Industrial Relations Commission New South Wales Medium Neutral Citation: Romeo v Griffith City Council [2023] NSWIRComm 1015 Hearing dates: 17 February 2023 Date of orders: 22 February 2023 Decision date: 22 February 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. Rocco Romeo is to be reinstated to the position he held with the Griffith City Council immediately before his dismissal on 12 October 2022 on the terms and conditions that applied to his position at that time. 2. Order 1 is to take effect from Monday, 6 March 2023. 3. The period between 12 October 2022 and 6 March 2023 is not to count as service by Mr Romeo for any purpose. 4. Despite order 3, the period of employment of Mr Romeo with the Council is to be taken as not having been broken by the dismissal Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee had driver's licence suspended – failure to declare suspension – dishonesty when confronted with that failure – dismissed for dishonesty – whether dismissal harsh, unreasonable or unjust Legislation Cited: Evidence Act 1995 s 140 Industrial Relations Act 1996 ss 84, 88, 89 Cases Cited: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Hernandez v Bayton Group Unit Trust [2005] NSWIRComm 1087 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 North v Television Corporation Ltd (1976) 11 ALR 599 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Shakir v Department of Family and Community Services (2017) 270 IR 155; [2017] NSWIRComm 1040 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: Nil Category: Principal judgment Parties: Rocco Romeo (Applicant) Griffith City Council (Respondent) Representation: S Geddes, USU (Applicant) C Fesel, Williamson Barwick (Respondent) File Number(s): 2022/00317370 Publication restriction: No DECISION 1. Rocco Romeo was employed by the Griffith City Council ("Council"). His employment commenced on 19 October 1998. At the time of the events giving rise to these proceedings, he was employed in the position of Team Leader – Traffic Facilities. 2. The position description for Mr Romeo's role set out its "Key Selection Criteria". These included that it was "essential" that the incumbent "[h]old a Australian driver licence class MR or equivalent". 3. On approximately 6 May 2022 Mr Romeo was notified by Roads and Maritime Services that, as a consequence of him having committed certain traffic offences, his driver's licence was to be suspended from 10 June 2022 for a period of six months. Mr Romeo did not inform the Council of this suspension. The Council became aware of the suspension through a report received from one of its employees on or about 1 September 2022. 4. On 2 September 2022 Mr Romeo was called to a meeting with Manjit Chugha, the Works Manager – Maintenance for the Council (Mr Romeo's direct manager) and Shree Shrestha, the Council's Works Manager – Construction. Mr Romeo was accompanied by Anthony Catanzariti, a Traffic Facilitator employed by the Council, as his support person. During this meeting, Mr Romeo: 1. confirmed that he had "lost" his licence; 2. confirmed that he had not told anyone at work, but that he was unaware that he was required to; and 3. stated that he "lost" his licence on approximately 10 August 2022, for a period of three months. 1. On 5 September 2022 the Council suspended Mr Romeo with pay while the matter was investigated. 2. On 13 September 2022 Mr Romeo attended a meeting with Mr Chugha and Kylie Carusi, the Council's HR & Risk Manager. He was accompanied by Jason Mitchell, an Organiser with the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"). The minutes of this meeting record Mr Romeo as stating that: 1. his licence had been suspended on 10 August 2022 until 10 December 2022; 2. he had received a letter confirming that his licence was to be suspended for four months; 3. he was unable to provide a copy of the letter as he had thrown it out to avoid his wife finding it; 4. since his licence had been suspended he had driven a Council vehicle "a couple of times in the depot"; 5. he had not notified anyone at the Council about the suspension. When asked why he had not done so, he responded: "I have been going through a lot of health issues. It wasn't that I didn't want to tell James, I had a lot of stuff on my mind… Everytime I was going to tell him I had anxiety and couldn't do it. I normally tell James everything, I told James about my health issues. I understand that I should have spoken to him. I should have told him…and I know by not telling him and what I have put council through." (Sic) The reference to "James" was clarified in the meeting as being to James Taliano, the Works Coordinator at the Council; and 1. he was aware that holding a driver's licence was an essential requirement of his position. 1. When asked during the meeting whether he had anything to add, Mr Romeo stated: "My health issues, I realise I just wasn't thinking and I am remorseful. I have been here for 24 years and this should be considered with the outcome. The health issues over the past 12 months have been pretty serious." 1. Also during this meeting, Mr Romeo handed to Mr Chugha a letter from his treating practitioner, Dr Roger Thompson-Seagrave, dated 6 September 2022. That letter stated that Mr Romeo had had a "difficult time" over the past 12 months, as he had suffered from bladder cancer needing surgery, severe hypertension, severe nasal construction with sleep apnoea needing surgery, and depression. 