Industrial Relations Commission of New South Wales CITATION : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison and Keith Donaldson, and Australian Co-Operative Foods Limited [2000] NSWIRComm 199 APPLICANTS Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison PARTIES : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Keith Donaldson RESPONDENT Australian Co-Operative Foods Limited FILE NUMBER: 7056 and 7059 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - workplace prank - potential for injury - summary dismissal - whether dismissal harsh, unreasonable or unjust - procedural fairness - principles considered. CATCHWORDS : Held, incident admitted - unnecessary to prove - employer did not take into account all the evidence - potential for injury negligable - other employees' involvement not considered - employee not left unattended - dismissal disproportionate to conduct - applicants' regret and contrition - failure to take account of applicants' long service and records of employment - investigation hasty and flawed - applicants denied procedural fairness - dismissals substantively and procedurally unfair - reinstatement impractical - compensation appropriate - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Franklins Ltd v Webb, 72 IR 257 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Rose v Telstra Corp Ltd, Ross VP, 45 AILR 3-966 Byrne & Anor v Australian Airlines (1995) 185 CLR 310 Bankstown City Council v Paris (1999) 93 IR 209 re Federated Ironworkers' Association of Australia, New South Wales Division and Australian Iron & Steel Pty Ltd (1978), Watson J, Industrial Arbitration Reports 177 Zippara and K-Mart Auto, IRC2225 of 1992 and Parker and K-Mart Auto, IRC2226 of 1992 (unreported) Patterson CC, 11 February 1993 Inghams Enterprises v Bruce, 60 IR 365 Shop Distributive and Allied Employees' Association v Jewel Food Stores, 22 IR 2 CASES CITED : Bigg & Anor v New South Wales Police Service, 80 IR 434 Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Stephen Wardle and Blue Mountains City Council (unreported) Sams DP, IRC4727 of 1998, 21 May 1999 Taggart and Bell Sports (unreported) Sams DP, RC5224 of 1998, 10 September 1999 Thornton and Happy Hours Pre School Kindergarten (unreported) Sams DP, IRC5333 of 1998, 28 July 1999 Ueckert and Australian Water Technologies (unreported) Sams DP, IRC5553 of 1999, 25 July 2000 Standley v Electronics Boutique Australia Pty Ltd (unreported) Sams DP, IRC4516 of 1998, 18 March 1999 Hill and Department of Juvenile Justice (unreported) Sams DP, IRC6474 of 1999, 27 July 2000 Outboard World v Muir (1993) 51 IR 167 Antanakopoulos v State Banks of New South Wales (1999) 91 IR 385 Wilson v Department of Education (unreported) Walton VP, Kavanagh J, Bishop C, Matter IRC1735 of 1999, 21 March 2000 Johnson v Catholic Education Office, Diocese of Parramatta (unreported) Cahill VP, Schmidt J, Tabbaa C, Matter IRC5641 of 1997, 21 August 1998 HEARING DATES: 04/19/2000; 05/16/2000 DATE OF JUDGMENT: 10/18/2000 APPLICANTS Mr E Young, Solicitor Turner Freeman UNION LEGAL REPRESENTATIVES: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union RESPONDENT Mr P Ludeke, Agent with Ms W Crawford from Australian Co-Operative Foods Limited JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 18 October 2000 Matter No IRC99/7056 MARK HARRISON AND AUSTRALIAN CO-OPERATIVE FOODS LIMITED Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC99/7059 KEITH DONALDSON AND AUSTRALIAN CO-OPERATIVE FOODS LIMITED Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 By consent, these two applications for relief, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), were joined by the Commission in proceedings which commenced on 15 February 2000. The applications were filed by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") on behalf of Mark Harrison and Keith Donaldson ("the applicants"), both of whom were dismissed from their employment with Australian Co-Operative Foods Limited ("the respondent") on 9 December 1999. The reason for dismissal related to their involvement in a workplace prank on 20 November 1999 ("the incident") which the employer maintained was reckless and dangerous such as to warrant dismissal for misconduct. 2 At conciliation proceedings on 15 February and 24 February 2000, Mr I Harrington appeared for the Union, representing both applicants, and Mr P Ludeke, with Ms W Crawford, appeared for the respondent. Following private conferences on 24 February I formed the view, pursuant to s87 of the Act, that the applications could not be settled through conciliation. I set dates for hearing and issued directions for the filing and service of affidavit material. 3 At the request of the respondent, due to the failure of the applicants to comply with the Commission's earlier directions, the matters were re-listed on 24 March. After hearing both parties, and with Mr E Young, Solicitor (now appearing for the Union), I amended my 24 February directions. However, such amendment did not affect the date for hearing of 19 April 2000. Factual Background 4 Both applicants were employed as fitters under the Metal & Engineering Industry (NSW) Interim Award. Mr Harrison had 7½ years' service and Mr Donaldson 27¾ years. The applicants were dismissed following an investigation by the respondent of an incident on 20 November 1999 in which a young employee, Mr Adam Van Doorn, had been lifted by a rope and suspended over a workbench. It was alleged that Mr Van Doorn had been an unwilling participant in the prank and the applicants had left the suspended employee, unattended, in circumstances where his safety was at risk. 5 The company was made aware of the incident some two weeks later and following an investigation of the circumstances, decided to dismiss the applicants following a meeting on 9 December, in which both were represented by Mr I Harrington from the Union. The Applicants' Case 6 Mr Young called evidence from Mr Ian Harrington, Union Organiser and the two applicants. 7 Mr Harrington gave evidence that he attended a meeting with the applicants and the employer on 9 December 1999. At this meeting, Mr Rudy Van Der Korput, the Region's Operations Manager, explained that the matter was very serious and the company had decided to dismiss both employees. At the conclusion of the meeting, both applicants were dismissed for serious misconduct. 8 Mr Harrington said he was not involved in the investigation of the incident, or the decision making process. He had been involved for no more than half an hour and Mr Van Der Korput had made it "quite plain they were to be dismissed" (T.p30). 