Industrial Relations Commission of New South Wales CITATION : Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 APPLICANT PARTIES : The Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis RESPONDENT TNT Australia Pty Limited trading as TNT Express FILE NUMBER: 6551 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - serious misconduct - harassment and intimidation of supervisor - employer policies - procedural fairness - misconduct admitted - whether dismissal harsh - practicality of reinstatement. CATCHWORDS : Held, misconduct "out of the ordinary" - isolated incident - no evidence of similar past behaviour - conduct inappropriate and unacceptable, but not harassing or intimidatory - employee's otherwise good record of employment not given sufficient weight - concern at level of harassment policy training - dismissal found to be "harsh" and disproportionate to gravity of conduct - reinstatement ordered on conditions LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Paris v Bankstown City Council [1999] NSWIRComm 10, 22 January 1999 Electricity Commission of New South Wales t/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 Franklins v Webb, 72 IR 257 Standley v Electronics Boutique Pty Ltd (unreported, Sams DP, IRC4516 of 1999, 18 March 1999 Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000 Blyth Chemicals Ltd v Bushnell, 49 CLR 66 Hunt v Hornsby Shire Council (unreported, Grayson DP, NSWIRComm 242, 12 October 2001) John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) Jupiter Insurance Co., Ltd v Ardeshir Bomanji Shroff, All ER 1937 CASES CITED : Byrne & Anor v Australian Airlines (1995) 185 CLR 410 Burke v McGirr (1995) 87 IR 54 Oswald v New South Wales Police Service (1999) 90 IR 42 Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 5 Abboud v The State of New South Wales (Department of School Education), 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Wilson v Department of Education and Training, 100 IR 1 Leeds & Northrup Australia Pty Limited v Hull, 46 IR 11 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Hollingsworth v Commissioner of Police, 88 IR 282 HEARING DATES: 01/30/2002; 01/31/2002; 02/01/2002 DATE OF JUDGMENT: 03/20/2002 APPLICANT Mr S O'Brien, Transport Workers' Union of Australia, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Mr T Davies, Blake Dawson Waldron Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 20 March 2002 Matter No IRC01/6551 THE TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH (ON BEHALF OF JOSEPH VALLIS) AND TNT AUSTRALIA PTY LIMITED TRADING AS TNT EXPRESS Application by the Transport Workers' Union of Australia, New South Wales Branch on behalf of its member Joseph Vallis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 46 1 On 17 September 2001, TNT Australia Pty Ltd t/as TNT Express ("the respondent") dismissed three employees at its Enfield depot - Mr Barry Roy Plummer, Mr Peter Cadby and Mr Joseph Vallis. The employees were dismissed for their involvement in an incident on Friday 14 September 2001, in which a number of telephone calls were made in the early hours of the morning to the home of the employees' supervisor, Mr Alan Davis. The respondent regarded the actions of the employees as in breach of their contracts of employment, in that their actions constituted "serious harassment" of Mr Davis. The three employees were dismissed with four weeks' pay in lieu of notice. They received identical letters of termination in the following terms: I refer to our discussions of today relating to telephone calls you were involved in making to Mr Alan Davis between the hours of midnight and 3.45am on the morning of Friday 14 September 2001. Following investigations into this matter, TNT find your actions were in breach of conduct, constitute serious harassment, and involved leaving lurid and sexual messages on Mr Davis' telephone. TNT views your actions as a fundamental and serious breach of your employment and has decided to terminate your employment effective from the close of business Monday, 17 September 2001. You will be paid four (4) weeks in lieu of notice, together with any Long Service Leave and Annual Leave to your credit. 2 Applications, pursuant to s84 of the Industrial Relations Act 1996 ("the Act") were subsequently filed by the Transport Workers Union, NSW Branch, ("the Union") on behalf of the three employees. (Matters 6549, 6550 and 6551 of 2001). 3 The matters were listed for conciliation and directions on 1 November 2001. Following preliminary submissions and private conferences with the parties matters 6549 and 6550 were concluded on the basis of terms of settlement agreed between the parties and which were recorded on transcript (see my decision of 6 November 2001). 4 Matter 6551, the application on behalf of Mr Joseph Vallis ("the applicant"), could not be resolved. Pursuant to s87 of the Act, the Commission set the matter for hearing and issued directions for the filing of evidentiary material. BACKGROUND 5 The applicant was employed as a truck driver at the respondent's Enfield Depot. He had been employed for a period of six years and at the time of termination was earning approximately $1300 per week. For about three months prior to his dismissal, Mr Alan Davis was the applicant's zone supervisor. 6 On the night of the incident, the applicant was at the home of Mr Peter Cadby. Also present were Mr Barry Plummer and a female acquaintance of Mr Plummer. There was much drinking involved. Sometime shortly after midnight one of those present phoned Mr Davis at his home and left a message on his answering machine. Mr Davis was woken by the phone and listened to the message. He believed it to be Mr Cadby. When his wife inquired who it was, Mr Davis replied: Don't worry honey it's nothing. Just a guy at work, he's a bit mad because we had an incident yesterday. 7 The first message was not retained, but twelve subsequent messages commencing at 12.41am through to 3.33am, were stored on Mr Davis' message bank. When Mr Davis arrived at work at around 4.00am he listened to a couple of the messages and finding them upsetting spoke to his immediate supervisor, Mr Darren Pollard, around 6.30am. They both listened to all the messages. 8 Mr Pollard decided to report the matter to senior management and instructed depot security that, should any of the three employees arrive at work, they were to wait at the gatehouse. Mr Davis went back to work at about 7.30am. 9 Meetings were held that day involving Mr Simon Farahar, NSW State Manager; Roy Rogan, Terminal Manager; Bob McKenzie, Human Resources Manager; Mr Pollard, Southern Area Manager; Darren McDonald, Pick up and Delivery Manager and Mr Davis. 10 After Mr Davis explained what had happened the night before, he said that while he wasn't telling management to sack the three employees, he felt intimidated and could not work with them. 11 The three employees were suspended on full pay until a meeting involving the Union was held on Monday, 17 September 2001. A number of interviews were held on this day prior to the meeting involving Mr McKenzie, Mr Farahar, Mr Shane O'Brien, Transport Workers Union (TWU) Organiser and three TWU delegates. At the Union's request, it also met with Mr Davis. 12 Mr McKenzie and Mr Farahar, with the Union present, interviewed the applicant and Mr Cadby (Mr Plummer was on leave). A tape of the messages was played. Both employees claimed the calls were a joke and characteristic of the relationship they had with Mr Davis. 