Bowen reproval could be characterised as "counselling", the proper path was not persued. This was behaviour not repeated. At no time was the applicant warned about his total behaviour. Never was he informed by the respondent, what was regarded as fitting conduct for both a postal delivery officer and an authorised union representative. In fact, Mr Lennon in his testimony stated that Mr Cook's approach was similar to other union representatives. Should the respondent have been unsatisfied with the manner in which he conducted himself at work, it should have convened a meeting with him, informed him how he had, in its opinion, breached harmony at Blaxland. Finally he should have been warned in respect of future conduct and that he would be monitored. This would have conformed with the respondent's process. One can glean from these remarks, that it is thought that the evidence did not support a finding that the respondent did not have valid reason to terminate the applicant's employment. In my opinion, the respondent did not satisfy the onus it bore of proving its case against the applicant. I am not convinced that the applicant's conduct during that short period of time was such to justify the termination of his employment as set out previously. The applicant conduct was of a limited nature sufficient to attract counselling rather than the sanction he received. None of the incidents alleged, even singularly or accumulatively satisfied the Court, that the applicant was guilty of serious misconduct. In my view, Mr Cook was a appeared to be a faithful and industrious employee. This was also the manner in which he discharged his work in union matters - an authorised representative ought not be a popinjay. A declaration will be made that the respondent terminated the employment in contravention of section 170DE(1) of the Act. SECOND GROUND OF SUBSTANTIVE UNFAIRNESS Mr King submitted that it was open to the Court to find that the applicant's employment was terminated on the "grounds of partly for political beliefs" contrary to section 170 DF of the Act. There is no doubt the applicant believed this to be so. A useful starting point in determining whether the evidence supported such a proposition is Mr Roche's perjurative appellation of the applicant and Mr Gray as "liberal shits". This evidence is uncontroverted as Mr Roche was not called to give evidence. It is telling that it was this person who drafted the allegations against the applicant contained in the epistle of 10 August 1995. The remark certainly indicates an angst in regard to Mr Cook. However, in the absence of either evidence of a similar feeling held by others involved with the applicant's dismissal, what Mr Roche thought is not evidence against them. Thus, I cannot be satisfied that this had any foundation on the evidence. Corroboration is not to be found in the inquiry conducted by Justice Moore into the 1994 election, simply because, as I read the decision, in that case no finding was made about the involvement of Australia Post Management irregularities in the ballot. In passing, His Honour did remark that it was difficult to understand how these matters had occurred without the knowledge of management. However, there exists other difficulties in basing a finding on section 170 DF ground. SECTION 170 DC What has been said is enough to dispose of the matter but either because they were argued or deem to be matters of general importance, the opportunity for commentary is taken. This section (170)DC provides that: "An employer must not terminate an employee's employment for reasons related to an employee's conduct or performance unless: a) the employee has been given the opportunity to defend himself or herself against the allegations made." Sub-section (b) of section 170 DC is not relevant for present purposes, as conduct of a serious and wilful type has not been proved. As Mr Cook's employment was terminated for reasons related to his conduct or performance in the circumstances, section 170 DC applies. Findings have already been made in relation to the various conversations and interviews which were conducted in respect of the allegations. It is not proposed to catalogue further facts that have already been canvassed and/or findings made. Suffice to echo that which fell from the Chief Justice of this Court in Nicholson v Heaven & Earth Gallery Pty Ltd 126 ALR 233 at 243: "The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170 DC carries into Australian labour law a fundamental component of the concept know to lawyers as "natural justice' or, more recently, "procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that persons disadvantage and for a reason personal to him or her without first affording the affected person an opportunity to present a case. The principle is well-established in public administrative law. It was accepted into international labour law when Act 7 was inserted in the Termination of Employment Convention. Section 170 DC is directly modelled on Act 7. The principle is, I believe, well understood in the community. It represents part of what Australians call "a fair go". In the context of s 170 DC it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself " against the allegations made"; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk." For section 170 DC to be satisfied in the present case, it would have been necessary for the respondent to identify what aspect of the applicants conduct and performance were such as to justify possible dismissal and put those matters to him in a clear, unambiguous manner so that under the circumstances he would have a fair and adequate opportunity to respond to the case against