Industrial Relations Commission of New South Wales CITATION: Kennedy v. Metcash Trading Limited, trading as IGA Distribution Pty Limited [2004] NSWIRComm 1102 revised - 3/12/2004 APPLICANT The National Union of Workers, New South Wales Branch PARTIES: RESPONDENT Metcash Trading Limited FILE NUMBER: IRC 822 of 2004 CORAM: Connor C CATCHWORDS: unfair dismissal - alleged industrial sabotage - voice activated computer system - claim for reinstatement - re-employment - monetary compensation - onus of proof - past conduct LEGISLATION CITED: Industrial Relations Act 1996 Storeworkers - IGA Distrubution Pty Limited Distribution Centres Award - unreported Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 CCH Australia Limited v. Bowen (1998) 79 IR 206 Oswald v. New South Wales Police Service (1999) 90 IR 42 Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 341 Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Commonwealth Steel Company Limited v. Ward - unreported Effem Foods Pty Limited v. Urban (1998) 81 IR 341 Newcastle City Council v. Bevan (2001) 120 IR 121 CASES CITED: IGA Distribution Pty Limited v. Moses (No.2) (002) 114 IR 307 Australian Meat Industry Employees' Union v. Sunland Enterprises Pty Limited (1988) 25 IR 137 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 Loty's Case (1971) AR 95 Busways v. Johnson (1994) 55 IR 255 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Laws v. London Chronicle (Indicators Newspapers) Limited (1959) 2 All ER 285 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 HEARING DATES: 09/09/2004; 09/10/2004 DECISION DATE: 10/01/2004 APPLICANT Andrew Joseph REPRESENTATIVES: RESPONDENT Garry Johnson DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 1 October, 2004 Matter No IRC 822 of 2004 Michael Kennedy and Metcash Trading Limited, trading as IGA Distribution Pty Limited Application by the National Union of Workers, New South Wales Branch under S.84 of the Industrial Relations Act, 1996 DECISION [2004] NSWIRComm 1102 Introduction 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, the National Union of Workers has lodged an application on behalf of its member, Mr Michael Kennedy, who was employed as a storeman (assembler) by Metcash Trading Limited, trading as IGA Distribution Pty Limited. Mr Kennedy was dismissed on Tuesday, 3 February, 2004 after fourteen years of employment. He was given five weeks' wages in lieu of notice, ie it was not a summary dismissal, but his dismissal was over his alleged misconduct - his deliberate manipulation of a recently installed computerised system. The matter was allocated to me by Registry staff and set down for a conciliation/directions hearing on Friday, 26 March, 2004. 2 Conciliation failed to settle the matter. I programmed it for arbitration. An inspection of the work in question at the Blacktown warehouse of IGA Distribution was arranged on Tuesday, 31 August, 2004 and the hearing of the matter occurred on Thursday, 9 September, 2004 and Friday, 10 September, 2004. Mr Joseph represented Mr Kennedy and the NUW in the hearing, calling him to give evidence. He also called Mr Richard King, another assembler employed by IGA Distribution, and Mr John Wolske, who had formerly been employed in that capacity but has since resigned. Mr Johnson represented IGA Distribution in the hearing. He called two witnesses to give evidence in the hearing: Mr Gary O'Shea, the warehouse manager, and Mr John Salomon, the systems administrator. Initially, Mr Johnson had himself intended to give evidence and had provided a witness statement for that purpose but an agreement was reached between the parties and it was not necessary that he, in fact, give that evidence. The New Computer System 3 The IGA Distribution warehouse has operated on a computerised warehouse management system [Dallas EXE 5.2] which is now linked with a new system for the selection of stock which was installed approximately twelve months ago. The inspection on Tuesday, 31 August, 2004 was concerned with that new system for the selection of stock. On day shift there are from 60 to 85 assemblers engaged at the warehouse whose task it is to select stock and place it on pallets to meet orders from customers. There are overall approximately 290 employees on the warehouse workforce. I am informed that IGA Distribution had experienced problems in the past where some errors had arisen in the filling of orders and that through the new system, the chances of incorrect stock being supplied to meet orders is drastically reduced and there is a check on the stock supplied, in the light of customer complaints, that the stock supplied complies with the order actually placed. Mr Johnson informed me in the hearing that the new system also provides details of pick rates and to that extent it may be used to confirm whether a particular assembler was meeting established performance standards. 