DECISION NO:255/97 CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION -TERMINATION OF EMPLOYMENT - REINSTATEMENT - VALID REASON - MISCONDUCT - single incident of smoking in workplace - not justification for termination of employment Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) Sections 170ED(1), s170DC Selvachandran v Peteron Plastics Pty Limited 1995 62 IR 371, Northrop J Gibson v Bosmac Pty Limited 1995 130 ALR 245, Wilcox CJ Thomas v Lynch t/ as Bellingen Grocery, (IRCA Decision number 627/96),Wilcox CJ Nettlefold v Kym Smoker Pty Limited, (IRCA Decision number 469/96), Lee J Blyth Chemicals Limited v Bushnell 1933 49 CLR 66 Perrin v Des Taylor Pty Ltd 1994 58 IR 254 Moore J Rodney Kent Howarth v Daniel Babin (IRCA Decision No. 550/96) Wilcox CJ Tisdell v Woolworths Pty Limited NI 1067 of 1997 Before: MCILWAINE JR Place: SYDNEY Date/s of hearing: 30 APRIL 1997 Date of judgment: 30 APRIL 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1067 of 1997 BETWEEN: Morris Leo James Tisdell Applicant AND Woolworths Limited Respondent BEFORE: MCILWAINE JR PLACE: SYDNEY DATE: 30 April 1997 MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 19 December 1996 the respondent terminated the applicant's employment in contravention of section 170DE(1) of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT: 2. The respondent re-appoint Morris Tisdell to the position in which he was employed immediately before his termination on 19 December 1996. 3. The respondent pay to Morris Tisdell the remuneration lost by him because of the termination. 4. In default of agreement on the calculation of and the amount of remuneration lost and referred to in the preceding order, there be liberty to either party to apply to the court on reasonable notice. THE COURT FURTHER ORDERS THAT: 5. The employment of Morris Tisdell be deemed to have been continuous for all purposes from 19 December 1996 to the date of reinstatement. 6. The amount ordered in paragraph 3 is to be paid within 21 days of today (30 April 1997). 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 NI 1067 of 1997 BETWEEN: Morris Leo James Tisdell First Applicant AND Shop Distributive & Allied Employees Association of NSW Second Applicant AND Woolworths Limited Respondent BEFORE: MCILWAINE JR PLACE: SYDNEY DATE: 30 APRIL 1997 REASONS FOR DECISION Delivered ex tempore - revised from the transcript This is an application by Morris Leo James Tisdell ("the first applicant") under Division 3, Part VIA of the Industrial Relations Act 1988, concerning the termination of his employment. The first applicant claims relief in relation to that decision and the remedy that was pursued before me was reinstatement in his employment. The application was lodged by the Shop, Distributive and Allied Employees Association in accordance with the Act on behalf of the first applicant. On 26 November 1996 the Industrial Relations Act 1988 was renamed the Workplace Relations Act 1996 and it will be referred to in these reasons as "the Act". The application which was signed by an Organiser of the Union on behalf of the first applicant records his former employer as Woolworths Pty Limited. The notice of employer's appearance shows the respondent as Woolworths Limited ("respondent"); I propose to refer to the respondent by that name rather than Woolworths Pty Limited. If there is some difficulty with that decision the parties should raise this issue with me at the conclusion of the judgment. I also have a certificate issued by the Honourable Deputy President D.A. Duncan of the Australian Industrial Relations Commission of Sydney dated 3 February 1997 in the following form: In accordance with section 170ED(1) of the Workplace Relations Act 1996 (the Act) the Commission hereby certifies: (i) that it has been unable to settle this matter by conciliation within a reasonable period, and (ii) that the parties in this matter having been invited to elect to have the matter dealt with by consent arbitration have not so elected. There was no objection raised to the certificate by either party and therefore the matter is properly before me. The applicant is aged 56 years of age at the time of the Court proceedings. He commenced employment as a casual on 23 October 1992 with Woolworths Limited and the last day he worked was 19 December 1996. The respondent in its notice of employer's appearance, signed by the Industrial Relations Officer Ms Lisa Murphy on behalf of the company, indicated that the reason for the termination was serious misconduct. This is supported by a form letter partially completed in handwriting as follows: "WOOLWORTHS LIMITED (ACN NO. INDISTINCT) NOTICE OF TERMINATION Store Revesby Store No 1760 Date 19.12.96, Employee's name Morris Tisdell Department Produce Position Produce Assistant This notice of termination is to confirm the decision that your employment will effectively cease as at 9.15 am on 19/12/96. If applicable You have been given/received nil weeks notice of termination of employment or payment in lieu thereof. Reason for termination: "Poor performance/Capacity/Behaviour "Serious misconduct. (signed) Signature ........................................... Ref 98042 Manager - Deborah Salkeld" (sic) There was no question raised by either side that the original of that document was given to the applicant at or about the time shown on the form and on 19 December 1996. I do not think I need say any more about the company other than that it is a well-known retailer of merchandise and has many stores throughout New South Wales and Australia. The first applicant was working at the Revesby store. He was only working part-time until 4 January 1993 when he converted to a full-time basis. His hours of work commenced at 5 am. He testified that on 19 December 1996 he started work at 5 am and at about 5.30 am he went out to the preparation area and there, "without thinking, had a cigarette". He advised the court that a Mr Justin Finn had seen him smoking and had spoken to him about it in the customer area around 7 am. His version was that Mr Finn had asked him "Were you smoking in the preparation area?" and the answer given was "Yes". He then testified that later on in the morning he was called to the office of the shop manager, Ms Salkeld, about 8.30 am, and there in the presence of the assistant manager, Mr Steve Mayers, was interviewed about the incident. He again confirmed that when Ms Salkeld asked him whether he had been caught smoking he replied "yes". He also acknowledged that he was asked if he wanted a witness to the proceedings and he had replied "No". In answer to a question from his advocate he acknowledged that in not having a witness he knew that he had done something wrong and expected to be disciplined for it. He acknowledged that he had seen Woolworth's policy about smoking. He was shown a document which was prepared by Ms Salkeld and of which, very efficiently, the advocate for the Retail Traders Association has prepared a typed transcript. I am satisfied, having compared it with the original, that it is an accurate version, as amended, and this document was put to him and the applicant agreed that it was substantially accurate. The transcript of the Employee report which was written by Ms Salkeld is as follows: On Thursday morning, 19/12/96, the storeman went to Morrie to ask a question and noticed smoke coming from his hand. Not long after the storeman asked Morrie was he smoking, and Morrie said yes. I then on the arrival at work after investigation asked Morrie these questions: How long have you been at Woolworths? He answered four years. Are you aware there is a no smoking policy in Woolworths? He answered yes, I'm aware. Are you aware you have filled out job knowledge forms that ask you re the no smoking policy? He answered yes. Have you seen the "Welcome to Woolworths" brochure and in it the no smoking policy, he answered yes. Are you aware of the consequences of your actions? He answered yes- termination. After this interview I conferred with Lisa Murphy who informed me of the company course of action. Now basically the facts in this matter are agreed between the parties. There is one issue that has arisen and that is on this question of whether he used the words "Yes - termination" as has been recorded in the transcription. The evidence of the applicant was that he had said: "I believe it was a sackable offence". In my view nothing much turns on whether he used the words "Yes - termination" or that "it was a sackable offence". However, in case it is necessary for other purposes that I make some decision on this aspect, I point out that the evidence from the store manager was to the effect that he used the word "termination". The evidence of the assistant manager, Mr Mayers, was to the effect originally that he used the words "immediate termination" and subsequently under cross-examination he used the words "instant termination". Both the manager and the assistant manager denied that he used the words "sackable offence". As I say I do not think a lot turns on the discrepancy. In my view I need not make any detailed criticisms of the evidence of either the first applicant, the manager or the assistant manager, except to say that I prefer the version given by the first applicant. My reason for this preference is that the word "termination" is a phrase which is commonly used by "legal" and "industrial relations" practitioners, in correspondence between and by their organisations as well as in their journals. The phrase termination of employment is used in the legislation and not "dismissed" or "fired" to describe "a sacking". There is no doubt the word was also used by the managers in that sense in this incident. It seems to me that having listened to the evidence of the applicant and his forthright responses and frankness in answering truthfully questions which may have been to his detriment, that it would be unlikely that he would use the word "termination". It is more probable that he would use the words "sackable offence". I base this conclusion also on having assessed the way in which he gave his evidence, and the spoken language he uses, generally to communicate. I would