him. In Gibson v Bosmac Limited 130 ALR 245, Wilcox CJ reiterated the discussion in Nicolson's case 'helpfully' adding the following remarks: "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 not the position in the present case, as the manner in which the allegations were put to the applicant lacked the precision necessary for the applicant to have a fair opportunity to defend himself. Even when the applicant gave the respondent the avenue to correct the situation by supplying further and better particulars, it did not seize upon the opening. Ergo, the termination of the applicant's employment was unlawful as, being in breach of section 170 DC. CREDIT OF WITNESS Over the many days of hearing in this matter, close heed was taken of the evidence that fell from the various witnesses called to give evidence by both the applicant and respondent. During the several days the applicant was in the witness box giving evidence in-chief and under cross-examination the applicant was very controlled in his demeanour and answered the questions posed in a precise manner. I placed a great deal of weight on these aspects. Whilst some points of his evidence which involved recollection over time must be treated with some caution, I have no reason to doubt the evidence he gave, that he was making representations; on behalf of his union colleagues; in regard to the Mrs Bowen incident, making them on behalf of Mr Kelly and fellow postal delivery officers at Blaxland. Those matters raised in respect of the attendance at Mr Natour's funeral on 21 July 1995, the was putting forward a case why five fellow workers should be remunerated for time spent away from work at the ceremonies. Finally, he was speaking on Mr Cheever's behalf when that incident arose. On matters of substance, the applicant's evidence was not compromised in cross-examination. In short, I found him a credible witness who sought to give an honest account of the events in question. That there were exchanges between Messrs Bowen and Cook, I have no doubt. In an ideal world, negotiations between management and union should be conducted in an atmosphere of tolerance and moderation. This consensus is not always practicable. A union representative must be expected to put his members' cases forcefully, ardently and with tenacity. Should the applicant's performance have been less than this, he would not have continued to be elected year upon year. One would expect voices to be raised where contrary opinions are expressed. The level of expression in such interchanges, it is inferred, would be even more striking in the less than ideal conditions in which the Blaxland personnel found themselves. This is not the view formed in relation to those who gave evidence on behalf of the respondent. Generally, they tailored their evidence to fit their perception of what might provide a rationale of events in their entirety that would uphold the allegations made against the applicant. In a number of ways the evidence of these witnesses were in conflict. In many instances, they were inclined to answer questions in a way apparently intended to advance the interests of the respondent and justify by embellishment, the stands they had take qua the applicant. Mr Bowen in many cases exaggerated facts. All these witnesses had an interest in one way or another in giving evidence which would validate the applicant's dismissal. Where any statement of fact alleged by the applicant conflicts with that alleged by the respondent, I accept that of the former. Arriving at a decision in this matter was not possible without an in depth reflection on all the evidence. Due consideration has been given to all the documentation filed and exhibited, the oral testimony given by the several witnesses called on behalf of both parties plus the learned and pertinent submissions made by both Counsel. The demeanour of the witnesses when giving evidence was noted - it was of some assistance. BREACH OF CONTRACT Some days prior to a decision being handed down in this matter, the High Court of Australia delivered its judgment in the State of Victoria v The Commonwealth (1996) 138 ALR 129. The Court in this case held that section 170 DE(2) of the Act, had no constitutional underpinning, and was thus invalid. The applicability of this section was fully argued in submissions. In the light of the decision the matter was re-listed by me and as a consequence, the parties were directed to make further submissions. This order was made over the objection of the respondent. The applicant also sought and was granted leave to file an amended application. This document was subsequently filed and it sought damages for breach of contract and "other" claim as follows; "damages for breach of contract or statutory duty, namely the Postal Worker's Award and the Award Disciplinary Process". This claim was brought in the associated jurisdiction of the Court pursuant section 430 of the Act. The respondent maintained the stand it had taken previously of opposing this course on the grounds of lack of jurisdiction and prejudice, inter alios. Both parties were granted leave to make written submissions on the amended claim. It is my opinion, that neither the award or the process constituted a term of the applicant's contract or an implied term of that contract. The High Court in Byrne & Frew v Australian Airlines (1995) 131 ALR 422 has made it clear that the terms of awards are not automatically imported into employment contracts. The parties have to agree to such inclusion. The evidence revealed no such agreement being made. This proposition was argued by Mr Neil of Queen's Counsel for the respondent. Mr King, on behalf of the applicant made the following submissions: 1. That the Award and the Award Discipline Process were imported into the terms of the contract of employment between the applicant and the respondent, consistently with the use and adoption of the language of obligation and rights stated particularly in the Award Discipline Process. This appears to have been common ground between the parties during the course of Mr Cook's employment and at the hearing in this Court (e.g. the letters of particulars). 