9 Mr Harrington said he had raised the penalty of suspension, rather than dismissal. Mr Donaldson's evidence was that resignation or redundancy was discussed - not suspension. Mr Harrington was asked if this discussion suggested that he agreed with the employer's decision to dismiss both employees. He said he was faced with a fait accompli and was looking for other alternatives. He explained this by saying that by volunteering for redundancy the employees would receive redundancy pay. 10 Mr Harrington also regarded the incident as serious, but at the time he was not in possession of all the facts. He said that at the meeting he wasn't aware Mr Van Doorn was in a safety harness above a bench and was never in any danger. He wasn't aware that there was no malice intended by the applicants. He also believed that the applicants had told him on 9 December that Mr Van Doorn had been a willing participant in the prank. 11 Mr Harrington gave evidence of a meeting he had with Mr Van Doorn on 9 February 2000, the notes of which appear attached to his affidavit. The typed notes indicate that Adam (Mr Van Doorn) had agreed he was a participant in the prank by climbing onto the bench. It was done on the spur of the moment with no malevolent intention of the applicants. 12 Mr Harrington had formed the view, after this meeting, that the applicants' dismissals were harsh and unfair and that a suspension, or final warning, would have achieved a similar result, i.e. sending a message to other employees that such behaviour was unacceptable. 13 Mr Harrington had used the term "willing participant" but had not included the adjective in his notes of 9 February. He said that the word "willing" was what was intended. However, he agreed that the nature of the conversation was whether Mr Van Doorn had been forced to participate. Mr Van Doorn had replied "no". However, Mr Van Doorn wasn't happy about having his leg tied off. 14 Mr Mark Harrison gave detailed evidence of the incident. In summary, he said: i) Mr Van Doorn entered the workshop wearing a safety harness. Mr Harrison noticed a knot on the rope was incorrectly tied and he explained how to tie it correctly. ii) Mr Harrison threw the rope over a beam above the bench and tried to lift Mr Van Doorn up. He couldn't. iii) Mr Donaldson joined in, but both of them couldn't lift him. iv) Mr Van Doorn called them " weak bastards " and climbed on the bench himself, taking the weight off the rope. v) Mr Van Doorn was about 30cm off the bench. The rope was tied to a vice, leaving him suspended (although in oral evidence Mr Harrison denied tying off the rope and said Mr Donaldson hadn't either). Mr Van Doorn was laughing at the time. vi) Mr Van Doorn had not tried to undo the harness. vii) Mr Harrison denied saying in his disciplinary interview that Mr Van Doorn had said " don't, don't " (T.p40) viii) Mr Harrison denied that Mr Van Doorn asked to be let down. ix) Mr Van Doorn was suspended for about five to ten minutes. Mr Donaldson left the room and he (Mr Harrison) walked to the front of the workshop ten to fifteen metres away to have a cigarette. He could not see what was happening in the workshop but could hear, and would have heard, if Mr Van Doorn became entangled. He said he couldn't see how he could be entangled anyway, as he was in a safety harness. He accepted the harness was not designed for use in a prank, but is designed to make a person safe at work on heights. He had used a harness on many occasions and didn't regard Mr Van Doorn as being in any danger. During this time another employee, Angelos Nikiforos came into the workshop and let Mr Van Doorn down. x) Mr Van Doorn then said to Mr Harrison " you should call me Houdini ". xi) At no time did Mr Van Doorn protest, or complain, and in fact, had played along, as if it was fun. He had said, prior to the incident, how " cool " it would be to hang around in a harness (T.p39). He conceded that he could not hear him complain when he was outside the workshop. xii) He acknowledged that he could not know if Mr Van Doorn was scared, or intimidated, if he couldn't see him. xiii) There was one other apprentice in the workshop during the incident. 15 Mr Harrison conceded that part of his safety training involved being told not to participate in activities which were unsafe. He accepted that what he did was unsafe (T.p39) and dangerous "to a certain point". He later retracted this evidence and said it was just "a silly prank". 16 Mr Harrison heard no more about the incident until a phone call from Mr Van Doorn on 8 December, in which Mr Van Doorn told him that Mr Van Der Korput had been asking questions about the incident. The same day in a meeting with Mr Van der Korput and Mr Wignall the applicant was suspended on full pay while further investigations took place. 17 On 9 December he was called back to work to another meeting with Mr Van Der Korput and Mr Wignall. Mr Harrington arrived and the three of them met with Mr Van Der Korput who told them they were to be dismissed. The applicant asked about warnings, or counsellings, but these were refused. Mr Harrison gave evidence that, in the meeting on 8 December, and the first meeting of 9 December, he was not told his employment was in jeopardy. He said the notes of the meeting did not record the full extent of what was discussed. Mr Harrison gave evidence that he had told Mr Harrington on 9 December that Mr Van Doorn had been a " willing participant " in the incident. 18 Mr Harrison said he now knows he should never have been involved in the incident and regretted it. He had maintained a suspicion that the incident had been a conspiracy to dismiss him to avoid paying redundancy pay. 19 Mr Harrison was asked about his claim that he had not been previously disciplined for any reason. This was put to him, as contrary to an incident where Mr Van Doorn had complained about Mr Harrison touching him. Mr Harrison said he had been told in a meeting with other fitters "to leave Adam alone". He did not regard this as disciplinary action. 20 Finally, Mr Harrison gave evidence that he is now seeking compensation, not reinstatement, as he is presently employed in another job. 21 Mr Keith Donaldson's evidence corroborates Mr Harrison's version of the incident. To the extent it does so, I do not repeat it. However, one aspect of the incident described by Mr Harrison was contradicted by Mr Donaldson. Mr Harrison denied tying off the rope to the vice. Mr Donaldson said he, and Mr Harrison, had done so (para 9,Ex'3'). 22 Mr Donaldson gave evidence that Mr Van Doorn had said words to the effect "I don't care if you leave me here all day - I like it". Like Mr Harrison, Mr Donaldson said at no time did Mr Van Doorn protest or complain - he was a " willing " and active participant. 23 Mr Donaldson heard no more of the incident until 8 December when he was phoned at home and told he was suspended. Mr Wignall rang back to discuss the incident. He went to work the next day but was sent home. Mr Wignall called him to request he attend a meeting with management and the Union. He went with the union delegate, Mr Hassar, to a meeting with Mr Van Der Korput and Mr Wignall and waited for Mr Harrington to arrive. A further meeting was held involving Mr Harrington. Mr Van Der Korput told them they were to be dismissed. Mr Harrington asked " any chance of a resignation or redundancy?" This was refused. 