Industrial Relations Commission New South Wales Medium Neutral Citation: Griffith City Council v Romeo (No 2) [2024] NSWIRComm 1011 Hearing dates: 4 September 2023 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Webster and Commissioner Muir Decision: Leave to appeal is refused. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW - — Industrial Relations Commission — Appeals – Leave to appeal – assessment of harshness - whether utility in granting leave to appeal -no utility – leave refused Legislation Cited: Industrial Relations Act 1996 ss 89, 187, 188, 190A, 191 Road Transport Act 2013 ss 4, 5, 54 Work, Health and Safety Act 2011 ss 19, 32 Cases Cited: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commissioner of Police v Platts [2021] NSWIRComm 1021 Griffith City Council v Romeo [2023] NSWIRComm 1041 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Lovell v Lovell (1950) 81 CLR 513 North v Television Corporation Ltd (1976) 11 ALR 599 Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095 Re Solicitors (State) Award (No 3) (1997) 72 IR 225 Romeo v Griffith City Council [2023] NSWIRComm 1015 Shakir v Department of Family and Community Services (2017) 270 IR 155; [2017] NSWIRComm 1040 Stone Microsystems (Aust) Pty Ltd v Kwong (1997) 42 NSWLR 160 Qantas Airways Ltd v Transport Workers' Union of Australia (2022) 292 FCR 34 Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy (2009)186 IR 99 Texts Cited: Nil Category: Principal judgment Parties: Griffith City Council (appellant) Rocco Romeo (respondent) Representation: Counsel: A Britt (appellant) A Howell (respondent) Solicitors: Williamson Barwick (respondent) File Number(s): 2023/83883 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2023] NSWIRComm 1015 Date of Decision: 22 February 2023 Before: Commissioner Sloan File Number(s): 2022/317370 decision 1. On 13 March 2023, Griffith City Council (Council), filed an application for leave to appeal and appeal pursuant to ss 187 and 188 of the Industrial Relations Act 1996 (Act) against a decision of Commissioner Sloan, Romeo v Griffith City Council [2023] NSWIRComm 1015 (Decision). 2. The Decision ordered the reinstatement of Rocco Romeo to the position that he held immediately before his dismissal, Team Leader – Traffic Facilities, on and from 6 March 2023. 3. The Council applied for a stay of the reinstatement order pending the determination of this appeal. This application was heard by Chief Commissioner Constant pursuant to s 190A of the Act and dismissed on 3 May 2023: Griffith City Council v Romeo [2023] NSWIRComm 1041. Background facts 1. Mr Romeo commenced employment with the Council on 19 October 1998 and at the time of his termination was a Team Leader – Traffic Facilities. The position description for this role included that it was "essential" that the incumbent "[h]old an Australian driver['s] licence class MR or equivalent". 2. On approximately 6 May 2022, Mr Romeo was notified by way of a letter 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 at that time. The Council became aware of the suspension from one of its employees on or about 1 September 2022. 3. On 2 September 2022, Mr Romeo attended a meeting with his direct manager, Manjit Chugha, a Works Manager in Construction, Shree Shrestha, and a support person. At this meeting, Mr Romeo: 1. confirmed that he had lost his licence; 2. confirmed that he had not told anyone at work that he had lost his licence, and stated 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 13 September 2022, Mr Romeo met with the Council. The minutes of this meeting are set out in the Decision at [6]. 2. During the meeting on 13 September 2023, Mr Romeo provided a letter to the Council from his treating practitioner, Dr Roger Thompson-Seagrave, dated 6 September 2022. That letter stated that Mr Romeo had experienced 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. 3. On 19 September 2022, Mr Romeo gave the Council a ripped and incomplete copy of the letter dated 6 May 2022 that he claimed to have found in his car. The copy of the letter confirmed that Mr Romeo was suspended from driving for a period of six months, from 10 June 2022 to 10 December 2022. 4. On 19 September 2022, Mr Romeo attended a meeting with Mr Chugha, Ms Kylie Carusi, the HR and Risk Manager, and Mr Romeo's support person at Ms Carusi's office. Mr Romeo subsequently provided to the Council a copy of his full driving history. This history contained an entry stating that on 19 September 2022 a copy of the letter of 6 May 2022 had been emailed to Mr Romeo at his request. The Council says that this alerted Ms Carusi to the likely untruth of Mr Romeo's statement to her that he had found the letter in his car. 5. On 23 September 2022, the Council invited Mr Romeo to show cause why it "should not bring [Mr Romeo's] employment to an end, by notice, with payment in lieu". 6. Mr Romeo responded to the invitation to show cause by letter dated 3 October 2022. A copy of the contents of this letter are set out in the Decision at [12]. Attached to this letter were further correspondence from Dr Thompson-Seagrave and Melina Furore, a therapist. 