Hakim v Australiam Postal Corp [1999] IRCA 1

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

Hakim v Australian Postal Corp [1999] IRCA 1

SULEIMAN HAKIM v AUSTRALIAN POSTAL CORPORATION

VI 838 OF 1994

RYAN J

5 FEBRUARY 1999

MELBOURNE IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 838 OF 1994

BETWEEN: SULEIMAN HAKIM

Applicant

AND: AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE: RYAN J

DATE OF ORDER: 5 FEBRUARY 1999

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the application be dismissed. Note: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 838 OF 1994

BETWEEN: SULEIMAN HAKIM

Applicant

AND: AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE: RYAN J

DATE: 5 FEBRUARY 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, who was born in Lebanon, came to Australia from Syria in January 1969. He commenced employment as a temporary officer with the respondent (then the Postmaster-General's Department) on 22 January 1969. Having failed a test set by his employer, his employment was terminated on 4 February 1969. However, after a period at night school, the applicant was re-employed on 21 April 1969 in the respondent's mail delivery service as an Assistant Postal Officer. Subsequently, in November 1977 he was promoted to, or confirmed in, the position of, Mail Officer. 2 From 1979 the applicant was approved by the respondent, which had by then become "Australia Post", to act in the position of Senior Mail Officer. From 1981 he frequently acted in that position and for increasingly longer periods. On or about 4 May 1983, the applicant lodged a complaint with the officers or agents of Australia Post to the effect that one of his supervisors was victimising him and jeopardising his prospects for promotion. Australia Post conducted an investigation into the applicant's complaint and found it to be unfounded. In April 1986, Australia Post assessed the applicant's work performance and considered him suitable for promotion to the position in which he had been acting and while so acting had been receiving a higher duties allowance. However, he was less suitable than another person for promotion to the senior position. Subsequently, the applicant submitted a claim for what he claimed to have been a work-related injury, namely nervous stress allegedly caused by his disappointed career aspirations within Australia Post. On 27 June 1986 a sequestration order was made against the applicant. The applicant stated that the reason for his insolvency was that he had been on leave without pay from his employer, and that the money received from Social Security had not been enough to cover his outgoings including the cost of servicing a bank loan. He also gave evidence that at that stage he had been a problem gambler. 3 The applicant appealed against the decision of Australia Post not to offer him a position as Senior Mail Officer. The appeal was successful and, in February 1987, he returned to work in the position as Senior Mail Officer. 4 In September 1991, the applicant's claim for compensation for a work-related injury was heard by the Administrative Appeals Tribunal ("the AAT") and was successful. The AAT concluded that the applicant's condition was work-related and was compensable under the Commonwealth Employees' Rehabilitation and Compensation Act 1988. Australia Post subsequently sought, unsuccessfully, to challenge the AAT's decision in the Federal Court (see Australian Postal Corporation v Suleiman Hakim (Keely J, unreported, 12 March 1992)). 5 The applicant's condition, however, meant that he was increasingly away from work for longer periods and from some time in 1991 he was continuously absent from work. On 2 June 1993, Australia Post stopped the applicant's compensation payments. The applicant appealed to the AAT against that decision but the matter was settled on 31 May 1994 upon Australia Post's agreeing to pay to the applicant a sum of money with respect to his compensation claim for the period ending 30 December 1993. The applicant later obtained, and continued to receive, a disability support pension. In August 1994, the applicant had open heart surgery involving a quadruple by-pass operation. 