24 Mr Donaldson said he always thought he would retire from Dairy Farmers. 25 Despite claiming he had not been disciplined on any occasion, Mr Ludeke showed him a record of counselling dated 16 November 1998. He did not recall the counselling, but accepted it must have occurred. 26 Mr Donaldson was closely questioned on the incident and his role in it. He rejected Mr Van Doorn's version of the incident and, in particular, denied Mr Van Doorn asked to be let down, was struggling or was seeking to release himself. 27 Mr Donaldson accepted that once he had left the workshop he could not hear if Mr Van Doorn was in trouble, or was protesting. He didn't know if anyone else was in the workshop. When he returned about ten minutes later, Mr Van Doorn had been released. He said he did not believe Mr Van Doorn was in any danger, but he agreed he wasn't present for the full time. Mr Ludeke pressed Mr Donaldson into answering that by leaving him alone, he didn't care what happened to him and had abandoned him. Mr Donaldson rejected this and added, " I wouldn't do anything to hurt him ". 28 Mr Donaldson agreed that Mr Van Doorn could only have been a "willing participant" up to the point of his leaving the workshop. He denied that Mr Van Doorn's participation excused his conduct - which he described as "wrong" (T.p79). 29 Mr Donaldson said he was surprised at the phone call two weeks later, as it never crossed his mind that the incident would be reported. He said he regretted the incident, it was a stupid "spur of the moment" thing. 30 In re-examination, Mr Donaldson attested that at no stage, in the conversation with Mr Wignall on 8 September, was he told his employment was in jeopardy. 31 In further questioning, Mr Donaldson accepted that the incident was serious; so much so that he had contacted the Union. The Respondent's Evidence 32 Mr Ludeke called evidence from: Mr Adam Van Doorn (Trades Assistant) Mr John Wignall (Plant Manager) Mr Christopher Martin (Maintenance Engineer) Mr Rudy Van Der Korput (Operations Manager) 33 Mr Adam Van Doorn described his role in the incident on 20 November. His version of the incident conflicts with the applicants in the following respects. He claimed that: 1) he could not get down because the safety line was taut, so he climbed up on the workbench and was standing up; 2) he tried to undo the harness and get down, but the applicants pulled hard on the rope to prevent him from doing so; 3) he may have laughed at this point because he was taken by surprise; 4) he asked both applicants to let him down. They laughed and he tried to release himself, but they both tied the rope to the vice on the workbench; 5) when both applicants walked towards the workshop exit, he asked where they were going. They did not answer, and he was left alone in the workshop, suspended for ten to fifteen minutes, before being released by Angelos Nikiforos; 34 Mr Van Doorn did not immediately report the incident because he believed both applicants would be in trouble. However, this was not the first time he had a problem with Mr Harrison and Mr Donaldson. In July 1999, he complained to management about Mr Harrison touching him on the leg. 35 In oral evidence, Mr Van Doorn said he worked with Mr Harrison and Mr Donaldson for three years. He liked them, and there was no animosity between them. 36 He said that when he entered the workshop, wearing the harness, there were several other employees present. He said when he was first lifted, he wasn't scared or frightened and did not feel in danger and did not call for help. Initially, he didn't ask to be let down, but thought it was a bit of fun - a joke (T.p94). When he was standing on the workbench, he did not yell out and did not ask to be let down. 37 Mr Van Doorn said he had often worn a harness during his work and understood it was to protect a person from falling. He could not recall at what point during the incident, he tried to take off the harness. 38 After the applicants left the workshop, he said he did not call out as they walked away. He phoned the security guard. He denied boasting about the incident or pretending to be Superman. He said he asked another employee in the vicinity, Peter Toff, to let him down - but he wouldn't. Mr Toff found it amusing. He conceded that his affidavit stating he was left alone was incorrect (T.p102). 39 Mr Van Doorn reaffirmed that he didn't want to get the applicants into trouble and added "I did not want to get in trouble myself" (T.p103). He told his mother the day of the incident and another employee, Jim. He had told both Mr Wignall and Mr Van Der Korput that he didn't want the two applicants to be sacked. He had been very emotional about it and displayed this emotion in the witness box. 40 Mr Van Doorn was asked if he was a bit of a prankster himself and was asked about a number of past incidents. In re-examination, he said he had never participated in a prank involving someone in an unsafe position. 41 Mr John Wignall was the Australian Co-Operative Foods Plant Manager and had been employed by ACF for twenty-six years before being made redundant on 5 May 2000. Mr Wignall interviewed Mr Donaldson by phone on 8 December (his notes of the call are annexed to his affidavit - Ex'B') and participated in an interview with Mr Harrison on the same day (these notes are annexure B). He also participated in a meeting with the employees on the next day and took notes (Annexure C and D). He did not participate in the decision to dismiss. Also attached to his affidavit (Annexure E) was a record of counselling involving Keith Donaldson on 16 November 1998. 42 In oral evidence, he described the first phone interview as taking five minutes. He had asked what had happened in the incident. He couldn't recall if Mr Donaldson was told his employment was at risk. Mr Donaldson had said it was a spur of the moment thing, and that Mr Van Doorn was always doing practical jokes and should be prepared to take it. (Four other employees were interviewed - Peter Landes, Peter Toff, Joe Zara and Angelos Nikiforos). In the interview with Mr Harrison, Mr Wignall could not recall if he was told his job was in jeopardy. Mr Harrison had said it was a silly thing to do and he regretted it. 43 Mr Wignall said the meetings on 9 December were about ten to fifteen minutes each and, while it was not recorded that the applicants' jobs were at risk, they both knew the matter to be serious. 44 Mr Martin's evidence went exclusively to the incident where Mr Van Doorn had complained about Mr Harrison touching him in July 1999. He said that Mr Van Doorn had approached him, visibly upset, and told him that Mr Harrison had continually touched him. 45 Mr Martin called all the fitters together and he addressed Mr Harrison directly by telling him to leave Adam alone. Mr Harrison had not denied the allegation and later Mr Donaldson approached Mr Martin and told him that "Adam does things to us, why should we not be able to do things to him?" In oral evidence, Mr Martin said there were no notes made of this incident and no warning letter was issued. 