Industrial Relations Commission of New South Wales CITATION: Benjamin Pearson v Hills Express Pty Limited [2005] NSWIRComm 1163 APPLICANT Benjamin Pearson PARTIES: RESPONDENT Hills Express Pty Limited FILE NUMBER(S): 7490 of 2003 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - summary dismissal - onus on Respondent - allegations against Applicant not proven - other allegations raised - dismissal held unfair - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 CASES CITED: Outboard World Pty Ltd v Muir (1993) 51 IR 167 D and R Commercial Pty Limited v Flood (2002) 113 IR 344 HEARING DATES: 06/01/2005; 06/02/2005 DATE OF JUDGMENT: 10/28/2005 APPLICANT Mr O'Reilly Solicitor LEGAL REPRESENTATIVES: RESPONDENT Ms Proudford Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 28 October 2005 Matter No IRC 7490 of 2003 Benjamin Pearson v Hills Express Pty Limited Application by Benjamin Pearson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 _____________________________________________________________________________ DECISION [2005] NSWIRComm 1163 1 This is an application by Benjamin Pearson ("the Applicant") for unfair dismissal against Hills Express Pty Limited ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 This matter was set down for Conciliation and Directions on 26 February 2004. The Applicant was represented by Mr T Khan, solicitor. The Respondent was represented by Mr W O'Donnell, solicitor. The Applicant sought reinstatement but the Respondent declined. The matter remained unresolved. 3 The matter was on for a Report Back on 15 March 2004. The Applicant was represented by Mr Stevenson. The Respondent was represented as before, with Mr B Gillett (NSW Regional Manager) in attendance. Mr Stevenson advised that the Applicant sought compensation only. The parties agreed that the matter be adjourned pending the outcome of certain other legal proceedings. 4 The matter was listed for 6 May. Mr O'Reilly, solicitor, now appeared for the Applicant. Mr O'Donnell continued his appearance for the Respondent. Mr O'Reilly advised that the certain other legal proceedings had not concluded. The parties agreed, in any event, to set a filing and Hearing program for the unfair dismissal application. 5 A teleconference was held by the Commission with the Tamworth based parties on 21 September. Mr O'Reilly continued his appearance for the Applicant. Ms Proudford, solicitor, appeared for the Respondent. Ms Proudford made an application for deferral of the Hearing as the certain other legal proceedings had still not concluded. Mr O'Reilly opposed the deferral. The Commission adjourned the proceedings to consider the deferral application. By correspondence dated the following day, the Commission advised that it had exercised its discretion in favour of the Respondent's deferral application. 6 A further teleconference was held by the Commission with the Tamworth based parties on 3 March 2005. The Hearing set down for later in March was adjourned by consent of the parties, owing to the same reason for the other deferrals of this application. 7 The matter was listed on 18 May for a teleconference. The appearances were as before. The certain other proceedings had concluded and the Commission was advised that the unfair dismissal Hearing could proceed. 8 The Hearing took place in Tamworth Court House on 1 and 2 June. Mr O'Reilly appeared for the Applicant and called the Applicant as a witness. Ms Proudford appeared for the Respondent and called the following witnesses: · Bernard Gillett - Northern NSW Area Manager · Catherine Tiberi - Depot Manager · Jeffery Darlington - driver · Susan Smith - former employee (Branch Manager) · Joy Wood - Customer Service Supervisor BACKGROUND 9 The Applicant was employed in April 1998 and was summarily dismissed by correspondence dated 23 December 2003. His unfair dismissal application gave his occupation as sorter/driver. 10 The letter of summary dismissal stated that there was evidence to support a finding that the Applicant had committed a number of serious breaches of his duties and obligations of employment and that elements of his conduct amounted to serious misconduct. The Commission notes that this letter of summary dismissal, signed by Mr B Gillett on behalf of Mr Ken Gray (CEO), does not set out the nature of the serious misconduct. During the first listing of this matter, the Commission was advised of an incident between the Applicant and a client of the Respondent. The incident took place on 16 October 2003. The client was a new client - Westdale Bottle Mart. The Applicant and another person (Mr Darlington) had made a delivery to this new client. Arising out of that delivery, the proprietor of the bottle shop made a serious allegation concerning the Applicant and the other person. The allegation being that the Applicant had been rude, abrupt, used inappropriate language, damaged various items of stock that was to be delivered and deliberately or inadvertently retained the bottle shops property which was taken back to the Respondent's premises. Upon realising that he had this property in his possession, the Applicant failed to immediately return the item, or to immediately notify a supervisor. The foregoing account was given by the Respondent's solicitor, who also advised the Commission of other incidents against the Applicant arising from his employment prior to the 16 October incident. An investigation took place and the Applicant was stood down with pay on a certain day. Later that same day, the Applicant returned to the workplace and produced a WorkCover Certificate for a two week period - followed by another Certificate. Later a meeting of interested parties was chaired by a psychologist. The purpose and/or outcome of this meeting was in dispute between the advocates. Mr O'Reilly for the Applicant submitted that a course of action was proposed which would lead to the return to work by the Applicant. Mr O'Donnell for the Respondent submitted that the purpose of the meeting was to return the Applicant to work but only in the context of a return to work from an injury scenario. Upon his fitness to return to work, the Respondent continued on with its investigation of the serious allegation against the Applicant. The Applicant was subjected to a further investigation process and new allegations, called to a meeting with the Respondent on 23 December and summarily dismissed. FINAL SUBMISSIONS 11 Mr O'Reilly for the Applicant put inter alia the following submissions - (a) The summary dismissal of the Applicant was substantively and procedurally unfair. (b) As to the substantive unfairness, he referred to the bottle shop allegations made against the Applicant. Mr O'Reilly pointed out that the bottle shop accuser, Mr Thompson, had not come to court to give evidence. The Applicant had denied any wrongdoing in his immediate verbal response to the allegations and belatedly denied. any wrongdoing, in