4 The new system operates by voice recognition through a headset worn by the assembler. Each assembler has his voice recorded in the system on a template and he uses specific words as commands for the selection of stock which the system recognises. The assembler clocks on each day into the Dallas computer system with a personal identification number: Mr Kennedy's number was 50336. Each assembler who clocks on is then allocated an assignment of labels which is also identified with a number and from which he selects the particular item of stock required. Assignments are usually made up of two pallets with seven labels. On rare occasions one pallet with four labels is provided to the assembler for stock orders of a more modest size. Once the assembler has his assignment, his work is conducted directly by speaking into the system and responding to its directions. No person other than the assembler who has coded in for the particular assignments will be accepted by the system for that assignment. 5 Mr Joseph tendered into evidence an assessment, initiated through IGA Distribution, concerning Mr Kennedy's hearing. A screening audiogram test has shown that he has a significant hearing loss, especially in his left ear. Actually, Mr Kennedy disputed that assessment in his evidence, claiming that he had obtained his own independent medical advice that refutes any hearing loss by him. He suggested that his perceived hearing loss was due to nerves, rather than any physical problems. In any event, the volume on the headset may be adjusted to overcome the difficulties any assembler may have in hearing the directions given through the system. 6 There are 73 separate commands which the system identifies. The position of the stock and the item of stock to be selected is identified by a number and a letter of the alphabet. Standard call sign words are used for the alphabet as the stock is selected, eg <Bravo> for B, <Charlie> for C, <Delta> for D, <Echo> for E, <Foxtrot> for F, <Golf> for G, <November> for N, <Oscar> for O, <Quebec> for Q, <Sierra> for S, <Tango> for T, <Victor> for V and <Yankee> for Y. However, the assembler may choose his own words to place on his template in substitution for the standard call sign signals and, within certain limits, the system is flexible enough to recognise those words. Mr Salomon indicated that, for instance, some employees from non-English speaking backgrounds had difficulties with some English words, eg <Foxtrot>, and were accommodated with words in their own language with respect to which they were more comfortable. Mr King had, in fact, amended his template for the system to respond to some particularly offensive words of his choice. Except for one of the less offensive words used by Mr King - <Horny> for H - I leave to the imagination of any person reading this decision what those words were. But it is Mr King claim that the system responded well to his offensive words - better, according to him, than the standard words he was ultimately directed to use. 7 The assembler starts the selection of stock with a request for the system to inform him his task - <Next>. The system responds with a direction - <Aisle Six Bravo>, for instance. When the assembler is in the correct location, he moves through the programme - <Next> - and the system informs him firstly of the quantity to be selected - <Pick 1>, < Pick 2 >, <Pick 10> or <Pick 20>, for instance. If there is insufficient stock on the shelf to meet the order - <Short product> - the system is activated by the assembler reporting it as <Zero>. The system responds with <Is this a short product?> and the assembler confirms that to be the case - <Yes>. 8 The assembler may require the system to repeat its order - <Repeat> or <Say again>. He may revert to an earlier stage of the programme with the command <Talkman backup>. If the assembler makes a comment or says something which is not identified by the system it will not accept it and will not respond to it, informing the assembler to repeat the direction. It records the comment as <Garbage> in the computer programme. That record may be printed out in what was described in the hearing as a "debugging" report which shows the entire operation in extraordinary detail, including the directions by the assembler which Mr Salomon described as "rabbit ears" - ^^ - and the response from the system as a double harsh symbol - ##. 9 If the assembler seeks a break for lunch or smoko from the system - <Give me a break> - the system must give a positive response to confirm that a break is being sought before the employee takes that break. The employee asks for a break and the system responds with its own question - < You requested a break?> - which the employee must then confirm - <Yes> or <No>. Breaks may be either for a thirty minute lunch each day - <Lunch break> or smoko, a <Break assignment>. Shorter breaks are not recognised in the system. The allocation of work each day is set to accommodate some down time for the assembler for brief breaks or toilet stops. The system may be shut down by the assembler at any time through the speaker system - <Talkman sleep> - or revived - <Talkman wake up>. If the assembler is not active for a period of time, the system shuts down automatically. The assembler may "clock off" through the headset or through the Dallas computer clock. 