6 On 3 September 1992 criminal charges were brought against the applicant for obtaining property by deception. These arose out of incidents unconnected with his employment in which he obtained from persons located overseas seeking to migrate to Australia money in return for supposed assistance in relation to their immigration applications. On 26 February 1993, the applicant pleaded guilty to the charges and was sentenced to imprisonment for six months, suspended for two years. An eighteen-month community-based order was also imposed upon him. 7 On or about 1 June 1993, the applicant received a letter from Australia Post dated 1 June 1993 which was in the following terms: "Dear Mr Hakim Please be notified that an Inquiry will be held into your conduct as an employee of Australia Post. The subject of the Inquiry will be that you have been charged and convicted of criminal offences and whether your conduct which resulted in these charges prejudices your employment with Australia Post. The Inquiry will be conducted by Glen Shilling, Manager – Melbourne Airmail Transit Centre, Tullamarine 3045. If you require further details of the subject of the Inquiry, you may contact me on the above telephone number. So that you are given the opportunity to present any relevant information, it is intended that an interview take place at the [State] Head Office of Australia Post, 90 Collins Street Melbourne. It is proposed that we meet on the 7th Floor at 12 noon on Wednesday 9th June. Should these arrangements be inconvenient, please contact me so that other arrangements can be made. In accordance with the Code of Employee Conduct and Employee Discipline Process, if the Inquiry Officer finds your misconduct proven, he may recommend dismissal, transfer, or other disciplinary processes relevant to the behaviour. Glen Shilling Manager – Melbourne Airmail Transit Centre" 8 On the next day, 2 June 1993, the applicant was interviewed at his place of employment by a Mr Stephen Smith, a Mr Skien and a Ms Munro. 9 A letter dated 3 June 1993 was sent to the applicant and was in the following terms: "Dear Mr Hakim I refer to your interview yesterday, 2 June 1993, with Mr Skien, Ms Munro and myself. As promised the following is confirmation of what we spoke about at yesterday's interview and what action is proposed in relation to your employment and Compensation claim. Code of Conduct Inquiry Mr Glen Shilling has been asked to conduct a Code of Conduct Inquiry in relation to your employment with Australia Post. Mr Shilling is the Manager at the Melbourne Airmail Transit Centre and will be in contact with you before 11 June 1993 to arrange an interview. Compensation Claim As advised your Compensation claim will cease close of business 2 June 1993. Please find enclosed a letter outlining the reasons for this decision. Taxi Vouchers Your claims for reimbursement of taxi vouchers was handed to our Security and Investigation Branch yesterday. Australia Post has suspended the reimbursement of any monies in relation to these claims until an investigation has been conducted and completed. A representative from our Security and Investigation Branch will be in contact with you in the near future. If you wish to discuss any of the above matters further, please feel free to contact me. Yours sincerely Stephen Smith for Manager Human Resources Mails Business Unit" 10 In response to the letter dated 1 June 1993, the applicant attended on 9 June 1993 for interview with Mr Shilling, the Manager of the Melbourne Airmail Transit Centre of Australia Post. The applicant's union representative was also present at this interview as was a Mr Murphy, another officer of Australia Post, whose sole purpose was to take notes of the meeting. 11 The applicant was then sent by hand delivery on 18 June 1998 this letter marked "hand delivered Monday 18/6/93": "Dear Mr Hakim You will recall that we met on the 9 June to discuss issues relating to an Inquiry I am conducting into your conduct as an employee of Australia Post. During the discussions, I raised the issue of your claim for re-imbursement for taxi fare costs associated with your (then) compensation claim. At that stage you declined to discuss the issue on the basis that the "taxi fare" issue [had] not been advised to you as being part of the Inquiry. You noted that a letter had been sent to you stating that the issue had been referred to the Security and Investigation Branch of Australia Post. I wish to broaden the Inquiry to include some questions on the "taxi fare" issue because it may help me to more fully understand your conduct. Please note that these questions are separate from Security and Investigation Branch's inquiry. I have made arrangements to again meet with you at Australia Post's State Office at 90 Collins Street on the 7th floor, at 12 noon on Wednesday 23rd June. If this date, time or place is not convenient, would you please contact me to make other arrangements. Glen Shilling Manager Melbourne Airmail Transit Centre" 12 Following legal advice from his union solicitor, the applicant left a telephone message with Mr Shilling that he would not be attending the meeting scheduled for the next day, 23 June, and that he would require one week's notice of any further proposed meeting. The applicant then received this hand delivered letter from Australia Post marked "22/6/93": "Dear Mr Hakim Thank you for telephoning the office today; I am sorry that you declined to attend the meeting arranged for Wednesday 23rd June. I