writing, as well. (c) As to the procedural unfairness, the Applicant's co-worker (Mr Darlington) also attended the bottle shop that day but had not been adversely treated by the Respondent - unlike the Applicant. (d) The investigation process into the allegations was flawed in that there was no detail about what constituted the allegations, put to the Applicant. The initial investigation was sidetracked about an allegation of theft of the bottle mart's trolley - and which trolley was returned to the bottle mart that same day, of the delivery incident. (e) Procedurally, Mr Gillett (the Respondent's manager) failed to adhere to the agreed outcome process of a mediation meeting. (f) Mr O'Reilly also criticised the additional allegations raised by the Respondent against the Applicant and which he said were used to try to justify the dismissal. He criticised the meeting procedure of 23 December during which the Applicant was advised of his dismissal. (g) As it was a summary dismissal, the Respondent carried the burden of proof. For the Respondent 12 Ms Proudford for the Respondent put, inter alia, the following submissions - (a) The Applicant had a history of problems in his employment with the Respondent and his conduct breached the policies within the employee handbook. (b) The bottle shop incident of 16 October was the catalyst for his dismissal. (c) The Respondent had carried out an investigation process which included a mediation session of the parties. This mediation process was part of the Respondent's attempts at dealing with the Applicant but to no avail and the Respondent then turned to legal advice for dealing with the Applicant, who was subsequently summarily dismissed. (d) The Applicant had not been denied natural justice. The issues of concern to the Respondent, concerning the Applicant's employment history, had been put to the Applicant for his response prior to his dismissal. (e) As to the bottle mart manager, Mr Thomson (who made the allegation against the Applicant), not being in attendance to give evidence, this was because: " he wouldn't want to get involved in court proceedings about a complaint that was made two years ago and further he was so affected by the events of 16 October that he wanted nothing further to do with the company." (Tr 02/06/05 - p 23) CONSIDERATION Onus 13 The Applicant was summarily dismissed at a meeting held on 23 December 2003. He was issued with a dismissal letter of 23 December 2003, advising of his dismissal, "effective immediately" and that elements of his conduct amounted to "serious misconduct". Given the summary dismissal, the Respondent carries the onus to prove that the conduct relied upon by the Respondent (to support the summary dismissal decision), did in fact take place: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84. If the Respondent does not prove that that conduct took place, then the employment relationship between the Applicant and the Respondent, was unlawfully severed by the Respondent. ( Pastrycooks case , p 84) (emphasis added) Ms Proudford, in her final submissions, described the incident at the bottle mart shop as the catalyst that led to the Applicant's dismissal. Accordingly, the Commission will consider this incident firstly. The Catalyst - the bottle mart incident 14 The bottle mart incident took place on 16 October 2003 - around 2.00 pm. This incident concerned a new client of the Respondent: - Westdale Bottle Mart. 15 The first point, and important point, to be made about the catalyst, is that the person who made the complaint against the Applicant (and his co-worker) did not appear as a witness in the proceedings. There is a Jones v Dunkel inference to be drawn about this absence and the Commission will return to this issue shortly. 16 Given that the person who made the complaint has not given evidence as to what occurred in his bottle mart shop, then the evidence as to that complaint has come from the two Respondent witnesses who attended the bottle mart shop on the day of the incident. These two witnesses are Mr Gillett and Ms Tiberi who spoke to Mr Thompson, the complainant. 17 Mr Gillett deposed (exhibit 3 - paragraph 27) that Mr Thompson made the following points to him: (a) The Applicant interrupted a conversation that Mr Thompson was having with a client when the Applicant came through the front doors and said: "I've got a delivery, where do you want it?" (b) The Applicant was extremely rough with the cartons of liquor, even letting one of the cartons fall off the trolley. (c) The Applicant was extremely rude to Mr Thompson and used foul language. The Applicant's a cowboy and a disgrace. (d) The Applicant had taken a trolley belonging to the bottle mart shop after completing the delivery. The Commission notes that Mr Gillett is the Northern NSW Area Manager for the Respondent and he was instrumental in the dismissal of the Applicant. 18 Ms Tiberi deposed (exhibit 4 - paragraph 12) much the same as Mr Gillett, as to what she heard from Mr Thompson. 19 The Applicant's account of the incident (exhibit 1 - paragraphs 14 to 19) is different to that of Mr Thompson - as related by Messrs Gillett and Tiberi: (a) The Applicant had known Mr Thompson for a number of years. (b) On arrival at the store, the Applicant deposed that Mr Thompson appeared to be unhappy. There was a conversation between the two of them. Mr Thompson was said to be unaware that the Respondent would now be delivering his liquor supplies rather than a previous carrier. Mr Thompson allegedly said: "I don't care who has got it, you won't be doing it anymore." The Commission notes that the inference from this alleged conversation, is that Mr Thompson does not like the Applicant who said he had known Mr Thompson for a number of years. (c) The Applicant and his co-worker unloaded the drink pallet from their truck. They removed the security shrink wrap from the load. Mr Thomson allegedly said: "Look some of these cartons are wet." (d) Two trolleys were used to unpack the pallet of its contents. Another conversation took place between the Applicant and Mr Thompson. The trolleys were pushed inside the shop and in the process, three cartons fell off the trolley. The Applicant records that Mr Thompson said: "I could see that that was going (to) happen". The Applicant responded: "Why didn't you put your hand out to stop it?" The Applicant deposed that the stock was undamaged and the remainder of the pallet was unloaded and moved into the store as directed by Mr Thompson. (e) Having completed the delivery, the Applicant and his co-worker returned to the depot (base). It was then, he said, that he was informed that both trolleys in use for the delivery at the bottle mart shop had been driven back to the depot - but one of them belonged to the bottle mart shop. The Commission notes that the co-worker deposed (exhibit 5 - paragraph 9) that he asked the Applicant why the latter had loaded the bottle mart shop's trolley. The Applicant replied: " I thought the trolley was ours. If not take it back tomorrow." 