2. On 19 September 2022 Mr Romeo attended a Services NSW office and obtained a copy of the letter which he had originally received informing him of the suspension of his licence. On the same day he gave Ms Carusi a copy of that letter. It was ripped and incomplete. It can be seen, though, that it was dated 6 May 2022 and confirmed the period of suspension was six months, from 10 June 2022 to 10 December 2022. Mr Romeo claimed to have found the letter in his car. 3. Also on 19 September 2012, Mr Romeo attended a meeting with Mr Chugha and Ms Carusi, again in the company of Mr Mitchell of the USU. Mr Romeo was asked to provide to the Council a copy of his full driving history. He subsequently complied with this request. The driving record contained an entry that on 19 September 2022 a copy of the letter of 6 May 2022 had been emailed to the "Griffith Service Centre" at Mr Romeo's request. This alerted Ms Carusi to the likely untruth of Mr Romeo's statement to her that he had found the letter in his car. 4. On 23 September 2022 Phillip King, the Council's Director, Infrastructure & Operations, wrote to Mr Romeo. Amongst other things, the letter: 1. set out the findings that had been made regarding Mr Romeo's conduct, including that he had failed to report the suspension of his licence; that he had provided misleading information as to the duration of the suspension; and, he had driven a Council vehicle on Council property since his licence had been suspended; 2. acknowledged and expressed sympathy for Mr Romeo's "medical diagnosis"; 3. set out the basis on which it was alleged that Mr Romeo had breached the Council's "Code of Conduct". I observe parenthetically that the Code of Conduct is not in evidence; 4. referred to warnings that Mr Romeo had received during his employment. The first, issued on 31 January 2018, related to his failure to adhere to the Council's work health and safety policy. The second, issued on 28 September 2021, was in response to Mr Romeo not having accurately recorded his finishing time on his timesheet; and 5. invited Mr Romeo to show cause why the Council "should not bring [his] employment to an end, by notice, with payment in lieu". 1. Mr Romeo responded to Mr King's letter with his own, dated 3 October 2022. His letter included the following: "I fully understand the significance of my actions and would like to take this opportunity to formally apologize to council and address the concerns raised. … Prior to the time of losing my licence in June I had recently been diagnosed with prostate and bladder problems by my GP. This led to further procedures and ultimately surgery for bladder cancer in July 2022, as a result I was struggling to cope what my future may look like. I had tried several times to approach my supervisor and discuss my loss of licence however could not as anxiety overcame me. Addressing the issue became harder the longer I left it. … I readily admit that I mislead council on 13th of September, I at this stage could not see a way of ending the lie I had started so carried on with the deception. Subsequent documents I provided although truthful were presented as though I had forgotten the actual dates of my licence loss. Ultimately my dishonesty was exposed and I regret not informing Council as soon as I lost my licence. I displayed extremely poor judgement at this time and felt close to a mental breakdown. I had been seeking support with my mental health as my anxiety was extremely high in relation to my medical treatment. … … I accept that my behaviour warrants punishment and I offer to take leave, accept a demotion, change of duties or any training Council the necessary to continue my employment." (Reproduced verbatim) 1. Included with Mr Romeo's letter was a further letter from Dr Thompson-Seagrave which stated: "I have been Rocco Romeo's doctor for several years and in the last 6 months Roy's emotional state has been affected by ongoing health issues. These issues are as follows: High Blood Pressure Anxiety & Depression Severe Obstructive Sleep Apnea [sic] (required overnight stay at Woolcock Institute in Glebe, Sydney) Bladder Cancer (removal of tumour) Enlarged Prostate (required 2 procedures in Wagga) Deviated Septum (requiring nose surgery early next year 2023 in Wagga) Roy's anxiety and frame of mind has not been good whilst he was going through all of these health issues." 1. Mr Romeo also included with his letter to the Council a letter from Melina Furore, a therapist at the Griffith Sleep Apnoea Clinic, dated 27 September 2022. That letter stated that Mr Romeo had been diagnosed with severe obstructive sleep apnoea which had caused him anxiety. 2. On 12 October 2022 Brett Stonestreet, the General Manager of the Council, wrote to Mr Romeo. The letter stated in part: "As you are aware the conduct issues referred to in the Letter [of 23 September 2022] essentially relate to you lying about a matter that is materially relevant to the employment relationship and it amounts to serious and wilful misconduct such as to justify summary dismissal. … Critically, during the investigation into that matter, you lied to Council when initially questioned about the length of the suspension of your driver licence having initially failed to declare the Council that your driver licence was suspended. Your dishonesty led to Council investigating the matter, allowing for a period of time to properly assess the matter and permit you to redress the dishonesty. Council is most concerned that the conduct in question amounts to misrepresentation and dishonesty that are inconsistent with the ethical framework of Council and its Code of Conduct and that such matters go to the very core of the