7. On 12 October 2022, the Council terminated the employment of Mr Romeo with five weeks' pay in lieu of notice. The Decision 1. Commissioner Sloan identified that Mr Romeo was dismissed because Mr Romeo had been dishonest at three meetings with employees of the Council: Decision at [24]. The Commissioner "proceed[ed] on the basis that Mr Romeo's failure to disclose the suspension of his licence falls within the dishonesty for which he was dismissed": at [26]. 2. The Commissioner observed that "[a]n employer is entitled to honesty from an employee" and "dishonesty by an employee to their employer can justify their summary dismissal": Decision at [33]. The Commissioner referred with approval to Shakir v Department of Family and Community Services (2017) 270 IR 155; [2017] NSWIRComm 1040, in which Commissioner Newall noted that dishonesty strikes at the heart of the employment relationship, and "[t]hat 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": Decision at [65]. 3. The Commissioner noted that Mr Romeo's misconduct was, in substance, admitted, observing "it is beyond doubt that he was guilty of the misconduct on which the Council acted": Decision at [35]. 4. The Commissioner considered factors mitigating the seriousness of Mr Romeo's misconduct, including Mr Romeo's mental health, concluding that "there was evidence available to the Council that might have explained Mr Romeo's behaviour in 2022, at least in part". Commissioner Sloan determined that this information "was not given the attention it deserved" and "[t]he Council should have made further enquiries before discounting the medical information provided by Mr Romeo": Decision at [45]. 5. Under the sub-heading "Gravity of the misconduct" in the section of the Decision dealing with whether the dismissal was unjust, the Commissioner found: 1. "one of the reasons why Mr Romeo's medical circumstances had been discounted was his 'blatant dishonesty'": Decision at [46]; 2. "the substance of the dishonesty was of limited consequence": Decision at [47]; 3. "no suggestion was advanced by the Council that Mr Romeo stood to gain by engaging in the dishonesty": Decision at [47], and 4. allowing for Mr Romeo's "misconduct [being] inconsistent with a person in a supervisory position", "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": Decision at [49]. 1. After considering the principles in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609, the Commissioner was "not persuaded that the Council ha[d] met its onus of demonstrating that Mr Romeo's misconduct warranted the termination of his employment, much less on a summary basis" and found the dismissal unjust: Decision at [51]. 2. The conclusion at [51] references the Council's failure to demonstrate Mr Romeo's conduct warranted dismissal, including on a summary basis. We observe that reference to such a basis for termination is confusing because it is clear Mr Romeo was not dismissed summarily: Decision at [16]. 3. Because of the basis on which leave is refused we have not given further consideration to the Commissioner's determination that the dismissal was unjust. 4. 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 "Disciplinary Procedures" of the Award. Clause 37E(ii) of the Award provides however that "the employer may take appropriate disciplinary action before and/or during the procedures in 37D in cases of misconduct or where the employee's performance warrants such action". 5. Consequent on Commissioner Sloan's finding that the established misconduct did not warrant summary termination of employment and therefore the dismissal was unjust at [51], the Commissioner found that the Council was not entitled to rely on cl 37E(ii) of the Award, and as such it was not entitled to avoid the Disciplinary Procedures in cl 37D of the Award, resulting in a finding that the dismissal was unreasonable: Decision at [53] - [54]. 6. The Commissioner dealt with the parties' submissions and evidence about prior disciplinary history: [55] – [57] and whether the Council was required to modify duties so that Mr Romeo was not required to drive while his licence was suspended: [58] – [60]; and asserted issues going to procedural fairness. 7. The Commissioner then considered whether the dismissal was harsh, taking into account: 1. the established misconduct which had been considered earlier in the Decision under the heading "Gravity of the Misconduct" as summarised above at [18] above, 2. other considerations such as Mr Romeo's health: Decision at [69] - [71], and his "age, length of service and location in a regional centre": Decision at [73], matters that the General Manager of the Council said he had taken into account at the time of the dismissal: Decision at [78]-[82]; 3. the Commissioner's acceptance that in paying an amount equal to five weeks' in lieu of notice which the Council considered it was not required to pay, "the Council recognised and sought to ameliorate the harshness of the dismissal": Decision at [82]; and 4. the Commissioner's finding that Mr Romeo's assertion that his skill set is "specialised to the role he held at Council" was not supported by evidence: Decision at [73]. 1. The Commissioner concluded: "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": Decision at [83]. 