20 The Applicant deposed (exhibit 1 - paragraph 22) that he was later called to the office of Mr Gillett and found Ms Tiberi there as well. The Applicant's version of that conversation is that he was asked what had happened at the shop. He gave his account. Mr Gillett then put Mr Thompson's allegations about the Applicant's conduct. The Applicant said he responded to those allegations and was finally asked to provide a written report. Mr Gillett's account (exhibit 3 - paragraphs 29 and 30) and Ms Tiberi's account (exhibit 4 - paragraph 14) differed to that of the Applicant. Both have it that no oral explanation was given by the Applicant as to the allegations. Both say that the Applicant was asked (by Mr Gillett) for a written report (the Applicant concurs with this) but both say that the Applicant refused to do so. 21 Mr Gillett and Ms Tiberi spoke with the co-worker, Mr Darlington on Monday, 23 October. He was asked to provide a written report about the bottle mart incident. He duly did. 22 There is a dispute between the Applicant and Messrs Gillett and Tiberi as to a conversation between the Applicant and Mr Gillett. In considering the evidence as a whole it seems that the Applicant was opposed to providing a written report. Ms Tiberi has the Applicant saying that as Mr Thompson only made a verbal complaint, then the Applicant would only provide a verbal reply. Mr Gillett insisted on a written report but the Applicant would not do so. Mr Gillett stood the Applicant down. 23 Mr Gillett deposed (exhibit 3 - paragraph 36) that he stood the Applicant down on the ground of his disobeying a reasonable direction, as required by paragraph 4, under the heading, "For Your Protection" of the Employee Handbook, version 2.1. The Commission observes that the foregoing reasoning was not put by Mr Gillett to the Applicant at the time of the standing down direction. Further, Mr Gillett deposed (paragraph 35) that this direction remained in force until the written report was provided. 24 The Applicant left the premises and during that day saw a doctor who provided him with a WorkCover Certificate, giving a diagnosis of "acute anxiety disorder." The Applicant also prepared a written response to Mr Thompson's allegations and his wife went to his worksite and delivered the Certificate and the report. Summary of evidence of "The Catalyst" 25 The Respondent relies upon the incident at the bottle mart shop (amongst other matters) to support its decision to dismiss the Applicant for serious misconduct. This incident was described by the Respondent's solicitor as "the catalyst" that led to the dismissal. 26 Having regard to the evidence surrounding this incident, the Commission finds that there was no evidence to support the Respondent's submission on this issue, which the Commission views as the crucial issue for consideration in these proceedings. 27 In coming to that decision, the Commission firstly relies upon the Jones v Dunkel (1959) 101 CLR 298 inference that a witness who does not give evidence, did not do so because the evidence would not have helped their cause. In this instance, Mr Thompson made the complaint against the Applicant and did not appear in court to support that complaint. The Commission has considered the reason put forward by Ms Proudford for that non-attendance. The reasoning being that it was more than reasonable that Mr Thompson would not want to get involved in court proceedings about a complaint made two years ago and that Mr Thompson was so affected by the events in his shop, that he wanted nothing further to do with the company. The Commission notes that the foregoing reasoning is a submission from the bar table and is not evidence. In any event, this reasoning is rejected by the Commission. The Commission again confirms that the inference that flows from the Jones v Dunkel decision applies to this case. That conclusion by the Commission means that the Respondent's reliance on this incident, as the catalyst that led to the Applicant's dismissal, has no foundation. 28 Irrespective of that finding based on the rule in Jones v Dunkel, the Commission will make another observation about this incident. This observation goes to the evidence that existed to support Mr Thompson's complaint against the Applicant. 29 It was Mr Gillett who had the responsibility for the investigation. He (and Ms Tiberi) had attended the store following receipt of the complaint. They obtained the nature of the complaint. The Applicant and his co-worker were asked to provide a written report as to what had happened at the store. The Applicant reluctantly and belatedly provided a written report. The co-worker provided a written report. 30 The Commission has already itemised the nature of the complaint by Mr Thompson (see paragraph 17), as deposed by Mr Gillett. The written report by the Applicant's co-worker did not support Mr Thompson's claim that the Applicant was extremely rough with the cartons of liquor; did not support the claim that the Applicant was extremely rude to Mr Thompson and used foul language. The co-worker's report does not refer to any of the cartons falling off the trolley. (But he deposed in his witness statement that he recalled some cartons being unloaded by the Applicant fell to the ground but did not attribute this uncontested fact to any type of irresponsible behaviour by the Applicant.) The only part of the complaint of Mr Thompson's with which the co-worker agreed, was that the trolley (belonging to the store) had been taken away. But there is nothing to this complaint - apart from any inconvenience caused to Mr Thompson. The taking of the trolley was nothing more than a mistake. The co-worker's report confirms this, when his report states that the Applicant had taken the trolley because he thought it belonged to his employer. The report goes on to say that when the Applicant realised (upon returning to base that afternoon) that the trolley did not belong to his employer, the Applicant told his co-worker to return the trolley the next day (a Friday). The co-worker had the Friday off from work. The trolley was returned on the same day of the incident, by direction of Ms Tiberi. 