Industrial Relations Commission of New South Wales CITATION : Hunt v Hornsby Shire Council [2001] NSWIRComm 242 APPLICANT: John Reginal Hunt PARTIES : RESPONDENT: Hornsby Shire Council FILE NUMBER: 6123 of 2000 CORAM: Grayson DP Whether applicant unfairly dismissed, whether warnings were warranted, procedural unfairness, role of union delegate, behaviour of applicant, severity of sanction, dismissal the ultimate sanction, lesser penalty appropriate, ordinary and acceptable standards of behaviour in employment relationship CATCHWORDS : Held, dismissal was harsh, unreasonable and unjust, applicant reinstated LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Newcastle Steel Works Case (1961) AR 48 Hardie Ferodo Pty Ltd v NSW Nurses Association (No. 562 of 1978, 28 November 1978, unreported) CASES CITED : Perkins v Grace Wordlwide (Aust) Pty Ltd (1997) 72 IR 186 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Australia Ltd v Bowen (1998) 79 IR 206 Pastrycooks Union v Gartrell White (No.3) (1990) 35 IR 70 HEARING DATES: 07/31/2001; 08/01/2001; 08/03/2001; 09/03/2001 DATE OF JUDGMENT: 10/12/2001 APPLICANT Mr B Docking of counsel instuctred by White Barnes, solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr B Williamson, solicitor Gadens Solicitors JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GRAYSON, DP DATE: 12 October 2001 MATTER NO. 6123 OF 2000 JOHN REGINALD HUNT and HORNSBY SHIRE COUNCIL Application by John Reginald Hunt pursuant to section 84 of the Industrial Relations Act 1996 re unfair dismissal _______________________________________________________________________ 1 The matter began, as is not unusual, as an industrial dispute notified pursuant to s130 of the Industrial Relations Act 1996 (the Act) and going to matters of principle with respect to the role and functions of elected union delegates. 2 The applicant in the proceedings, Mr John Reginald Hunt, was such a delegate having been elected a year or so after he commenced employment with Hornsby Shire Council as a labourer/driver on 10 April 1996. 3 Unfair dismissal proceedings were separately commenced following Mr Hunt's termination from employment on 20 December 2000 and the above mentioned dispute proceedings progressed independently. 4 Attempted conciliation failed to resolve the issues between the parties in respect of the dismissal and the matter was thereafter listed for hearing and a timetable fixed for the filing and exchange of evidentiary material. 5 At hearing, the applicant was called and cross-examined on two affidavits (Exhibit A and B) as was Mr M McLeay, an official of the Federated Municipal and Shire Council Employees Union (MEU). Mr M McLeay's affidavits were marked as Exhibits D and E. 6 On the respondent's side, affidavit evidence was taken from Ms M Williams, human resources manager (Exhibit 1) and from Mr F Amato, works superintendent (Exhibit 2), both of whom attended for cross-examination. 7 Additionally, the respondent called the following withnesses: · Ms R Clements, occupational health and safety support officer · Ms N Derham, human resources administrator · Mr J W Wright, human resources consultant · Mr K Burn, technical officer · Mr H Teeson, technical officer · Mr D Beggs, purchasing and supply co-ordinator · Mr P Murdoch, technical officer · Mr L Price, purchasing officer 8 Further yet, there were numerous documents admitted into evidence on both sides of the record going to matters in contention between the parties. 9 The respondent's position in defence of the allegation of unfair dismissal is that the applicant's behaviour in the workplace was of such an inappropriate nature as to warrant six written warnings in the period April 1998 to October 2000 and at various times throughout the same period a further five memoranda which, although not formal disciplinary warnings, were nonetheless generated by unsatisfactory behaviour of a type relevant to consider in the context of its decision to dismiss the applicant. 10 The respondent contends that when taken together those matters gave rise to a view that the applicant's past unsatisfactory behaviour and unwillingness to change, in all the circumstances, amounted to serious breaches of the contract of employment and justified its decision to terminate his employment. 11 It is convenient to examine those matters in their evidenciary canvass and in the light of the opposing submissions. 12 The first matter about which there is little factual controversy involved an incident said to have occurred in April 1998 when the applicant was served with a "Notice of Discipline" (Exhibit 3) for refusing a direction to drive a truck towing a trailer. 13 His refusal was based on an industrial dispute between the respondent and it's employees regarding the payment of a towing allowance and although there was said to be widespread unrest at the time about various allowances, there was no collective decision made to ban the work such that the applicant may not be acting of his own volition. 14 As Exhibit 3 reveals, the direction to drive the truck with a trailer in tow was given a number of times by persons in authority and was the subject of advice by the union representative, Perry Spence, that it be followed pending the resolution of the dispute with the respondent. 15 Nonetheless, the applicant refused and after repeated attempts to persuade him to follow the direction, he indicated that he had become too stressed to drive and went home sick. 16 The notice of discipline then served on him upon his return to work the next day urged him in the future "to carry out instructions when asked" and indicated in the event of failure in that regard "it will result in a second disciplinary (sic) to the employee". (Exhibit 3) 17 Having regard to the totality of the evidence in respect of this incident and to the fact that the applicant was advised by the union to do as he was directed, I consider his refusal to be in breach of his contract of employment. 18 The second matter involved an incident said to have occurred in July 1998 which resulted in a second written warning for allegedly failing to replace a blown truck tyre (Exhibt 2, attachment B and Exhibit A, attachment 1). 19 The applicant said in support of his contention that he was wrongly accused of misconduct on that occasion, that when the tyre was damaged, Perry Spence, a relief driver, loaded the damaged vehicle onto the back of his tilt-tray truck, chained it down, took it back to the depot and as I understood it, undertook to notify the mechanics. 20 The applicant said he returned to the depot in another truck driven by Ron Bailey and had the next day off sick for which he was paid. 21 The question why he did not go back in the tilt-tray truck with Perry Spence was left unanswered. 