1. The Commissioner noted that the Council put no submissions or evidence on the practicability of reinstatement: Decision at [87], and determined reinstatement was practicable: Decision at [89]. The Commissioner did not order backpay and said at [90] of the Decision: "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." The Appeal 1. The grounds of appeal are: "1 The Commission wrongly held that in cases of misconduct it was incumbent on the employer to both prove that the misconduct occurred but it also warranted the dismissal of the employee. 2 The Commission failed to find that where an employer establishes misconduct the "evidentiary burden" or of a "legal burden in an evidentiary sense" moves from employer to the employee to establish the dismissal was harsh, unjust or unreasonable. 3 In determining whether a dismissal was "unjust" the Commission erred in relying on common law principles concerning summary dismissal to determine whether dismissal was "unjust". 4 In the alternative to 3, the Commissioner relied upon common law principles concerning summary dismissal which are now wrong. 5 The Commissioner erred in determining the application on the basis of "unjust" where this had not been asserted by the employee. 6 The Commissioner erred by failing to provide the employer with notice of an intention to consider the application on a different basis than that asserted by the employee. 7 The Commissioner erred in finding that the dismissal was unreasonable where the Commission found the misconduct established on the evidence. 8 The Commissioner erred by failing to consider 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 Applicant when determining whether the dismissal was harsh." 1. The parties filed the following documents in the appeal, all of which were considered by the Full Bench: 1. Application for Leave to Appeal and Appeal filed 13 March 2023; 2. Appellant's Outline of Submission filed 26 July 2023 (ASUB); 3. Appellant's Outline of Submission on Leave filed 26 July 2023; 4. Appellant's Chronology filed 26 July 2023; 5. Outline of Submissions of the Respondent on Appeal filed 8 August 2023 (RSUB); 6. Outline of Submissions of the Respondent on Leave to Appeal filed 8 August 2023; 7. Appellant's Outline of Submission on Leave in Reply filed 25 August 2023; and 8. Appellant's Outline of Submission in Reply filed 25 August 2023. Leave to appeal Principles on leave 1. The principles on leave are well settled. 2. Where an appeal raises issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application, leave to appeal would normally be granted: Commissioner of Police v Platts [2021] NSWIRComm 1021 at [19] – [20]; and conversely, leave will not, generally, be granted unless the Council demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" or raises issues going to the proper administration of justice: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [5]. 3. The Council relevantly set out a further six principles which guide whether leave should be granted, being: 1. leave will not be lightly or automatically granted; 2. an appeal under the Act is an appeal in the strict sense and in such an appeal, the Commission will only intervene to correct error; 3. leave will rarely be appropriate to grant leave to appeal unless a Council can mount at least an arguable case pointing to appealable error; 4. in the case of discretionary decisions, it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge failed to exercise properly the discretion committed to them; 5. an appeal which lacks wider application than the interests of the parties will not normally be granted leave; and 6. leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence. 1. Mr Romeo agreed, as do we, that these are the correct principles. Submissions on the question of whether to grant leave 1. The Council submitted that leave to appeal should be granted because the Decision contains an arguable case pointing to appealable error and that the appeal raises significant issues of law in relation to: 1. the onus of proof in unfair dismissal cases and whether there is an onus on a respondent to unfair dismissal proceedings to demonstrate that where the misconduct is proved, that the proven misconduct warranted dismissal; 2. procedural fairness in unfair dismissal proceedings where a party does not rely on the ground of "unjust" and the Commission makes findings that the dismissal was "unjust"; 3. the meaning of "unjust" and what tests must be applied to determine what is an "unjust" dismissal; 4. the meaning of "unreasonable" and what tests need to be applied to determine what is an "unreasonable" dismissal; and 5. the meaning of "harsh" and whether the Commission, when considering whether a dismissal was "harsh", must also 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 applicant. 1. Commissioner Sloan found that Mr Romeo's dismissal was not only unreasonable and unjust, but also that it was harsh. Mr Romeo submitted that as the Council does not appeal against the Commissioner's exercise of his discretion in determining that the appropriate relief was reinstatement, each of the findings of harsh, unjust and unreasonable is sufficient to ground the unchallenged relief. Consequently, in order to succeed on the appeal the Council must establish error infecting each of these three core conclusions. 