10 Neither the headset nor the Dallas computer clock are linked to the time and wages records of the assemblers: they are not a bundy system. Therefore, if an employee takes unauthorised breaks it will not be recorded against him. However, I am informed that if an employee records a break through either the headset or the Dallas computer clock but does not, in fact, take it, it will skew the pick rate. Mr O'Shea indicated in a written statement which formed the basis of his evidence that: "...the effect of an employee requesting excessive breaks is that their work performance is inflated by the system, suspending the actual time for the break and the employee continues to work..." Therefore, if an assembler records a break but does not, in fact, take it - and that is one of the allegations made against Mr Kennedy - it would mask poor work performance. The Evidence 11 It is alleged that Mr Kennedy was wrongfully attempting to manipulate the voice pick system. According to Mr Kennedy, when on Tuesday, 3 February, 2003 he was dismissed, he was told that IGA Distribution management believed that he was sabotaging the system. Mr Johnson has claimed that Mr Kennedy intentionally over supplied stock and recorded frequent breaks which he did not actually take. Mr Johnson submitted that Mr Kennedy has received more training than any other assembler. Mr Salomon claimed that, in his experience, the vast majority of employees learned to properly use the system within hours of it being introduced to them. Mr Kennedy has received additional training but Mr Salomon was satisfied that Mr Kennedy knew how to work under the system. Mr Johnson and Mr Salomon therefore seriously doubt that the issues raised against Mr Kennedy were simple mistakes on his part. They believes them to have been deliberate. 12 It has been suggested in this hearing that Mr Kennedy was on a "crusade" to undermine the voice pick computer system. Inarguably, he has in the past been resistant to it, initially expressing concern over radiation from the headsets. I am satisfied from the evidence in this hearing that he was a very reluctant participant in the new system. Concern over any new technology and resistance to change are, of course, far from infrequent issues in any modern workplace - and fruitful causes of industrial disputation. The reluctance of an employee to embrace new technology is hardly a proper ground for dismissal, I would think. But it is another matter entirely, and a serious one, when that concern over new technology reaches the level of the sabotage of the system. That clearly would be grounds for dismissal. 13 From the outset, it must be conceded that no personal gain to Mr Kennedy appears to have flowed directly out of all the issues which have come to light in this hearing. That is certainly the position as far as the question of oversupply is concerned. The errors may have adversely affected IGA Distribution but Mr Kennedy did not directly benefit from the mistake. As far as the question of excessive breaks by assemblers is concerned, since neither the Dallas computer system nor the voice pick system are linked to the times or wages records of the employees, they do not provide Mr Kennedy with time off that he was not entitled to. However, as I indicated earlier in this decision, the recording of breaks, through either the voice pick system or the Dallas computer clock, when the assembler does not take them may hide unsatisfactory work performance. 14 I must say, that I would regard it as somewhat disturbing if the system were to be used alone as a tool by IGA Distribution management for the assessment of the work performance of assemblers without them taking into account the range of issues which may otherwise influence that performance. The voice pick system and the Dallas computer together record nothing more than the raw data and I would expect that some account would be made of human factors in the assessment of performance of any employee. 15 I note in that respect, the comments made by the Full Bench of the Commission (Walton J - Vice President, Harrison DP and Patterson C) in its unreported decision of Wednesday, 10 July, 2002 in the Storeworkers - IGA Distribution Pty Limited Distribution Centres Award [Matter Nos.3866 and 4312 of 2000 at p.45], viz: "...As a matter of broad observation, an employer has the right, and indeed the obligation, to set appropriate performance standards and communicate them to all employees so that each employee might be aware of what is expected of them and what achievements are required for promotion. (We observe, in this respect, that the NUW did not seek, in the light of the report of the Full Bench in the engineered standards inquiry, the abolition or prohibition of such engineered standards in these proceedings). The right of setting such standards carries with it, however, an obligation that the standards be safe, fair and reasonable and the measurement of performance against these standards be objective and transparent. The rigidity of an award prescription militates against dealing with each set of circumstances upon their own merits and, in some respects, as the experience of IGA would indicate, a comprehensive evaluation of the current systems of engineered standards against those criteria..." But, for present purposes, the issue for my determination in this hearing is not concerning Mr Kennedy's work performance but his alleged deliberate attempt to undermine the computer system. 