22 On return, the applicant said he was called into the office of the works superintentdent Frank Amato where in the presence of Perry Spence, he was accused of refusing to change the truck tyre and by reason of his absence on the day of the damage to the tyre and the next day, causing the truck to be idle thus resulting in unnecessary downtime. 23 Whether the mechanics were notified by Perry Spence, or at all, remains unclear on the evidence as it stands but clearly they were not notified by the applicant. 24 The applicant said it was not normal practice for the driver to change a flat tyre, that the mechanics or Brooks Tyre Service would normally attend to such tasks (although he had assisted in the past when requested) and that the 7-tonne tip truck he was driving at the time was not equipped for a tyre change on site. 25 He said he felt he was not given a fair hearing by Frank Amato who had prejudged the matter adversely to him and was not interested in what he had to say. 26 At all events, the evidence as to precisely what transpired at that disciplinary meeting differs between the applicant and Mr Amato, and the third person said to have been at the meeting namely, Perry Spence was not called to give evidence. 27 Doing the best one can, it seems as Exhibit 2, attachment B and the following extract of transcript of Mr Amato's evidence reveal, that the substance of the employer's complaint about the applicant's conduct at the time would appear to be firstly, his failure to actually change the tyre or provide assistance in that regard and secondly, his failure to personally notify the mechanics at the workshop of the circumstances in which the damage was incurred: WILLIAMSON: Q - Mr Amato, in respect to the flat tyre incident and the return of the truck on the tilt truck, what do you say was the correct procedure for the management of the truck, the disabled truck that was returning? A: If John Hunt told the mechanics what had happened and what was wrong with the truck, the person on the tilt truck does not know when he puts it on what is actually wrong with it, but the person driving the vehicle at the time would have a better knowledge of it. HIS HONOUR: Q - But, Mr Amato, if a truck has a big hole in the side of the tyre and the tyre is deflated , that would be a relatively straight-forward problem for the casual observer to discern, would it not? A: It may be, but it depends on how he managed to get that tyre deflated. He could have damaged an axle or damaged the springs. WILLIAMSON: Q - That is your point in this disciplinary exercise? DOCKING : I prefer no leading. WILLIAMSON Q: What was the point you were trying to make in this disciplinary exercise with Mr.Hunt about the flat tyre incident, Mr Amato? A: It is the responsibility of the truck driver to inform the mechanics of what has happened and, if the mechanics need assistance, to assist them. (transcript 153C, 20-45) 28 It was not appropriate, as the respondent would have it, for the applicant to delegate to his workmate Perry Spence the task of arranging the repair of a vehicle over which he had responsibility and having done so, to take no further part for the remainder of the day in ensuring that the vehicle was repaired and put back into use as quickly as practicable. 29 Even allowing for the fact that the applicant may not have been charged with the sole responsibility of changing the tyre, his approach to the matter was in my opinion somewhat offhanded and thus deserving of criticism by the respondent. I would hesitate however, to find that it constituted a serious breach of his contract of employment as the respondent alleges. 30 In saying that, the applicant can not be held accountable for his absence on sick leave the day following the incident but clearly his not unreasonable task on the day of the incident was to be directly involved in the reporting of the damage and if required, in the repair work. 31 If he had done so at the time instead of leaving it to others then the additional or unnecessary downtime could well have been avoided and the respondent would have had no cause for compliant. 32 The third matter involved an incident in December 1998 where, following the failure of the clutch in a truck in circumstances thought by the respondent to be "unique and unusual", the applicant was provided with the repairer's report which he was asked to review. He was then asked to provide comment in the interests of assisting the respondent "in determining any course of action Council may take in preventing such incidents in the future" (Exhibit 2, attachment C). 33 The applicant's short response was to the effect that he had only driven the truck for about 4 ½ hours and could not supply any information about the clutch failure (Exhibit A, attachment M). 34 Although the evidence makes it clear that the clutch failure occurred whilst the applicant was driving the truck, it is equally clear that enquiries by the respondent could have but were not directed to others who may have driven the vehicle before him. 35 In the result, the respondent took the matter no further but nonetheless placed documents relating to the incident on the applicant's personnel file (Exhibit 2, par 34). 36 This was done according to Mr Amato not because the applicant was being warned about his conduct but because the human resources manager advised him that anything written to any staff member should go on their personnel file (Exhibit 2, par 34). 37 I must confess to having some difficulty understanding why it is that documentation relating to the repair of a damaged vehicle should be placed on the applicant's personnel file in the absence of any suggestion that he was intentionally or otherwise responsible and therefore in the disciplinary sense, accountable for it. 38 The applicant's contention, broadly stated, is that in this and other respects he was being singled out for harsh treatment because of his increasingly prominent role as head union delegate, a role which he assumed from Perry Spence and to which he was elected in or about June 1998. 39 The fourth matter involves the applicant's alleged failure to follow procedures which were explained to him when he was elected as a union delegate and which required him in dealing with any union matters which would take him away from his normal duties, to notifiy his supervisor or Frank Amato, the works superintendent of the date, time and expected duration of the absence. 40 Frank Amato said that he issued the applicant with a memo in March 1999 (Exhibit 2, attachment D) after receiving and talking to the applicant in respect of several complaints from supervisor Brian Homer about failure to follow the procedure described above. 