note that you declined to attend on legal advice, and that, in future you require notification one week in advance. I also note that in my letter advising of the meeting for the 23rd, I asked that "if this date, time or place is not convenient", then for you to contact me to make other arrangements. I am sorry that you did not take the opportunity offered to make a more suitable arrangement. The Code of Employee Conduct and Employee Discipline Process does not stipulate the degree of advance notice required prior to a meeting to discuss an employee's conduct. Accordingly, I did not send you the notice with any time-frame in mind; I simply thought that if the appointment was unsatisfactory, then you would elect a time convenient to you. I also note that you declined to attend the meeting on "legal advice". The spirit of the Code of Employee Conduct is to give the employee an opportunity to give every explanation of his conduct in an informal face-to-face discussion. It is an internal (Australia Post) process, free of undue delay and external intervention. I hope that you reconsider my offer for a meeting, so that you can explain any circumstances which may not be evident from the documentation available to me. In the interests of not protracting this matter unreasonably, I would expect to hear from you by 10am Thursday if you wish to take the opportunity to meet. As mentioned in my previous letter to you, the intention of broadening the Inquiry to include aspects of the claim for re-imbursement of taxi fares is to assist me to gain a better knowledge of your conduct – it is not to determine whether an offence has been committed. Glen Shilling Manager – Melbourne Airmail Transit Centre" 13 Subsequently, this letter marked 29 June 1993 was sent to the applicant: "Dear Mr Hakim I have completed an Inquiry into your conduct as an employee of Australia Post. You will recall that discussions took place on Wednesday 9th June with regard to charges and convictions of criminal offences, and whether your conduct which resulted in these charges prejudiced your employment with Australia Post. You will recall that you received two subsequent letters from me advising that I wished to broaden the Inquiry. I wished to discuss with you the issue of your claim for re-imbursement for taxi fare costs associated with your (then) compensation claim. I note that you declined those two requests for a meeting. It cannot be contested that you have been convicted of 9 counts of obtaining property by deception; you admitted guilt both during the court proceedings, and also at interview. I gave you the opportunity to discuss irregularities with regard to the taxi fare re-imbursement claims, however, as mentioned above, you declined that opportunity. On the available documentation, I have concluded that the irregularities are a deliberate deception by you, arranged to obtain a financial gain. I have recommended to the Regional manager (Central), Mails Business Unit, that you be dismissed. The Regional Manager will advise you of his decision on my recommendation. He will also advise you of your rights of appeal with regard to any decision he may make. I have made no recommendation with regard to your existing work status, I assume it will remain as it is at present. Glen Shilling Manager – Melbourne Airmail Transit Centre" 14 Mr Shilling had earlier sent a letter dated 28 June 1993 which was received by Mr McBride, Deputy General Manager of the Mails Business Unit of Australia Post. That letter was in the following terms: "Regional Manger – Central Mails Business Unit. CODE OF EMPLOYEE CONDUCT – INQUIRY INTO THE CONDUCT OF MR. S. HAKIM I have conducted an Inquiry into the conduct of Mr. S. Hakim, Senior Mail Officer, State Mail Officer, and recommend that Mr Hakim be dismissed. It is considered that Mr. Hakim's conduct makes him an unacceptable risk to the integrity of the postal service. I interviewed Mr. Hakim on 9/6/93 in reference to 9 criminal charges to which he had pleaded guilty, and was subsequently convicted. The charges related to 9 counts of obtaining property by deception. During our interview Mr. Hakim claimed he was innocent, although he was not able to satisfactorily explain why he pleaded guilty in court, or why his barrister told the court that Hakim offended because of his heavy betting habit. My recommendation for dismissal is not based solely in the above convictions. Mr. Hakim has a history which suggests that he is not entitled to our trust and confidence. I wanted to ask Mr. Hakim about more than $4,000 in taxi fare expenses he has claimed as part of a Compensation entitlement. There are some irregularities in the vouchers he has submitted. Some of the irregularities are that (i) he claimed taxi fares on dates for which his specialist did not see him, (ii) on five dates he has submitted 2 