46 Mr Rudy Van Der Korput was approached by Mr Van Doorn's mother (who also works at ACF) on 7 December who said "Do you know what they did to Adam? They grabbed him and strung him up and left him there. Adam is very upset about it and I am upset about it" (paras 2 and 3 of Ex'D'). 47 Mr Van Der Korput said he would investigate the matter and instructed Mr Wignall to arrange interviews with Mr Harrison and Mr Donaldson, and any other relevant witnesses. 48 He said that after these interviews, it was his view that the applicants' conduct was dangerous and irresponsible. He took the view that ACF's occupational health and safety responsibilities had been compromised, and therefore both applicants should be dismissed. He took into account Mr Harrison's confined space training and Mr Donaldson's many years of experience. 49 In oral evidence, Mr Van Der Korput said it was he, and Mr Wignall, who conducted the investigation and interviews. This was despite Mr Wignall's evidence that he had only arranged the interviews and taken notes. Mr Van Der Korput said he had asked the questions, but said he was surprised Mr Wignall had given evidence that he had not been part of the decision making process. 50 Mr Van Der Korput agreed that Mr Wignall's notes do not record the matter was serious or that the applicants' jobs were in jeopardy. 51 Mr Van Der Korput said that, while it was his final decision to dismiss, it was made with Mr Wignall and after consulting Ms Wendy Crawford in the Human Resources Department. He had made the decision based on the serious and dangerous nature of the incident; although Mr Van Doorn had never said he was in danger. Mr Van Doorn was uncomfortable and distressed and had not wanted the applicants to be sacked. He told Mr Van Der Korput that he wasn't injured or scared. Mr Van Der Korput had not asked if he enjoyed it. 52 Mr Van Der Korput gave evidence that Mr Van Doorn had not told him he had a mobile phone on him, but he had said there were other people around. He was aware Mr Van Der Korput was suspended by a rope attached to a safety harness, but that harnesses were not designed for such a purpose. 53 Mr Van Der Korput gave evidence that he did not take into account: i) the employees' length of service; ii) that Mr Van Doorn had not complained about the incident; iii) whether warnings, suspension, redundancy or termination with notice, rather than summary dismissal, were appropriate. 54 He said he would not have changed his decision, even if he had discovered Mr Van Doorn was a "willing" participant. He could not say whether he would have changed the decision, if it was established Mr Van Doorn had not been left alone. 55 Mr Van Der Korput gave evidence that Mr Toff had witnessed the whole incident from about five metres away. Mr Toff had said Mr Van Doorn was laughing and joking and had pulled himself up even higher. In respect to Mr Toff's involvement, Mr Van Der Korput said he was an apprentice, not responsible for Mr Van Doorn and was not asked to help him down, or keep an eye on him. There were three sources of such information - Mr Van Der Korput, however, had weighed up all the evidence. 56 In re-examination Mr Van Der Korput said he did not believe Mr Van Doorn was an active participant beyond the point he jumped on to the workbench. SUBMISSIONS 57 Mr Young's submissions may be summarised as follows: 1) the case involved the summary dismissal of two long serving employees, both of whom had exemplary employment records; 2) the onus is on the employer to prove the misconduct. See Franklins Limited v Webb , 72 IR 257 and Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) V Gartrell White No 3 , 35 IR 70; 3) the evidence is that there was no danger to the employee: i) Mr Van Doorn did not feel frightened, or in danger, ii) a safety harness was used, iii) Mr Van Doorn was not left unattended, iv) no one complained about the incident - even his mother didn't complain for 2½ weeks, v) Mr Van Doorn was an active and willing participant in the incident; 4) the employer's response was extreme and unreasonable; 5) the previous alleged disciplinary action against Mr Harrison was not disciplinary action at all; 6) no earlier disciplinary action was taken against Mr Donaldson. The matters raised in November 1998 were trivial; 7) Mr Van Doorn's evidence was contradictory. He admitted to laughing, thinking the incident was fun. He didn't ask the security guard to let him down. He had said no one else was around, but then admitted Mr Toff was there; 8) Mr Van Doorn was emotional and upset, because he was scared he would be in trouble if his willing involvement, became known to the employer; 9) the evidence of Mr Wignall and Mr Van Der Korput is contradictory. Mr Wignall's should be preferred; 10) Mr Van Der Korput made the decision himself and did not consider any alternatives to dismissal. His decision was based, in part, on Mr Van Doorn being left alone. He had admitted this was incorrect; 12) other witnesses, who were interviewed, were not called to give evidence, giving rise to Jones & Dunkel (1959) 101 CLR 298 inferences; 13) the dismissals were harsh, unreasonable and unjust. See Rose v Telstra Corp Ltd , Ross VP, 45 AILR 3-966 and Byrne & Anor v Australian Airlines (1995) 185 CLR 310; 14) the applicants were skylarking and expected to be reprimanded; but not sacked (see Bankstown City Council v Paris (1999) 93 IR 209); 15) the employees have not been replaced and the employer had saved thousands of dollars in redundancy payments; 16) the applicants have mitigated their loss and now seek compensation. Compensation should be at the higher end of the scale. 