41 Mr Amato was adamant that he had personally explained the procedure to the applicant shortly after the latter's election as union delegate in 1998, that it was a procedure known to and adhered to by Perry Spence, the applicant's predecessor in that role and that the applicant repeatedly failed to follow it. 42 For his part, the applicant claims he was first told of the procedure by Frank Amato at a meeting a few days prior to the issuing of the memo, that he had no problem with it, that he applied it as directed and that he could not see why it was felt necessary to place the memo on his personnel file. 43 When taken to it in cross-examination, Mr Amato was unable to provide details or records of the alleged failures to follow procedure (transcript 145, 146) prior to the issuing of the memorandum in March 1999. 44 He did, however, recall a meeting in May 1999 subsequent to the issuing of the memorandum where the applicant's further failure to follow the procedure was discussed. 45 He recalled that the meeting was attended by the applicant and an MEU organiser, Warwick Smith as well as the respondent's human resources manager, Margaret Williams and himself. 46 Both the applicant and Ms Williams recalled such a meeting and recalled an agreement being reached that the said procedure would be followed. 47 This suggests to me that even after the issuing of a memorandum in March 1999 (Exhibit 2, attachment D), there was an ongoing issue with respect to the applicant's non-compliance with the said procedure which caused the respondent representatives to again raise it in discussion with the union. 48 Again, neither this nor the previous matter described above could in my judgment be characterised as serious breaches of the employment contract. 49 The fifth matter in chronological sequence led to the issuing of a further memorandum in July 1999 which, like its predecessor, was not characterised as a formal warning but was placed on the applicant's personnel file as an expression of the respondent's dissatisfaction with his conduct. 50 The July 1999 memorandum (Exhibit 2, attachment E) followed an approach made by the applicant to Douglas Beggs, purchasing co-ordinator, seeking to complain about and to exchange a pair of work shorts which had been issued to him as part of standard clothing issue. 51 Mr Beggs, it seems, felt moved to write to the applicant on 21 July 1999 in the following terms with a copy to works superintendent, Frank Amato: Subject: Rugger Shorts I refer to your memo dated 21st July 1999 in relation to the provision of rugger shorts. I acknowledge that you did make a verbal complaint several weeks ago in my office about the availability and sizing of rugger shorts. I subsequently advised you that sometime ago the clothing committee, works superintendent and myself put in place a procedure in relation to handling complaints about the issues of clothing to outdoor employees. I advised you that the procedure was to submit the compliant in writing through your overseer who would then pass it on to the clothing committee for investigation. I recommend that you adhere to the agreed complaints procedure and refer the issue on the first instance to the clothing committee. Douglas Beggs, Purchasing Co-ordinator (Exhibit 6) 52 Having had the matter bought to his attention in this way, Mr Amato also felt moved to write to the applicant (Exhibit 2, attachment E) and to again assert failure to follow procedure in terms which appear to me to clearly assume that the applicant had knowledge at the time he made the complaint of some procedure said to apply to the processing of complaints about clothing issue. 53 I am not convinced that such an assumption was reasonable in circumstances where, as Mr Beggs' evidence makes clear, any such procedure as may have existed was verbal only and was articulated to the applicant subsequent to the time he made his "verbal complaint" (Exhibit 6 and transcript 176). 54 Furthermore there is the unchallenged evidence of four members of the respondent's clothing committee to the effect that there was no such procedure of which they were aware (Exhibit A, attachment T1-T4). 55 Be that as it may, Mr Amato also asserted that the applicant's actions in going straight to the purchasing co-ordinator Doug Beggs without reference to either him or supervisor Brian Homer were in breach of the agreed procedure with respect to absenting himself on union business (see par 38) 56 Further, Mr Amato viewed the applicant's subsequent actions in then making the issue of oversized work shorts the subject of a formal hazard report to the occupational health and safety committee with such disfavour that he wrote to the committee in these terms: To: OH&S Committee From: Works Superintendent Date: 27 July 1999 Memo No. WD35/99 Subject: Hazard Report I wish to draw your attention to the attached hazard report. The description of the hazard is not in detail, however, I would not consider the wrong size shorts to be a hazard to your health or wellbeing. Employees are required to nominate sizes and styles on an order form with a final check being made by the employee on receipt. More importantly, I consider this hazard report an abuse of a system that has been developed and implemented for the health and safety of Council employees. The system in place is not a vehicle to air gripes about conditions and/or trivial issues, but rather a vehicle to bring health and safety issues to management after consultation has failed to resolve. If you have nay further queries, I would be happy to discuss them with you. Frank Amato, Works Superintendent, Engineering Services Branch (Exhibit 2, attachment G) 57 The occupational health and safety committee thereafter wrote to the applicant as follows: To: John Hunt From: Occupational health and Safety Committee Date: 9 September 2001 Memo No: OHS102/99 Subject: Hazard Report Relating to Wrong Size Shorts Reference is made to the hazard report completed 23 July 1999 relating to "wrong size shorts". The OHS Committee received a memo from Mr Frank Amato stating that the competed hazard report was a misuse of the system implemented for the health and safety of Council employees. Furthermore, on the information documented in the hazard report the wrong size shorts could not be considered a hazard to your health and well being. After discussion the OHS Committee resolved to concur with Mr Amato. Therefore, we would like to take this opportunity to reinforce the purpose of the OHS hazard reporting system. This system is not in place to resolve matters of a grievance or industrial nature but is in fact a vehicle to bring health and safety issues to a consultative forum for resolution following unsuccessful solutions being found at a local managements level. As union delegate you would be aware of grievance procedures available to pursue matters of a grievance nature. Should there be further information that you would care to provide Frank Amato relating to the specific health and safety issues that the "wrong size shorts" have caused the committee are assured that the matters will be addressed. (Exhibit 2, attachment H) 58 Mr Amato also asserts that he spoke to the applicant just prior to issuing him with the July 1999 memo and the applicant did not allow him to finish. He said the applicant said "hogwash" and just walked away. 59 The applicant admits saying "hogwash" but does not accept that it could give offence. 