31 The co-worker's report does not support Mr Thompson's complaints against the Applicant about the Applicant's alleged behaviour at the store - physical and verbal behaviour. (The taking of the trolley is accepted by the Commission as being a mistake based on the report of the co-worker) The Commission also notes that the co-worker's witness statement (filed by the Respondent in response to the Applicant's case) does not contradict the Applicant's version of the delivery and what transpired at the store. In particular, the co-worker does not contradict the Applicant's account that: (a) Mr Thompson appeared to be unhappy; (b) Mr Thompson did not care that his store had a new liquor carrier to deliver his wines but Mr Thompson would not have the Applicant making the deliveries anymore; and (c) Mr Thompson stated, in effect, three cartons would fall from the trolley whilst the Applicant was unloading the trolley but Mr Thompson chose to stand by and do nothing to prevent the same. The Commission makes the finding again that there was nothing to the complaints raised by Mr Thompson - apart from the trolley and this was a mistake. The trolley incident does not constitute a ground for dismissal, let alone summary dismissal. Events Post "The Catalyst" 32 The catalyst refers to an incident that occurred on Thursday, 16 October 2003, at the bottle shop. 33 The Applicant provided, reluctantly and belatedly, a written report of this incident on Monday, 20 October. He did so after being stood down on that day - until such time that he provided the written report. On that 20 October, the Applicant obtained a WorkCover Certificate stating that he was suffering "acute anxiety disorder" requiring two weeks away from work: - 20 October 2003 to 3 November 2003. 34 The Applicant obtained a WorkCover Certificate on 31 October, stating that he was suffering from the same disorder and was unfit for work from 3 November 2003 to 17 November 2003. The management plan cited in this Certificate was a need for a "mediation process" before being able to go back to work. 35 The "mediation process" took place on 24 November. The mediator was a psychologist. There was a dispute between the parties as to the outcome of that mediation process. 36 On 16 December, the Respondent issued a letter to the Applicant setting out a series of allegations. The Applicant was required to provide a full and detailed response to the allegations at a meeting to be held on Friday, 19 December. The Applicant's law firm wrote to say it could not attend the scheduled meeting and it was transferred to 23 December. At that meeting, the Applicant was summarily dismissed. The Letter of 16 December 2003 37 The letter of 16 December, addressed to the Applicant, set out five allegations against the Applicant. 38 The first allegation was the incident at the bottle shop. The Commission has already dealt with this matter and found that there was no substance to the allegations. The only allegation which the Commission accepted had something to it, was the taking of Mr Thompson's trolley. But the Commission held that the trolley was taken by mistake. That is, the Applicant thought that the trolley belonged to the Respondent. The allegation (as contained in the letter of 16 December ) deals with this issue of the trolley and puts the allegation at a level of seriousness not before put to the Applicant. This letter accuses the Applicant of failing to return the trolley immediately or to notify a supervisor. The Commission takes the view that this allegation is unwarranted and does so for a few reasons. Firstly, this allegation at this level is being raised for the first time, some two months after the incident and the delay by the Respondent in doing so, is not due to ignorance on its part. Why the Respondent would raise this issue two months later may indicate an intention that the Respondent did not intend for the Applicant to resume his duties. One motive to explain this, is the evidence of Mr Gillett that the Respondent lost the contract with Mr Thompson's bottle shop and the loss cost a lot of money. (Tr 01/06/05) - pp 41 and 67) Secondly, as to why the trolley should have been returned "immediately", is not stated. Is there a policy of the Respondent to say that trolleys are to be returned "immediately"? Given the case that the trolley's existence came to the Applicant and co-workers attention mid-afternoon, what was unreasonable in the Applicant telling the co-worker to return the trolley the next day? Thirdly, Messrs Gillett and Tiberi saw the Applicant later that afternoon and Mr Gillett told the Applicant of the complaint from Mr Thompson. Under cross-examination, Mr Gillett agreed that the topic of the trolley was raised with the Applicant at this meeting. He agreed that the Applicant said he would return the trolley straight away but Ms Tiberi said the Applicant was not to do so because the Applicant was not wanted back there by Mr Thompson. For the Respondent to hold up this allegation against the Applicant when Mr Thompson (and no doubt Mr Gillett) did not want the Applicant back there, undermines the raising of this allegation. (Tr 01/06/05 - p 56) In any event, the trolley was returned that afternoon. Fourthly, why would a supervisor need to know that a client's trolley is not with that client? A reasonable response to this question is to say that the supervisor is "in the know" should the client make any enquiry about its missing trolley. But this omission by the Applicant is not a summary dismissal offence. 39 The second allegation is that the Applicant's refusal to provide a written report of the incident, "despite numerous requests", was a refusal to obey a reasonable request of Mr Gillett's and was "an act subject to immediate dismissal." 40 The Commission rejects the above allegation for the reasons set out below. Firstly the circumstances surrounding that refusal need to be considered. The Applicant had just returned from the bottle shop. His uncontested evidence is that Mr Thompson was unhappy and had told the Applicant that he was not to make any more deliveries to Mr Thompson's shop. It would seem that when Mr Thompson specifically stated that he would not have the Applicant back there, then Mr Thompson and the Applicant both knew each other - prior to that day. Even Mr Gillett records the Applicant saying on that afternoon in Mr Gillett's office: " Ian Thompson is a winger, he carried a bag of threepences, hurt his back and walked out with $400,000 ". (exhibit 3 - paragraph 29) Again, there is an indication of a possibility that the Applicant and Mr Thompson may have been already known each other. This may have explained the Applicant's initial reaction of a refusal to provide a written report. Secondly, and in any event, the Applicant did not refuse to provide any report whatsoever. He refused to provide a written report because Mr Thompson had not provided a written report against the Applicant, who actually said he would provide a verbal report because Mr Thompson had made a verbal complaint. Thirdly, and again, there is the issue as to the delay of two months by Mr Gillett in making this complaint against the Applicant about disobeying a reasonable direction. Why the delay? If this allegation of a refusal was of such importance to warrant summary dismissal, then why the delay of two months? Fourthly, the Commission does not accept that the Applicant was stood down on that Monday for refusing to obey a reasonable direction, in accordance with, as deposed by Mr Gillett, " paragraph 4 under the heading "For Your Protection" of the Employee Handbook Version 2.1 " (exhibit 3 - paragraph 36) The Commission accepts the evidence of Ms Tiberi, given under cross-examination, that the exchange between Mr Gillett and the Applicant became " a little bit heated ... aggravated " and " there was a lot of yelling ". (Tr 01/06/05 - p 76) In that environment, this handbook extract was not on Mr Gillett's mind at the time. Fifthly, and in any event, Mr Gillett gave a direction to the Applicant to provide a written report and he initially refused but then complied with that request on that day or within a day. For the above reasons, the Commission does not accept that the Applicant refused a reasonable request. 