13 At about 1.00pm, Mr Farahar and Mr McKenzie interviewed Mr Davis again to query the relationship as alleged by the applicant and Mr Cadby. Mr Davis said the relationship was friendly, but purely professional and apart from one barbecue he had attended at the applicant's home, they had no other social contact. 14 The meeting with the Union and the employees was resumed. Mr McKenzie told the applicant and Mr Cadby that Mr Davis denied the relationship they had alleged. The applicant said the calls were intended as a joke and had nothing to do with work. He also raised a previous incident in 1999 concerning sexual innuendo about his wife. Mr Farahar said these two incidents were quite different. The meeting was adjourned to allow Mr McKenzie and Mr Farahar to discuss the earlier incident. It had involved certain comments made by a supervisor, Mr Adam Long, about the applicant's wife. Mr Farahar found his conduct inappropriate and Mr Long was suspended without pay for a couple of weeks. 15 The meeting with the Union resumed and Mr McKenzie informed the employees they were to be dismissed effective that day. 16 Mr Davis subsequently left the employ of TNT for a job paying $6000 a year less. THE EVIDENCE 17 This matter does not present as a case in which the allegations against the applicant need be proven. There is no significant contest between the parties as to the factual background or whether the misconduct had occurred. Rather the crucial question to be answered here is whether the misconduct was of sufficient gravity to justify dismissal. I shall return to this question later. 18 Notwithstanding these observations, it is necessary to refer to the relevant evidence, which led to the respondent's decision to dismiss the applicant. 19 The first area of debate dealt with what might broadly be described as the relationship between the three employees and Mr Davis; particularly the relationship between the applicant and Mr Davis. 20 The applicant's evidence was that he regarded Mr Davis as a "pretty good mate". They would often have breakfast together, swap dirty magazines and discuss family and personal matters. On one occasion, a "bad taste" party was held at the applicant's home and Mr Davis and his wife were invited and attended. One of the respondent's witnesses, Mr Boag, while not attending the party, described it as a "zone barbecue". The evidence was clearly that the barbecue was not organised, or paid for, by the respondent and that those attending included work and personal acquaintances. 21 Mr Davis agreed that he paid for breakfast for employees from time to time. This wasn't regarded as unusual. Mr Davis denied swapping dirty magazines with the applicant. He made sure the material was put in a discrete place away from the sight of female employees. In oral evidence, he accepted that he did look at the material "once or twice". 22 Mr Barry Plummer gave evidence that he played euchre on the internet, at night, with Mr Davis. He said Mr Davis would make sarcastic and suggestive comments while they played and made sexual innuendos at work. Nevertheless, he believed Mr Davis was a genuine bloke who treated him well. Mr Plummer believed Mr Davis had no reason for wanting the employees to lose their jobs. 23 Mr Boag, a supervisor at Enfield, also played euchre on the internet and had played with Mr Davis about four or five times and twice with Mr Plummer. He said that the internet will not allow offensive words to be sent. Mr Boag had never heard anything sexually explicit, degrading or demeaning said by Mr Davis or Mr Plummer. He said while some swearing at work occurred, it was not common for anyone to swear in a derogatory way. Mr Boag regarded Mr Davis as a serious and dedicated worker. 24 Mr Davis gave evidence that his dealings with employees was fair, but firm and respectful. He said he had a good professional relationship with the applicant and helped him with a work injury by organising light duties for him to perform. 25 Mr Davis rejected the content of the phone calls as being typical of the language he used at work. He found the calls "personal, degrading and hurtful." In ten years of middle management, he had never received such calls at home. He found them particularly upsetting as the sexual references to his wife could have been easily heard by her. It was an intrusion into his private life. The Incident 26 The applicant's evidence was that on the day of the incident he had a call from Mr Cadby at about 6.30pm inviting him over for a drink. Mr Plummer was also to be there. He said he went along knowing that Mr Cadby had a few personal problems and sounded upset. There were also problems at work involving redundancies. The applicant said he wasn't aware at this stage, or during the night, of the argument that day involving Mr Cadby and Mr Davis. 27 The three men and a woman friend of Mr Plummer's were all drinking alcohol. The applicant agreed he was drunk at the time of the phone calls. The applicant had no recollection of when he went to bed, but he had to start work at 7.30am. 28 The applicant said he thought he was making phone calls to a friend as a joke. He thought the calls were funny. He didn't know if Mr Davis was asleep at the time. However, he knew Mr Davis had to start work at 4.00am. He was cross-examined on the contents of the messages and identified which messages were his. For relevant purposes the applicant identified the following extracts from the recorded messages as being his voice: 12.41am Voice 1 (Male): KFC again. We are just ringing about this molested chicken. (Background: [Stop it]) We are trying to find out what the problem is. Um, I think personally (Background: unclear) myself the chicken, the chicken, the chicken, the chicken cross…., never crossed the road. I don't know why it didn't cross the road but Baz will give you the information now. Voice (Female): (Background: Is that him?) Voice (Male): (Background: Why did the chicken cross the road?) 12.46am Voice 1 (Male): Al, we got three molested turtles. One, one has Kentucky Fried chicken stuck up of it; the other one has got a strap on and the other one has got me up it. I don't know what I'm going to do. I have never had a turtle before. (Background laughter and noises) I have never [indecipherable] Al. I need therapy. I need something, Al I'm telling yah, I can't take it any more (laughing in the background). Barry, Barry wants the fourth one. If you get one that's pregnant, Barry wants it - cause he loves them, badly. Sorry about, sorry about the slight inconvenience and I, I apologise, Barry (background noise). I apologise about the strap on. I will never use it again. Mate, if you need a bit of blue vein cheese, I will supply it. Over and out, bye. 1.27am Voice 1 (Male): Mrs Al, we are just ringing to apologise for any inconvenience we've caused. Um, I hope you understand but, um, you are a good lady and your husband is a good man and we are just having a bit of a um, aye yeah and um, yeah you know. We didn't mean any harm about all this and hopefully you will see the funny side of it and um, your husband is a good man and you are a good lady and I personally think yous are, you know, a good bunch of people and we, we, apologise if we did inconvenience you and Al can slap me around tomorrow if he finds me, or the day after, whatever, and um, as I said we were just having a bit of fun that's all. Have a good day, life or whatever and um, Pete said Al, Al, Pete said he loves you too, so does Barry - he wants your body. Barry says he wants your body. I don't know why but I reckon, I reckon he likes the bulge in your pants, personally, yeah but you know we got no control over the chicken and the turtles (music in background). 29 The applicant was asked about the first deleted phone message. He claimed he had no knowledge of such a call, nor would he have ever said such things. 