60 Clearly by this time, the relationship between the applicant, the works superintendent Frank Amato and others with whom the applicant had dealings had become quite strained and it is fair to say, I think, that matters which might otherwise have passed with little or no comment were coming under increasingly close scrutiny. 61 I am of the view that there is substance to the respondent's complaint that the applicant should have initially raised his concerns about clothing with his immediate supervisors before going directly to the purchasing department and the OHS committee, but such conduct as I would view the evidence, is more an indication of the increasingly dysfunctional relationship between the applicant and his supervisors than a serious breach of the employment contract. The applicant however, should have followed the procedure he agreed to and to the extent that he did not, he deserves to be criticised. 62 The sixth matter involved the applicant's alleged misconduct in the respondent's administration building on 25 August 1999. Mr Lawry Price said he was approached that day by the applicant in the corridor outside the purchasing office and told by the applicant that he was there to "have a go at your boss" (transcript 183). 63 Mr Price said the applicant used words to the effect that he was going to broach with his boss Mr Doug Beggs, whether there was any substance to rumours that he, Beggs, had contributed to the recent death by suicide of a person in the purchasing office, Ms Faye Liu. 64 Mr Price said he told the applicant it was not the time or place for such an approach and the applicant left. 65 Mr Price did not recall the applicant saying to him, as the applicant asserts, words to the effect: "I am here because I have been told that morale is bad in the department" (transcript 185). 66 He was adamant that the applicant evinced a clear intention to speak to Mr Beggs about Faye Liu's recent suicide, a matter which was at the time attended by a high degree of prominence, as he described it, and he was adamant that it was and remains an inappropriate way for the applicant to conduct himself. 67 Ms Derham, human resources administrator, initially said that she recalled the applicant approaching her in August 1999 and broaching with her the subject of Faye Liu's suicide. 68 She said that she was shocked and upset as she had been friendly with Faye Liu and that she told her manager, Margaret Williams about the applicant's approach. (transcript p193) 69 Later in cross examination, she gave totally inconsistent evidence as to the applicant mentioning Faye Liu's name in that conversation (transcript 196) and I am bound to say that, with the vigorous contest between the opposing advocates and the constant interruptions to the flow of evidence as well as her nervous demeanour, that Ms Derham became quite confused towards the end of her evidence. 70 In such circumstances, I would not be confident that she intended to recant her evidence. 71 In the days following these conversations, the applicant accompanied by MEU organiser Warwick Smith was interviewed by works superintendent Fank Amato and human resources manager, Margaret Williams in the course of which he was informed that his actions in conducting investigations into Faye Liu's suicide were inappropriate and upsetting to staff, particularly to Doug Beggs who was aggrieved by the suggestion conveyed to him that the applicant in some way connected him in a causal sense with the suicide. 72 The applicant was asked to extend an apology to Doug Beggs and to desist from further such investigations or enquiries. 73 For his part, the applicant denies telling Lawry Price he wished to speak to Doug Beggs that day and his memory of the conversation with Nicole Derham was that he gave no indication that he was investigating whether there was any connection between complaints in the purchasing department and Faye Liu's suicide. 74 As the applicant would have it, he was, in his capacity as chairman of the Equal Employment Opportunities Committee, investigating complaints about the purchasing department for the purpose of reporting to the committee. 75 He did not say where such complaints came from or what the nature of them were. 76 I am inclined, on balance, to think that his enquiries of Lawry Price and Nicole Derham on 25 August 1999 were capable of being understood, and were properly understood by those two people, as containing references either expressed or implied, to Faye Liu's suicide and/or to a causal link between Faye Liu's suicide and Doug Beggs' behaviour as her manager. 77 No motive was put to either Lawry Price or Nicole Derham to invent their testimony in this regard and to the extent that it differs from the applicant's, I accept it as truthful and reliable. 78 In my judgment it was inappropriate for the applicant to conduct himself in this fashion and his actions were deserving of the criticism they received from the respondent. 79 The question whether he was acting that day in his capacity as union delegate or chairman of the EEO committee or for that matter, was on a frolic of his own, is in my opinion, an unnecessary distraction from the real issue of the inappropriateness of the behaviour. 80 I agree with the respondent that if he had evidence on which to base such suspicions, he should have brought it to the respondent's attention rather than go about his own investigatory process involving, as was his intention until diverted, confronting Doug Beggs. 81 This is particularly so when it is considered that he had earlier found himself at loggerheads with Doug Beggs over the clothing issue and arguably may not have brought a completely impartial mind to bear on the matter he chose to investigate. 82 At all events, on 10 September 1999 the respondent served upon the applicant a final written warning (Exhibit 1, attachment Q and Exhibit A, attachment AA) putting him on notice that his conduct and behaviour were to be monitored and that in the absence of improvement, his employment may be terminated. 83 The seventh matter involved a memo being forwarded to the applicant on 15 December 1999 and then placed on his personnel file. 84 The memo (Exhibit 1, attachment R) again from works superintendent Frank Amato, expressed dissatisfaction with inaccuracies in the timesheet completed by the applicant for the week commencing 29 November 1999. 