58 For the respondent, Mr Ludeke submitted as follows: 1) there is a consistency of evidence up to the point where Mr Van Doorn climbed onto the workbench; 2) it is uncontested that both applicants left the workshop with Mr Van Doorn suspended above the bench. They did not care and left him to his fate; 3) the applicants attempted to blame somebody else for their stupid and dangerous behaviour; 4) even if it was accepted that Mr Van Doorn was a willing participant, up to when the applicants walked away, he could not have continued to be willing, as he had no choice. He was suspended, unable to move; 5) the test in Franklins Limited v Webb , 72 IR 257, is whether the applicants deliberately, and without regard to the consequences, chose to do what they did; 6) Mr Harrison admitted what he did was contrary to his training, he went outside and could not see Mr Van Doorn; 7) the theory of a conspiracy to dismiss the applicants to save redundancy payments is not sustainable on the facts. Mr Van Der Korput described them both, as good fitters; 8) nothing can be inferred from the date of the incident to when it was first reported, 2½ weeks' later. The applicants thought they had got away with it; 9) the Union accepted the seriousness of the incident and had not sought to save the applicants' jobs. Rather, Mr Harrington had proposed alternatives, such as redundancy, or resignation. He had changed his view after talking to Mr Van Doorn, but had not sought their jobs back; 10) In addressing s88 of the Act, Mr Ludeke submitted: i) there was a reason for the dismissal - misconduct, ii) the reason had a basis in fact, iii) the employees were given an opportunity to make out a defence and give an explanation. There were no issues of procedural unfairness; 11) The Commission should take into account that the behaviour was unlawful under the Occupational Health and Safety Act , 1983; 12) Bankstown City Council v Paris is not to point, as there is no history at ACF of the behaviour being condoned by a supervisor, or even having occurred before; 13) there was no evidence of the applicants' remuneration earned since dismissal as required by s89(6) of the Act. 59 In reply, Mr Young submitted: 1) there was no evidence that Mr Van Doorn was in any danger; 2) Mr Harrington did not accept that the applicants should forfeit their employment. He was presented with a fait accompli and proposed alternatives to dismissal; 3) there is no suggestion that prosecution of the applicants under the Occupational Health and Safety Act has, or will be taken; 4) Mr Van Doorn has self interest as a motive in not wanting to admit being a "willin g " participant. CONSIDERATION Skylarking or Pranks in the Workplace 60 Skylarking, practical jokes and pranks in the workplace have been around for as long as work has been performed. Seemingly, some workplaces have a higher incidence of such activity, while in others, the practice is so endemic that it has become part of the culture of the place. In some cases, Management turns a blind eye to the practice; even condoning it. Invariably, skylarking in the workplace will have some risk attached to it - be it risk to the health or safety of employees or personal offence to those to whom the skylarking is directed. In some cases, no one will be offended, as those involved may be "willing participants". 61 It is axiomatic that, assessing the degree of seriousness will be decided on a case by case basis. In determining whether such behaviour is legitimate grounds for dismissal will similarly turn on the particular facts and circumstances of each case. 62 It is helpful to refer to a number of relevant authorities from which some general observations may be distilled: In re Federated Ironworkers' Association of Australia, New South Wales Division and Australian Iron & Steel Pty Ltd (1978) 1978 Industrial Arbitration Reports 177, Watson J discussed skylarking in hazardous workplaces. At p178 his Honour said: There is little that can be said in mitigation despite the day on which the offence occurred. Practical joking may have its place in the community even though it seems often to hurt some hapless victim in some way in order that others may gain enjoyment. Such behaviour on 1st April is almost ritualistic. Nonetheless, there is no room for practical joking in a workplace such as a steelworks, particularly if it may lead to some sort of retaliation or other conduct which disregards safety. Skylarking or like forms of amusement cannot be condoned in an establishment where there are many recognized hazards, both to plant and personnel. I have inspected the particular section of the plant where this incident occurred on two occasions in recent months. There is a continual movement of forklifts, some of very large capacity, and also cranes with coils and other products being moved and stacked in and around the workplace. Employees must remain alert and so conduct themselves that they do not increase these hazards for themselves or for others. Patterson CC, in Zippara and K-Mart Auto , Matter IRC2225 of 1992 and Parker and K-Mart Auto , Matter IRC2226 of 1992, (unreported) 11 February 1993, spoke of " horseplay " in the workplace: As to the Company's attitude to "horseplay" in such an environment I confirm that every employer has imposed upon him a stricture of statutory obligations to provide, not only a safe method of work, but a safe place in which to work - and all employees have, within the terms of their duties, an equal obligation to work safely so as to protect themselves and other employees in the course of those duties. Practical jokes and interference with one's person or property, in the name of "horseplay", can not only lead to a deterioration in relationships and/or physical altercation but can render unanticipated, incalculable - and unnecessary - risks to the maintenance of a safe working environment. Employees who flout their obligations in this regard must do so at considerable risk to their continuing employment. A Full Bench in Inghams Enterprises v Bruce , 60 IR 365, considered whether a dismissal was unfair where there is an intention to harm or injure another person: Even if, as in this case, the consequential risk was the direct, and natural and probable, consequence of the action and intent is presumed, there was clearly no malice and/or actual intent to harm or injure; and none was ever suggested by anybody, none the least the victim. In our opinion, intention, while not definitive, is clearly relevant in a determination of the "seriousness and "wilfulness" of particular conduct and the other relevant issues which arise in a reinstatement case. Needless to say the fact that a dismissal, summary or otherwise, was "lawful" does not mean that it was not harsh, unreasonable or unjust. If it were otherwise Pt 8 ch 3 might have little work to do. In all of the circumstances the Commissioner found that the dismissal was harsh. We are of the view that the finding was correct both in fact and law. There are present in this particular case a number of extenuating or mitigating circumstances which are sufficient to render the dismissal harsh. The most recent Full Bench discussion on this issue is to be found in Bankstown City Council v Paris (1999) 93 IR 209, where the Commission said: Nothing we have said in this judgment should be taken as indicating any tolerance of misbehaviour in the workplace. Skylarking and mucking around, while thought by some to be a legitimate form of amusement, have no place at all at work. These proceedings have not been about whether misbehaviour in the workplace is acceptable but rather whether the treatment of an employee, in a milieu where such behaviour seems to be rather the norm than the exception was harsh, unreasonable or unjust. Having regard to Council's apparent lack of awareness of such behaviour and the absence of any stricture against it, and with differing degrees of involvement on the facts, the case has permitted an order in the employee's favour. Each case will need to be determined in the light of its own facts. 