30 In re-examination, the applicant said he had never meant to offend Mr Davis and had offered to apologise from the outset. He had conveyed a message to Mr Davis that he was sorry. He was never given an opportunity to apologise because Mr Davis would not speak to him. He never threatened Mr Davis or his family. 31 Mr Plummer was the only other participant in the incident who gave evidence. He had had lunch with Peter Cadby on the day and played darts later that night. He returned to Mr Cadby's home at 11.30 with a friend, Rhonda, and joined in with Mr Cadby and the applicant drinking and talking about work and personal problems. Mr Cadby had not mentioned the argument with Mr Davis that day. 32 Mr Plummer said it was the applicant who suggested they ring Mr Davis. They continued drinking and chatting throughout the night and made a number of calls to Mr Davis. Mr Plummer said there was no malice intended. He never thought Mr Davis would be offended. He said that if they hadn't been drinking they wouldn't have made the calls. Mr Plummer was too hung over to go to work the next day. 33 Mr Plummer deposed that it was the applicant and Mr Cadby doing most of the talking, while he was laughing and thought the comments were funny. Mr Plummer said he had never made these types of calls before. It was not the sort of language they used at work. 34 Mr Plummer had tried to speak to Mr Davis the next day because he thought being stood down over the incident was unreasonable. They had never intended anything by it. Mr Davis would not speak to him. Evidence of Mr Davis 35 On the day of the incident, Mr Davis had an argument with Peter Cadby about Mr Cadby going home sick. Mr Davis was aware of Mr Cadby's personal problems involving a marriage break-up. (There was some doubt as to whether this incident occurred the day before. Little turns on this point). 36 Mr Davis' evidence was that in the early morning of 14 September, he and his wife were asleep when the phone rang. He got up to answer it, however it stopped before he reached it. Soon after, it rang again and again he didn't reach it in time. The message light was flashing and he retrieved the message. 37 Mr Davis said the message included words to the effect: Why haven't you answered the phone you bastard? I bet you're fucking your wife, are you fucking her hard or are you fucking turtles. 38 He said he was upset and intimidated by the message both as to its content and the time it was made. He deleted it and went back to bed. His wife asked who it was, and Mr Davis replied words to the effect of: Don't worry honey it's nothing. Just a guy at work, he's a bit mad because we had an incident yesterday. 39 In cross examination Mr Davis claimed he could not be confident who made this call. However, he accepted there had been no argument with the applicant or Mr Plummer. In other evidence, he said "I was referring to Peter" (Cadby). 40 The subsequent calls did not ring as the phone diverted direct to message bank. 41 Mr Davis deposed that he was upset by the calls because of the references to his wife and that he had to lie to his wife about them. He had felt intimidated and threatened. He felt he could no longer be the employees' supervisor and his ability to do his job effectively would be impacted. 42 Mr Davis strenuously denied using the type of language in the phone calls at work, or to anyone. He acknowledged that he swore at work, but not in those terms and not as everyday conversation. 43 In cross examination, Mr Davis was asked about each of the messages. He found them intimidating and offensive. However, he did not find the 1.27am message offensive or intimidating. He conceded that it was an apology, paid compliments to him and his wife and explained that they (the employees) were just having a bit of fun. 44 Mr Davis accepted the employees were drunk when they made the calls and that their judgement may have been impaired. He accepted that the calls of the applicant were out of the ordinary. He had got on well with the applicant and had never made derogatory comments to him. 45 Mr Davis said he was only worried about the applicant and mildly concerned with Mr Cadby. He accepted the applicant had never threatened him before and the messages were not threats. 46 Mr Davis said there was a threat to his pet turtles. However, he made no attempt to check on their welfare during the course of the next day. Previous incidents 47 The applicant gave detailed evidence of a series of incidents in 1999 in which it was alleged a TNT supervisor, Adam Long, harassed the applicant's wife. Mr Long was alleged to have repeatedly called the applicant's wife. There was an incident at a family work function at Australia's Wonderland at which Mr Long had made inappropriate comments to her and her children. 48 The applicant confronted Mr Long and the phone calls stopped. However, on a subsequent occasion, Mr Long made sexual suggestions to the applicant about his wife. The applicant took the matter to the Union, who raised it with Management for investigation. 49 Mr Long was suspended for a couple of weeks and Mrs Vallis received an apology from Mr Farahar six weeks later. The applicant believed Mr Long should have been sacked. 50 Mr Scott Sullivan (TWU delegate) gave evidence relevant to this matter. He assisted in representing the applicant's grievance to Management and later raised the different treatment received by Mr Long as compared to the applicant. Mr Farahar had said that the earlier incident had been dealt with to everyone's satisfaction. The applicant's dismissal had nothing to do with it. Company Harassment Policy 51 Mr Farahar deposed that discussions about harassment were held with employees during 2001. The talks dealt with what constitutes harassment, the fact that it is not acceptable and would be dealt with severely. 52 The respondent's evidence included an agenda for a tool box meeting which identified that workplace harassment was dealt with in a regular meeting of the employees on 30 May 2001. The item is minuted as: All TNT staff need to be aware of Workplace harassment. Harassment is conduct that is unwelcome and uninvited. The effect of harassment is that it offends, humiliates, or intimidates another person and makes the workplace uncomfortable and unpleasant. This is particularly relevant in the driver's day-to-day dealings with clients and the fact that it is easy to misinterperate(sic) or read more into a pleasant business dealing that(sic) intended. Please, be aware that it is against Anti Discrimination Legislation to be harassed during the course of the working day. 53 Mr Davis conducted the tool box meeting on 30 May 2001 and an attendance list was given to Mr Pollard. Mr Davis couldn't say for certain if the applicant was in attendance (the list was not tendered in evidence). 54 Mr Davis said he was not a qualified trainer in this field. He simply read what was on the agenda and said no more. 55 In cross examination, Mr Faraher acknowledged that the tool box agenda did not disclose an adequate level of training and "TNT could do better". He conceded Mr Davis had no formal training, even though Mr Davis had conducted the meeting. 