85 The memo made reference to the supply of incorrect information on that and other paperwork completed by the applicant and warned that disciplinary action may be taken in the absence of improvement. 86 Again and as earlier observed, the employment relationship had by this time degenerated to the extent that matters which might otherwise have passed with little or no comment were coming under increasingly close scrutiny. 87 In saying that, the importance of being accurate in the creation of timesheets which form the basis on which wages are compiled and paid should not be understated, but it is not suggested by the respondent here that the applicant intentionally created inaccurate timesheets. 88 It is more, as I understood it, that his approach to such paperwork was sloppy and deserving of criticism. 89 For his part, the applicant does not deny the errors alleged by the respondent but argues that it is not a matter that warranted placement of a memo on his personnel record and that the respondent's decision to do so is further evidence of its unreasonable treatment of him. 90 I would not necessarily agree with that as a proposition although the weight to be given to a sloppy approach to paperwork, absent any suggestion of intentional misrepresentation, would ordinarily be less in the case of a wages employee than a clerical employee from whom greater adeptness in that regard would be expected. 91 The eighth matter involved the applicant approaching Harry Teesson in an allegedly aggressive and rude manner on 1 February 2000 demanding to see Frank Amato about an industrial matter. 92 Harry Teesson reported the occurrence to Frank Amato and recorded it in a report shortly afterwards (Exhibit 4). 93 Harry Teesson was called and cross-examined on his account of that day's events as were Phil Murdoch and Keiran Byrne who also witnessed the applicant's behaviour. 94 Each of the respondent's witnesses to the events of 1 February 2000 were adamant that the applicant's behaviour towards Harry Teesson constituted an unwarranted and inappropriate personal affront which was not excusable by reason of his pursuit at the time of an industrial issue or by reason of the not uncommon use of strong language in dealings between employees or their representatives and management in the workplace. 95 It was, as the respondent witnesses would have it, a public display by the applicant in the workplace, of aggression and intimidation towards a person in Harry Teesson who was in a supervisory position and who, notwithstanding his attempts at the time, was not afforded an opportunity to elicit from the applicant an explanation as to the basis of his apparent anger. 96 The applicant portrayed the events of 1 February 2000 as being essentially an attempt on his part to yell across the yard to Harry Teesson a request for contact information for Ron Patton, executive manager, works and a person in higher authority than Harry Teesson and in turn, as being an allegedly dismissive response by Harry Teesson who is said to have shrugged his shoulders and walked away (Exhibit A, par 77). 97 To the extent that such a portrayal is at odds with the contemporaneous records of the day's events of Harry Teesson (Exhibit 4), Phil Murdoch (Exhibit 7) and Keiran Byrne (Exhibit 12), I would find it difficult to prefer. 98 It is more likely, I think, that the applicant did behave in the manner alleged and in so doing, again provided the respondent with grounds for criticism. 99 In the result, the applicant was called into a meeting with Frank Amato on 19 February 2000 and on 29 February 2000, served with a further letter of warning by Frank Amato (Exhibit A, attachment CC and Exhibit 2, attachment M). 100 On this occasion, he was told that any further incident would result in the termination of his employment. 101 It might be usefully noted that the industrial issues giving rise to the applicant's concerns on 1 February 2000 namely, the use of casual labour to drive trucks, was the subject of discussion the next day between the applicant, MEU organiser Mark Mcleay and Frank Amato in the course of which it was agreed that the union's concerns would be outlined in writing and one may imply, dealt with in an orderly way between the union and the employer. 102 The issue of the applicant's behaviour towards Harry Teesson the previous day was dealt with separately in the manner outlined above and in my opinion, appropriately so in the broader interests of enabling ordinary dealings between the industrial parties to take place notwithstanding the ongoing tensions between the applicant and those with whom he routinely came into contact in his elected role. 103 The ninth matter involved a meeting on 11 April 2000 in which the applicant, in his elected role was representing one Darren Parkes. 104 Management was represented at the meeting by: · Saba Arunanthy, construction team leader · Jeff Wright, human resources consultant · Keiran Byrne, construction technical officer 105 The stated purpose of the meeting was to ascertain the reason why Darren Parkes had not returned to work after a medical appointment on 4 April 2000. 106 The applicant agrees that he walked out of the meeting after a heated exchange primarily with Jeff Wright. 107 He said he took exception to Jeff Wright seeking "to discuss other matters not part of the allegation " (Exhibit A, par 79). 108 Two of the management representatives who were present at the meeting on 11 April 2000, namely Jeff Wright and Kieran Byrne, were cross-examined on written statements they collectively and severally made shortly afterwards (Exhibit 10, 11 and 13) and each were adamant that the applicant had conducted himself in an unacceptably hostile manner prior to and at the time he brought the meeting to a premature end by walking out. 109 I have little doubt that the underlying reasons why he voiced his protest namely, management's perceived attempts to canvass matters other than those of which they had given notice, were on the applicant's view of them substantial. 110 Such a view would allow that Darren Parkes was asked to attend a meeting ostensibly to explain why he did not come back to work after a doctor's appointment on 4 April 2000. Having done so in company with the applicant as his union representative, he was then told that his record of absence and attendance generally would be considered by management in deciding "what course of action to take" (see Exhibit 11). 111 For all of that, however, and regardless of the merit or otherwise of the issues under discussion, it was the applicant's open hostility and confrontational manner of conducting himself in the meeting which again attracted adverse comment from the respondent. 