16 IGA Distribution claim that Mr Kennedy consistently gave deliberately false commands to the voice pick system, resulting in stock being supplied to customers in excess of orders. For instance, on Thursday, 13 November, 2003 whilst Mr Kennedy was filling an order, he was directed by the system to provide 60 units of one particular stock item. He reported into the system that he supplied none but, in fact, he had supplied 54 items. As against an order of 120 items of another product on that day, again he recorded <zero> into the system but he had, in fact, completed the order in full. As against a further order at that time of 120 items, he recorded into the system that he had selected 19 items but he had actually picked 49 items. Mr O'Shea was made aware of this oversupply of stock, which he valued at approximately $4,200.00 and his investigations confirmed to his satisfaction that Mr Kennedy had purposely provided the wrong information directly to the voice pick system. 17 Another issue raised by Mr Johnson in this hearing occurred on Monday, 15 December, 2004. The Dallas computer revealed that Mr Kennedy took one lunch break of 30 minutes through the headset and two further 30 minute lunch breaks at that time by manually clocking off from the Dallas computer clock. It is the assertion of Mr Kennedy, Mr King and Mr Wolske that the voice pick system frequently gave them breaks for which they did not ask and they had raised this problem in the past with supervisors, requesting adjustments to be made to the system. But on this occasion, there was only one lunch break recorded through the voice pick system. The other two thirty minute breaks were recorded manually by Mr Kennedy through the Dallas computer clock. 18 Moreover, Mr Salomon asserted in his written statement that: "...there are checks and balances in the voice pick system that prevent the system from giving an employee a break that is not wanted..." That is to say, the assembler wanting a break must ask the system <Give me a break> and the system responds with the question <You requested a break?> to which the assembler must answer <Yes> to confirm the break or <No> if he wishes to cancel it. If the assembler responds <Yes> that he wants a break, the system asks him what type of break - <Break assignment> or <Lunch break>. Only then is a break recorded against him. 19 On Monday, 1 December, 2003 Mr O'Shea had counselled Mr Kennedy over his absenteeism and what was recorded in a memorandum of the counselling session as "...time wasting activities that are affecting performance...". That memorandum also records that Mr Kennedy had in the past been counselled over his work performance (from Monday, 15 September, 2003 to Monday, 22 September, 2003), time wasting (on Friday, 7 November, 2003), over supply of stock to a customer (the incident on Thursday, 13 November, 2003) and not picking available stock (on Friday, 28 November, 2003). The memorandum indicated that Mr Kennedy: "...did not acknowledge the problem. He was argumentative and said on a couple of occasions: 'Why don't you sack me?' He could not offer any reason as to why he oversupplied stock..." And went on to say: "...Mr Kennedy was made aware and shown documentation of all the recent incidents relating to oversupply and short supply as well as asking the system for extra lunch breaks. He could not offer explanations for any of the issues. He was advised that this was his final warning and failure to correct his behaviour may lead to the termination of his employment..." The memorandum had a space for Mr Kennedy's signature but he refused to sign it. 20 Mr Kennedy suggested in his evidence in this hearing that the issues which have been raised against him illustrate faults in the system. He recorded in a written statement which accompanied his evidence that: "...on numerous occasions...the system asked me if I needed a break even though I did not request a break. I then said <No> and the system answered -<You requested a break>. I then said <No> and the system asked this two or three times. I said no each time. The system then asked <What kind of break?>. To resume picking I had to state my bundy number. Sometimes, even though I stated my bundy number, the system did not sign me back on. When this happened, I reported it straight away..." Mr King gave evidence of similar experiences with the voice pick system in his written statement, viz: "...The Talkman did not respond well to my instructions. On numerous occasions, communications with the Talkman took place with words to the following effect. I said <One>. The system repeated <You said one one>. Or I said <Hotel> which is my template for H and the system said <You said Oscar>. On occasions when I sneezed, coughed or cleared my throat, the system said words to the effect of <You requested a break>. I answered <No>. On several occasions, the system said words to the following effect to me <Print labels>. Since we do not use the label system anymore, I said <No>. The system was sometimes very hard to understand because the voice was inaudible..." Mr King spoke in his written statement of an occasion where he was told by a supervisor that he had taken two lunch breaks and two smoko breaks in the one day. The excess breaks were deleted from the system. 