56 The applicant's evidence was that although tool box meetings were compulsory, he was often sent out on the road before they occurred. He could not recall if he was present on 30 May 2001. While the agenda was left on the table, he had not received this one. The Investigation 57 Much of the respondent's evidence dealt with the investigation of the incident and the process leading to dismissal. Messrs Farahar, Pollard and Mackenzie provided affidavit and oral evidence. Most of their evidence is uncontroversial and has been referred to elsewhere in this decision. I shall refer to matters of relevance to the findings in this case. 58 Mr Darren Pollard participated in the initial meetings on 14 September and was the first manager Mr Davis approached on the day. He recalled Mr Davis was visibly upset, his voice quavered and he was shaking. Mr Davis explained the messages and said the first deleted message was the one which upset him the most. 59 In the second meeting involving Messrs Farahar, Rogan and Mackenzie, Mr Davis reported that the applicant had sent Mr John Wright (another TNT employee) to apologise to Mr Davis. However, Mr Davis had said he couldn't work with these guys any more and wouldn't meet with them. 60 Around 7.00am, Mr Pollard went to the gatehouse and met the applicant. He told him of the complaint. The applicant said it had been a joke. The applicant was stood down with pay pending an investigation and told not to approach Mr Davis. When told this, the applicant said "look, I'm sorry, we didn't mean anything by it. It was only a joke you know". 61 The other employees were similarly stood down that morning. 62 Mr Farahar, as New South Wales Operations Manager, was involved in all the meetings on 14 and 17 September. 63 In the first meeting with management, Mr Davis said that the first deleted message was from Peter Cadby and was related to an argument he had with him the day before. 64 Mr Farahar was involved in other unrelated meetings with the union delegates that day. However, he did raise the matter. Mr Farahar said that Mr Sullivan had commented if it was true, "it's not on". 65 Mr Farahar listened to the messages later that day and was extremely concerned. He said his concern related to the number of calls, the time they were made and that Mrs Davis could have picked up the messages. He believed the calls to be a gross invasion of privacy, inappropriate and harassing. 66 Later that day, the delegates told him that this was the type of relationship the employees had with Mr Davis. After conferring with Mr Mackenzie, a meeting with the Union official, Mr Shane O'Brien and the delegates was arranged for 17 September. 67 Before the meeting Mr Mackenzie inquired of Mr Pollard and Mr Davis as to what the employees were saying about their relationship (see paras 19-22). 68 The tape was played to the meeting with the Union after which Mr O'Brien requested an opportunity to meet with Mr Davis. Mr Davis agreed. Mr Farahar said Mr O'Brien believed Mr Davis had been badly affected by the incident. However, Mr O'Brien said he could not see how the phone calls were threatening. 69 Mr Cadby and the applicant were invited into the meeting and the tape was played. Mr Farahar said the applicant appeared unconcerned and amused by the tape. He said he didn't see what was wrong - that it was a joke between mates. It was how they behaved with each other. The applicant did not believe the incident had anything to do with TNT as it occurred outside work time. Mr Mackenzie said that the applicant laughed at the messages. 70 Mr Davis was reinterviewed as to the relationship alleged by the men. He denied it was anything other than professional. 71 The interview with the applicant and Mr Cadby was reconvened and Mr Mackenzie asked if there was anything else they wished to say. The applicant raised the 1999 incident involving his wife. 72 Mr Farahar related his understanding of this incident. Mr Farahar had investigated the matter and determined Mr Long's conduct was inappropriate. Mr Long was suspended for a couple of weeks without pay and lost the use of the company vehicle. Mr Farahar sent a letter of apology to the applicant's wife. 73 The Union could see no difference between the two incidents. However, Mr Farahar's view was: The incidents are different for the following reasons - (a) the previous incident occurred at work, in normal working hours, whereas this incident involved attempted contact at a private address well outside of normal hours of work; (b) the previous incident involved a poorly chosen throwaway line during 'banter' between Mr Long and Mr Vallis, whereas the current incident involved ongoing and persistent vulgar and lewd suggestions; and (c) the previous incident had little or no danger of affecting Mr Vallis' family, whereas the current incident could well have resulted in Mrs Davis picking up the phone or checking the messages and would clearly result in Mrs Davis knowing that the incident had taken place. (Ex B - para 36) 74 Mr Farahar and Mr Mackenzie adjourned to discuss the two incidents. Mr Mackenzie agreed with Mr Farahar's assessment. 75 Upon resuming the interview Mr Mackenzie advised the employees they would be dismissed for serious harassment. Mr O'Brien protested that the company didn't even have a harassment policy. He agreed that while disciplinary action was warranted, dismissal was not. 76 Mr Farahar said that the applicant became extremely angry. He said he hadn't done anything wrong and that there was "one rule for us and one rule for them". 77 Mr Farahar gave evidence that the dismissal of the employees was made in consultation with Messrs Mackenzie, Rogan, Wilson (Depot General Manager), Berry (Director of Operations of Human Resources) and Mann (Regional Director). 78 In reaching his decision, Mr Farahar said he had regard to: i) the conduct was unacceptable and inappropriate. The applicant should have known better having regard for the unwelcome calls made to his wife; ii) the calls were made late at night over an extended period; iii) the calls were demeaning and belittling; iv) the employees had spent a considerable time talking about Mr Davis; v) Mr Davis was upset by the calls and felt intimidated; vi) the relationship between the men was not as the applicant described. It was inconsistent with his own, and other employees' knowledge, of Mr Davis; vii) the matter was work related; viii) the employees were drinking up until shortly before they were due for work. 79 In cross examination, Mr Farahar said that the applicant had received no previous written warnings. He was not aware of the applicant making harassing phone calls before and that the applicant had worked well, without reprimand, for over six years. 80 Mr Farahar accepted the men were drunk and that their judgement may have been impaired. He conceded that it was not normal for the applicant to behave in such a way. Nevertheless, he didn't believe there was another way to deal with the matter, as the employer had a duty of care to protect its employees. A reasonable person would not need training to know what occurred was inherently wrong and unacceptable. 81 Mr Farahar accepted that there was swearing in the workplace. It was unacceptable if it was intended as personal abuse or sexual innuendo. 82 Mr Farahar said he did not believe it was appropriate to have pornographic material on site or for supervisors to condone such material being on site. Supervisors could not prevent such material coming on site and shouldn't permit it being displayed. 83 Mr Bob Mackenzie's involvement in the investigation began when Mr Farahar advised him of the matter on Friday 14 September. He requested Mr Farahar obtain full details of the calls and later that day listened to the tape. He gave instructions for a transcript to be made of the tape. 84 Mr Mackenzie agreed with Mr Farahar's decision to suspend the employees. He also consulted with other management personnel. 