63 From these authorities, it seems to me that four categories of skylarking might be identified: i) where there is no injury or potential for injury to the participants; ii) where there is potential for injury to an employee; iii) where actual injury results; iv) where there was a deliberate intention to harm, or injure, or cause damage. 64 Taking these observations further, it would also be relevant, in my opinion, to consider the following questions: 1) Did the behaviour constitute harassment of another employee/s? 2) Did the behaviour impede the employer's capacity to properly conduct his/her business? 3) Did the employer condone such behaviour? 4) The length of service and employment record of the employee/s. 65 My conclusion, drawn from the incontrovertible evidence is that there was a potential for injury to Mr Van Doorn; albeit as I will later find, such potential was negligible. Potential Risk of Injury 66 It is not contested that for about ten minutes, Mr Van Doorn was suspended about 30 cm above a work bench. He was wearing a safety harness attached to a rope, which was tied off to a vice. 67 While it is obvious that safety harnesses are not intended to be used in pranks, it seems to me to be equally obvious that the nature of the prank resulted in the safety harness being used for a purpose for which it was intended; namely, protecting a person from falling from a height. 68 However, in my opinion, what is more pertinent to whether there was any risk of injury to Mr Van Doorn, was if he was left alone while suspended and, if so, for how long? The evidence is that both Mr Donaldson and Mr Harrison had left the workshop after leaving Mr Van Doorn suspended. Mr Harrison contends that he was outside the workshop, having a smoke, and within earshot of Mr Van Doorn. Mr Harrison says he would have heard him had he called out or wanted to be let down. I accept this evidence. I accept more relevantly, that Mr Van Doorn did not call out, or ask to be released. 69 It is curious that in neither of the applicants' statements was it mentioned that an apprentice, Mr Peter Toff, was in the workshop at all relevant times. Perhaps they weren't aware he was. Mr Van Doorn's oral evidence contradicted his statement about Mr Toff's presence. At T.p102 this exchange is recorded: Q I refer you to paragraph 9 of your affidavit when you say, the last sentence of that paragraph, top of page 3 - do you see that - "By this time no one else was left in the workshop"? A Yes I do. Q That is not correct is it? A No, no it is not. He had in fact asked Mr Toff to let him down; Mr Toff found the incident amusing and refused to let him down. This uncontradicted evidence emerged during the proceedings and therefore is accepted. Thus, Mr Van Doorn was not in the workshop alone. It was another employee, Angelos Nikiforos who let Mr Van Doorn down. 70 There is other evidence which convinces me that Mr Van Doorn was not in any danger; nor did he regard himself to be so. This evidence relates to the fact that Mr Van Doorn had a mobile phone with him, and made a call to the security guard on the front gate. Mr Van Doorn first denied making a call, but then changed his evidence (T.p101). The guard did not give evidence. However, it is obvious that the call was not in the nature of a complaint or plea to be released. He told the guard he was "hanging around". He did not ask for help, or to be let down, let alone convey any feelings of distress. 71 Collectively, this evidence must lead to a conclusion that Mr Van Doorn did not regard himself to be in any danger or distress and more likely was, as Mr Harrington described, "a willing participant" in the prank. Allegations of Misconduct 72 The principles the Commission must apply to dismissals for alleged misconduct are now well settled by the relevant authorities, see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70; Franklins Limited v Webb, 72 IR 257; Shop Distributive and Allied Employees' Association v Jewel Food Stores, 22 IR 2 and Bigg & Anor v New South Wales Police Service, 80 IR 434. 73 I have referred to these principles in Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Stephen Wardle and Blue Mountains City Council (unreported) IRC4727 of 1998, 21 May 1999; Taggart and Bell Sports Australia (unreported) IRC5224 of 1998, 10 September 1999; Thornton and Happy Hours Pre School Kindergarten (unreported) IRC5333 of 1998, 28 July 1999 and Ueckert and Australian Water Technologies Pty Ltd (unreported) IRC5553 of 1999, 25 July 2000. 74 Succinctly put, these decisions are authority for the proposition that where allegations of serious misconduct are made, and which result in an employee's dismissal, the onus rests with the employer, to not only allege such misconduct, but prove it. 75 In the instant matter before me, there is no doubt that the dismissed employees were involved in a workplace prank on 20 November. There seems little point, therefore, for the Commission to make a positive finding that the employer has met the onus of proving there was an incident. Such conclusion, however, does not end the matter. 76 In view of the manner in which this case was presented by both parties, a further principle relevant to dismissal for misconduct, is particularly apposite. 77 It is trite to observe that summary dismissal for misconduct is the most serious action an employer can take to end an employment relationship. As such, it must be carefully examined and all of the relevant circumstances taken into account. Where the Commission upholds the employer's decision, such a finding can have grievous implications for the employee for many years into the future. 78 I discussed this notion in Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, where I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. 79 In Hill and Department of Juvenile Justice (unreported) Matter IRC6474 of 1999, 27 July 2000, serious allegations were made against an employee. I said at para 63: The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. 80 In deciding this matter, the Commission is faced with two competing sets of facts and circumstances. Such matters militating against the applicants include: 1) The potential risk to Mr Van Doorn. 2) The employer's statutory and moral obligations in respect to the health and safety of its employees. 3) The applicants' admissions of being involved in the prank. 4) The unsubstantiated claim that there was a conspiracy to reduce employee numbers. 5) The omission from the applicants' statements of the presence of another person in the workshop. 6) Conflicting evidence between Mr Harrison and Mr Donaldson as to whether they had tied off the rope to the vice. 7) Experienced employees should have known better. 