2. The report of Mr Molyneux (exhibit B) indicates such a course on conduct between the parties. In order to imply a term of the contract, the Court must be satisfied certain conditions have been met. The Privy Counsel in BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 at 283 gave this advice: "for a term to be implied, the following conditions (which may overlap) must be satisfied: (1 )it must be reasonable and equitable; (2)it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4)it must be capable of clear expression; (5) it must not contradict any express term of the contract." These conditions were certainly not met in this case. In relation to the remainder of the claim, I am not able to rely upon any cogent or probative evidence, led or tendered over the several days of hearing, which would support the relief sought by the applicant. In arriving at this view, I have taken into account the submissions made by both Mr Neil of Queens Counsel and Mr King. I dismiss the claim made in the associated jurisdiction of the Court. REMEDY Parliament has provided the indicia which should be applied by the Court when it is satisfied that there has been breach or breaches of the Act. These are to be found in Section 170 EE subsections 1 and 2 which provide as follows: 1. In respect of a contravention of a provision of this division (other than Section 170DB or DD) constituted by the termination of employment of an employee, the Court may make the following order: (a) An order requiring the employer to reinstate the employee by; 1. Reappointing the employee to a position which the employee was employed immediately before the termination; or (b) If the Court makes an order under paragraph (a) 1. An order that it thinks necessary to maintain the continuity of the employees employment; and 2. An order requiring the employer to pay the employee the remuneration lost by the employee because of the termination. 2. If the Court finds a contravention of a provision of this division (other than Section 170 DB or 170 DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable the Court may make an order requiring the employer to pay the employee compensation of such amount as the Court thinks appropriate. Instantly, the applicant seeks reinstatement to the position he occupied prior to the termination of his employment. On the other hand, the respondent has submitted that reinstatement should not be ordered because it would be impracticable to do so. In considering what relief should be afforded, the applicant the first matter to be focused upon is reinstatement and whether or not such a course is impracticable. "Compensation for the loss of a job (as distinct from lost remuneration) may be awarded only if reinstatement is 'impracticable'. It is important to note that parliament stopped short of requiring that for general compensation to available reinstatement is impossible. The word 'impracticable' requires and permits the Court to take into account all the circumstances of the case relating to both the employer and employee and evaluate the practicability of reinstatement in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity or harmony within the employers business it may impracticable to order reinstatement notwithstanding the job remains available" - as per Wilcox CJ in Nicolson -v Heaven & Earth Gallery Pty Limited 126 CLR 233 at 244. It is indubitable that the applicant and Mr Bowen could not work together. However, in my view, that particular fact does not mean that the applicant's reinstatement is impracticable. He seemed to find favour with many work colleagues. It is considered that reinstatement is not in the context of the present case, impracticable. In the Penrith Delivery Network there are many mansions, and for the applicant to be reinstated to any other place, would not impose embarrassment, unacceptable problems or seriously effect productivity and harmony of the respondent's workplace. Harmony may well be a victim should Messrs Bowen and Cook be placed together under the same roof once more, Hopefully lessons may have been learnt since July 1995. However, for more abundant caution and not risking aggravation of the situation, it is proposed that the respondent reinstate the applicant not at Blaxland but to some other depot in the Penrith delivery network. On 28 July 1995, the respondent was prepared to transfer Mr Cook to another workplace at South Penrith at his requests - exhibit "N". It is desirous that the applicant not take up a position outside the area, as his home and family are domiciled in Woodford, and relocation in these uncertain times could prove difficult and economically unfeasible.. A postal delivery officer's day commences very early in the morning. It is therefore desirous that the applicant be reinstated to an establishment in reasonable proximity to his home so that his day does not commence before public transportation is available or at a time when trains or other modes of public transportation are scheduled infrequently. This latter situation would require the applicant to take a train, which would have him at his place of work well before his commencement hour. Mr Cook is not the possessor