85 Mr Mackenzie contacted Mr O'Brien from the TWU and informed him that the matter was "pretty serious" and could lead to the employees' termination of employment. A meeting was arranged for midday on Monday 17 September. 86 Mr Mackenzie's evidence of the meetings on 17 September is consistent with the other evidence. However, in the meeting involving Mr Davis and the Union, Mr Mackenzie said that Mr Davis was visibly upset and close to tears. Mr Davis had said he was concerned that he had lied to his wife about the matter. 87 Mr Mackenzie deposed that the decision to dismiss the employees "in the circumstances was the correct one". The employees did not deny their involvement. The incident was a serious breach of conduct and entirely inappropriate. 88 Mr Mackenzie was concerned that TNT may have been exposed to the risk of a breach of its duty of care under the Occupational Health and Safety Act. The employer had a responsibility to provide a safe workplace, free of harassment. 89 Mr Mackenzie said that at the time of the incident, all of TNT's operations at its Sydney depots were undergoing staff reductions. Over the previous eighteen months, driver numbers at the Enfield depot had reduced by thirty-nine. Mr Mackenzie said this was not a factor in the decision to dismiss the employees. 90 In cross examination, Mr Mackenzie said that when he and Mr Farahar discussed the incident involving the applicant's wife, Mr Farahar did not mention that calls had been made to Mrs Vallis or that there had been an incident at Australia's Wonderland. Nevertheless, he was satisfied that the previous incident had been properly investigated and appropriate action taken. 91 Mr Mackenzie was queried about the tool box meeting of 30 May 2001. He said he was unaware if the Enfield employees had received any other harassment training and couldn't say whether the company training package had been delivered to the Enfield depot employees. 92 Mr Mackenzie was asked about the number of employees and size of Enfield depot. There are twelve zones with four hundred employees. Asked if it was possible for the men to have kept their jobs without having to be supervised by Mr Davis, Mr Mackenzie replied "anything is possible". 93 Mr Mackenzie was aware that the applicant had received no previous warnings. However, he was not aware if the applicant had previously harassed Mr Davis or anyone else. Mr Mackenzie did not assume the applicant was drunk at the time of the calls. However, irrespective of whether he was drunk or not, Mr Mackenzie believed the applicant was responsible for his actions and being drunk was no excuse. SUBMISSIONS 94 Mr O'Brien sought the applicant's reinstatement of employment and compensation for lost earnings. 95 He described the incident on 14 September "as a joke between friends". Three work mates, two of whom were experiencing relationship breakups, got together for a drink. As the night wore on, and the alcohol took hold, they decided to ring a work mate. The applicant did not know who made the first deleted phone call. Twelve further messages were made and stored on Mr Davis's message bank. On hearing the messages, Mr Davis claimed he was intimidated and offended but went back to work. The applicant twice offered to apologise and said it was only intended as a joke. 96 Mr O'Brien submitted that the company rejected this argument and believed the three employees got together with the intent of harassing Mr Davis, because of an incident between Mr Cadby and Mr Davis earlier that day. 97 The respondent had rejected the nature of the relationship between the men. Despite what was said to be a "zone barbecue", which Mr Davis attended, it was proven that it was not a company organised, or sponsored event. It was a "bad taste" party which Mr Davis and his wife were invited to as friends. 98 Mr Davis would also look at pornographic books at work and discuss them with the applicant. He admitted playing euchre at night with Mr Plummer. 99 Mr O'Brien reserved his strongest criticism for the lack of any harassment training of the employees. He established that the only training provided was for 1 minute 4 seconds by someone not qualified or trained (Mr Davis). Indeed, the training contained information which was wrong. There could be no harassment policy in place. 100 Mr O'Brien submitted that the phone calls made by the applicant did not constitute "harassment". The applicant had not made the first phone call. Mr Davis' evidence was that he knew it to be Mr Cadby. None of the subsequent calls made by the applicant were threatening or intimidatory. It was accepted that the men were drunk and their judgement was impaired. Mr O'Brien adopted Mr Davies' assessment of the incident as "extraordinary". 101 Mr Davis made absurd claims of threats against his pet turtles. However, he went about his work on the day and didn't bother to check on the turtle's welfare. He didn't do so, Mr O'Brien submitted, because Mr Davis knew there was no threat or intimidation. 102 Mr O'Brien said the applicant was a model employee - he had never been reprimanded and had never harassed Mr Davis, or anyone else. He had a six year unblemished employment record that was not taken into account. 103 Mr O'Brien submitted that the applicant had sought to apologise to Mr Davis on two occasions. However, Mr Davis didn't want to resolve the problem. The evidence was clear that the applicant could have continued to be employed, without Mr Davis as his supervisor and that Mr Davis had not wanted him sacked. 104 Mr O'Brien referred to the 1999 incident involving the applicant's wife. A supervisor had degraded the applicant to his wife and daughter, made unwelcome and unwarranted calls to the applicant's wife and made a sexual comment about her. The respondent's treatment of the manager was far less severe than the applicant's dismissal. 105 Mr O'Brien submitted that in all the circumstances the applicant's dismissal was harsh. He relied on Paris v Bankstown City Council [1999] NSWIRComm 10, 22 January 1999, a case involving sexual harassment in which the applicant was reinstated. He put that the same principles should apply here. 106 Finally, Mr O'Brien submitted that the applicant deserved another chance and should be reinstated. 107 Mr Davies, for the respondent, said it was plain the misconduct had occurred, and that the incident had been properly investigated. The process of investigation was not disputed. 108 Mr Davies described the phone calls as gross, indecent and offensive. Any reasonable person would agree with this description. Four people, acting in concert, had behaved in an inappropriate and harassing way. The applicant knew what he was doing and had been embarrassed in the witness box to explain what some of the phone messages had meant. The messages were condescending and it was clear the participants were enjoying themselves at Mr Davis' expense. 109 Mr Davies acknowledged the first call was made by Mr Cadby. However, it could be assumed the applicant was present when it was made. 110 It is important, Mr Davies submitted, to appreciate that it wasn't one or two calls, but twelve calls over a three and a half hour period late at night. The men would have known Mr Davis started work at 4.00am. They would not have known if Mr Davis had listened to the calls at the time or that Mrs Davis might have heard them. The applicant was aware she may have, because he apologised to her in one of the calls. 111 Mr Davies put that it was the applicant who instigated the calls and invited the others to participate. He was the leader. Drunkenness was no excuse. 