2. Mr Romeo submitted that although the question of whether a dismissal is harsh is not a discretionary decision, the resolution of the question involves an evaluative judgement in which the decision maker is allowed considerable latitude as to the choice of decision to be made and the Full Bench cannot merely substitute its decision on the matter. As there is no reasonably arguable basis to find error in the finding that the dismissal was harsh, there is no utility in granting leave at all as the ultimate outcome in the Decision would remain undisturbed. Given there is no utility in the appeal, leave to appeal ought be refused. 3. Mr Romeo submitted that the Full Bench should commence its consideration of the utility of the appeal and the question of leave to appeal by determining Ground 8 of the appeal. 4. We agree with Mr Romeo that: 1. in order to determine whether to grant leave to appeal it is appropriate to consider the utility of the appeal; 2. where there is no appeal against remedy, in order for the Council to succeed on the appeal, with the result that the order reinstating Mr Romeo is set aside, the Council must establish error infecting each of the findings that the dismissal of Mr Romeo was harsh, unjust, and unreasonable; and 3. the Commissioner's conclusion that Mr Romeo's dismissal was harsh can be separated from the discrete findings that his dismissal was unjust and unreasonable. The finding that the dismissal was harsh would not be disturbed by an appeal on the basis that it was not unjust or not unreasonable. 1. In these circumstances, at Mr Romeo's urging, the Full Bench will consider first the appeal ground against Commissioner Sloan's finding that the dismissal was harsh, Ground 8. Ground 8 1. Ground 8 asserts that in making the finding of harshness, Commissioner Sloan failed to consider the gravity of the misconduct, both in itself, and in light of the mitigating circumstances of Mr Romeo. 2. At the hearing of the appeal, Mr Romeo withdrew the submission that a finding that a decision is harsh is a decision of a discretionary character and accepted that the finding of harshness is a finding of mixed fact and law. The appeal against this finding is in the nature of a stricto sensu appeal: see s 191 of the Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32, and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 (Antonakopoulos). 3. In deciding whether Commissioner Sloan erred in respect of the seriousness of the misconduct and consequentially the harshness of the dismissal, it is apposite to turn to the guidance of the Full Bench of the Industrial Relations Commission in Court Session comprised of President Wright J, Vice President Walton J and Kavanagh J in King v State Bank of New South Wales (No 2) (2002) 126 IR 407 (King (No 2)), in particular at [58] - [76]. 4. In King (No 2) at [71] the Full Bench noted the comments of the Full Bench of the Commission in Court Session in Stone Microsystems (Aust) Pty Ltd v Kwong (1997) 42 NSWLR 160 at 163 "[t]o the extent that an appeal involves questions of fact and/or law then the normal principles applicable to such appeals apply" and went on to refer to the observations of the majority in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (Coal and Allied) at [11], that "there is no definitive classification of appeals in some abstract way: and that in that case, which the Full Bench considered to be "an appeal stricto sensu" the Full Bench acknowledged "that the powers of the Full Bench on appeal are directed towards correcting error and do not permit the Commission to substitute its decision for that at first instance": at [76]. 5. Re Solicitors (State) Award (No 3) (1997) 72 IR 225 also addressed the question of whether these principles apply even when the appeal concerns questions of law or fact that do not arise from the exercise of a discretion. It was held that appeals against matters of law and/or fact were to continue to attract ordinary principles. We will apply these principles. 6. Mr Romeo noted that Ground 8 is framed in the Application for Leave to Appeal and Appeal as the Commissioner having "fail[ed] to consider" identified factors, whereas in submissions, the Council argued that the Commissioner failed to "properly consider" or give due "weight" to certain matters and gave "no weight" to other relevant considerations: see for example Tcpt, 4 September 2023, p 8. 7. Mr Romeo submitted that it is not an error to consider a relevant factor disclosed in the evidence but to give it a weight different to what one party contends it should be given, and therefore the distinction between what is asserted in the appeal grounds and the submissions of the Council is of critical importance. 8. In responding to Mr Romeo's contentions about the distinction between failing to consider a relevant matter and considering it but determining to give it no, or too little, weight, the Council submitted that the error should be understood as that in undertaking the required evaluative assessment of harshness, the Commissioner did not undertake, in a proper sense, the balancing exercise envisaged in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 (Fraser (No 2)) at [35]. 