112 Following preliminary investigations into the incident, the applicant was thereafter required to attend a disciplinary interview on 8 June 2000. 113 In the course of those preliminary investigations the applicant was questioned by Frank Amato, who he said denied him his request to have a witness present and who tried to provoke him into losing his temper in front of Harry Teesson who was also there. 114 The applicant said he remained calm and did not react. 115 He was also, it would seem, asked to and did attend a training course entitled "Verbal Judo" (Exhibit A, attachment DD) which was, as I understood the evidence, directed towards assisting him to "identify and deal with difficult situations, both verbally and physically". (Exhibit 1, par 56). 116 At all events, the applicant was accompanied at the disciplinary interview on 8 June 2000 by MEU organiser Mark McLeay and the respondent was represented by · Margaret Williams, human resource manager · Frank Amato, works superintendent · Tom Brindle, building overseer 117 A written record of that disciplinary interview to be found at Exhibit 1, attachment AE indicates that efforts were made on both sides of the record to accept the need for and to bring about by training or further training, as the case may be, a modification to the applicant's behaviour towards those with whom he dealt in his capacity as a union delegate. 118 A decision was ultimately made and communicated to him on 12 July 2000 not to terminate his services based among other things, on MEU organiser McLeay's advice that he was actively managing or attempting to manage the problem (Exhibit 1, attachment AF). 119 He was again told that a further warning would be terminal to his employment. 120 Importantly, as I am disposed, there was a meeting of the minds at this point in time and an acknowledgement that co-operative remedial attention needed to be given to a problem which not only threatened the ongoing viability of the applicant's role as union delegate but also his employment with the respondent. 121 Of equal importance as I am disposed, is the fact which emerges beacon-like from the evidence and that is, that the applicant's role as a union delegate and his very employment were at risk not because he was a union delegate, but because of the manner in which he conducted himself as such. 122 I will return to that shortly. 123 Moving on then with the sequence of events leading to the applicant's dismissal, the tenth matter involved a meeting between management, the MEU and parks and gardens employees scheduled to take place on 10 August 2000 to discuss restructuring proposals. 124 The applicant contacted Harry Teesson and consistently with the procedure to which earlier reference has been made, sought permission to attend the meeting (Exhibit B, par 17). 125 At Harry Teesson's suggestion, he then contacted or was contacted by Frank Amato, the evidence is unclear, and directed not to attend the meeting. 126 The next day, 11 August 2000, Frank Amato forwarded a memo to the applicant purporting to reiterate the respondent's previous advice to him that he was not free to absent himself from his work to attend to union matters outside the Assets and Engineering Services Branch, the general area in which he was employed (Exhibit 2, attachment P). 127 In a letter to the MEU the same day a copy of which was also provided to the applicant, the respondent offered as its reason for declining the request or demand as it was termed, for his attendance at the parks and gardens meeting as follows: "1. three union representatives were already in attendance 2. the matter for discussion did not concern Mr Hunt's area of representation and 3. Mr Hunt works in a different part of the Council's outdoor work area, and considerable time would have been lost in travelling to the site of the meeting, being absent from his work then returning to his worksite." (Exhibit 2, attachment P) 128 At all events, the applicant did not attend the meeting or conversely, did as he was directed by Frank Amato and carried out his normal work that day, a fact which of itself raises the question why copies of the abovementioned memo and the letter to the MEU were placed on the applicant's personnel record when on the face of it, the procedure laid down by the respondent had worked as it was intended. 129 The eleventh matter involved the applicant allegedly disobeying instructions on 19 October 2000 and thereby placing himself and the respondent "at risk of exposure to the provisions of s15 of the Occupational Health and Safety Act." (Exhibit 2, attachment Q). 130 It was later said in the reasons for dismissal that he "showed a clear disregard for occupational health and safety issues, potentially exposing the council to prosecution by the Workcover Authority" (Exhibit 1, attachment A). 131 By way of background, the applicant had been placed on a workplace injury management and return to work plan following a report of right elbow pain on 12 October 2000 (Exhibit 9). 132 The plan which was formulated by OH&S/rehabilitation officer Rachael Clements in consultation with the applicant's treating doctor, required him to avoid lifting with his right arm and to avoid shovelling. 133 It specified driving, traffic control, mowing and 'whippersnippering" and others as duties to be performed within his required restrictions. 134 There is no dispute that he was allocated to Ken Hinkley's gang for the notional period of the return to work plan (viz 16 October 2000 to 25 October 2000). 135 There is no dispute that he was told by Ken Hinkley that because it was raining he would not be needed on 19 October 2000 (Exhibit 2, attachment R) although the applicant's memory puts it at 20 October 2000 (Exhibit A, par 85). 136 There is no dispute that the applicant then reported for work at the depot and carried out some clean-up work for Steve Delaney, another ganger who made use of the rainy weather to clean up the shed he used at the depot. 137 The applicant said the work he carried out for Steve Delaney was within his work injury restrictions and I think on an objective view of the evidence, that is probably right. 138 The fact that he loaded or unloaded some light pieces of plywood was in my opinion of little or no moment given that it was work which he said was lighter than using the "stop/go bat" (transcript 46.55) - I took that to be traffic control work which was within the restrictions imposed (see Exhibit 9). 139 The respondent's further complaint was that the applicant accepted work from someone other than Ken Hinkley, the ganger to whom he had been allocated and that he did so without reference to either Ken Hinkley or supervisor Harry Teesson. 