employment relationship. Your acts of dishonesty were destructive of the mutual trust between the employer and employee, once discovered in Council's view authorises summary dismissal. I now advise you that Council has carefully considered the matters raised in your Response [of 3 October 2022], including your medical circumstances which was supported by medical evidence. Although Council is sympathetic towards your present circumstances in particular your medical circumstances, it cannot ignore your blatant dishonesty. Whilst you subsequently admitted to dishonesty in the Response which in some respects, was commendable, your conduct was nevertheless a relevant consideration that cannot be overlooked given the type and gravity of your conduct. I have considered your length of service with Council, seniority, experience, level of remuneration, personal circumstances, your age and contribution to Council in deciding whether to terminate your employment or to impose a more lenient decision in this matter, such as a demotion as suggested by you in the Response." 1. The letter went on to inform Mr Romeo that he was dismissed with effect from the same day, and that he would receive five weeks pay in lieu of notice. 2. On 24 October 2022 Mr Romeo commenced these proceedings, pursuant to s 84 of the Industrial Relations Act 1996 ("Act"). He seeks orders under s 89 of the Act that he be reinstated to his employment with back pay. Legislation and legal principles 1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 ("Danwer"): "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. While my consideration of this matter is informed by the above passage, I find the following observations of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 to be instructive: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465." 1. Section 88 of the Act sets out matters which the Commission may, in determining a claim, take into account. It is not necessary that the provision be reproduced. 2. To be entitled to any remedy under the Act, the onus is on Mr Romeo to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 3. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct, as is the case here, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84. 4. The misconduct must be established on the balance of probabilities. While the Commission is not bound by the rules of evidence, I am guided in this regard by s 140 of the Evidence Act 1995. Was the dismissal unjust? The reasons for the dismissal 1. The Council dismissed Mr Romeo for being dishonest. This is clear from the terms of Mr Stonestreet's letter of 12 October 2022. The dishonesty to which Mr Romeo admitted in his letter of 3 October 2022 and in these proceedings, was the following: 1. stating during the meeting of 2 September 2022 that his licence had been suspended from 10 August 2022 for a period of three months; 2. stating during the meeting on 13 September 2022 that his licence had been suspended from 10 August 2022 for a period of four months; and 3. telling Ms Carusi that he had found the letter from Roads and Maritime Services of 6 May 2022 in his car. 1. It is not entirely clear whether the dishonesty on which the Council relied to terminate Mr Romeo's employment included his failure to declare the suspension of his licence. The Council adduced no evidence of an express obligation on Mr Romeo to have informed it that his licence had been suspended. Even so, such an obligation might be said to arise from the fact that the holding of a licence was an essential requirement of his position. 2. While there is room for doubt, I will proceed on the basis that Mr Romeo's failure to disclose the suspension of his licence falls within the dishonesty for which he was dismissed. 3. During the proceedings, there was some attention drawn to the requirement of Mr Romeo's role that he hold a drivers licence, and the extent to which modifications could have been made in the workplace to allow him to continue to work during the period of suspension. As the Council did not rely on the suspension of the licence per se to justify Mr Romeo's dismissal, but only on his dishonesty, there is no need to traverse those matters. 4. Similarly, in its submissions and evidence, the Council placed some reliance on the fact that Mr Romeo admitted to having driven a Council vehicle in the depot while his licence was suspended. In his statement, Mr Stonestreet offered forceful opinions as to Mr Romeo's conduct demonstrating a "blatant disregard for the law", by conducting himself in breach of road traffic laws and work health and safety legislation. He referred to the potential risks to the Council arising from Mr Romeo's behaviour. These risks were echoed in the submissions advanced at the hearing by the Council. 5. Leaving aside significant doubts as to the accuracy of Mr Stonestreet's legal conclusions, there is no suggestion in his letter of 12 October 2022 that these concerns were relevant to the decision to dismiss Mr Romeo. For that reason, I have afforded no weight to the evidence and submissions led by the Council on these matters. The dishonesty was admitted 1. In his letter to Mr King of 3 October 2022, and in his evidence in these proceedings, Mr Romeo accepted that he should have, but did not, inform the Council of the suspension of his licence. More seriously, he admitted to having been dishonest in responding to the questions put to him during the meetings on 2 and 13 September 2022 as to the date on which the suspension commenced and its duration. He also admitted that he was dishonest on 19 September 2022 when he told Ms Carusi that he had found the letter from Roads and Maritime Services of 6 May 2022 in his car. 2. In his evidence to the Commission, Mr Romeo sought to portray his conduct at the meeting on 2 September 2022 as being "upfront". He stated that he "didn't lie" when asked if his licence had been suspended and had been "upfront when asked about the loss of [his] licence". This is correct, but only to a point. 