21 Mr Wolske's evidence also dealt with problems he had experienced with the system while he worked as an assembler with IGA Distribution. He recorded in his written statement that the system did not always recognise the words he told it and he illustrated the problem as follows: "...I remember communications taking place to the following effect: I said <Sierra> and the system said <Zero>; I said <Eight> and the system said <Wrong Nine>; I said <Five> and the system said <Wrong 4>. I had to repeat myself until the system understood what I said... I can only remember about one or two days without any problems with the voice pick system since it was introduced by IGA Distribution... The words recognised by the system were random and there was no pattern... On occasions, when I breathed into the mouthpiece, the system started saying words to the effect of <You said zero. Is this a short product?>. I said <No>. I recall telling the voice pick system words to the effect of <Five Next>. This means that I have just picked five boxes. The system replied in words to the effect of <Wrong Zero, pick five>. I would have to repeat myself for approximately five to ten minutes until the system recognised and followed my command. On numerous occasions the system asked me in words to the following effect <You requested a break. Is that correct?>. I answered <No> and the system continued to give me orders. On one occasion, I said <No> but the system did not give me orders and remained silent. I had to state my bundy number to sign back on. I went to see...a supervisor at the control desk and told him that I got a break and I did not request it. He looked at the computer, confirmed that he had been given a break, told me he would fix it and for me to scan in again..." 22 For his part, Mr Salomon describes the system as "foolproof". My own experiences of the computer systems with which I am familiar suggests to me that it would be a tall order for any new computer system to be totally foolproof, as Mr Salomon has asserted. Either a fault in the programming or human error in operating under that programme has to be accepted as a distinct possibility. And certainly the uncontested evidence of Mr Kennedy, Mr King and Mr Wolske suggest that there were, indeed, problems with the system from time to time. Whether the issues raised by Mr Kennedy, Mr King and Mr Wolske were no more than teething problems which were resolved by the assembler completing a new template or undertaking further training remains unclear from the evidence but Mr Johnson is of the view that there were no problems with the system at the time of Mr Kennedy's dismissal and that the vast majority of the assemblers were functioning well with the system. 23 The matter involving Mr Kennedy finally came to a head on Monday, 2 February, 2004. Mr Kennedy claimed that he went to the voice pick office to complain that the system had given him a break for which he did not ask. He was at first informed by the officer in charge that the system does not make mistakes. The officer looked at the computer screen and, according to Mr Kennedy, informed him that Mr Kennedy was, in fact, right, and that he would fix it. The incident appears to have motivated IGA Distribution management to investigate the matter in more detail and they examined the computer programme for Mr Kennedy in more detail. 24 The result in this hearing is a print out from the computer system - a "debugging" report - which records in detail the exchange between Mr Kennedy and the voice pick system which took place for a brief period shortly before midday on Monday, 2 February, 2004. As I outlined earlier in this decision, Mr Kennedy, as the assembler, is recorded as ^^ and the system voice is recorded as ##. The print out records a brief period commencing at 11.01am and ceasing at some little time after 11.08am - no more than six or seven minutes in all, Mr Salomon estimates. Disregarding momentary gaps shown in the computer programme as silence - <sil> - or where Mr Kennedy was waiting for a command from the system - <wc>, the programme reads as follows: ^^ <Give me a break> ## <You requested a break. Are you sure?> ^^ <No> ^^ <Yes> ## <What type of break are you requesting?> ^^ <Garbage> ^^ <Break assignment> ^^ <Talkman> ^^ <Backup> ^^ <Lunch break> ^^ <Say again> ^^ <Lunch break> ^^ <Talkman> ^^ <Repeat> ^^ <Lunch break> ## <Lunch break> ## <To resume picking, say your password, then say next> ^^ <1> ^^ <3> ^^ <9> ^^ <8> ^^ <7> ^^ <1> ## <Good night> ## <To resume picking, say your password, then say next> ^^ <5> ^^ <0> ^^ <Say again> ## <To resume picking, say your password then say next> ^^ <Say again> ## <To resume picking, say your password then say next> ^^ <5> ^^ <0> ^^ <3> ^^ <3> ^^ <6> ^^ <next> ^^ <Go to Aisle Six bravo> ^^ <Say again> ^^ <Say again> ## <Go to Aisle Six bravo> ^^ <Say again> ^^ <Next> ## <Dash, seven, two, four, dash, three> ^^ <Short product> ^^ <Short product> ^^ <Short product> ^^ <Short product> ^^ <Short product> ^^ <Short product> ^^ <Short product> ^^ <Short product> ^^ <Garbage> ^^ <Garbage> ^^ <Garbage> ^^ <Say again> ## <Dash, seven, two, four, dash, three> ^^ <Location> ## <Aisle Six bravo> ## <Dash, seven, two, four, dash, three> ^^ <Next> ## <Beep> ## <Pick One> ^^ <1> ^^ <Next> ## <Dash, seven, two, six, dash, two> ^^ <Next> ## <Beep> ^^ <1> ^^ <Next> Whilst, based on the evidence before me in this hearing, some of that programme is incomprehensible, I believe that I can confidently draw some conclusions from it. For instance, the system records that at shortly after 11.00am Mr Kennedy called for a break assignment, backed up and called for a lunch break which was provided to him ahead of the time that a lunch break would be available to him. He immediately resumed picking but first gave a wrong identification number - 139871 instead of 50336. He then closed down the system manually through the Dallas clock - <Good Night> - and immediately restarted it with his correct identification number. Eight times he called <short product>, which was not a proper command and made no sense to the system. The appropriate command would have been <Zero> from which the system would ask <Is this a short product?