vouchers, and (iii) his specialist claims to have never seen him arrive for an appointment in a taxi – despite several years of appointments. Mr Hakim, however, declined three invitations to discuss the issue – once during our interview of June 9th, and two subsequent letters from me hand delivered to his home address. Hakim was convicted on 2 counts of forging and uttering in 1987. He was declared bankrupt in June 1986, having borrowed over $44,000 to support a gambling habit. He was served with a second bankruptcy notice in 1992 for $20,000. Whilst bankruptcy in no way suggests that a person is unfit for employment, when combined with the other characteristics of his behaviour which relate to financial deception, the bankruptcies provide support to the conclusion that he has had undesirable ongoing financial pressures on him which indicate that he is not trustworthy. The convictions in 1987 and 1992 prove characteristics in Mr. Hakim that make Australia Post unable to place our trust and confidence in him, and which prejudice the interests of Post. His dismissal is therefore recommended. Glen Shilling Manager – Melbourne Airmail Transit Centre" 15 Mr McBride then wrote to the applicant this letter dated 9 July 1993 ("the letter of dismissal") which recited: "Dear Mr Hakim I have received a report from the Inquiry Officer appointed to conduct an inquiry into your behaviour as an employee of Australia Post. The initial Inquiry related to charges and convictions for criminal offences, and whether your conduct which resulted in those charges prejudices your employment with Australia Post. The Inquiry was broadened to include questions relating to your claim for reimbursement for taxi fare costs associated with your (then) compensation claim. In accordance with the CWU (APTU) Awards and the Australia Post Code of Employee Conduct, I notify that you are dismissed from the employment of Australia Post, effective immediately. You have been dismissed because the deceptive nature of the convictions indicate that you are of untrustworthy character, and this represents an unacceptable risk to the security and integrity of business operations. You have also been dismissed because it has been concluded that you deliberately attempted to fraudulently claim reimbursement of taxi fares. It is also noted that these deceptive characteristics have been prevalent for some time, further exacerbating Australia Post's concern. You have a right to appeal against this decision if you consider it to be harsh, unreasonable or unjust. You must lodge your appeal with the General-Manager, Australia Post, within 21 days of the date of this notification. Yours sincerely Mr P. McBride Regional Manger – Central" 16 On 27 July 1993 the applicant's solicitors wrote to Mr McBride indicating a desire to appeal against Mr Hakim's dismissal and setting out various circumstances which were said to make it harsh, unreasonable and unjust. 17 A Board of Reference ("the Board of Reference") was subsequently constituted on 19 August 1993 and 6 September 1993 to review the decision to dismiss the applicant. A letter was sent to Australia Post and signed by a Mr Kennedy, who was referred to at the foot of the letter as the "Chairman Board of Reference". That letter, which was undated, had attached to it what was described by Mr Kennedy in the letter as " a copy of my decision in the matter of the appeal of Mr S. HAKIM against his dismissal by Australia Post". 18 The attached "decision" was in these terms: "In the Australian Industrial Relations Commission In the matter of an appeal by S. HAKIM against his dismissal by Australia Post on July 9th 1993. Board of Reference Thursday August 19th 1993. Monday September 6th 1993. Senior Mail Officer S. HAKIM was dismissed from his position at the State Mail Centre following his conviction for offences the nature of which caused Australia Post to regard his continued employment as an unacceptable risk to the security of its business operations. In addition Australia Post has concluded that Mr HAKIM had fraudulently attempted to claim reimbursement for taxi fares. Mr P. McBRIDE appeared for Australia Post with Ms L. KEEFE as an observer on 6th September. Mr J. GATTO of the C.W.U. appeared for Mr HAKIM with Mr C. CHIODO (CHIODO and MADAFFERI) as an observer on August 19th. Mr HAKIM also spoke on his own behalf. Before finalising the appeal the Board spoke with D. HORGAN, G. SHILLING and A. PURI. Mr McBRIDE said that Mr HAKIM's conviction involved misappropriation of funds belonging to migrants. Postal Security drew Australia Post's attention to the conviction and also to other previous offences all involving considerable sums of money as well as to Mr HAKIM's gambling habit. Despite a lapse of three months from the date of the conviction (Mr McBRIDE stated that Human Resources was in the process