3. In that meeting, Mr Romeo stated unequivocally and untruthfully that his licence had been suspended from 10 August 2022, for a period of three months. In his evidence in these proceedings he stated that the information he provided to the Council was based on his "belief" at the time. However, he was aware that the suspension would end in December, and he must be taken to have been aware that the period of suspension was six months. This is not the conduct of an employee being "upfront". 4. An employer is entitled to honesty from an employee, and vice versa: Hernandez v Bayton Group Unit Trust [2005] NSWIRComm 1087 at [1] (Commissioner Cambridge). As it was found in that case, dishonesty by an employee to their employer can justify their summary dismissal. 5. In Shakir v Department of Family and Community Services (2017) 270 IR 155; [2017] NSWIRComm 1040 Commissioner Newall observed: "65. …Whether the action of an employee amounts to misconduct will generally depend on whether the act strikes at the heart of the employment relationship: Re Dispute – Dismissal of Union Delegates at Homebush Abattoir [1966] AR 371. The ordinary relationship of employer and employee is one importing implied duties of honesty and trust: Concut Pty Ltd v Worrell (2000) 103 IR 160, so this act did strike at the heart of the employment relationship. That is why deceit by an employee of an employer is a serious matter, whether or not it is associated with fraud, and will generally disincline the Commission to intervene in a dismissal: Re Tooth & Co re Walker and Moar [1972] AR 130 at 142. And as the Commission observed in Electricity Commission of NSW t/as Pacific Power v Nieass (1995) 81 IR 46, albeit in consideration of the need for warnings, no employee of ordinary understanding needs to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told they should be careful in crossing the street." 1. In his repeated acts of dishonesty towards the Council, which are admitted, Mr Romeo engaged in misconduct. To adopt the language in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24, adopted in Danwer in the passage to which I have previously referred, it is beyond doubt that he was guilty of the misconduct on which the Council acted. Mr Romeo's mental health 1. Mr Romeo deposed that the medical issues with which he had been dealing in 2022 had affected his mental wellbeing. This was said to explain why he failed to declare the suspension of his licence. Mr Romeo deposed under cross-examination that he had wanted to inform the Council about the suspension but could not as he "just panicked". 2. His condition was similarly said to explain his dishonesty when he was subsequently confronted with failing to disclose the suspension. In his written evidence he stated that he was "behaving in a way that in hindsight at more clarity was irrational and out of character". In his oral testimony he described himself as having been at a "low point in his life" during which his "thinking wasn't right". 3. I have referred at [8], [13] and [14] above to the medical information provided by Mr Romeo to the Council prior to his dismissal. The health issues identified in this evidence are significant. It is uncontroverted that Mr Romeo had faced and was facing serious health issues, which had caused anxiety and depression requiring medication. 4. The medical information provided by Mr Romeo appears to have been given little weight by the Council. There is no evidence of any discussions with him regarding his medical condition, and nor was any additional information sought. 5. Mr Stonestreet seems largely to have discounted the letters from Mr Romeo's treating practitioners on the basis that he was "unable to see a connection between [Mr Romeo's] health issues during the 6 months preceding the termination of his employment with his dishonesty". That lack of apparent "connection" was one to which Mr Stonestreet referred several times during his oral testimony. In effect, as the letters from Mr Romeo's treating practitioners did not "draw a connection" between his medical condition and his dishonesty – that is, they did not on their terms state that Mr Romeo had been dishonest because of his medical condition – they seem to have been regarded by Mr Stonestreet as having little relevance. 6. It is correct that none of the letters from Dr Thompson-Seagrave or Ms Furore draw a causal connection between Mr Romeo's condition and his misconduct. Indeed, the letters make no reference at all to the misconduct alleged against Mr Romeo. 