9. The Council submitted that this failure to undertake the balancing test in the manner required, resulted in the Commissioner predominantly considering a range of factors in favour of Mr Romeo, such as Mr Romeo's age, length of service, regional location and his medical condition at the time of his dismissal, and the Commissioner failing to give proper weight to relevant considerations, resulting in a failure to consider properly, matters weighing against Mr Romeo, and a failure to evaluate properly the seriousness of the misconduct. 10. In determining whether the dismissal was unjust, the Commissioner considered that the reason for dismissal, being Mr Romeo's dishonesty, was the relevant factor to consider, and not other matters raised at the hearing, such as the suspension of Mr Romeo's "licence per se": at [27] and 'Mr Romeo's conduct demonstrating "blatant disregard for the law" by conducting himself in breach of road traffic laws and work health and safety legislation': at [28]. It was in this context that the Commissioner explicitly afforded "no weight to the evidence and submissions led by the Council on these matters": at [29]. 11. We do not accept that in his excluding matters which were not relied on by the employer as reasons for the dismissal when determining that the dismissal was unjust necessarily discloses error in Commissioner Sloan's undertaking of the balancing exercise when determining whether the dismissal was harsh. 12. The Full Bench must consider whether, in making the finding of harshness, Commissioner Sloan took into consideration all relevant considerations, including those informing his view as to the seriousness of the misconduct, and whether he properly balanced those relevant matters to form the conclusion that the dismissal was harsh. This includes considering whether the finding that the misconduct was not at the higher end was supported by the evidence that was before him. 13. Many of the oft-quoted decisions which deal with questions of whether the decision under appeal contains an error in failing to give appropriate weight to certain matters, such as Lovell v Lovell (1950) 81 CLR 513 at 519 – 520, Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 628 and more recently in the Industrial Relations context, Qantas Airways Ltd v Transport Workers' Union of Australia (2022) 292 FCR 34 at [360] - [361], involved appeals from discretionary decisions; however we consider such decisions still contain guidance for our approach in this instance. 14. In Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy (2009)186 IR 99 (Sydney Ferries) at [80], the Full Bench of the Commission stated: "As to the appellant's submissions about weight, we do not accept that his Honour gave too much weight to some factors and insufficient weight to others such that it led to wrong conclusions. What needed to be demonstrated by the appellant was that in balancing the various considerations, his Honour reached an erroneous conclusion not supported by the evidence. We are unable to find any basis upon which to conclude that the Deputy President made findings that were not reasonably open to him on the evidence. He did not mistake the facts and he took into account all material considerations." 1. The Full Bench stated in Antonakopoulos at 392-93: "These factors were sufficiently taken into account in the balancing of considerations in the Commissioner's decision and demonstrate that there was no appealable error in the Commissioner's decision. Another finding may have been open having regard to the nature of the misconduct, procedural defects and various mitigating factors such as the commendable prior service of the appellant. However, this appeal bench should not substitute its own views as to a decision which was reasonably open at first instance. The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. Applying these provisions appropriately would not permit the appeal to be upheld. It is therefore dismissed." 1. Bearing in mind the guidance of the authorities referred to at [52], Sydney Ferries, and Antonakopoulos we now consider the errors asserted in respect of the Commissioner's assessment of the gravity of the misconduct. 2. The Council submitted that in determining erroneously that "the substance of the dishonesty was of limited consequence": Decision at [47] and that "the objective seriousness of Mr Romeo's dishonesty does not rise to the higher end of the scale of misconduct": Decision at [49], the Commissioner gave no weight to: 1. Mr Romeo driving the Council's vehicle while his licence was suspended when the depot is open to the public, and as such is a "road related area" as defined in ss 4 and 5 of the Road Transport Act 2013. The Council says resulted in a breach of s 54(3) of the Road Transport Act; 2. the consequential workplace health and safety and other regulatory issues of dishonest behaviour for the Council especially in light of Mr Romeo holding a supervisory position; nor 3. the previous warnings given to Mr Romeo involving honesty and safety issues and the ongoing and repeated nature of the misconduct of Mr Romeo which amounted to a pattern of deceptive behaviour contributing to flaws in the balancing exercise, which in turn, contributed to an erroneous conclusion that Mr Romeo's dismissal was harsh. 