112 Relying on the attendance of Mr Davis at one barbecue, over nine months, could not be indicative of a close personal mate relationship. Mr Davis had authority over the men. There was no evidence of the language used in the calls as being commonplace between them at work. The evidence was that Mr Davis was courteous and respectful (Mr Boag and Mr Pollard). Mr Davies said that one incident of looking at pornographic material was hardly evidence of ongoing conduct of Mr Davis. 113 In any event, the applicant now relies on drunkenness for his conduct. However, when first questioned about the matter, he relied on the alleged relationship with Mr Davis. This demonstrated an inconsistency in his case. 114 As to the toolbox meeting, Mr Davies submitted that an ordinary person would not need training to know that the conduct was unacceptable. Even so, the applicant had an earlier experience involving his wife, which would have made it perfectly clear that such unwelcome comments were unacceptable. While there may be some criticism of the respondent's harassment training, the applicant can't hide behind a "veil of misunderstanding". 115 There is no doubt Mr Davis was clearly upset and affected by the calls. The Union acknowledged as much. He found the calls threatening, intimdiatory and an invasion of privacy. Mr Davis changed jobs and took a pay cut. The Commission should not accept the inference that Mr Davis used the opportunity of the phone calls to get rid of Mr Cadby for the argument earlier in the day. 116 Mr Davies explained Mr Davis' reaction to his wife after the first phone call as perfectly understandable. He didn't want to upset her. 117 Mr Davies submitted that there was little criticism of the respondent's investigation. He recounted the various steps in the investigation including the Union being given an opportunity to speak directly with Mr Davis. At the relevant times, the Union was involved and listened to. There can be no suggestion that the company saw an opportunity to get rid of the employees without paying redundancy. 118 Mr Davies invited the Commission to have regard for the obligations on truck drivers not to arrive for work in a state of intoxication. 119 As to reinstatement, Mr Davies referred to authority that the Commission should not merely replace the employer's view by its own. Alternatives to dismissal will always be available. However, the respondent's decision was fair and reasonable in all the circumstances. 120 Mr Davies submitted that reinstatement would be impractical in circumstances where the respondent has undergone significant restructuring and job reductions. Taken together with the seriousness of the allegations and the applicant's lack of remorse, reinstatement should not be considered. 121 In reply, Mr O'Brien dealt with Mr Davies' submission that on 17 September the applicant showed no remorse. This was understandable after he'd been rebuffed twice and had already been treated unfairly. 122 Mr O'Brien said it was possible the employees had misjudged the level of friendship with Mr Davis and the misjudgement had been enhanced by alcohol. Mr O'Brien drew a distinction between the first message made by Mr Cadby and the subsequent messages. The first was shocking and confronting. The rest were pranks, but not threatening or intimidatory. The Union had never justified the incident. However, Mr O'Brien emphasised that neither Mr Davis or his wife were threatened. The applicant actually praised them in one message. 123 It was relevant that the respondent had no harassment policy in place. It had never been explained or conveyed to the employees. Now, five months later, the employer still does not know if anything has been done about it. 124 The applicant's embarrassment in the witness box only confirms that it was a one off incident, which he regretted. 125 The respondent did everything it could to accommodate Mr Davis, but not the applicant. It was wrong to suggest that Mr Davis left TNT because of the incident, as the men had already been dismissed. CONSIDERATION 126 This matter raises a number of principles which have been authoritatively decided by decisions of this Commission in the unfair dismissal jurisdiction. I propose to discuss each principle as it applies in the context of this case. 127 In determining whether summary dismissal of an employee for misconduct is justified, the Commission is obliged to consider: 1. Whether the misconduct alleged by the employer has been proven. 2. Whether the seriousness of the misconduct justified dismissal. 3. Whether the proven conduct amounted to a wilful and fundamental breach of the employee's contract of employment. 4. The employee's record of employment. 128 This is not a case in which the respondent needs to prove, to the requisite standard, the allegation against the applicant. The applicant readily admitted to the conduct which led to his dismissal. It is unnecessary therefore to make any findings on the facts presented in the evidence. 129 Rather the focus in this case is on whether the penalty of dismissal was "harsh." Put another way - did the penalty fit the crime? I refer in this regard to Electricity Commission of New South Wales T/as Pacific Power v Crump, 48 IR 296. The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to bee too harsh a consequence. See also Busways v Johnson , 55 IR 255. 130 I accept that this was a dismissal with four weeks pay in lieu of notice, and therefore not, in stricto sensu, a summary dismissal. However, the letter of termination contains allegations of breach of contract and serious harassment. The effect, therefore, of the termination of employment is the same as if it was as summary dismissal without notice. 131 Summary dismissal can have serious implications for an employee. It is for this reason that the Full Bench in Franklins Limited v Webb, 72 IR 257, reminded employers of the need to be fully satisfied that the misconduct had been committed and justified dismissal. The Full Bench said at p261 We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employer's of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. See also my comments in Standley v Electronics Boutique Pty Ltd (unreported Sams DP, IRC4516 of 1999, 18 March 1999) and Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000). Repudiation of the Contract 132 Did the misconduct constitute a repudiation of the contract of employment by the employee? To answer this question I refer to three authorities: In North v Television Corporation Ltd (1976) 11 ALR where Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be "wilful": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). Hungerford J of this Commission in Day v Lumley Life , 90 IR 70, describes the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. See also Blyth Chemicals Limited v Bushnell 49 CLR 66 and Hunt v Hornsby Shire Council , (unreported, Grayson DP, NSW IR Comm. 242, 12 October 2001). Employee's record 133 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972): The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. 134 In my opinion, the principle must work both ways. That is, it would be wrong for an employer to ignore an employee's otherwise exemplary record when weighing up all the factors in its decision to dismiss. I adopt the words of McLeay C in Paris v Bankstown City Council: It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is as unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct. 135 That is not to say that an unblemished record would mitigate completely against a particular act of serious misconduct. Each case will turn on its own facts and the gravity of the misconduct. Nevertheless, it is a factor, which might tip a dismissal either way if the decision is finely balanced. It follows therefore, that an employer should be cognisant of, and give appropriate weight to the employee's past record of employment, having regard for the seriousness of the misconduct. 