7. However, the medical information certainly raises questions as to the extent to which Mr Romeo's mental health may have affected his decision-making, such that he ought not to be held fully accountable for his dishonesty. There is no evidence that the Council made any enquiries of Mr Romeo to clarify these matters. The Council "investigated" Mr Romeo's dishonesty, but cannot be said to have meaningfully explored the mitigating circumstances that he put forward. Instead, it seems to have put him strictly to the proof of demonstrating that his dishonesty was the direct result of his mental health condition. On this basis, the letters he provided were read strictly on their terms and no further enquiries made. 8. In saying this, I acknowledge that Mr Romeo's invocation of his mental health has generally been couched in all-encompassing, generalised terms. There is a suggestion that his reliance on it has been changeable. Mr Chugha stated that Mr Romeo did not raise mental health issues during the meeting on 2 September 2022. At the meeting on 13 September 2022, Mr Romeo referred to his medical issues as an excuse for him not having notified the Council that his licence had been suspended. He said nothing at that time to indicate that his mental health impeded his ability to engage fully and properly with the investigation process. Later, when caught out in the several lies that he had told to the Council, he invoked his health issues as having caused him to act in a manner contrary to his usual character, that is, by lying. In his testimony in these proceedings it was my impression that Mr Romeo met any suggestion of criticism – such as a faulty recollection or an omission – with a broad ranging statement as to his poor mental health. 9. The Council drew my attention to Mr Romeo's statement in his letter to Mr King of 3 October 2022 that he "could not see a way of ending the lie [he] had started so carried on with the deception". As the Council submitted, this suggests a consciousness of wrongdoing. 10. Despite these matters, there was evidence available to the Council that might have explained Mr Romeo's behaviour in 2022, at least in part. It was not given the attention it deserved. The Council should have made further enquiries before discounting the medical information provided by Mr Romeo. Gravity of the misconduct 1. It is clear from Mr Stonestreet's letter of 12 October 2022 that one of the reasons why Mr Romeo's medical circumstances had been discounted was his "blatant dishonesty". To the extent that Mr Stonestreet's position was informed by the view he held as to the seriousness of Mr Romeo's behaviour, it is necessary to examine the misconduct. 2. Mr Romeo lied to his employer and, as I have already found, that was misconduct. However, the substance of the dishonesty was of limited consequence. Mr Romeo lied about the provenance of the letter from Roads and Maritime Services, but the genuineness of the letter itself was not challenged. Mr Romeo was dishonest about the period for which his licence had been suspended, but not about the suspension itself. No suggestion was advanced by the Council that Mr Romeo stood to gain by engaging in the dishonesty. His motivations for lying were not explored during the hearing. 3. The Council submitted that Mr Romeo's behaviour was at "the high end of misconduct", or at the least above the mid-level of seriousness. I do not accept those submissions. 4. Mr Romeo was a team leader. This was a position of some responsibility, which required him (according to his position description) to "lead a small crew" and to "supervise, and co-ordinate crew activities". His misconduct was inconsistent with a person in a supervisory position. Even allowing for that, however, the objective seriousness of Mr Romeo's dishonesty does not rise to the point of being at the higher end of the scale of misconduct. Conclusion 1. Mr Romeo engaged in misconduct. However, that is not only consideration. In North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 Smithers and Evatt JJ observed: "It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground 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. … For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289 , are in point. He said:— To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows 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 of service. … 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 conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions." 1. Having regard to these principles, I am not persuaded that the Council has met its onus of demonstrating that Mr Romeo's misconduct warranted the termination of his employment, much less on a summary basis. I find that the dismissal was unjust. Was the dismissal unreasonable? The Award 1. Mr Romeo's employment with the Council was subject to the Local Government (State) Award 2020 ("Award"). Mr Romeo argued that his dismissal was contrary to cl 37 of the Award. That provision, titled "Disciplinary Procedures", relevantly provides: 37. Disciplinary Procedures … D. DISCIPLINARY PROCEDURES (i) Where an employee's work performance or conduct is considered unsatisfactory, the employee shall be informed in the first instance of the nature of the unsatisfactory performance or conduct and of the required standard to be achieved, by the employee's immediate supervisor or other appropriate officer of the employer. The employer and employee will discuss the reason(s) for the unsatisfactory work performance or conduct including matters external to the workplace, and, where appropriate, measures to assist the employee to improve their work performance or conduct. … … (iii) Where there is re-occurrence of unsatisfactory work performance or conduct, the employee shall be warned formally in writing by the appropriate officer of the employer and counselled. Counselling should reinforce the standard of work or conduct expected and, where the employee is failing to meet these required standards, a suitable review period for monitoring the employee's performance; the severity of the situation; and whether disciplinary action will follow