140 On a fine technicality, the complaint can probably be accepted as having some substance and one cannot be critical of any employer for steadfastly adhering to the requirements of workplace injury and workplace safety legislation but to elevate the occurrence to a level which warranted the sanctions that followed is in my opinion making too much of the occurrence. 141 The applicant was after all told by his ganger, Ken Hinkley, that there was no work for him because of the rain. He thereafter reported back to the depot where he encountered ganger Steve Delaney in the process of cleaning out a shed. 142 He was conscious of the work restrictions placed upon him by his treating doctor and embodied in the return to work plan and would have been eminently capable of resisting any request from Steve Delaney which brought him into conflict with those restrictions. 143 True it is, that in an ideal world the applicant would have informed his supervisor that ganger Hinkley had no work for him that day rather than attaching himself to Steve Delaney's gang without reference to the supervisor, but as the applicant said in cross examination, such a procedure was never enforced in the workplace and it was routine practice for employees to simply stay in the shed on wet days and for the supervisor/overseer to come down to the shed as needs be. 144 The applicant rejected the proposition, with some persuasive force I think, that his actions in voluntarily attaching himself to Steve Delany's gang that day were knowingly in breach of the procedure set out in Exhibit 2, attachment S. It was after all a procedure which was simply not enforced by the respondent and to hold someone such as the applicant accountable for not following a procedure which on the applicant's unrebutted evidence was honoured in the breach is in my view taking the matter too far. 145 The respondent, however, formed a different view and following a fact-finding interview on 20 October 2000, caused a letter of warning to be forwarded to the applicant on 27 October 2000 under the hand of Ron Patton, executive manager, works division (Exhibit 1, attachment AJ). The letter indicated among other things that the applicant's ongoing conduct was unacceptable and would be referred to the general manager for review. 146 On 1 November 2000, the applicant was served with a "show cause" letter under the hand of R J Ball, general manager, standing him down on full pay and requiring him to provide written reasons as to why his employment should not be terminated (Exhibit 1, attachment AM). 147 The disciplinary process was diverted for a time by recommendations made by the Commission in dispute proceedings (IRC 00/4079) to which earlier reference has been made. 148 The Commission at that time recommended that disciplinary action against the applicant be suspended pending further conciliation of the dispute and to its credit the respondent complied. 149 The issue of disciplinary action against the applicant was then separated out from the dispute and allowed to take its own course in these proceedings. 150 In the result, the MEU on the applicant's behalf forwarded a detailed response to the "show cause" letter (Exhibit 1, attachment AQ) which was considered and discussed at a disciplinary meeting on 20 December 2000. 151 At the same meeting, the applicant was informed that his employment was terminated. He was then handed a letter to that effect and a cheque for three weeks payment in lieu of notice plus accrued annual leave. 152 The reasons given for his dismissal are as follows: "As discussed with you, the reasons for your termination are that the disciplinary issues which have been brought to your attention constituted serious breaches of your contract of employment with the Council. They invariably involved disobedience of reasonable and lawful orders and directions of Hornsby Shire Council, lack of co-operation and disrespect, and showed clear disregard for occupational health and safety issues potentially exposing the Council to prosecution by the WorkCover Authority. As discussed with you, the response did not justify why your employment should not be terminated and in several parts were (sic) plain argumentative. In our opinion it did not adequately respond to issues we had raised. We also note that Union has raised issues which were dealt with in our letter of 23 November 2000. In some of those cases we repeated that the memoranda that were referred to were not in fact disciplinary issues however, we clearly indicated that such memoranda were necessary given repeated behaviours and disobedience of instructions which were exhibited by you." (Exhibit 1, attachment AU) 153 Coming then to consider whether in all the circumstances, the dismissal was unfair, I am bound to say that the matter rests on a fine balance. 154 In considering that question I bear in mind the totality of the evidence and the comprehensive submissions on either side of the record and whilst each of the matters given in evidence is the subject of meticulous attention in the submissions, it seems to me as I have indicated in the course of the reasoning thus far, that much of the respondent's dissatisfaction with the applicant had a basis in the applicant's headstrong and at times belligerent approach to those with whom he came into contact in his elected role particularly those in supervisory positions. 155 There can be no question that his actions may well have been viewed differently over the course of his employment had his manner of approach to those with whom he dealt in the workplace been different, and from a practical perspective, that is the background against which the matter in its entirety should be viewed. 156 Notwithstanding the vigorous contentions of his counsel, I can find no sufficient basis in the evidence for a conclusion that the applicant was denied procedural fairness and much to suggest without here commenting on the various incidents said to constitute misconduct, that he was afforded procedural fairness in ample measure. 157 Similarly, I am unable to accept as the applicant's counsel submits, that the respondent should be limited in what it can rely upon to matters that were the subject of formal warnings as distinct from matters that were the subject of memoranda. 158 The memoranda, by and large were as I have said expressions of the respondent's dissatisfaction with the applicant's conduct and whilst, in the respondent's mind, they may not have carried the same degree of individual weight as the matters giving rise to formal warnings, they are nonetheless and clearly so matters going to the allegedly unsatisfactory nature of the applicant's conduct and work performance. 