136 While in no way excusing the conduct of the applicant it must be borne in mind that this industry involves men working in a transport yard, not a monastery. I am reminded of what the Privy Council said in Jupiter General Insurance Co., Ltd v Ardeshir Bomanji Shroff, All ER 1937 at p73: Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of December 21, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, CJ, was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded. 137 It is also relevant - but again no excuse - that the participants in the phone calls were obviously drunk and that their state of intoxication was the catalyst for the phone calls. Mr Plummer gave evidence, which I accept, that had it not been for their level of intoxication, they would never have made such calls. 138 In reviewing the content of the phone messages, it is appropriate to apply the standards of what an ordinary bystander might consider as being the intentions of those making the calls. The language must be viewed in the context of the circumstances in which it was made. Were the calls intimidating or threatening? 139 Undoubtedly, the first call was made by Mr Cadby, Mr Davis gave the following evidence of his reaction when asked about it by his wife. Don't worry honey it's nothing. Just a guy at work, he's a bit mad because we had an incident yesterday. 140 Mr Davis' statement, made next day, makes it perfectly plain that he believed the first message was made by Mr Cadby: The message that was left was from Peter Cadby and was very disturbing by making lewd references to my wife and myself. Knowing that Peter and myself had a previous altercation on the morning of the 13th I thought that he was still upset although being upset about the message I erased it and went back to bed. My wife asked me who was on the phone and I said it was one of my drivers, Peter Cadby. 141 I would firstly observe that the tape of the phone calls as presented in evidence discloses four people talking over each other, in garbled and often incoherent terms. There is laughing and background noise. The subject matter is, on any view of it, absurd nonsense. 142 However there was, in my estimation, a distinction in content and intent between the first phone call made by Mr Cadby and the subsequent calls. I consider the first call to be grossly offensive and intimidating. It was seemingly intended to offend Mr Davis. 143 I accept without reservation, that Mr Davis was hurt and felt degraded by the incident. He presented as a decent and sensitive individual. On the other hand, I cannot ascribe to the subsequent calls the descriptors of intimidatory, harassing or threatening. Moreover, I have some doubts that Mr Davis, himself, initially believed them to be so. 144 I find that the subsequent messages are clearly unacceptable and inappropriate, but do not, in my opinion, amount to intimidation or threats. 145 I note there was no evidence that Mr Davis's wife ever heard the calls, or was aware of their contents at the time. The messages were diverted to the message bank. In other words, of the thirteen, possibly fourteen, phone calls to Mr Davis' home, only the first one or two actually rang the phone. Moreover, the applicant in one of the messages clearly apologies for the calls (see para 28). 146 Viewed in this context, the matter raises questions of the equal treatment of each of the participants in the incident. In my opinion, each of the three employees had varying degrees of culpability and intent. However, each of them received the same penalty of dismissal. It is my considered judgement that of the three men, Mr Cadby was the most culpable, and Mr Plummer the least. The applicant was the most frequent voice on the tape. He acknowledged as much. 147 From that conclusion, one needs to balance the applicant's conduct with the following factors: The applicant i) was contrite and made two offers of apology the day after the incident; ii) had not made phone calls of this kind to anyone before; iii) had never intimidated, or threatened, Mr Davis or anyone else in the workplace; iv) had six years unblemished record. 148 A further relevant consideration in cases of dismissal for misconduct is whether the employee's conduct was "wilful" such as to draw a conclusion that the employee had repudiated the contract of employment. There is nothing in the evidence which would cause me to find the applicant's conduct as satisfying the test of being "wilful." 149 I find that the applicant's involvement in the incident to be "out of character". It was an isolated incident, largely occasioned by the quantity of alcohol consumed. 150 For the aforementioned reasons the applicant's dismissal was "harsh" in terms of Pt 6 ch 2 of the Act. I find accordingly. Other Matters 151 The Union placed particular reliance on the different outcomes between the incident which led to the applicant's dismissal, and the suspension of a supervisor in 1999. The supervisor, Mr Long had been making inappropriate comments and phone calls to the applicant's wife. 152 It was Mr O'Brien's submission that this demonstrated differential and discriminatory treatment of the two employees, in that Mr Long had been more favourably treated because he was a supervisor. 153 I accept that the applicant felt a natural sense of grievance over the matter and may well have expected a similar punishment for his own indiscretion. However, it seems to me that there are significant differences between the two incidents such as to make such a comparison unhelpful to a determination of the applicant's claim. 154 In any event, my preference is to view this case as one which requires determination on its own facts and circumstances. 155 There was no evidence, and I do not accept the inference, that the respondent took advantage of this situation to avoid paying redundancy to the three employees. The employees were paid four weeks' pay in lieu of notice, in circumstances in which the respondent claimed summary dismissal was appropriate. In other words, if saving money was a consideration it needn't have paid the four weeks in lieu. 156 There was some conflict of evidence as to whether the incident involving Mr Cadby and Mr Davis occurred on the Thursday or Wednesday before Friday, 14 September. I accept that the incident occurred on the Thursday and the applicant was wrong when he said it was Wednesday. There is no doubt that the incident did occur. The faulty recollection of the applicant over one day is not of any moment. Procedural Fairness - The Principles 157 The expression, "procedural fairness" appears nowhere in the statute. Nevertheless, the matters the Commission may take into account when determining an unfair dismissal claim are identified in s88 of the Act. These matters include, but are not limited to, whether: 1) A reason for the dismissal was given. 2) Any reason given, had a basis in fact. 3) An applicant was given an opportunity to make out a defence, or give an explanation of his or her behaviour. 4) Any warning unsatisfactory performance was given. 5) The applicant sought, but was refused reinstatement or reemployment. 158 It is pertinent to note that these matters are discretionary and the Commission may take other relevant matters into account (s88(f)). 