Industrial Relations Commission of New South Wales CITATION : Australasian Meat Industry Employees Union of New South Wales on behalf of Peter Richey and Bartters Enterprises Pty Ltd [2001] NSWIRComm 346 APPELLANT: Australasian Meat Industry Employees Union PARTIES : RESPONDENT: Bartters Enterprises Pty Ltd FILE NUMBER: IRC5499 of 2001 CORAM: Wright J President; Walton J Vice-President; Connor C CATCHWORDS : Appeal - Unfair dismissal - Record of absenteeism - Principles relating to s88 - Dismissal for cause - Cause alleged not established - Error of principle - Procedural fairness - Leave to appeal granted - Appeal upheld - Reinstatement - Back Pay. LEGISLATION CITED : Industrial Relations Act 1996 s84 s88 HEARING DATES: 11/29/2001 EXTEMPORE JUDGMENT DATE : 11/29/2001 APPELLANT: Mr S Gurney Australasian Meat Industry Employees Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT: Mr P Ludeke JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J PRESIDENT WALTON J VICE PRESIDENT CONNOR C THURSDAY 29 NOVEMBER 2001 MATTER NO. IRC5499 OF 2001 AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION OF NEW SOUTH WALES ON BEHALF OF PETER RICHEY AND BARTTERS ENTERPRISES PTY LIMITED. Application by Australasian Meat industry Employees Union of New South Wales for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 26 July 2001 in Matter No IRC4467 of 2000 DECISION OF THE COMMISSION (extempore) [2001] NSWIRComm 346 1 This is an application for leave to appeal and appeal against a decision of Tabbaa C handed down on 26 July 2001 in which she dismissed an application made under s84 of the Industrial Relations Act 1996 by the Australasian Meat Industry Employees' Union of New South Wales ("the union") on behalf of its member Mr P Richey, whose services were terminated by Bartters Enterprises Pty Limited on 16 August 2000. 2 He had been absent from work as a result of a motor vehicle accident on 1 July 2000. He had attended work on 2 July 2000 but had been sent home by his supervisor and had subsequently been declared medically unfit for work on 7 July 2000 to 12 July 2000, after which time he was fit for light duties. 3 The letter of termination of that date which Mr Richey received outlined what the company alleged was an unsatisfactory sick leave record, but the issue which appears to us from the letter to be the reason for his dismissal was "... Due to the non work-related nature of your medical condition the company is unable to arrange suitable light duties effective 16 August 2000". 4 Mr Richey was fit to resume his ordinary duties at the time of the hearing before Tabbaa C. His absence from work was substantially supported by medical certificates. The Commissioner acknowledged certain procedural anomalies in the termination of Mr Richey's services concerning warnings given to him over his work attendances, but expressed the view that "it is clear that a procedural anomaly at the time of dismissing an employee does not automatically ensure success in a claim for relief under unfair dismissal laws". 5 The appeal concerns the operation of s88 of the Act. The Commissioner rejected the view advanced by the union that s88 imposes a mandatory obligation and expressed the view instead that the provision provided a "right, not an obligation" on the Commission. 6 In doing so, we are satisfied that the Commissioner misdirected herself. The legislative provision provides a direction to members of the Commission as to the considerations to bear in mind when dealing with unfair dismissal claims. It is trite to observe that where an employee is dismissed for cause, and on examination it is established that the employee has done nothing wrong, there will then be a prima facie situation of harsh, unreasonable or unjust treatment pursuant to s84 of the Act. 7 It is common ground that the absence from work by Mr Richey during the period referred to in his letter of termination was genuine, notwithstanding his past attendance record. The reason for his dismissal cannot be sustained on that basis alone. 8 We consider that the Commissioner erred in at least two respects: 1. She failed to take into account or sufficiently take into account defects in the process giving rise to the termination of Mr Richey, including the lack of opportunity to provide an excuse or defence, having regard to reasons given for his removal; the breach of the employer's policy and procedure with respect to disciplinary matters and the legitimate explanation which was available to the employee as to his absence immediately prior to termination. 2. The absence of merit for the dismissal, having regard to the reasons for his absence at the point of dismissal. 9 In that this decision concerns the operation of s88 of the Act and the principles applicable to the consideration of procedural fairness, we consider public interest considerations support leave being granted for the appeal. We grant leave to appeal and quash the decision of the Commissioner. 10 We order that Mr Richey be reinstated in employment with Bartters Enterprises effective from the beginning of the next pay period after this decision. 11 In the meantime we direct the parties into further discussions as to whether it is appropriate for the Commission to make an order for back pay under s89(3) of the Act, and if so the amount of remuneration which is appropriate, having regard to our decision and the earnings of the applicant since his dismissal. 12 If a dispute remains over the level of such remuneration, we remit the matter to Connor C for determination of that issue. [No application was received for back pay. Nor was any issue in that respect raised with Connor C. In the result, the Commission makes no further orders in the matter and the matter is concluded accordingly]. 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