should the employee's work performance or conduct not improve. … (iv) If the employee's unsatisfactory work performance or conduct continues or resumes following the formal warning and counselling, the employee shall be given a final warning in writing giving notice of disciplinary action should the unsatisfactory work performance or conduct not cease immediately. (v) If the employee's work performance or conduct does not improve after the final warning further disciplinary action may be taken. … E. PENALTIES (i) After complying with the requirements above, the employer may: (a) Demote the employee to a lower paid position or a lower salary point/step provided that the employee shall not suffer a reduction in the rate of pay for 2 weeks from the date of the demotion. (b) Suspend the employee without pay from work for a specified period of time. (c) Terminate the employment of the employee in accordance with Clause 40, Termination of Employment, of this Award. (ii) Notwithstanding the above, the employer may take appropriate disciplinary action before and/or during the procedures in subclause 37D in cases of misconduct or where the employee's performance warrants such action. 1. The Council had not gone through the process in cl 37(D) of the Award prior to dismissing Mr Romeo. It contended that the dismissal was conducted in keeping with cl 37(E)(ii). The contest between the parties is whether, to use the language of Mr Romeo's written submissions, his conduct "rose to the level to warrant termination of employment skipping the disciplinary procedure of the award". 2. This contest is addressed by my finding that the dismissal was unjust. That finding leads to the conclusion that the Council was not entitled to rely on cl 37(E)(ii) of the Award. Reliance on prior disciplinary history 1. Mr Romeo alleged unfairness in the Council's reliance on his prior disciplinary history. He submitted that "after the fact [he] has been told that part of the basis of the decision was based on previous matters however at no point was this made clear to [him] nor was reasonable opportunity provided to mount a defence against those prior matters being a consideration in determination". 2. This submission is not supported on the evidence. Mr King's letter to Mr Romeo of 13 September 2022 made it clear that the Council was having regard to the warnings he had been issued in 2018 and 2021. Mr Romeo had every opportunity to "mount a defence" against those warnings being taken into account. 3. In his evidence, Mr Romeo sought to call into question the legitimacy of the previous warnings, at least in part. I do not place any weight on that evidence. It is not the role of the Commission in these proceedings to conduct a review of earlier disciplinary processes involving Mr Romeo. Modification of duties 1. Mr Romeo contended that the dismissal was unfair as the Council should have modified his duties so that he would not be required to drive while his licence was suspended. This was an argument he raised in his letter to Mr King of 3 October 2022 and which was repeated in his evidence before the Commission. 2. I do not consider that the dismissal was unreasonable on this basis. Mr Romeo was not dismissed because his licence had been suspended. His dismissal followed his failure to declare that suspension and his subsequent dishonesty when that failure was investigated. It is a matter of (futile) conjecture as to how the Council would have approached the situation had Mr Romeo "come clean" when he was first notified of the suspension in May 2022. 3. Further, it is always open to an employer, when confronted with an employee's misconduct, to decide to take action other than dismissal. The Council could have elected to accommodate him in the manner Mr Romeo suggests. However, it does not follow that the Council was obliged to do so. An argument could not be maintained that in all cases involving misconduct, dismissal is to be regarded as a measure of last resort, to be taken only when options for workplace modifications and redeployment have been exhausted. Procedural fairness issues 1. Mr Romeo claimed that unfairness arose from the manner in which the Council conducted its investigation. In particular, this was said to be the alleged failure of the Council to interview relevant witnesses, such as co-ordinators and supervisors. This failure was said to have resulted in "little to no consideration [being] given to the views of the individuals that work directly with [Mr Romeo] on a day-to-day basis including the supervisors who have stated they would happily see [Mr Romeo] returned to the workplace and generally view [him] as trustworthy". 2. Mr King stated that he did not approach Mr Romeo's supervisors and coordinators as he did not have information to suggest that they had any knowledge of the matter being investigated, that is, the suspension of Mr Romeo's licence. That is understandable. I do not consider it a denial of procedural fairness for Mr King or the Council to have failed to solicit what would in effect be testimonials from Mr Romeo's co-workers. Further, an employer is not required to canvass the views of the workforce as to what disciplinary action ought to be taken against an employee who is found to have engaged in misconduct. 3. Mr Romeo alleged a number of procedural irregularities in the way in which the meeting of 2 September 2022 had been conducted. In short these were said to be failures by the Council to inform Mr Romeo of the true purpose of the meeting; to arrange for an official of the USU to be present, which was said to be non-compliant with the Award; and, to disclose to Mr Romeo the name of the person who had reported to the Council that he had lost his licence. 