expect this phrase would be in accord with his normal manner of speaking. In those circumstances and in case it is considered necessary I find that he would have used the words "sackable offence". The first applicant testified, again with which testimony the evidence of the other witnesses coincides, that after he had made his admissions he was asked to leave the room whilst a phone call was made to somebody in head office. When he came back he was advised by the manager that she had been in touch with head office and had no alternative but to dismiss him on the spot. He then gave evidence that he was too upset to say much about it. I accept his evidence in that regard and indeed he was not challenged under cross-examination on that issue. He said that he left the office, he went to the produce section, said goodbyes to some people and left the premises. He acknowledged that he was given the document which I have already reproduced in these reasons. He admits to being a 40 cigarette a day smoker. It seems to me that not only is it a very costly exercise but as I said to him personally whilst he was giving evidence that he has got a killing habit based on the medical evidence which I have seen in personal injury cases involving people who smoke. He gave evidence that generally he went outside the shop and out to the back dock area to have a smoke. Again that was not contested under cross-examination, and indeed it was put to him that he normally did take that sort of action with which proposition he agreed. He was closely questioned about some documentation which he had previously signed and whether the "No Smoking" policy had come to his attention. I will come back to that and deal with that in a separate way. There were some questions put to him in cross-examination about the timing of the incident as to whether it occurred at about six o'clock or 5.30 together with questions as to whether the interview commenced at 8.30 or 8.45. It seems to me that not much hinges on the time of occurrence except that I think there is much strength in the submission of the union on his behalf that an interview lasting only a half an hour to terminate an employee who has been employed for four years when account is taken of the nature of the single episode is really, in my view, not giving the attention to the interview that it deserved. Under cross-examination, he was shown some photographs which he admitted were of the locality where the incident happened. He also did a sketch, at my direction, of the premises (Exhibit 1). I am satisfied, by the way in which he gave his evidence, that whilst smoking in the workplace can have a number of adverse or serious effects, the most dangerous of which includes the possibility of a spark or ash creating a fire there was no immediate danger created by the position in which he smoked the cigarette. This conclusion is also confirmed by my examination of his sketch (Exhibit 1) He also acknowledged that he had answered some written questions, which documents were tendered in evidence by the respondent. The questionaries were headed: (a) "Name (Print) Morrie - Date 11.4.94 - Job Knowledge Profit Control (2A) Security. (b) Name (Print) Morrie Tisdell - Date 12.8.94 - Job Knowledge Profit Control (2A) Security." These two documents were completed two years before the incident. One of the questions in the questionnaire dated 12/8/94 was: "Which areas of the store are you allowed to smoke in?" He answered "none" and received a tick for a correct answer. Interestingly enough in the document dated 11 April 1994 in question 8, he was asked "What happens if you are caught stealing", the answer given to the question there was "dismissed". Against question 9: "Which areas of the branch are you allowed to smoke in?" The answer was "Not in the shop". To my mind, these questions and his answers accords with the impression that an employee may gain from the "WELCOME TO THE FRESH FOOD PEOPLE - WOOLWORTHS - STAFF HANDBOOK" The first applicant also acknowledges having seen and read this handbook. The smoke free workplace policy (as at September 1994) is set out on page 11 of that handbook as follows: "Smoke Free Workplace Policy The company protects the health and safety of all employees by our smoke free workplace policy. Staff members may not smoke anywhere while on/within the store premises. Employees caught smoking while on or within the store premises will be subject to strong disciplinary action. If you do smoke, check with your store manager where smoking is allowed." The policy document uses the words "strong disciplinary action" whereas on the next page, (page 12 - December 1993) against the heading of "Honesty", there follows: "Honesty We expect and insist upon complete honesty from all our staff members. Stealing money, stock or other company property is a serious offence for which strong disciplinary action will be taken. Eating or drinking of unpurchased stock is classed as stealing. Should you have knowledge of dishonesty, it is in all our interests that you report the matter to the Store Manager at