of reorganisation) it was decided that an Inquiry would be held into Mr HAKIM's conduct. The Inquiry Officer notified Mr HAKIM after the Inquiry had begun that he wished to broaden the scope of his discussions to include an allegation that Mr HAKIM had fraudulently attempted to obtain money for taxi fares incurred whilst he was visiting a psychiatrist. Mr HAKIM on advice refused to discuss this matter. The Inquiry Officer had concluded on the evidence that the allegation was proved and on all the evidence before him had recommended dismissal. Mr McBRIDE after due consideration concurred with this recommendation. Mr GATTO objected to the action of Australia Post in broadening the Inquiry. He maintained that there should have been two Inquiries. He drew the Board's attention to Mr HAKIM's twenty five years service with Australia Post during which period he had not been accused of any wrongdoing by his fellow employees or supervisors. There were others with convictions who were working for Australia Post. Mr HAKIM had a workers compensation claim settled in his favour by the Federal Court and taxi fares at least up to that date of settlement should not be subject to further investigation by Australia Post. Mr HAKIM viewed the actions of Australia Post as vengeful. His honesty had never been doubted before and whilst he gambled a bit he was not a gambling addict. The Board is required to determine the appeal having regard to whether the action of Australia Post is unfair, unreasonable, unjust or harsh. Under the Code of Conduct this Board is concerned with Mr HAKIM's conduct as an employee of Australia Post. As Mr GATTO stated a conviction does not necessarily imply than an employee is an unacceptable risk. It is the nature of the conduct which led to the conviction and the relevance of that conduct to the daily duties of Mr HAKIM as an employee which has caused Australia Post concern in this matter. Whilst I share the concern of both Mr GATTO and Mr HAKIM that the scope of an Inquiry should not be arbitrarily broadened it is clear that Mr HAKIM was given ample opportunity to present his side of the story. It is difficult to see how separate Inquiries would have afforded Mr HAKIM a greater measure of procedural justice than he has received. It seems quite reasonable that when confronted with claims for reimbursement of taxi fares after the date of the compensation settlement a competent administration would check such claims. At all events Mr HAKIM offered the board explanations in answer to the allegations re taxi fares made at Inquiry. I did not find these explanations convincing. Mr HAKIM is a family man and has served Australia Post for a considerable period. He stated that his gambling had moderated, that he had made one mistake and Australia Post was "in my blood". Nevertheless his record justifiably gives cause for serious concern. This concern has not been lessened by any enquiries I have made nor by my examination of all the evidence and information before me. I consider that Australia Post has acted reasonably under the Code of Conduct. Dismissal is a severe penalty but in all the circumstances of this case it is justified. The appeal is therefore dismissed." 19 In his application to this Court ("the application"), the applicant claimed, amongst other things: "1. An Order under s 178 of the Industrial Relations Act 1988 imposing penalties for breaches of the Australia Post (Postal Workers) Award 1985. 2. An order that any penalties so imposed be paid to the applicant. 3. An order that the respondent, by its servants or otherwise, be restrained from treating as valid or acting upon the purported notice of termination of the applicant's employment. 4. A declaration that the contract of employment between the applicant and the respondent is still subsisting. 5. In the alternative a declaration that the respondent in trade or commerce, engaged in unconscionable conduct in terminating the applicant's employment." 20 At the trial of the application, it was accepted that the then pending judgment of the High Court in the appeal from the decision of a Full Court of this Court in Byrne v Australian Airlines (1994) 47 FCR 300 was likely to impinge on the present application. It was therefore agreed between the parties that this Court should confine itself to the discrete question of whether Australia Post had committed a breach of the relevant provisions of the Australia Post (Postal Workers) Award 1985 ("the Award"). 