Industrial Relations Commission of New South Wales CITATION : Pheasant Pty Limited, trading as Kiama Coachlines v Transport Workers' Union of Australia, New South Wales Branch [2000] NSWIRComm 44 Pheasant Pty Limited, trading as Kiama Coachlines (Appellant) PARTIES : Transport Workers' Union of Australia, New South Wales Branch (Respondent) FILE NUMBER: IRC 4936 of 1999 CORAM: Hungerford J; Boland J; Neal C Appeal - Application for leave to appeal - Whether matter of such importance - Against finding that a dismissal was harsh, unreasonable or unjust - Reinstatement or re-employment found impracticable - Monetary compensation awarded - No legal principle or error of law involved - Challenged decision required exercise of a discretion - Totality of the circumstances considered - Leave refused - Appeal dismissed CATCHWORDS : Unfair Dismissal - Finding that dismissal harsh, unreasonable or unjust - Reinstatement or re-employment found impracticable - Monetary compensation awarded - Totality of circumstances considered - Exercise of a discretion - Application for leave to appeal - No legal principle or error of law involved - Leave refused - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 s 84(1) s 89(5) s 188 CASES CITED : Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 Electricity Commission of New South Wales, t/as Pacific Power v Crump [1993] 48 IR 296 HEARING DATES: 03/23/2000 EXTEMPORE JUDGMENT DATE : 03/23/2000 APPELLANT Mr B D Hodgkinson of counsel SOLICITOR Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr A Metcalfe Transport Workers' Union of Australia, New South Wales Branch JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: HUNGERFORD J BOLAND J NEAL C Thursday, 23 March 2000 Matter No. IRC 4936 of 1999 PHEASANT PTY LIMITED, TRADING AS KIAMA COACHLINES v TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH Application for leave to appeal and appeal against a decision of Mr Commissioner Connor given on 25 August 1999 in Matter No IRC 6630 of 1998. DECISION OF THE COMMISSION (extempore) 1 This is an application for leave to appeal and, if granted, an appeal by Pheasant Pty Limited, t/as Kiama Coachlines against a decision and order of Connor C given on 25 August 1999. The decision involved a finding that the dismissal on 26 November 1998 by the appellant of Keith Pardoe was harsh, unreasonable or unjust for the purposes of s 84(1) of the Industrial Relations Act 1996 and proceeded to provide a remedy under s 89(5) thereof. The remedy was the challenged order of compensation in the sum of $4,500 to be payable by the appellant to the respondent, reinstatement or re-employment having been found impracticable. 2 The questions raised by the appeal were stated in the application as follows: 1. Whether an employer is permitted pursuant to s 84(1) of the Industrial Relations Act 1996, to terminate the employment of an employee, where that employee has, in the course of his or her employment, acted outside his or her authority, and recklessly and/or negligently endangered the health or life of a person to whom the employer owes a duty of care, even where that employee has received prior disciplinary warnings from the employer. 2. Whether in all the circumstances and in light of prior warnings the dismissal was harsh, unreasonable or unjust. 3 The reasons in support of leave to appeal pursuant to s 188 of the Industrial Relations Act were : 1. The Commissioner erred in finding that the dismissal of Keith Pardoe on 26 November 1999 ( sic ) was harsh, unreasonable or unjust pursuant to s 84(1) of the Industrial Relations Act 1996. 2. The Commissioner erred in ordering that $4,500 should be paid to Keith Pardoe as compensation. 3. The questions identified in paragraph F(1) above, are of such importance, in the public interest, leave should be granted. 4. The determination of the question identified in paragraph F(1) above, will provide employers generally with guidance in how to treat employees who recklessly and/or negligently endanger the health or life of another person to whom the employer owes a duty of care. 4 We took the course of inviting the appellant to address initially the question of leave to appeal. We propose to refuse leave, so that the appeal is therefore incompetent. Consistent with the Commission's usual practice we do not intend to give our detailed reasons for that course. However, it is appropriate to note that in the challenged decision the commissioner attended to the totality of the circumstances leading to the dismissal and found that in the final analysis "the punishment should fit the crime": see Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 per Watson J and Electricity Commission of New South Wales, t/as Pacific Power v Crump [1993] 48 IR 296 at 302-303. 5 In a very real sense, it seems to us, the commissioner was involved in the classic exercise of a discretion. The appellant took the position, even though counsel conceded that no legal principle or error of law had been made, that the commissioner here had fundamentally failed to assess the impact of the employee's conduct which required review on appeal so that the Commission at appellate level may lay down standards for the benefit of industrial parties. 6 We only wish to say that cases of this nature always turn on their own facts and where a discretion is to be exercised, even though minds may differ, appellate intervention should only occur where the issue involves a matter of such importance. We are not satisfied that this is such a case. 7 Accordingly, the application for leave to appeal must fail. We order as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay of the commissioner's order made on 15 September 1999 by Walton J, Vice-President is discharged and the monies held in trust be released to the respondent. 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