once. We must all protect our company's assets. Any person found to be dishonest will face dismissal and possible police charges." Now, whilst both of the sections "Smoke Free Workplace Policy" and "Honesty" use the words "strong disciplinary action" the latter paragraph further emphasises that "Any person found to be dishonest will face dismissal and possible police charges". This sentence is also printed in bold type to reinforce the difference. The first applicant gave evidence that he has been seeking to get employment without any success. Physical evidence was tendered in support of this aspect of his case by the details contained in his job seeker's diary. I am satisfied that he has attempted to mitigate his damages. He also was asked about an induction booklet (Exhibit 8) which records his commencing date as 23.10.92. Where the smoking policy is set out as follows: "Smoking Smoking is only permitted in allocated areas of the lunch room. Staff members must NOT smoke in the trading area, stock room, toilets or corridors." The testimony of the applicant was supported by Ms Mary Louise Yaager who is employed by the Labor Council of N.S.W. with responsibility for Workers Compensation Occupational Health and Safety Legislation. Ms Yaager testified that she had telephoned a number of other unions including the Flight Attendants' Union and the Nurses' Association to obtain copies of their various no-smoking policies. I admitted those documents into evidence over the objection of the advocate for the respondent. It seemed to me that a court of this nature can have regard to what other companies are doing so as to make an assessment of the industrial background in proceedings of this type. Ms Yaager was cross examined about a document that had a front cover entitled: "LABOR COUNCIL OF NSW". "DRAFT LABOR COUNCIL OF NSW MODEL SMOKE FREE WORKPLACE POLICY" The top of the document has a facsimile header "June 10 - 92 Wed 14 O8 ID Big W. Warwick Farm. Tel number 821 1075. #357 po5. There are other fax markings and it has endorsed on it a hand written note "Refer to Issue 1 10/6/92." Ms Yaager unfortunately, was not familiar with that policy and showed some difficulties in answering questions about the information which it contained. Her evidence was followed then by Moira Kathleen Watts who is an organiser with the Shop Distributive & Allied Employees Association of NSW. Ms Watts gave evidence that the applicant advised her that he had been "terminated" or "sacked", to use the words he more likely used. Ms Watts had then telephoned the store manager and was told that Ms Lisa Murphy was dealing with the problem. In a subsequent conversation with Ms Lisa Murphy, Ms Watts had raised her objections to the dismissal of the first applicant. Her evidence was not greatly challenged. Ms Watts pointed out in that conversation that he was a good employee, who had been there for some four years, and it was Christmas time and when regard is had to his age he should be reinstated at a store level. Ms Watts also told of a subsequent discussion with Mr Joe de Gabriel. As the union organiser Ms Watts had raised the same issues on behalf of the first applicant in her discussion with him. Mr de Gabriel told her he would consider her representations and possibly look at reinstating him in another store. Her evidence on these conversations was not disputed. Ms Watts made much of her suggestions to the representatives of the employer that she considered the decision to be harsh and unjust. Her evidence was then followed by that of the Store Manager, Ms Deborah Rose Salkeld. Ms Salkeld has been an employee of Woolworths for 20 years. However, she had only been a short time at the Revesby store, having commenced there on 11 November 1996. Ms Salkeld testified that she received a report from Mr Mayers, the Assistant Manager, about the smoking incident after her arrival at work. Ms Salkeld firmly stated that in her view it was the policy of the company that an employee couldn't smoke anywhere in the workplace and the consequences of doing so were termination. Her use of the word "termination" in giving evidence is also confirmation to me as another reason why I should accept the version given by the first applicant in relation to the issue as to what words were actually used by him in their conversation. That is whether the words used by the first applicant in the interview were "sackable offence" or "termination". Ms Salkeld spoke to Ms Lisa Murphy who had given her advice as to what questions to ask in the interview. Ms Salkeld also checked that he had been properly inducted according to the records "in the store". Ms Salkeld had given the report of the interview to the applicant although she latter added that she had actually read it out to him. Ms Salkeld emphasised that he had made no representations to her. When questioned as to whether reinstatement was impractical her expressed concern was that she was not confident that he would not do it again. Moreover as his Store Manager she no longer had confidence in him. The second witness for the respondent