41 The third allegation contained in the letter of 16 December is that the Applicant's written response was "clearly in contrast to the complaint received from the Licensee of Westdale Bottle Shop, and reports received from fellow employees." The Commission is not helped by this quote because it is not self-explanatory. Even if the Applicant's response is in contrast to that of the Licensee, Mr Thompson, then so what? No details are put in this allegation for the Applicant to answer. The " fellow employees " are not identified in this allegation and that's important because there was only one other person (not employees) who put in a report. Further, the Applicant is not being told how his report contrasts with that of the other person (that is, Mr Darlington- the co-worker, who also was not an employee). The Commission notes that it has already found that Mr Darlington's written report does not contradict the Applicant's account as to the conversation between himself and Mr Thompson, the licensee. The Commission finds that this allegation has no foundation. 42 The fourth allegation claims that on no less than two separate occasions within the last eight months, Mr Gillett was forced to speak to the Applicant regarding his conduct. A small amount of information is given about one of these occasions. The allegation finishes off with a statement that the Applicant's conduct is such as to be subject to instant dismissal. Under cross-examination, Mr Gillett conceded that there was no detail in this allegation as to the second occasion and he was not sure what this occasion was about. Mr Gillett said he was not aware of a request by the Applicant's solicitor (per letter of 17 December 2003) for more information about these occasions. More specifically he was saying that such matters were in the hands of the Respondent's solicitor - rather than himself. The Commission finds that this allegation is new and is not related to the bottle shop incident. Further, there is a paucity of detail about this allegation. There was no response by Mr Gillett to the request for more information. Mr Gillett said he handed the letter over to the Respondent's solicitor. And if this allegation was such as to be subject to instant dismissal, why did that not happen at the time? Given that the Respondent refused to provide any further details as to the nature of this allegation, and the consequent impossibility of the Applicant to respond to the same, then this allegation cannot be held against the Applicant. (The "refusal" referred to above is addressed below.) 43 The fifth allegation went to the Applicant's eruptive temper and use of foul language in the workplace and that other employees have commented and complained about the same. The Commission notes that this allegation is new and is not related to the bottle shop incident. Further, no detail is given as to which other employees complained. The Applicant's solicitor (per letter of 17 December 2003) sought more information about this allegation. This letter was addressed to "The Manager" and was received by Mr Gillett. There was no response to this enquiry. The allegation goes on to say that Mr Gillett himself has reportedly warned (verbally) the Applicant about his attitude and language. Under cross-examination, Mr Gillett agreed that he had no written notes on these verbal warnings. He also said he could have said to the Applicant when giving him these verbal warnings, that his job was under jeopardy. (Tr 01/06/05 - pp 58 and 59) The Commission does not accept that the Applicant was told his job was in jeopardy - in respect of any alleged verbal warnings. This claim by Mr Gillett is not found in his witness statement and was not put to the Applicant in cross-examination. In coming to this conclusion, the Commission also relies on the demeanour of Mr Gillett in the witness box whilst giving this particular evidence. Accordingly, the Commission finds that this allegation contained in the letter of 16 December 2003 is without foundation and is rejected. (The Commission notes that allegations about the Applicant's attitude and language were raised by the Respondent subsequent to the Applicant filing his unfair dismissal application. These allegations are dealt with below under the heading of "Other Allegations".) The Summary Dismissal Meeting and "The Refusal" 44 The summary dismissal meeting took place on 23 December 2003. At this meeting, the Applicant's solicitor (Mr Khan) asked for particulars concerning the fourth and fifth allegations - as requested in Mr Khan's letter of 17 December to the Respondent. Mr Gillett confirmed that the Respondent's solicitor said, at that meeting, that no further particulars would be provided. (Tr 01/06/05 - p 50, lines 32 to 41) Later in cross-examination, Mr Gillett said he did not know if there had been a request for further particulars at that meeting of 23 December 2003. (Tr 01/06/05 - p 58, line 3) Ms Tiberi (witness for the Respondent) attended the 23 December meeting. She confirmed that the Applicant's solicitor asked for further particulars and that the Respondent's solicitor stated that no further particulars would be provided. She could not recall the items on the agenda for which further particulars were being sought. (Tr 01/06/05 - p 84) 45 Having considered the foregoing, the Commission also finds that the Applicant's solicitor did indeed raise as an issue (at that meeting), the need for further particulars about allegations four and five, and this was rebuffed by the Respondent's solicitor – on behalf of Mr Gillett. The Commission also finds that there was a denial of natural justice by the Respondent (specifically, Mr Gillett) against the Applicant. The denial by Mr Gillett was in not providing further particulars, as requested by the Applicant's solicitor, as to allegations four and five and then relying upon those same allegations (amongst other allegations) to summarily dismiss the Applicant. The Commission finds that there was a need for Mr Gillett to provide further particulars, as the allegations are not self explanatory and are not self explanatory as to their seriousness to warrant summary dismissal. Summary of the Five Allegations 46 As already stated, the Respondent carries the onus to prove that the conduct relied upon by the Respondent (to support the summary dismissal decision) did in fact take place: Pastrycooks case. The Respondent summarily dismissed the Applicant and relied upon the five allegations set out in its letter of 16 December 2003. 