81 E converso, the factors in the applicants' favour include: i) both employees have long service and good records of employment; ii) the applicants' admissions and expressions of regret; iii) the history of workplace pranks at the site; iv) matters of procedural fairness - which I will detail under a separate head; v) no disciplinary action taken against other employees, particularly Mr Van Doorn. 82 Before making specific findings on the evidence, it is appropriate to briefly refer to the authorities which have considered the terms, "harsh, unreasonable and unjust". I refer to two oft quoted authorities: In Byrne & Anor v Australian Airlines (1995) 185 CLR 410, the High Court considered the expression "harsh, unreasonable or unjust", albeit in the context of an Award provision. In their joint judgment, McHugh and Gummow JJ said at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . 83 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167, where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 84 A contemporary authority reaffirming this principle is to be found in Bankstown City Council and Paris where the Full Bench said: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 85 In considering the aforementioned authorities, and taking into account s88 of the Act, it is my view that the decision to dismiss both applicants was unreasonable because it was decided on inferences which could not be reasonably drawn from the material available to the employer. Accordingly, the employer has not met the prerequisite standard of justifying the dismissal. The dismissals also seem to me to be disproportionate with the gravity of the conduct, and are therefore "harsh". Mr Van Doorn's Involvement 86 There is sufficient evidence (including from Mr Van Doorn himself), for a positive finding on the balance of probabilities, that Mr Van Doorn was a "willing participant" in the prank. Such evidence includes: i) three witnesses said Mr Van Doorn was laughing and joking - only Mr Van Doorn said otherwise; ii) Mr Van Doorn acknowledged he was neither scared, or frightened; iii) Mr Harrison and Mr Donaldson both said that at no time had Mr Van Doorn asked to be let down. In view of what Mr Van Doorn acknowledged, I accept the applicant's evidence in this regard; iv) the applicant acknowledged he did not ask to be let down when he rang the security guard and he did not ask the apprentice, Mr Toff; v) Mr Van Doorn had told Mr Harrington on 9 February 2000 that he was a participant. I accept that this evidence could only mean he was a "willing participant" and that Mr Harrington was entitled to regard his admission as an acknowledgment of involvement; vi) Mr Van Doorn's mother was told about the incident the same day. It is inexplicable why she would wait seventeen days to tell Management. 87 When viewed in the context of this evidence, it is my view that the decision to dismiss the applicants was not based on all the facts that were available to the employer. It ignored some evidence and glossed over other evidence. 88 In view of this, and the evidence of general skylarking known to have taken place in the workplace, and Mr Van Doorn's admitted history of involvement in some of it, the dismissal decision based on accepting Mr Van Doorn as a victim, rather than a "willing participant", was not reasonably open to the employer. It was unjust. Indeed, the full brunt of the responsibility was sheeted home decisively and irrevocably to the applicants. Others who were involved including Mr Van Doorn and, to a lesser extent Mr Toff (who found it amusing) seemingly escaped scott free. 89 In my view, Mr Van Doorn's failure to tell the full story, his discomfort in the witness box, and his pleadings on behalf of the applicants point to a fairly obvious conclusion. He had no intention of complaining about the incident because he was a "willing participant". I do not accept Mr Van Doorn's claim that he didn't complain to Management because he didn't want to get Mr Harrison and Mr Donaldson into trouble. It certainly hadn't stopped him complaining before - I note the incident in July 1999. The truth was he didn't complain because if the facts came out, he was also in trouble. When his mother complained, he panicked. All his subsequent actions point to a worried young man fearing disciplinary action and constructing a scenario designed to protect himself. In some ways, I feel very sorry for him as his actions and evidence landed two workmates, for whom he had some regard, in very serious trouble. His tears and pleadings were acts of regret and contrition masking his untruthfulness and guilt at having escaped unscathed. 90 It could well be argued that whether Mr Van Doorn was a "willing participant" or not is irrelevant. This is so, because it is not his action, or behaviour, which is being tested in this case. 91 However, in finding Mr Van Doorn to be a willing and active participant plainly begs the question as to whether the employer took a consistent and equal approach to all those involved. As I mentioned earlier, it also raises the issue of whether the employer was prepared to ignore, or overlook, certain evidence during its investigation and subsequent treatment of the two applicants. 92 Both matters raise glaring questions of procedural fairness to which I will now turn. The Investigation 93 Procedural matters were extensively canvassed in the proceedings. According to the statutory basis and decided cases, it is pellucidly clear when considering whether a dismissal is unfair, according to the statutory and decided cases, that such dismissal may be both substantively and procedurally unfair. 94 The leading authority for this proposition is that of Byrne & Anor v Australian Airlines, where McHugh and Gummow JJ said at p465: The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . 95 For a reaffirmation of this principle I refer to two contemporary Full Bench decisions of this Commission. In Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385, the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 96 The Full Bench referred to s88 of the Act - the statutory basis for the Commission to examine procedural matters. It is convenient at this point, to quote s88: 88 In determining the applicant's claim, the Commission may, if appropriate take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether the warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant. 97 The second decision of a Full Bench in Wilson v Department of Education (unreported) Walton VP, Kavanagh J and Bishop C, Matter IRC1735 of 1999, 21 March 2000, succinctly summarises the position: However, a denial of procedural fairness in the termination of employment will plainly be relevant to determining whether or not a dismissal was harsh, unjust or unreasonable. (para 74) The Full Bench went on to cite Byrne & Anor v Australian Airlines Ltd , Johnson v Catholic Education Office, Diocese of Parramatta (unreported) Cahill VP, Schmidt J and Tabbaa C, IRC5641 of 1997, 21 August 1998) and Antanakopoulos v State Bank of New South Wales . 