4. The purpose of the meeting was to identify whether there was a matter requiring investigation at all. In that context, I am not persuaded that there was an obligation to arrange for the attendance of a USU official. I observe that Mr Romeo did have a support person present. While Mr Chugha admitted that he had invited Mr Romeo to attend the meeting on a pretext, he said that he did so in order not to unduly alarm Mr Romeo, and out of concern that co-workers may have been able to hear the conversation. In light of the purpose of the meeting, this subterfuge did not meaningfully affect the fairness of the meeting. Finally, while Mr Romeo contended that the identity of the complainant would be relevant to an investigation, he failed to explain why. 5. There was no denial of procedural fairness in the process culminating in the dismissal. Mr Romeo was informed of the Council's concerns at the meetings on 2, 13 and 19 September 2022. The Council set out its allegations against him, and informed him that it was considering terminating his employment, in Mr King's letter of 23 September 2022. He had, and availed himself of, the opportunity to respond to that letter. Conclusion 1. For the reasons I have set out, I find that the Council's apparent reliance on cl 37(E)(ii) of the Award was misguided. To that extent only, the dismissal was unreasonable. Was the dismissal harsh? 1. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted) 1. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 the Full Bench remarked: "Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent." 1. Mr Romeo relied on his recent medical history to argue that the termination of his employment was harsh. There are two limbs to his case in this regard. 2. The first limb is that the Council, being aware of the health issues that Mr Romeo had dealt with or was dealing with, acted harshly in terminating his employment. In light of the discussion above, this is a relevant consideration in determining whether the dismissal was harsh. 3. The second limb of Mr Romeo's argument is to assert the effect that the dismissal has subsequently had on his health. Mr Romeo asserted that his dismissal had "severely affected" his life; had resulted in his mental health "seriously declining"; and had resulted in an increase in the medications he is required to take. He also claimed that his dismissal had affected his family. 4. In unfair dismissal proceedings, the Commission does not conduct a hearing de novo and stand in the shoes of the decision-maker, to decide what disciplinary action to impose in light of substantiated misconduct. Its task is to determine whether the sanction of dismissal was harsh, unreasonable or unjust at the time it was imposed. In that context, evidence as to the post-termination impacts of a dismissal is of limited assistance. 5. In his written submissions, Mr Romeo also drew attention to his length of service, his age, the fact that he lives in a regional community and possessing skills "which are specialised to the role he held at Council". There is no evidence to support the latter submission. I accept that Mr Romeo's age, length of service and location in a regional centre are all properly matters to which I should have regard in determining whether the dismissal was harsh. 6. Mr Romeo had approximately 24 years of service at the time he was dismissed. Such a lengthy tenure counts in his favour. However, it is qualified by three factors. First, in my view, length of service "cuts both ways" – the longer an employee's period of service, the more they can be expected to be aware of the conduct expected of them by their employer. Second, as already stated, Mr Romeo was a team leader. His misconduct was inconsistent with the supervisory responsibilities he held. Third, Mr Romeo had received two warnings during his employment. It follows that his service was not unblemished. 7. These matters do not, however, outweigh the recognition that ought to be afforded to a 24 year tenure. Mr Romeo's length of service is properly a matter to take into account in determining whether his dismissal was harsh. 8. There is little evidence of Mr Romeo's personal circumstances, other than that he has "a family with children" or, as he put it in his oral testimony, he is "married with three young kids". There is no evidence of his financial situation. 9. Mr Romeo is 54 years of age and resides in Griffith. There is no evidence of any attempts by him to secure alternative employment, and so little basis on which to assess the actual impact his age and location have had on his employment prospects. 10. That said, in the statement of Mr Stonestreet originally filed with the Commission, he stated: "25. I have further considered the potential for economic hardship the termination of Mr Romeo's employment might create for him and the difficulties he is likely to face in finding comparable employment in country areas although he did not provide Council with any evidence to demonstrate hardship or such potential difficulties. … 28. On 12 October 2022, I took the decision to proceed with the termination of Mr Romeo's employment with Council due to serious misconduct. In doing so, I ensured that Council paid Mr Romeo a sum of money equivalent to 5 weeks' pay in lieu of notice in addition to his statutory entitlements notwithstanding that Council was not obliged to give him pay in lieu of notice given that he was being dismissed for serious misconduct pursuant to clause 40(iii) of the Local Government (State) Award 2020 to cushion the adverse impact of the dismissal [sic] would have on him due to the matters I have referred to in paragraph 25 above." 