159 I say by and large because again as I have said, it is difficult to understand why memoranda were placed in his personnel file when in the cases of the clutch failure and the request for attendance at the meeting of parks and gardens employees, for example, no actual wrongdoing is imputed to him. 160 But leaving those memoranda aside, the others have the character of expressions of the respondent's dissatisfaction with the applicant's conduct and performance in the same way albeit not to the same extent as the formal warnings and given that the applicant was made aware of and spoken to about each incident, it would be wrong to limit the respondent in its reliance upon them. 161 Whether the incidents giving rise to the memoranda and formal warnings are of sufficient substance to warrant dismissal from employment, however, is another matter and in my opinion there must be serious doubts about the ultimate disciplinary sanction of dismissal being employed by the respondent ahead of other less severe penalties. 162 As would be apparent, I am satisfied that there is in the main sufficient evidence to establish misconduct or unsatisfactory performance on the part of the applicant and findings in that regard made earlier in these reasons need not be repeated here. 163 In saying that, such allegations have not been made out in all cases and I refer here for example, to the final incident which although proven as to its occurrence does not in my opinion support an allegation that the applicant's: "actions placed both yourself and Council at risk of exposure to the provisions of s15 of the Occupational Health and Safety Act . They may well constitute a breach of your obligations under s19 of that Act" (Exhibit 1, attachment A). 164 I am of the view however that where the allegations have been made out, the respondent was within its rights to discipline the applicant albeit not to the extent of dismissing him. 165 Clearly, the applicant was aware that his behaviour towards others was perceived as aggressive and intimidating. 166 In that regard, the long established principle when dealing with the proper role of a trade union delegate was commented upon in the Newcastle Steel Works Case (1961) AR 48 at 66 as follows: "….while the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring upon the wearer immunity from liability for wrongful actions…" 167 The fact that the applicant agreed to undertake a course or a number of courses in an attempt to modify his behaviour is to his credit but it is also in my opinion a tacit admission that his behaviour needed modification and although doubtlessly well-intended, his participation in the role of elected delegate may not have been conducive to compliance with ordinary and acceptable standards of behaviour in the employment relationship. 168 That is not to say there should not be, on the part of the elected delegate, vigorous pursuit of improvements in conditions of employment but where as here the behaviour of the delegate rather than issue being pursued becomes the primary focus, it seems to me to be time for measured and careful attention to be given to alternatives. 169 An extract from the transcript of his evidence in chief provides an insight into such alternatives as follows: Q: In terms of Mr Amato who is referred to in the statements in these proceedings, your dealings with him; what did they involve at work, principally? A: Principally, union matters, just that. Q: Putting aside union matters, how often would you have to deal with him in works duties? A: Very occasionally. Q: If you were given relief and reinstated, do you propose to seek the position of Head Delegate or Assistant Delegate? A: No. Q: If you didn't have either of these roles, what would your dealings with Mr Amato be in work? A: Not very often at all. Q: Have you any difficulties working with Mr Amato in the future? A: No. (Transcript 17.30-45) 170 Having regard to the totality of the evidence and to the counterveiling arguments, I agree with the applicant's counsel that the respondent's case at its highest does not equate to its allegation of "serious breaches of your contract of employment" (Exhibit 1, attachment AU) 171 I do not consider, on balance that the applicant's conduct amounts to misconduct justifying dismissal although, as stated earlier, it was conduct that on occasions fell short of appropriate conduct. 172 It follows and I find accordingly that the penalty of dismissal was too severe, that the dismissal was harsh, that it was unreasonable and that it was unjust. I resist the notion urged upon me by the respondent that reinstatement would be impractical. 173 In Hardie Ferodo Pty. Ltd v NSW Nurses Association, (per McClelland, J) the Industrial Commission of NSW as it then was said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others, the Commission would never have reinstated anybody." (No. 562 of 1978, 28 November 1978, unreported ). 174 Further in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 which was applied by this Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282 and CCH Australia Ltd v Bowen (1998) 79 IR 206, the Industrial Relations Court of Australia (per Wilcox CJ, Marshall and North JJ) said this: "If the court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of the loss of confidence in the employee. Each case must be decided on its own merits. These may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about the discretion of an employee who is required to handle highly confidential information. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employers own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impractical." 175 In this case and noting the applicant's evidence in this regard, I would respectfully adopt the view expressed by Hungerford, J in Pastrycooks Union v Gartrell White (No.3) (1990) 35 IR 70 at 99 that the process of re-assimilation into the workplace will be materially assisted by his decision to cease being a union delegate. It is a decision to which he should adhere in my opinion. I have no doubt in such circumstances that with time if not immediately a proper employment relationship can be established. 176 The respondent is therefore ordered pursuant to s89 (1) of the Act, to reinstate the applicant to his former position on terms not less favourable that those that would have been applicable if the applicant had not been dismissed. 177 Having regard to the extent of the applicant's own contribution to his dismissal, I decline to order payment of the totality of lost earnings and in the exercise of discretion, order the respondent pursuant to s89(3) of the Act, to pay the applicant within 21 days an amount equivalent to 26 weeks pay at the rate the applicant would have earned but for dismissal. 178 I further order pursuant to s89(4) of the Act that the applicant's period of employment with the respondent be taken not to have been broken by the dismissal. 179 The respondent is to comply with the foregoing orders within 21 days of today. 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