was the Assistant Manager, Mr Stephen James Mayers. Again, the need for a lot of his evidence is not necessary because the applicant has conceded most or a substantial part of the case for the respondent in this matter. The only additional contribution made by Mr Mayers was his suggestion that the applicant gave as his justification for smoking the reply: "that he felt like one". There is no evidence from Ms Salkeld which supports this statement of Mr Mayers although he confirmed most of the other discussions which took place in the interview. Originally in his evidence in chief he uses, as I have earlier stated, the words "immediate termination." Later under cross examination he used the words "instant termination." He gave evidence that the area in question was seven metres by five metres, and that there are often trolleys left in the preparation area. He was asked to look at and identify some photographs. I admitted the photographs over the objection of the representative of the applicants. The photographs show a number of trolleys with produce in them. They are the ordinary supermarket customer trolley with cartons of what appear to hold carrots and other vegetables. There is also a couple of similar trolleys with folded up cardboard cartons shown in the photographs. Because of the way in which the photographs have been taken it is difficult to make much of the suggestion of the representative of the respondent that the areas in question are ones in which the smoking of a cigarette can cause a serious fire hazard. I am inclined, having regard to the photographs, to accept the evidence of the first applicant that there would be a section of the produce area in which he could have a cigarette without there being any immediate danger. The respondent's evidence was also supported by Ms Anne Mylee Taylor who asked that her personal address details be kept confidential. I have acceded to that request there being no objection raised on behalf of the applicants. Her address has been recorded in writing and placed in an envelope marked "confidential". That envelope is to be regarded as a confidential document and not be opened except by further order of the Court. Ms Taylor was employed at Woolworths, but had a long period of employment in the field of occupational health and safety section of the industry. Her prior work experience was with Coles Myer and State Rail, as well Ms Taylor had certificates of qualifications in occupational health and safety. Ms Taylor testified about the need to protect the first applicant and other employees from the risk of fire and other health issues. The prospect for the company if it did not take action against smokers, including the possible receipt of a claim for damages by an employee or another person to the effect that they had received a personal injury caused by the passive smoking. In my view the case for the first applicant did not contest these worthy ideals. I should also mention that two documents tendered in evidence, suggested that the first applicant had two previous written warnings. However, they were in excess of three years before the incident and related to performance based issues. The first one being on 5 February 1993 in relation to his performance in not keeping the shop fully maintained and the reduction of stocks and basic housekeeping which he was not doing properly. This was followed up by a further warning about his poor performance on 9 July 1993. Again, it was for the quality of his performance in relation to the placing and displaying of goods and prices. Given the time of occurrence, they ought not to be taken into account to render him, as not being of "good character" to use a phrase from another jurisdiction. I acknowledge that the company has a legitimate concern about the need to have a no-smoking policy and such a policy has to be enforced. This obligation firstly, is imposed on the employer by section 15 of the Occupational Health and Safety Legislation in NSW which in 15(1) says as follows: Every employer shall ensure the health, safety and welfare at work of all his employees. And then it goes on: And finally to prescribe penalties to the extent of some 5000 penalty units in the case of a corporation or 500 penalty units. Now, in the case of Woolworths, that is a very severe penalty indeed in the sense as I understand each penalty unit being worth $100. Not only that, the legislation imposes an obligation on the first applicant as follows: Employees at work to take care of others and to co-operate with the employer. 