159 A termination of employment, whether by summary dismissal or otherwise, might still be held to be unfair if the process leading to the dismissal was manifestly deficient in offering the applicant procedural fairness. See Byrne & Anor v Australian Airlines (1995) 185 CLR 410; Burke v McGirr (1995) 87 IR 54; Oswald v New South Wales Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta 87 IR 5; Abboud v The State of New South Wales (Department of School Education); 92 IR 32; and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and Wilson v Department of Education and Training 100 IR 1 160 A number of aspects of the investigations leading to the applicant's dismissal are of concern. 161 Mr Faraher said "it was clear the men had spent a considerable time talking about Mr Davis late at night" (para 52 Ex B). 162 This was not clear at all. The record of the meetings involving the Management, the applicant and Mr Plummer do not mention what was, or was not, discussed on the night. Mr Farahar seems to have drawn this conclusion based on an assumption. Mr Plummer and the applicant both gave evidence in the proceedings, that they were discussing many things, including personal and work related matters. Indeed, it seems inconceivable that four intoxicated persons skylarking and drinking heavily would be so preoccupied with Mr Davis that they would spend a "considerable time" talking about him. 163 I also express some reservations at the speed with which the investigation was conducted on the following day. Emotions were running high and perhaps, in hindsight, a short "cooling off" period, albeit with the employees being suspended, would have been appropriate. 164 Attached to Mr Farahar's statement was the agenda of a toolbox meeting of 30 May 2001 in which workplace harassment was an item for discussion together with eleven other matters. The evidence was that such meetings usually lasted fifteen minutes. Mr O'Brien successfully established that discussion of each item on this day would average a little over a minute. 165 Mr Faraher acknowledged that this was insufficient training for such an issue and more should have been done. Mr Davis, who gave the training, had received no training himself. The Commission cannot accept that this evidence establishes an appropriate level of training on workplace harassment. Moreover, the information provided was plainly wrong, or at best, misleading. 166 There was no evidence that the applicant was even in attendance at the toolbox meeting. He claimed he wasn't and had received no harassment training. Mr Davis said he kept attendance records and handed them to his superior. However these records were not produced. 167 It seems to me that reliance on the toolbox meeting as an appropriate policy on workplace harassment, and as evidence that employees were aware of such a policy, is not sustainable. It is axiomatic that the applicant could not have breached the policy. 168 I would emphasize that the above comments should not be seen in any way as condoning the incident. I accept that a reasonable person would hardly need training to know that what was done on the night was inappropriate and unacceptable. However, the agenda of the toolbox meeting was evidence brought by the respondent to justify the decision to dismiss the applicant. It is evidence which, in my view, should have had little bearing on the outcome. 169 I put these matters no higher than issues of some concern. They would not, in my opinion, either individually or collectively, be of such consequence as to impugn the dismissal on procedural grounds alone. 170 However, I regard one matter, which relates to the decision making process, of particular significance. Mr Mackenzie gave evidence that an employee's record should be taken into account when deciding whether an employee should be dismissed. He gave evidence that he was not aware of whether or not the applicant had a record of harassing Mr Davis or anyone else (which he didn't). In my view, the respondent did not give sufficient weight to the applicant's good record of employment or to the evidence that he had never harassed Mr Davis, or anyone else, in the workplace. REMEDY 171 The primary remedy available under Pt 6 ch 2 of the Act is reinstatement. See Leeds & Northrup Australia Pty Limited v Hull, 46 IR 11. 172 It is this remedy that Mr O'Brien pressed the Commission to order. I have had regard for what was said in Perkins v Grace Worldwide and applied in Hollingsworth v Police Commissioner 88 IR 282 as to the practicality of reinstatement: Finally on this aspect of the practicability of reinstatement of the appellant we refer with agreement to what was said by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows: 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 a loss of confidence in the employee. Each case must be decided on its own merits. There 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 that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. 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 employer's 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 impracticable. (Emphasis added.) That passage was applied by a Full Bench (Fisher P, Hungerford J and Bishop C) of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 and by another Full Bench (Hungerford and Schmidt JJ and Murphy C) in Oswald v New South Wales Police Service (unreported, NSW Industrial Relations Commission, IRC97/4130, 11 March 1999, pp50-51). It is appropriate to apply it again in the instant case. 173 Applying these principles, I find that reinstatement in this case would not be impractical. In making this finding, I have taken into account, inter alia, the following 1) Mr Davis is no longer employed by the respondent. 2) The respondent is a large employer with 400 employees at the Enfield depot. 3) The applicant's contrition. 4) My general understanding of the workplace environment in a trucking yard. 5) The applicant's culpability in the incident. 6) No record of similar behaviour in the past. 174 Mr Davies submitted that reinstatement was impractical in circumstances where the respondent has undergone significant restructuring and job losses. It seems to me that the corollary of this submission, would mean that no employee, unfairly dismissed in circumstances of genuine redundancy, would ever be reinstated. This cannot be right. The submission is rejected. 175 Having regard for all the circumstances, I do not consider that the applicant should be reinstated from the date of dismissal without loss of continuity or entitlements. The evidence is that he has acquired some casual work since dismissal. 176 I propose therefore to order the applicant's reinstatement to his former position from 1 February 2002. The applicant's service shall recommence for the purposes of continuity from that date. ORDERS 177 The Commission orders: 1) Pursuant to s89(1) of the Industrial Relations Act 1996, that the respondent, TNT Australia Pty Limited, trading as TNT Express, shall reinstate the applicant, Mr Joseph Vallis, to his former position, on terms no less favourable to those which would have applied had he not been dismissed on 17 September 2001. 2) That Mr Vallis be reinstated within seven (7) days of today. 3) Pursuant to s89(4) of the Industrial Relations Act 1996, that Mr Vallis' period of service be treated as not to have been broken by the dismissal, save for the period between 17 September 2001 and 1 February 2002. 4) Pursuant to s89(3) and (6) of the Industrial Relations Act 1996, the respondent, TNT Australia Pty Limited, trading as TNT Express, shall pay to the applicant an amount equivalent to his weekly award rate of pay from 1 February 2002 to his reinstatement. 5) The amount in Order (4) shall be paid within twenty-one (21) days of today. Peter Sams Deputy President 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.