47 The Commission found that there was no foundation to the first, second and third allegations. As to the fourth and fifth allegations, the Commission found that the Applicant's solicitor sought but was refused further and better particulars about them. The Commission further held that it was a denial of natural justice by Mr Gillett to rely upon these allegations to support the summary dismissal of the Applicant but at the same time deny providing further and better particulars. The Commission also held that the fourth and fifth allegations were without foundation. 48 In summary the Commission holds that the Respondent has not made out its onus to show that the conduct it relied upon to dismiss the Applicant, did in fact take place. In light of the foregoing decision, the Commission turns to the decision of Hungerford J in the Pastrycooks case as to what follows when a Respondent has not made out its onus. In that case, Hungerford J held that: (a) if the misconduct alleged against an employee is not made out then the Commission should publish its finding to that effect; and (b) if the misconduct is not made out, then that failure to do so represents a very compelling consideration for restoring the employment relationship that was unlawfully severed. Despite that finding in (a) and (b) above, his Honour also stated that reinstatement is a discretionary remedy and it does not follow that it will be ordered when a wrongful dismissal occurs: ( Pastrycooks case - pp 84 and 85) 49 What is to be noted about his Honour's decision is that if an employer does not satisfy its onus of proving the misconduct took place, then the summary termination is unlawful and hence an employee has been unfairly dismissed. In the case before his Honour, the dismissed employee was seeking reinstatement. His Honour then stated the obvious - that is, that reinstatement is a discretionary remedy - and decided to consider whether that discretion should be exercised in favour of the dismissed employee before his Honour. That consideration took place because of some "disquieting features" of the case. That is, the employer in the case had raised the dismissed employee's conduct relating to incidents other than the incident that caused the summary dismissal. 50 In the case before me, I have determined that the summary dismissal of the Applicant had no foundation. Therefore the Applicant's summary dismissal was unlawful. Thus the Applicant's summary dismissal was unfair. Specifically, the Commission finds that the summary dismissal was harsh, unjust and unreasonable. It would be open to the Commission to conclude its consideration of the matter at this point - but for the quantum of compensation. It would be open to the Commission to conclude the matter at this point, not only because reinstatement is not sought as a remedy (and hence the exercise of my discretion is not required), but simply because the Respondent has not made out its case against the Applicant. 51 However, the Commission has decided to consider the "Other Allegations" that were raised against the Applicant. These "Other Allegations" were raised against the Applicant after he had filed his unfair dismissal application. The Commission has decided to consider these "Other Allegations" because of "disquieting features" that arose during the arbitration proceedings. These "disquieting features" went to the Respondent's conduct. Firstly, the Commission became aware that the Applicant's solicitor sought further and better particulars as to two of the five allegations against the Applicant and the Respondent refused to provide these particulars but still summarily dismissed the Applicant on these two grounds. Secondly, there was evidence from a Respondent's witness (Ms Tiberi) that she had gathered the impression from speaking with Mr Gillett (who summarily dismissed the Applicant) that Mr Gillett did not want the Applicant back at work. No date is given for this impression being formed but it was before the summary dismissal meeting of 23 December 2003. That is, before the Applicant, through his representative, responded to the five allegations at the meeting of 23 December. 52 In light of the foregoing, the Commission will now consider these "Other Allegations". However, the Commission stresses that a determination has already been made that the summary dismissal of the Applicant was harsh, unjust and unreasonable. The Commission's consideration of these "Other Allegations" shall not alter the determination already made but may impact on the remedy sought by the Applicant, that is – the level of compensation. Other Allegations 53 Subsequent to the filing of the unfair dismissal application, the Respondent raised other allegations against the Applicant. Mr Gillett set out these other allegations in his witness statement. The nature of these other allegations is set out below, along with the Applicant's response, and as well any other relevant evidence and findings by the Commission. (a) 02/11/99 - Warning Letter . This letter warned the Applicant that he had not carried out his duties correctly and put his security of employment on notice. The Applicant concurred that he had not carried out his duties correctly. (b) 17/05/00 - Letter of complaint from a client of the Respondent, about the rough handling of one of the client's products by an un-named worker. Mr Gillett deposed he " verily believe (d)" that the worker was the Applicant. The Applicant deposed that he had no knowledge of the incident and no-one from the Respondent had spoken to him about the incident. Accordingly, the Commission finds that this allegation is without foundation and declines to take this allegation into its consideration. (c) 16/05/01 Memo - This memorandum from Sue Smith to the Applicant states that, as he occupies a staff position, then he is expected to work longer hours in order to complete his duties for that day. She expressed her disappointment that he did not do so and gave him the option of speaking to her if he could not work the longer hours. Mr Gillett, the Commission notes, deposed that the memorandum referred to the Applicant's " dereliction of duties " - but the Commission does not accept that the memorandum said this directly or even by the tone of the memorandum. Under cross-examination, it was put to the Applicant that this memorandum was a "warning letter". He denied that it was. The Commission notes that the memorandum does not use that term or anything like it. The memorandum has the tone of a reminder as to what is expected of the Applicant with the option for the Applicant to talk to Ms Smith about the