21 The applicant contended that Australia Post had been guilty of a breach of cl 4 of the Award which stipulated: "4 – EMPLOYEE CONDUCT AND DISCIPLINE (1) Subject to the provisions of the Industrial Relations Act 1988, as amended, and notwithstanding anything else contained in this Award or in Division 6 of Part V of the Postal Services Act 1975 (or the related Regulations and By-Laws made under the Act): (a) Australia Post shall have the right to dismiss, or transfer to another position of the same or a lower classification, an employee for misconduct, wilful neglect of duty or incompetence or inefficiency for reasons within the employee's control, which warrants such action. (b) In exercising the right in paragraph (a) Australia Post: (i) shall ensure that employees are aware of the general standards of behaviour and performance expected of them by issuing to all employees a Code of Conduct; (ii) shall not take action which is harsh, unreasonable, unjust or unfair; (iii) shall, except where behaviour constitutes serious and wilful misconduct, ensure that employees are counselled and/or given a warning in order to assist them to maintain acceptable standards of behaviour and performance; (iv) shall, except where behaviour constitutes serious and wilful misconduct, ensure that no employee is dismissed or transferred for a first breach of the Code of Conduct; (v) may, where it is necessary to do so prior to reaching a decision, only suspend an employee with pay except where criminal proceedings are pending in which case the suspension may be without pay; (vi) shall furnish written advice to an employee of a decision to transfer or dismiss and of reasons for the decision together with details of the procedures for lodging an application for review. (c) Where action to dismiss or transfer under paragraph (a) is considered to have been harsh, unreasonable, unjust or unfair, the employee concerned may submit an application for review of the action taken to a Board of Reference provided under sub-clause (2). Any such application must be lodged within 21 days of the dismissal or transfer, in accordance with procedures established by Australia Post. (2) Board of Reference (a) A Board of Reference shall be appointed in each State, as necessary, to deal with any application for review arising from paragraph (1)(c). (b) Each Board of Reference shall be appointed by the Industrial Registrar of the Australian Industrial Relations Commission and shall be constituted by a chairman as may be agreed upon by the parties or, where the parties are unable to agree, as nominated by the Industrial Registrar. (c) The Board of Reference shall seek to resolve any application for review submitted to it having regard to whether the action was harsh, unreasonable, unjust or unfair. (3) Transitional Arrangements Where disciplinary action had commenced under the provisions of Division 6 of Part V of the Postal Services Act 1975 before the operation of this clause, the matter that is the subject of the action shall be dealt with to finality under the Postal Services Act 1975, as if this clause were not in operation." 22 The applicant's statement of claim ("the statement of claim") contained these allegations of breaches of the Award by Australia Post: "14. In breach of clause 4(1)(a) of the award and/or in breach of the agreement the respondent terminated the employment of the applicant on grounds other than misconduct, wilful neglect of duty or incompetence, or inefficiency for reasons within the employee's control, and which grounds did not warrant termination of employment. 15 In breach of clause 4(1)(b)(ii) of the award and/or in breach of the agreement the respondent terminated the applicant's employment in a manner which was harsh, unjust, unreasonable or unfair. PARTICULARS (a) The respondent failed to consider the applicant's previous 25 years loyal and faithful service and good conduct in the business of the respondent; (b) The respondent failed to investigate or otherwise make adequate inquiries into the alleged conduct of the applicant; (c) The respondent failed to establish that the alleged conduct of the applicant had any or any sufficient relevant connection to the applicant's employment; (d) The respondent failed to hear the applicant in defence of the allegations against the applicant; (e) The respondent failed to inform or adequately inform the applicant of the allegations or any of them against him; (f) The respondent had regard to matters extraneous to the scope of the inquiry into the conduct of the applicant; (g) The respondent failed to afford the applicant any opportunity to persuade the respondent to take action that fell short of termination of employment; (h) The respondent failed to investigate alternatives to the termination of the employment of the applicant; (i) The respondent dismissed the applicant for reasons other than those disclosed in the reasons for dismissal. 16. In breach of clause 4(1)(b)(iii) of the award the respondent failed to provide the applicant with counselling and/or a warning about his alleged conduct in order to assist him to maintain acceptable standards of behaviour. PARTICULARS The respondent did not give the applicant any counselling or prior warnings that his employment was in jeopardy prior to the events which led to the termination of his employment. 