> and Mr Kennedy would reply with either <Yes> or <No>. 25 It is Mr Johnson's claim that Mr Kennedy was purposely disrupting the computer programme and his services were terminated. On Tuesday, 3 February, 2004 Mr Kennedy was directed into Mr O'Shea's office and informed by him that he was dismissed for misconduct. He concedes that he was upset and he responded: "Nothing but bloody lies. I come here and do an honest day's work. I told the supervisor on numerous occasions about the wrong breaks it was giving me." He claimed that he was shown "...a lot of paper work...", presumably the "debugging" report, which he did not understand. The Submissions 26 Mr Joseph has argued that Mr Kennedy's dismissal was unfair and that the management of IGA Distribution had no reasonable basis for coming to the conclusion that Mr Kennedy was guilty of the misconduct alleged against him. Mr Kennedy has contended that the voice pick system has a number of problems in its operation and those problems in the system provide the reason for the discrepancies which have been highlighted in this hearing. Mr Joseph claimed that IGA Distribution did not take sufficient steps to properly train Mr Kennedy in the operation of the system and, rather than taking the disciplinary action it did against Mr Kennedy, it should have assisted him further with retraining. 27 Mr Johnson submitted that Mr Kennedy has failed to provide IGA Distribution management with an acceptable explanation for his conduct. Mr Kennedy was already in receipt of a final warning in relation to his conduct at the time of his dismissal. Mr Johnson claimed that the evidence in this hearing must lead me inevitably to the conclusion that Mr Kennedy was consciously acting to disrupt the voice pick system by acting contrary to the proper operating procedures for it. He refuted Mr Joseph's assertion that Mr Kennedy needed retraining in the system, pointing out that he had already received more training on the voice pick system than any other assembler. 28 In its Part 6 application, the NUW has primarily sought Mr Kennedy's reinstatement under S.89(1). The Commission has consistently confirmed that to be the primary remedy for an unfairly dismissed employee [Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 at p.15, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218, Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67, Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR at pp.341 and 342, and Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. Mr Joseph has continued to press for Mr Kennedy's reinstatement as an assembler in the IGA Distribution warehouse. Mr Kennedy has recorded in his written statement that: "...Whilst I have had problems with the system and I believe the system in itself has problems, I am prepared to give it another go and would undertake training if it helped..." Alternatively, Mr Joseph proposed Mr Kennedy's re-employment under S.89(2) in some other position at the warehouse and suggested some work not involving the voice pick system - work in the repack centre for damaged goods or as a cleaner. 29 As far as re-employment is concerned, S.89(2) authorises me: "…to re-employ the applicant, on terms and conditions determined by the Commission, in another position that the employer has available and that, in the Commission's opinion, is suitable…" There are two requirements that flow from S.89(2): (i) that the former employer has another position available and (ii) that, in the opinion of the member of the Commission hearing the matter, the applicant is suitable for that position. In the unreported decision of Friday, 16 December, 1994 in Commonwealth Steel Company Limited v. Ward [Matter No.IRC 3144 of 1993] the Full Bench of the Commission (Hill and Hungerford JJ and Sheils CC) took the view (at pp.16 and 17) that the word "available" in the equivalent provisions to S.89(2) in the 1991 Industrial Relations Act was not the same thing as "vacant": it simply meant that it would be possible to place a dismissed employee in an existing position on an employer's establishment apart from the position which he formerly occupied. 