content of the memorandum. The Commission also notes that the Applicant responded in writing on 17 May 2001, stating that the content of the memorandum was " out of text and grossly inaccurate ". (exhibit 3 - annexure F) The Commission finds that this allegation is without foundation. (d) 13/09/01 Memo - This memorandum from Ms Smith to the Applicant said it would be in the best interest of the Applicant to carry out the duty as requested of him by her. Mr Gillett deposed that the memorandum was " again " an instance of " the applicant's failure to comply with a reasonable direction " of his supervisor. The Commission notes that the memorandum does not state that view as put by Mr Gillett. The Applicant deposed (in his reply statement), that when this issue was raised with him by Ms Smith, he said he would attend cleaning up the rubbish in question, when he had time. (exhibit 2 - paragraph 14) He stated the same during cross-examination and was not challenged on this response. Accordingly, the Commission rejects Mr Gillett's claim that this instance, " again", represented a failure to comply with a reasonable direction. (e) 12/11/01 Letter . The Applicant corresponded with Ms Smith to advise of an incident where he left a forklift " unattended " and in neutral gear. " The forklift drove out of control and fell over the edge of a 1.5 metre dock, landing on its side and crushing freight ..." The Applicant's letter advised that he alighted from the forklift to remove a carton from a pallet already on the dock. He left the forklift in neutral. As he walked away from the forklift, someone called out to him that the forklift was moving. He raced back, pulled the gear lever into reverse but was too late - and the forklift went over the edge. Ms Smith deposed that she told the Applicant at the time that his conduct was a dereliction of duties and an act of neglect. (exhibit 6 - paragraph 13) The Applicant did not deny that he had been told this by Ms Smith. The Commission notes that the Applicant was not dismissed at the time (2001) and there was no evidence of any later occurrence of a dereliction of duties and an act of neglect. (f) Mr Gillett deposed generally that he had to speak to the Applicant about his temper and use of bad language. The Applicant deposed this may have been so on an odd occasion but cannot recall the specifics of any conversation. The Commission notes the lack of specific instances being cited by Mr Gillett. The Commission has already dealt with this issue in respect of allegation five which is found in the Respondent's letter of 16 December 2003. This was a matter about which the Applicant's solicitor sought further particulars but this request was refused by the Respondent's solicitor. The Commission is unable to comment on this matter because of the lack of information, of a specific kind, from Mr Gillett. The Respondent had two other witnesses (Messrs Tiberi and Wood) depose about his behaviour and attitude. Ms Tiberi deposed that these matters were of a " minor nature ". (exhibit 4 - paragraphs 7 and 9) She said there was only one incident (involving the Applicant having a heated exchange) that was serious and required Mr Gillett being informed. (paragraph 10) Ms Smith gave evidence of her exchange with the Applicant on one occasion in which she had told the Applicant to "fuck off". (Tr 01/06/05 - p 90) It seems to the Commission that the evidence of these two witnesses does not provide grounds for dismissal, let alone summary dismissal. (g) Year 2001 - Mr Gillett referred to an argument between Ms Smith and the Applicant during the year, 2001. Mr Gillett made some negative observations about the Applicant but without saying whether these negative observations arose out of the argument in question. Mr Gillett claims to have been a mediator for Ms Smith and the Applicant in respect of this argument. The Applicant denied that Mr Gillett was a mediator. He did say that Mr Gillett telephoned the Applicant at home about the incident and directed the Applicant to talk to Ms Smith on his return to work and sort things out with her. The Applicant said he did so and that there were no further disagreements between him and Ms Smith. The Commission notes that the witness statement of Ms Smith does not deal with this issue at all - but specifically only deals with two issues: the 16 May 2001 incident and the 12 November 2001 incident. The Commission cannot see how this incident can be held against the Applicant. There was no warning issued against him. There was a disagreement between two persons and it would appear that they resolved their differences. Accordingly, the Commission finds that this allegation is without foundation. (h) September 2003 - Mr Gillett said he, himself, had a disagreement with the Applicant in September 2003. Mr Gillett said the disagreement concerned a pallet of stock and the Applicant refused to deliver the stock and became angry and swore. The Applicant deposed that he told Mr Gillett that he, the Applicant, would not be delivering the stock and that he had already arranged for a sub-contractor to deliver the stock. To this explanation, Mr Gillett allegedly responded that the stock was to be delivered. The Applicant stated it was delivered (but not by him) on that day of his and Mr Gillett's conversation. (exhibit 2 - paragraph 8) He said under cross-examination, that he was not refusing to have the stock delivered but that it would not be him. (Tr 01/06/05 - p 14) Having considered the foregoing, the Commission does not find that there was a refusal to deliver the stock and thus this allegation is without foundation. Summary of "Other Allegations" 54 The Commission has already noted that these "Other Allegations" were raised by Mr Gillett against the Applicant after the Applicant had filed his unfair dismissal application. This is not to say that an employer can not do so in any unfair dismissal proceedings. 55 However, in the circumstances of this particular case, the Commission views the raising of these "Other Allegations" as an attempt by Mr Gillett to bolster his decision to summarily dismiss the Applicant. In coming to that view, the Commission has in mind, firstly the certain evidence of Ms Tiberi given under cross-examination (but not yet discussed by the Commission) and secondly, that a number of these "Other Allegations" were held by the Commission to be without foundation: paragraphs 46(b), (c), (d), (g) and (h). Paragraph 46(f) concerned the Applicant's temper and bad language and there were no specific instances cited by Mr Gillett, albeit that the Applicant did not claim to be an "angel" in that regard. The only two matters of substance were paragraph 46(a) and (e). Paragraph 46(a) advised of a warning in 1999 as to the Applicant's security of employment - but is a warning dated by the time of his summary dismissal in December 2003. Despite that warning in 1999, the other matter of substance (leaving the forklift in neutral gear) in paragraph 46(e), did not result in the Applicant being dismissed. This incident occurred two years before the summary dismissal. In summary, the Commission reiterates that its consideration of these "Other Allegations" would have no bearing on the determination already made by the Commission. The Commission considered the above matters in light of "disquieting features" of this case and has formed the view that these matters were raised by Mr Gillett ( after the Applicant had filed his unfair dismissal application), in an attempt by Mr Gillett to bolster his decision to summarily dismiss the Applicant. The Evidence of Ms Tiberi 56 There was certain evidence given by Ms Tiberi, under cross-examination, that put the case of Mr Gillett, against the Applicant, in its appropriate context. 