17. In breach of clause 4(1)(b)(iv) of the award the respondent terminated the employment of the applicant for alleged conduct which would have been a first breach of the code of conduct and which did not otherwise constitute serious wilful misconduct. PARTICULARS Prior to the alleged conduct which led to the dismissal of the applicant he previously had not breached the code of conduct." 23 Although paragraph 14 of the statement of claim pleaded that Australia Post had terminated the employment of the applicant for reasons other than those set out in cl 4(1)(a) of the Award, Mr Friend of Counsel for the applicant tended to confine his submissions to the contention that, if the conduct of the applicant which had resulted in his dismissal constituted "misconduct" for the purposes of cl 4(1)(a) of the Award, Australia Post had been in breach of cl 4(1)(b)(ii) of the Award because its actions were nevertheless "harsh, unreasonable, unjust or unfair". 24 Mr Friend then submitted, in the alternative, that the conduct of the applicant had not amounted to "serious and wilful misconduct" for the purposes of sub-cll 4(1)(b)(iii) and (iv) of the Award. It followed, so the argument went, that the failure by Australia Post to counsel the applicant (which was not disputed by Counsel for the respondent) or to give him a warning in order to enable the applicant "to maintain acceptable standards of behaviour and performance" constituted a breach of sub-cl 4(1)(b)(iii) of the Award. The same argument also entailed that the actions of Australia Post in dismissing the applicant "for a first breach of the Code of Conduct" constituted a breach of sub-cl 4(1)(b)(iv) of the Award. 25 In my view however a significant preliminary question, not addressed by Counsel, is what, for the purposes of the Award, was the operative decision that the applicant be dismissed from the employment of Australia Post. It was common ground that Mr Shilling had, in his letter dated 29 June 1993, notified the applicant that: "I have recommended to the Regional Manager (Central), Mails Business Unit, that you be dismissed. The Regional Manager will advise you of this decision on my recommendation. He will also advise you of your rights of appeal with regard to any decision he may make." 26 It was also not in dispute that, after receiving Mr Shilling's letter of 28 June 1993, Mr McBride sent to the applicant the letter of dismissal which included this passage: "I have received a report from the Inquiry Officer appointed to conduct an inquiry into your behaviour as an employee of Australia Post. The initial Inquiry related to charges and convictions for criminal offences, and whether your conduct which resulted in those charges prejudices your employment with Australia Post. The Inquiry was broadened to include questions relating to your claim for reimbursement for taxi fare costs associated with your (then) compensation claim. In accordance with the CWU (APTU) Awards and the Australia Post Code of Employee Conduct, I notify that you are dismissed from the employment of Australia Post, effective immediately." 27 It is also common ground that the applicant submitted an application for review of that decision to the Board of Reference pursuant to cl 4(1)(c) of the Award which is set out above. 28 Sub-clause 4(2) of the Award, it will be recalled, provided for a Board of Reference to be constituted in each State to deal ad hoc with an application under cl 4(1)(c) and contained machinery for a Chairman to constitute the Board of Reference to be appointed by agreement of the parties to the reference or, in default of such agreement, on the nomination of the Industrial Registrar of the Australian Industrial Relations Commission. By paragraph 4(2)(c) the Board of Reference was directed: "seek to resolve any application for review submitted to it having regard to whether the action was harsh, unreasonable, unjust or unfair." 29 In my view, the sub-clauses of the Award to which I have just referred erected machinery whereby an "employee concerned" could exercise a right to obtain a review of a decision of Australia Post by an independent Board of Reference. In exercising its function of seeking to "resolve any application for review", the Board of Reference I consider, and this was not disputed by the parties, was empowered to make a determination binding on both Australia Post and the "employee concerned". This view was apparently shared by the writer of the letter of dismissal who notified the applicant: "You have a right to appeal against this decision if you consider it to be harsh, unreasonable or unjust. You must lodge your appeal with the General Manager, Australia Post, within 21 days of the date of this notification." 