19. Every employee while at work: Shall take reasonable care for the health and safety of persons who are at his place of work and who may be affected by his acts or omissions at work and (b) shall as regard any requirement imposed in the interest of health, safety and welfare on his employer or on any other person by or under this act or the associated occupational health and safety legislation co-operate with him so far as is necessary to enable that requirement to be complied with. Maximum penalty, 30 penalty units. - Thus an employee may be fined up to $3000 for a breach of the legislation. It is not necessary for me to determine whether any Industrial Court magistrate would or could impose that amount of penalty for this single incident of smoking in the workplace. As I have already stated the respondent has a legitimate concern about the risk of fire from smoking in the workplace. However, in this case, on the facts as I find them, whilst there is a risk of fire I am satisfied that the applicant would have been careful in the way in which he smoked and the way in which he disposed of the cigarette. The risk was at the lower end of the scale. The second issue raised on behalf of the respondent is the passive smoking concept. Again there is a difficulty in that issue in the sense that there is only one person, who the evidence refers to as being in the vicinity of the produce area where the applicant smoked and that is Mr Finn. It is not suggested that he was right alongside the applicant or there was any smoke blowing in his face or anything of that nature. In the light of the description of the size of the room given by Mr Mayers, I think it is unlikely that anybody would have been directly affected by passive smoke coming from the cigarette of the first applicant. I acknowledge that it is a very real issue in the workplace and I would have thought, for example, allowing people to smoke in the lunch room, as I have referred to previously could place the respondent in a more difficult situation. In relation to the possibility of fire occurring I understand that there were smoke detectors and other fire prevention and fighting equipment readily available in the store. I am satisfied therefore that the risk of a fire starting in this instance was relatively low. The possible impact of health regulations and food law on the incident was not an issue which was directly raised on behalf of the respondent in its case. I would expect that there are health regulations which are designed to prevent people who are dealing with produce from smoking. I would have taken a much more stringent and adverse view about the actions of the applicant if, for example, it had been done in an area where people were cutting up and selling meat or packaging produce. That is not the case. The produce that I see in the photographs is open, it is in bags or cartons. It has had a prior history of being transported from the producer through various means of transport and then into the premises of the respondent for sale. No doubt at any point of that journey somebody who was irresponsible could have been smoking and dropped ash or something equally as bad on the produce. There is, of course, a minor risk that a similar event could happen as a result of this incident. Although I am aware that it is common practice in most stores for some items of produce to be kept watered at regular intervals which would tend to have a cleansing effect as well as reduce the likelihood of fire. The question is how bad was the risk in relation to the single action of the first applicant? In my view the risk was minimal in the sense that I am sure that he was a person who would be careful about where he smoked. Although his testimony is of course that he did not think about it and, that he did it unconsciously out of his habit of addiction. Finally, I am impressed with the Qantas policy which has been put before me and I note that in outlining their procedure, and this is a document which carries an endorsement "Authorised by the managing director on 27 May 1996". It states as follows: Where an employee who has been advised of the smoke free workplace policy continues to breach the policy at his or her workplace, counselling is to ensue including disciplinary action where appropriate. The employee's manager is advised to follow the company's procedures in accordance with policy 4A71 where an initial informal discussion with the employee has not been effective. So it seems to me that there ought to have been some warnings given to the first applicant that if he did it again he would face instant dismissal. It would seem to me that that is a reasonable and justifiable policy for the company to have adopted. Turning now to the question of the termination, it should be noted that under the provisions of the Act the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran and Peteron Plastics Pty Limited 1995 62 IR 371, Northrop J describes the meaning of this phrase in the following way: Section 170DE(1) refers to "a valid reason or valid reasons" but the Act does not give a meaning to those phrases or the adjective "valid". A reference to the dictionary shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary the relevant meaning is "to" of an argument, assertion, objection, etcetera, well-founded and applicable, sound, defensible; effective having some force, pertinency or value. In the Macquarie Dictionary the relevant meaning is "sound, just or well-founded, a valid reason. In its context in section 170DE(1) the adjective "valid" should be given the meaning of sound, defensible or well-founded, a reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purpose of section 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further in considering whether a reason is valid it must be remembered that the requirement applies in the practical sense of the relationship between an 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" the employer and the employee are each treated fairly. See what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd 1995 130 ALR 245, when considering the construction and application of section 170DC." In my view it would have been more appropriate in this case for the applicant to be sent home without pay and told to come back in a few days time with the union representative and then discuss the question of his termination of employment. In view of the decision I propose to make it is not necessary for me to make any formal finding in relation to Section 170DC of the legislation. Although I am of the view that there is a strong case to be made on behalf of the applicant that he was not given a proper opportunity to make and have considered the representations which are described by Moore J in Perrin v Des Taylor Pty Ltd 1994 58 IR 254 as being essential to enable compliance with the section. I propose to follow what is now a strong line of authority which has developed that an employer must justify a termination in the sense that there must be objective and fair grounds. Further I have been referred by the advocates the decision of Wilcox CJ. in the case of Denise Thomas and Marsden Glynn Thomas versus Ralph Lynch, trading as Bellingen Grocery, (IRCA decision No 627/96). The Chief Justice in his decision also refers to the Northrop J. decision, to his own decision in Howarth v Babin (IRCA decision no. 550/96) and to the decision of Lee J. in Nettleford and Kym Smoker Pty Limited. At page 12 in the unreported decision Thomas v Lynch (IRCA decision no. 627/96), Wilcox CJ states: "As I understand Lee J's view it is that the validity of the employer's reason cannot be divorced from its effect on the employee. It is not asked that there is a reason for the termination that is defensible from the employer's point of view, the reason must be one that makes the termination justified after taking into account the effect of the termination on the employee". In this matter there has been no previous incident. The evidence, even after cross-examination by the advocate on behalf of the respondent was that he had previously gone outside and smoked during his break. There was an immediate admission by him of his inappropriate conduct to his supervisors which enabled the respondent to deal with the matter in under half an hour. In my view normally where a person admits to misconduct and does not put the employer to the difficulty of: (a) having to carry out a full investigation or (b) involving other persons of employees to determine whether the employee has been truthful in his dealings with his employer, are matters which are evidence to me of his contrition. In my view it is not open to the company to say there was no evidence of any contrition from the first applicant. There was evidence of contrition the moment he admitted to Mr Finn that he had been smoking. In my view his action in smoking one cigarette on that day was not conduct which was incompatible with the fulfilment of his duty to his employer as well as being destructive of the confidence between it and his employees (See Blyth Chemicals Limited v Bushnell 1933 49 CLR, 66 at page 81 and subsequently). The evidence in this case leads me to the conclusion that there was not well-founded or just grounds for the decision to terminate the employment of the first applicant. There was not a valid reason to terminate the employment of the first applicant. I propose the following orders. THE COURT DECLARES THAT: 1. On 19 December 1996 the respondent terminated the applicant's employment in contravention of section 170DE(1) of the Workplace Relations Act 1996 and the court orders that: 2. The respondent re-appoint Morris Tisdell to the position in which he was employed immediately before his termination on 19 December 1996. 3. The respondent pay to Morris Tisdell the remuneration lost by him because of the termination. 4. In default of agreement on the calculation of and the amount of remuneration lost and referred to in the preceding order, there be liberty to either party to apply to the court on reasonable notice. THE COURT FURTHER ORDERS THAT: 5. The employment of Morris Tisdell be deemed to have been continuous for all purposes from 19 December 1996 to the date of reinstatement. 6. The amount ordered in paragraph 3 is to be paid within 21 days of today. I certify that this and the preceding 23 pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine as recorded in the transcript and revised by the Judicial Registrar. Associate: A. Cooney Dated: 27 August 1997 APPEARANCES Applicant in person Ms Lisa Murphy for the Respondent [1] both given/received have a line in pen drawn through those words. [2] Serious misconduct has a tick in pen in the box.