1. In his oral testimony, Mr Stonestreet amended par 25 of his statement, so as to replace "likely" with "unlikely". He deposed, in short, that due to a "skills shortage" Mr Romeo should be able to find alternative employment. 2. I found this evidence unpersuasive. It is difficult to reconcile par 28 of Mr Stonestreet's statement to the amendment he made to par 25. 3. In any event, Mr Stonestreet's views as to the state of the labour market as at the date of the arbitration have little bearing on my consideration. The question is whether the dismissal was harsh as at the date it occurred. On the evidence as a whole, I am satisfied that as the date of the dismissal the Council accepted that Mr Romeo might face difficulties in securing alternative employment due to his age and regional location, and sought to ameliorate that fact by making a payment in lieu of notice. 4. In his letter of 12 October 2022 Mr Stonestreet made reference to Mr Romeo's "length of service with Council, seniority, experience, level of remuneration, personal circumstances, your age and contribution to Council". That letter, read in conjunction with Mr Stonestreet's evidence in these proceedings, demonstrate that those matters informed Mr Stonestreet's decision to make a payment to Mr Romeo of five weeks' pay in lieu of notice, which in the Council's view was not required to be paid. I accept that to this extent the Council recognised and sought to ameliorate the harshness of the dismissal. I do not, however, consider that its efforts were sufficient. 5. On balance, I find that the dismissal was harsh having regard to Mr Romeo's age, length of service, regional location and his medical condition at the time of his dismissal. Remedy 1. I have found that the dismissal was unjust, unreasonable and harsh. The question which arises is what, if any, order ought to be made under s 89 of the Act. 2. Mr Romeo seeks reinstatement. It is well established that under the Act reinstatement is the primary remedy if a finding is made that a dismissal is harsh, unreasonable or unjust: Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 at [20]; Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 at [62]-[63]. Alternative remedies available under s 89 only arise for consideration if the Commission considers that reinstatement would be impracticable. 3. Mr Romeo relied on statements from a number of employees at the Council, who each expressed the view that they would welcome him back to the workforce. 4. The Council did not make any submissions as to what remedy ought to be awarded in the event that the dismissal was found to be harsh, unreasonable or unjust. No evidence was led by the Council which would support a finding that Mr Romeo's reinstatement would be impracticable. I acknowledge that in his letter of 12 October 2022 Mr Stonestreet expressed the view that Mr Romeo's behaviour was "destructive of the mutual trust between the employer and employee". However, little weight can be attached to that view in light of my finding that the dismissal was unjust. 5. In the circumstances of this case I find the following passage from Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 to be informative: "35. The appellant sought reinstatement and compensation for wages lost as a result of the dismissal. In considering the practicability of reinstatement, we are very mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-192 where their Honours observed that 'each case must be decided on its own merits' but that 'in most cases, the employment relationship is capable of withstanding some friction and doubts'. As their Honours observed further, 'what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive' and that 'if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v Commissioner of Police (No 2) (88 IR at pp 341-342), CCH Australia Ltd v Bowen (1998) 79 IR 206 at pp 217-218 and Oswald v New South Wales Police Service (1999) 90 IR 42 at pp 67-68. We affirm the approach as appropriate in the present case…" 1. On the evidence and submissions before me, there is no basis to conclude that reinstatement would be impracticable. I propose to make an order that Mr Romeo be reinstated. 2. By s 89(3) of the Act, the Commission may, if it orders reinstatement, further order that the employer pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed. In the circumstances of this case I do not propose to make such an order. This is for two reasons. First, Mr Romeo engaged in misconduct. While it did not warrant his dismissal it otherwise called for a sanction of some kind. Second, there is no evidence that Mr Romeo took any steps to mitigate his loss as a result of the termination of his employment. Order 1. I make the following orders: 1. Rocco Romeo is to be reinstated to the position he held with the Griffith City Council immediately before his dismissal on 12 October 2022 on the terms and conditions that applied to his position at that time. 2. Order (1) is to take effect from Monday, 6 March 2023. 3. The period between 12 October 2022 and 6 March 2023 is not to count as service by Mr Romeo for any purpose. 4. Despite order (3), the period of employment of Mr Romeo with the Council is to be taken as not having been broken by the dismissal. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2023