98 s88 was said by Mr Ludeke to have been satisfied by the employer's investigation and its decision was well grounded by such tests. I do not agree. In my opinion, there were a number of aspects of the investigation, some of which I have already discussed, which were demonstrably flawed. In so deciding, I am satisfied that the process, even on its own, would have been sufficient for a finding of the dismissal being "harsh, unreasonable and unjust". 99 Such matters I have taken into account, pursuant to s88 of Act, include: 1) The notes of the interviews were not shown to the applicants or signed by them. 2) Notes of interviews with Mr Van Doorn, and other witnesses, were not provided to the applicants, their union or tendered in the proceedings. 3) Mr Donaldson was first interviewed by phone on 8 December by Mr Wignall. Even putting aside Mr Wignall's evidence that his role was to only arrange a subsequent interview, it is totally misconceived to regard this conversation as an interview - let alone a serious disciplinary interview. I regard phone interviews as most inappropriate in the context of a disciplinary process for serious misconduct. 4) The applicants expected to be disciplined for the incident. They had no idea that the incident would result in their dismissals. In my view, this was a perfectly reasonable assumption having regard for the following: i. the delay between the incident and when it was first reported; ii. the speed with which the investigation was conducted; iii. at no time in the two interviews were they told of the seriousness with which Management viewed the matter; iv. at no time were they warned their employment was in jeopardy; v. their Union was not involved until the last minute. 5) Mr Van Der Korput first learnt of the incident on 7 December. The applicants were dismissed within forty-eight hours. On any view of it, this short space of time was unreasonable, having regard for the seriousness of the allegations, and the dire consequences which flowed. The employees had little time to consult their union, prepare their defence or seek witnesses on their behalf. 6) The respondent's reliance on alleged previous disciplinary action taken against both applicants was, at best, inconclusive. In Mr Harrison's case, where he was said to have been disciplined for touching Mr Van Doorn on the leg fell a long way short of being in the form of a warning or counselling. There were no records kept, no formal meetings held and a meeting of all the fitters was convened simply to tell them all " to leave Adam alone ". Mr Donaldson's alleged counselling on 16 November 1998 for a number of matters was not vigorously pursued by Mr Ludeke . Apart from the obvious trivial nature of some of the complaints, there is no evidence that the complaints were proven and it appears the record of counselling (annexure E to Ex'B') was never sighted by Mr Donaldson. The names appearing at the foot of the document, as being persons in attendance, are all in the same handwriting. If this was all the employer could point to in twenty-eight years of employment, it was hardly of any great moment. 100 Two further comments on the evidence are necessary. It was implied that Mr Harrington acknowledged that the incident was so serious, that the applicants should lose their jobs. It was said, this was so because he did not petition for their jobs back; but merely sought resignation or redundancy. In view of the evidence of when Mr Harrington became involved, I accept his testimony that he was presented with a fait accompli and was attempting to minimise the impact of the dismissals. In any event, Mr Harrington was not aware of all the facts surrounding the incident, in particular the involvement of Mr Van Doorn. When he did learn of all the circumstances, his earlier position, understandably, changed. Mr Harrington's evidence was also criticised on the basis that he described Mr Van Doorn as telling him that he was a participant in the incident. By omitting the word "willing" it implied that Mr Van Doorn had not admitted his "willing involvement". I do not accept this conclusion. In view of the abundance of corroborative evidence, I am satisfied that Mr Van Doorn told Mr Harrington he was a "willing participant" in the incident. Secondly, the incident took place on 20 November and was not reported until 7 December, some seventeen days later. There is no doubt the employer acted quickly when it first became aware of the incident. However, it is extraordinary that at least five employees, in addition to the three direct employees, knew on the day what had happened. They included Mr Van Doorn's mother, the security guard, Mr Nikiforos, Mr Toff and Mr Van Doorn's work colleague, Jim. There is no evidence that any of these employees were rebuked, let alone disciplined, for not reporting the incident. If the matter was as grievous as Mr Ludeke contends, then surely there was an obligation on all those who knew about it, to report it to Management. The failure by Management to take action against any of these employees invites me to again observe that the applicants were the only ones decisively punished, when others, with at least some culpability, escaped scott free. 101 FINDINGS 1) The dismissals of Mr Harrison and Mr Donaldson were unfair in accordance with Pt 6 ch 2 of the Act. 2) The dismissals were "harsh", having regard to the nature of the incident and associated circumstances. 3) The dismissals were "unreasonable" in that the employer's decision was based on inferences not reasonably open to it and inconsistent with the known evidence. 4) The dismissals were "unjust" in that the action by the employer was disproportionate to the inaction taken in respect to other employees aware of, or who participated in the incident. 5) The investigation of the incident was hasty, ill considered and flawed. As such, the applicants were not afforded procedural fairness. 6) The employer failed to take into account such mitigating factors as, each employee's length of service, and record of employment. 7) Reinstatement is considered to be impractical. 8) Compensatory relief should be ordered taking into account s89(6) of the Act. ORDERS 102 Pursuant to s89(5) of the Act, the Commission orders that: 1) Australian Co-operative Foods Limited shall pay to Mr Mark Harrison an amount equivalent to twelve (12) weeks' pay calculated on the basis of his weekly rate of pay as at 9 December 1999. 2) Australian Co-operative Foods Limited shall pay to Mr Keith Donaldson an amount equivalent to sixteen (16) weeks' pay calculated on the basis of his weekly rate of pay as at 9 December 1999. 3) The amounts so ordered shall be paid within twenty-one (21) days of today. 4) Proceedings in matters 99/7056 and 99/7059 are formally concluded. 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.