57 Ms Tiberi was questioned about the relevant events between and including the bottle shop incident (16 October 2003) and the meeting at which the Applicant was summarily dismissed (23 December 2003). She was specifically asked if she had had any conversation with Mr Gillett as to the future employment of the Applicant. After some probing questions from Mr O'Reilly, she conceded that Mr Gillett had indicated he did not want the Applicant back at work. Thus: " Q. Certainly that was the clear impression you got from speaking with Mr Gillett concerning Mr Pearson, that he didn't want him back at work? A. Yes, I'd have to say it wasn't clear but I gathered that yes. " 58 The Commission views this evidence as being relevant to understanding Mr Gillett's case against the Applicant. Mr Gillett's Case Against the Applicant 59 Looking at the relevant events, and the overall proceedings, the Commission has concluded that Mr Gillett decided to rid himself of the Applicant. As to when he made this decision is unknown - but it was made between the bottle shop incident (16 October) and the summary dismissal meeting (23 December 2003). 60 As to why he made this decision is unknown. It may be because the Respondent lost the bottle shop contract arising out of the incident of 16 October and which cost a lot of money. (Tr 01/06/05 - pp 41 and 67) It may be because the Applicant infuriated or got on the nerves of Mr Gillett. Having observed the Applicant in the witness box and assessed the evidence, it is possible to find that the Applicant may have had the capacity, at times, to be blunt or abrasive. Sometimes people may have been frustrated in dealing with him because of his hearing problem. During his cross-examination, I had to shout at him my own query of him. It may be because the Applicant went on extended leave absence due to stress-arising out of the bottle shop incident - that Mr Gillett decided to dismiss the Applicant. Whatever the reason, the Applicant found himself summarily dismissed. 61 Whilst the Applicant was away on extended leave, he furnished WorkCover Medical Certificates, one of which required a mediation process before returning to work. This mediation took place on 24 November. The outcome of that mediation process was that Mr Gillett was to prepare a job description for the Applicant. Mr Gillett denied that the job description was to be prepared in order to facilitate the Applicant's return to work. (Tr 01/06/05 - p 47) Ms Tiberi (Depot Manager), on the other hand, thought that the job description preparation by Mr Gillett was to facilitate the Applicant's return to work. (Tr 01/06/05 - pp 79 and 80) The Applicant deposed that the mediation outcome was that he would return to work. (ex. 1 – para. 35) The Commission formed the view during proceedings that Ms Tiberi gave her evidence in a straight forward manner and prefers her evidence where it conflicted with that of Mr Gillett. Accordingly, the Commission holds that the outcome of the mediation meeting was as put by Messrs Tiberi and the Applicant. The Applicant did not return to work and was not provided with a job description. About three weeks went by and the Applicant was then given a letter dated 16 December 2003 setting out the five allegations against him. The allegations came as a surprise to him. He had not been given any indication in the previous two months that his job was on the line. 62 These five allegations were raised some two months after the bottle shop incident. Why the delay? The Commission concludes that Mr Gillett had decided to dismiss the Applicant and raised these allegations as the means to do so. 63 When the Applicant's solicitor sought further and better particulars about some of the allegations, his request was refused. The Applicant was dismissed summarily by way of a letter dated the same day of the meeting. The letter stated that the Applicant had failed to provide acceptable responses to the allegations. The Commission concludes that the decision to dismiss the Applicant had already been taken by Mr Gillett, prior to the meeting of 23 December. This conclusion is based on the all of the evidence and the demeanour of the witnesses. CONCLUSION 64 Having considered all of the evidence, the Commission concludes that the summary dismissal of the Applicant was harsh, unjust and unreasonable: Outboard World Pty Ltd (t/as Budget Waste Control Sydney) v Muir (1993) 51 IR 167. The Applicant has sought compensation as his remedy. In assessing a claim for monetary compensation, the Commission must consider the provisions of s 89(6) - that is, whether an Applicant made a reasonable attempt to find alternative employment and the remuneration gained by an Applicant who succeeded in obtaining alternative employment. However, s 89(6) is not to be taken as a simple, mathematical formula in the assessment of compensation and the Commission retains its discretion to order the appropriate quantum of compensation, as the Commission deems appropriate for the circumstances under consideration: D and R Commercial Pty Limited v Flood (2002) 113 IR 344. The Commission also notes the reinstatement was not sought and the Commission has formed the view that reinstatement is impracticable. In considering the quantum of compensation that is appropriate, the Commission has had regard to a number of matters: · the Applicant was summarily dismissed but the Commission has found without basis; and · the Applicant was a full time employee of approximately five and one half years standing. O R D E R S In this matter, for reasons outlined herein, I have determined that the dismissal was harsh, unjust and unreasonable and I hereby make the following orders: (a) The Commission orders that the Respondent pay to the Applicant an amount of compensation of 20 weeks pay, where a week's pay is $749.92 gross. (b) The amount of compensation specified above has been determined, having regard to section 89(5) and 89(6) of the Act. (c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision. A Macdonald 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.