30 By comparison, in Effem Foods Pty Limited v. Urban (1998) 81 IR 341 the Full Bench of the Commission (Hill and Maidment JJ and Buckley C) commented (at p.346) that: "...the power under S.89(2) to order re-employment is limited to re-employment in another position that the employer has available. The section requires the existence of an available and suitable position; it does not authorise the Commission to require an employer to create a position tailored to the abilities of the applicant..." The decision in Effem Foods Pty Limited v. Urban no longer appears to be a safe decision. In its unreported decision of Wednesday, 12 December, 2001 in Newcastle City Council v. Bevan (2001) 120 IR 121 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) commented (at pp.120 and 121) that: "...in the present proceedings the respondent in the primary appeal has, in our view, demonstrated that the Full Bench decision in Effem Foods Pty Limited v. Urban is arguably incorrect and should, in appropriate proceedings, be reconsidered..." And again the Full Bench (Wright J - President, Walton J - Vice President and Redman C) in IGA Distribution Pty Limited v. Moses (No.2) (2002) 114 IR 307, commented (p.315) that, whilst it was not strictly necessary to address the operation in S.89(2) in detail (therefore making its comments in that respect obiter dicta ): "…we consider that the approach set out in the decision of the former Full Commission in Commonwealth Steel Company Limited v. Ward is to be preferred to the decision in Effem ..." That does not mean that an employer is obliged to create a special position on its establishment to accommodate an unfairly dismissed employee, however. Whilst I have limited evidence before me on the availability of other work at the IGA Distribution warehouse, the size of the operations would suggest to me that some such work would be available to it to accommodate Mr Kennedy. 31 Mr Johnson has opposed the reinstatement of Mr Kennedy as an assembler or his re-employment in some other alternative position. He submitted that the alternative work which Mr Joseph had proposed for Mr Kennedy was work which, among other things, IGA Distribution made available for employees who, for one reason or another, were not able to continue working as assemblers and that would present problems for the organisation of its workforce, ie if I re-employed Mr Kennedy in one of those positions, it would have to relocate the employee who at that time occupied that position. 32 Problems of that nature have invariably been rejected by the Commission in the past. My concern in this hearing is directed at Mr Kennedy and to ensure that, if he were unfairly dismissed, he was not denied the opportunity to resume work. Gray J of the Federal Court in Australasian Meat Industry Employees' Union v. Sunland Enterprises Pty Limited (1988) 25 IR 137 described the situation (at p.142) in the following manner: "...In almost every case, reinstatement is bound to affect the employer adversely in a financial sense, and to cause disruption in the employer's activities. An employer found guilty of an offence can hardly be heard to complain of these matters. In some cases, it would be possible for an employer deliberately to arrange its affairs so as to avoid reinstatement. I am not suggesting that there is any evidence that such a deliberate rearrangement occurred in the present case, but to take account of the existing circumstances would be to encourage such rearrangements..." But Mr Kennedy's conduct does suggest to me that neither his reinstatement nor his re-employment are viable options for him in view of difficulties which have been described in the evidence in this hearing. 33 Firstly, on the basis of his own evidence, Mr Kennedy was experiencing difficulties with the voice pick system, despite the extensive training which, according to Mr Salomon, he had received, and his reinstatement to that work would not be practical, in my opinion. Secondly, there has been obvious friction in the working relationship Mr Kennedy had with Mr Salomon. During the period of Mr Kennedy's employment there was an incident where he bumped Mr Salomon whilst he was carrying a cup of coffee. He claimed that it was an accident and he subsequently apologised to him. Mr Salomon doubts that it was an accident on Mr Kennedy's part. After his dismissal - on Saturday, 30 May, 2004 - at a football match, Mr Kennedy confronted Mr Salomon and, according to Mr Salomon, threatened him in front of his family - not a particularly sound basis to re-establish a working relationship, I would think. 34 And that type of conduct would confine Mr Kennedy's claim to monetary compensation under S.89(5) alone - which is also opposed by Mr Johnson. The upper limit for monetary compensation is set by S.89(5) as: "…an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed…" S.89(5) is concerned with loss of income, not any assessment of damages. The NUW claim on Mr Kennedy's behalf must also be considered bearing in mind the provisions of S.89(6), viz: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment." 35 There is still a certain amount of speculation in determining the appropriate level of remuneration for Mr Kennedy. In D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Tabbaa C) alluded to that when (at p.363) it commented that: "…the power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by S.