30 In Preston v Carmody (1993) 31 ALD 309 at 319 Wilcox J usefully summarised in this way the observations of the Privy Council in Calvin v Carr [1980] AC 574: "In Calvin v Carr [1980] AC 574; 22 ALR 417, one of the issues the judicial committee of the Privy Council had to consider was the effect of a denial of natural justice at first instance (a stewards' inquiry held pursuant to the rules of a racing club) where there had been a fairly conducted appeal (to the club committee) at which the issues were canvassed de novo and new evidence received. The appellant contended that the stewards' denial of natural justice was not cured by the appeal proceedings. The judicial committee disagreed. The committee's advice was read by Lord Wilberforce. He dealt with this issue at AC 591-7; ALR 427-33. At AC 592; ALR 428 his Lordship disclaimed any absolute rule. But he identified some typical situations. At one extreme were: '…cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned.' At the other extreme, Lord Wilberforce said, were cases: '…where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage.' At AC 593; ALR 429 Lord Wilberforce referred to an intermediate class of cases: 'In them it is for the court, in the light of the agreements made, and in addition having regard to the course of the proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the court must consider.'" 31 In the present case the Board of Reference was required pursuant to cl 4(2)(c) of the Award to resolve any application for review by the applicant, having regard to whether the actions of Australia Post had been "harsh, unreasonable, unjust or unfair". In my view, it follows that the Award required the Board of Reference, in resolving an application for review, to consider the merits of the case which gave rise to the decision under review. I am confirmed in this view by the absence from the Award, an industrial instrument binding on both Australia Post and its employees, of any restriction on the procedures to be adopted by a Board of Reference in coming to its resolution. In common with one of the features in Calvin v Carr instanced by Lord Wilberforce, the Award does not empower the Board of Reference to remit the decision of Australia Post for reconsideration. Nor was there any restriction on the way in which the Board might receive evidence. In my view, the Award clearly contemplated that the Board of Reference, upon being seised of an application for review, would conduct a fresh hearing of the matter and come to a resolution by forming its own opinion, in the light of the evidence before it, of whether the action of Australia Post had been harsh, unreasonable, unjust or unfair. In this regard, the procedure contemplated by the Award was, in my view, akin to that described by Lord Wilberforce in that "…the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned." 32 It follows therefore that the decision of Australia Post to dismiss the applicant could not constitute a breach of cl 4 of the Award. In my view, the Award contemplated that a decision of Australia Post would be superseded by a decision of the Board of Reference if the employee elected to apply for review of a decision taken by Australia Post under cl 4(1)(a). There has been no suggestion that Australia Post attempted to frustrate or prevent the applicant from exercising his rights pursuant to cl 4(1)(c) of the Award. Consequently, this Court is not required to consider what, if any, procedural irregularities or substantive errors of law may have attended the decision of Australia Post on 9 July 1993 to dismiss the applicant. Nor has it been necessary for this Court to review the resolution of the Board of Reference to dismiss the application. On its proper construction, the Award did not subject a resolution of the Board of Reference, unlike a decision by Australia Post, to the requirements of cl 4(1) of the Award. Rather, the Award created the Board of Reference as an independent arbiter to ensure that an employee's dismissal would not be harsh, unreasonable, unjust or unfair. 33 Of course, in discharging its functions under the Award, the Board of Reference was under a duty to act judicially and accord natural justice to the applicant and was, accordingly, amenable to judicial review in the exercise of the jurisdiction of this Court. However, apart from the tender in evidence of the reasons for decision of the Board of Reference, no attention has been directed to the proceedings before the Board or the validity of its conclusion. Since, for the reasons which I have explained, the events which led to the resolution of the matter by the Board of Reference could not amount to a breach of the Award, the application must be dismissed. I certify that this and the preceding (17) seventeen pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.