of a motor vehicle and should he be reinstated well beyond Woodford he could be confronted with these exigencies. In The opportunities for the applicant to obtain another job in his chosen field are well neigh impossible. It is the only job for which he has been trained. Also it must be considered, the respondent has exclusive rights of postal services. In such circumstances a remedy which involved less than reinstatement would not be a satisfactory or just.. I have considered all the evidence in the case and overall, and am of the opinion reinstatement of the applicant is not impracticable. COMPENSATION Because of the termination of his employment, the applicant has suffered economic loss. Apart from some weeks employment as an organizer with Communications Union of Australia, Postal and Telecommunications Branch he has not worked since termination. The applicant had been appointed to that position pursuant to an order of Moore J. pending the holding of a new election. In the interim, the applicant has been in receipt of social security payments. Some effort was made by him to find work, but with no success. Much of his time and energies have been focused on the Inquiry conducted by the Court into the ballot held by the union and the subsequent elections, in which he was a candidate, albeit an unsuccessful one. As it is proposed to order reinstatement of the applicant to his former position but not his erstwhile posting, an order for monetary payment is appropriate. Power to do so, is to be found in section 170 EE (1) (b) (ii) which provides that the Court may make an order: "requiring the employer to pay to the employee the remuneration lost by the employee because of the termination." As a Postal Delivery Officer, the applicant was paid approximately $468.00 gross per week. There is a distinction between compensation in lieu of reinstatement, which may be awarded under sub-section (2) of section 170 EE , and an order requiring the employer to pay to the employee remuneration lost because of the termination, pursuant to sub-section (1) of section 170 EE, which may be awarded under sub-section (1) of the section 170 EE. In the case of Ian Samuel McGregor Nicolson v Heaven and Earth Gallery Pty Ltd (supra), Wilcox CJ said at page 244: "Compensation under sub-section (2) may only be ordered if the Court finds that the reinstatement of the employee is impracticable." Thus in calculating compensation under sub-section (2) of section 170 EE the gross weekly wage is multiplied by the number of weeks since termination by the number of weeks any income from personal exertion he has earned in the period from the gross sum ascertained. The respondent must deduct tax at the appropriate PAYE rate before paying the balance to the applicant.. COSTS Section 347 (1) of the Workplace Relations Act provides: "a party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first mentioned party instituted the proceedings vexatiously or without reasonable cause." It is clear from the section that the intention of Parliament was to afford protection against orders for costs for unsuccessful applicants, save in the circumstances when application is brought vexatiously or without reasonable cause. Mr King submitted that it follows that section 347 is directory only in circumstances where the applicant is successful and the section must be given a narrow compass in this context, I don not agree with this submission. The test may be stated as "whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success" such that "where on the applicant's own version of the facts, it is clear that the proceeding must fail". See Kanan v Australia Postal and Telecommunications Union (1992) 43 IR 257, 264 - 265 and Imogen Pty Ltd v Anthony Sangwin (unreported, IRCA, Full Court, 20 December 1996, per Wilcox CJ at 8 - 9). On the evidence I was not persuaded this was the case. The respondent argued with zeal and was of the belief that it had reasonable grounds for having it's decision to terminate the applicant's employment, confirmed by the Court. It is not thought an order for costs would be fitting. OTHER ORDERS Section 170 EE (1) (b) (i) empowers the Court if it orders the reinstatement of an employee, to make: "any order that it thinks necessary to maintain the continuity of the employee's employment." It is intended to make an order under this power. ORDERS 1. The termination of the applicant's employment was unlawful in that the respondent was in contravention of section 170 DE(1) of the Workplace Relations Act, 1996. 2. The respondent shall reinstate the applicant by appointing him to another position in the Penrith delivery area, but not at Blaxland on terms and conditions no less favourable than those on which the applicant was employed immediately before his termination. 3. The employment of the applicant is, for all purposes deemed to have been continuos in the position in which he was employed before the termination of his employment. 4. The respondent to pay compensation to the applicant pursuant to section 170 EE (2) of the Workplace Relations Act, 1997, in the sum of $32,930.00 such sum to be paid within 28 days of this order. 5. There be liberty to apply as to the terms of these orders. I certify that this and the preceeding 60 pages are a true copy of the reasons for decision of Judicial Registrar Locke. Associate: Debra Scott Dated: 17 March 1997 APPEARANCES Counsel for the applicant: Mr King Solicitors for the applicant Paul Etherington & Associates Counsel for the respondent Mr Boulton Solicitors for the respondent Sparke Helmore Dates of hearing 23, 24 April 1996 4, 5, 6, 7, 11, 12 June1996 4, 11, 12, July 1996 13 September 1996