1. In circumstances where the Commissioner considered matters but gave them little or no weight, what must be demonstrated by the Council is that in balancing the various considerations, the Commissioner reached an erroneous conclusion that the dismissal was harsh which was not supported by the evidence: Sydney Ferries at [80]. 2. The Commissioner expressly had regard to the fact that Mr Romeo, by his own admission, had been untruthful in certain respects more than once: see Decision at [30] and [35] where the Commissioner expressly noted the "repeated acts of dishonesty". 3. The Commissioner noted the Council's evidence and submissions about the effect of Mr Romeo's admission at a meeting that he had driven vehicles "a couple of times in the depot": Decision at [6(4)] and [28] and [29] and referred to the Council's contentions about Mr Romeo driving without a licence in the evidence of Mr Stonestreet and in submissions as to what ought be drawn from that admission, including the "potential risks to Council arising from Mr Romeo's behaviour": Decision at [28]. The Commissioner decided not to place any weight on the Council's evidence and submissions on these matters because there was no suggestion in Mr Stonestreet's letter of 12 October 2022 that concerns about breaches of road traffic laws and work health and safety legislation were relevant to the decision to dismiss Mr Romeo: Decision at [29]. 4. It is apparent in Commissioner Sloan's comment at [29]: "leaving aside significant doubts as to the accuracy of Mr Stonestreet's legal conclusions", that he considered the evidence on which the Council relied to establish the matters in respect of the Road Transport Act and the purported breaches of the Work, Health and Safety Act to be deficient. 5. We agree with Mr Romeo's submission that no real attempt was made in the evidence and submissions below to establish that the Council's depot is, in fact, a road related area at all and there was no evidence that the Council's depot met any of the statutory criteria. Consequently, it was entirely open to Commissioner Sloan to have doubts about the accuracy of the submissions in respect of the asserted breaches of the Road Transport Act and to place no weight on these. 6. The Council's contention below in relation to Work Health and Safety, which we accept is what is meant by "OHS/regulatory issues" in the ASUB, was premised on the risk of prosecution for a Category 2 Work Health and Safety offence: AB Tab 20 pg 378, footnotes 33 and 34, referring to ss 19 and 32 of the Work Health and Safety Act 2011. 7. We agree with Mr Romeo that there is no suggestion in the evidence that even if Mr Romeo did drive a vehicle in the Council's depot "a couple of times", that his manner of driving exposed anyone to a risk to their health and safety. Consequently, it was entirely open to Commissioner Sloan to have doubts about the accuracy of the submissions in respect of the asserted breaches of the "OHS/regulatory issues". 8. In any event, albeit without forming a concluded view as to their legal effect, Commissioner Sloan clearly considered the matters in respect of the Road Transport Act and the Work, Health and Safety Act, before determining the seriousness of the misconduct: [29]. Despite the submissions summarised at [56(3)], in oral submissions, Mr Britt, counsel for the Council, acknowledged some consideration was given to the two warnings which were weighed against Mr Romeo's 24-year tenure: Decision at [74] – [75]. 9. At the hearing, Mr Howell submitted that Council did not argue at first instance that Mr Romeo had engaged in a pattern of dishonest conduct over an extended period of time. Further, it was put that in the circumstances, Commissioner Sloan's reference to the two warnings at [74] of the Decision was sufficient. Mr Howell stated that the Commissioner "can't have erred in failing to address a proposition which was never advanced." 10. With respect to the submission above, Mr Britt referred to par 25 of the Council's written submissions at first instance which were in the following terms: "The Respondent was entitled to carefully consider and draw those warnings to the Applicant's attention during the disciplinary process an upon its completion in considering the appropriate disciplinary action. It would have been simply remiss of the Respondent not to do so. As such, it was proper for the Respondent to refer to those previous warnings in its show cause letter and termination letter, which were after all specific warnings about the Applicant's past behaviour in considering whether any extenuating circumstances ought to be taken into account before taking the decision to dismiss the Applicant for serious misconduct. In light of previous warnings issued, it is fair and reasonable that the Respondent made the decision dismiss the Applicant." (footnotes omitted) 1. Mr Britt submitted that this was the highest the Council's case could be put because it: "… does not appear to have been addressed orally. But it specifically doesn't say one of them relates to dishonesty. It says what it says." 1. We agree with Mr Romeo that Commissioner Sloan took into consideration the warnings in the terms that the submissions made to him required. The Full Bench cannot conclude that Commissioner Sloan erred in respect of matters not put to him. His findings in respect of the warnings and conduct over the period of Mr Romeo's employment were open to him and do not disclose error. 