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in S.89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made…" But Ss.89(5) and (6) are concerned with loss of income and not any assessment of damages. Mr Kennedy's evidence is that since his dismissal he has performed only unpaid community work and therefore he has remained substantially without income since that time. Mr Joseph has submitted that in any assessment of monetary compensation for Mr Kennedy I should bear that situation in mind. Conclusion 36 Of course, none of those remedies would be available to Mr Kennedy unless it is established to my satisfaction that Mr Kennedy's dismissal was unfair, ie using the language adopted by Sheldon J of the former State Industrial Commission in Loty's Case (1971) AR 95 at p.99 whether Mr Kennedy had received a "fair go". The words in S.84(1) on which any Part 6 application relies are "harsh", "unreasonable" or "unjust" [Busways v. Johnson (1994) 55 IR 255 at p.261]. In Parker v. Capital Painters Pty Limited (1996) 68 IR 100 I described the words "harsh", "unreasonable" and "unjust" (at p.104) in the following manner: "...the words 'harsh', 'unreasonable' or 'unjust' contemplate that long established principle of industrial fairness in the State unfair dismissal jurisdiction... which, to my mind, flows naturally out of the ordinary meaning of the words 'harsh' (meaning too severe having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)..." That suggests to me the "fair go" approach approved by Sheldon J is still a valid approach to the exercise of my discretion under Part 6. 37 Whilst there is no fixed rule of law to conclusively define the concept of misconduct, the fundamental issue appears to turn on whether or not the conduct complained of is such as to show the employee to have disregarded an essential condition in the contract of employment [Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285]. The allegation against Mr Kennedy - that he attempted to deliberately sabotage the voice pick system - is a serious allegation and certainly misconduct and grounds for his dismissal. Mr Johnson categorised Mr Kennedy's conduct in the terms advanced by Dixon and McTiernan JJ of the High Court in Blyth Chemicals v. Bushnell (1933) 49 CLR 66 at pp.81 and 82, viz: "...Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal... But the conduct of the employee must itself involve the incompatibility, conflict or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to the future conduct arises..." But the allegations against him are denied by Mr Kennedy, who has simply defended his position by expressing the difficulties he had encountered when the system did not recognise the commands he gave it and gave him breaks when he had not asked for them. He claims there were flaws in the system which IGA Distribution denies. 38 As Mr Joseph asserted in his submissions, the onus of proof rests with IGA Distribution to establish that Mr Kennedy was guilty of misconduct [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84]. The position was confirmed by the Full Bench of the Commission [Cahill J - Vice President, Hill J and French C) in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz: "…The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362…" 39 Looked at in isolation, the computer print out of some six or seven minutes on Monday, 2 February, 2004 is far from conclusive of misconduct, in my opinion. Even though Mr Kennedy has received extensive training, the discrepancies which have come to light in the print out of the "debugging" report may still constitute a series of genuine mistakes on Mr Kennedy's part. Or, despite Mr Salomon's assertion that the system is foolproof, the issues highlighted in the print out may be no more that illustrations of flaws in the computer system itself. Certainly, the evidence of Mr Kennedy, Mr King and Mr Wolske gives some support to such a claim and, as Mr Joseph suggested, what is shown in the print out is no more than what the system records Mr Kennedy to have said and not what he may, in fact, have actually said. The problem may be in the translation and the clarity of speech with which Mr Kennedy, or any other assembler, communicates with the system. 40 But the computer print out is not considered by IGA Distribution in isolation. It was considered in the context of a range of separate incidents since the new computer system came into operation and at a time when Mr Kennedy had received a final warning over his conduct with the system. It is customary and proper for an employer considering whether or not to terminate the services of an employee to take into account the past conduct of that employee [Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 at p.27]. And a minor issue at the point of the dismissal, ie the events involving Mr Kennedy on Monday, 2 February, 2004, may constitute the straw that breaks the camel's back as far as Mr Kennedy is concerned. 41 To my mind, the range of issues raised by Mr Johnson in this hearing reveal a pattern of behaviour on the part of Mr Kennedy which is explained only by a conscious attempt on his part to frustrate the voice pick system. There is really no other explanation for the oversupply of stock on Thursday, 13 November, 2003 or the recording of a bogus identification number into the system on Monday, 2 February, 2004. And what reason can Mr Kennedy give for recording that he took three lunch breaks on Monday, 15 December, 2003? In spite of the evidence of Mr Kennedy, Mr King and Mr Wolske to the contrary, in view of the checks in the system, I see no way that a break can be allocated to an assembler through the voice pick system unless that assembler intentionally requested it. 42 In the circumstances, I see no justification to intervene in support of Mr Kennedy in this hearing and I dismiss the Part 6 application the NUW has lodged on his behalf. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.