2. The Commissioner did have regard to the "character and severity of the misconduct" and found that dishonesty is a serious matter in the context of an employment relationship: Decision at [33] – [35], expressly noting (at [33]) that "dishonesty by an employee to their employer can justify their summary dismissal". 3. Under the heading "Gravity of the Misconduct" the Commissioner expressly considered the fact Mr Romeo (Decision at [49]) "was a team leader" in "a position of some responsibility", supervising and leading a small team, and concluded "[h]is misconduct was inconsistent with a person in a supervisory position" – an observation repeated at [74] specifically in the context of considering whether dismissal was "harsh". That the Commissioner gave these matters a weight less than the Council says was warranted, does not reflect error. 4. As set out above at [58], the Commissioner assessed the "repeated acts of dishonesty" as misconduct: Decision at [35], and [47] but formed a view that the "substance of the dishonesty was of limited consequence": Decision at [47]. We accept that Commissioner Sloan considered all of the relevant factors, including the submissions of the Council about the possible legal consequences for it, and at [47] explained his reasoning for this conclusion. 5. Such a conclusion was open to Commissioner Sloan as the first instance decision-maker. Another finding may have been open having regard to the nature of the misconduct; however, this Full Bench should not substitute its own views as to a decision which was open at first instance. 6. We agree with Mr Romeo that the Commissioner identified relevant authority as to the meaning of "harsh" in the context of an unfair dismissal claim: Decision at [67] – [68] and there was no debate about the meaning of this expression before him. 7. The Commissioner assessed the competing factors of the misconduct by reference to orthodox considerations including Mr Romeo's mitigating factors, in particular his health, including his mental health, his age, length of service and the fact he lived in a regional area: Decision at [36] – [49] and [69] – [83]. 8. The Commissioner engaged properly in the balancing exercise between the misconduct itself and other considerations. The Commissioner considered the severity of the penalty inflicted on Mr Romeo for his misconduct having regard to relevant mitigating circumstances: Fraser (No 2) at [24] and [35]. 9. In summary, it has not been demonstrated that the Commissioner failed to give adequate weight to the factors favouring a decision that this was misconduct on the higher end of the scale. An assessment of harshness involves a careful and holistic evaluation of the evidence and circumstances, including the impact on the employment relationship. The factors favouring the Council's case that the dismissal of Mr Romeo was not harsh were taken into account sufficiently in the balancing of considerations in the Decision. The Commissioner clearly decided that these factors were collectively outweighed by the factors in favour of a finding of harshness. The provisions of the Act as to appeals give primacy to first instance decision making. The Full Bench cannot simply replace the Commissioner's views with its own. Applying these principles and provisions appropriately would not permit Ground 8 of the appeal to be upheld. Conclusion as to leave 1. The Full Bench noted in Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095 at [34]: "As a general principle, leave to appeal will not be granted where there is no or insufficient practical utility in granting such leave: Wei Fen Xian and Rail Corporation New South Wales [2010] NSWIRComm 46 at [23]; Davies v Kyogle Council [2008] NSWIRComm 90 at [18]; Mullins v Director General, NSW Department of Education and Training [2006] NSWIRComm 258 at [20]; Australian Workers' Union, New South Wales v BlueScope Steel (AIS) Pty Ltd (2006) 151 IR 153 at [55]." 1. Given our determination in respect of Ground 8, that there is no practical utility in the balance of the appeal, we are not satisfied that the Council has made out a case that the public interest overcomes the general principle referred to at [77] above, such that leave to appeal should be granted. Order 1. Leave to appeal is refused. Chief Commissioner Constant, Commissioner Webster and Commissioner Muir ********** Amendments 27 February 2024 - Minor correction made to cover sheet. 28 February 2024 - Further minor correction made to cover sheet. 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: 28 February 2024