Industrial Relations Commission of New South Wales CITATION: Howarth -v- Linfox Armaguard Pty Limited [2005] NSWIRComm 1170 APPLICANT Colin John Howarth PARTIES: RESPONDENT Linfox Armaguard Pty Limited (ABN 83 099 701 872) FILE NUMBER(S): 5659 of 2004 CORAM: Cambridge C Unfair dismissal - termination of employment - summary dismissal - evidentiary onus to justify summary dismissal - allegations of gross and wilful misconduct - insufficient evidence to establish substantive basis for dismissal - procedural errors - denial of natural justice - condonation of misconduct - incompatability of alleged misconduct with summary dismissal - dismissal held as harsh, unreasonable and unjust - reinstatement Ordered. CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 [NSW] Australian Meat Holdings Pty Ltd v The Association of Foremen and Supervisors, Full Commission of the Industrial Relations Commission of NSW, [Fisher P , Peterson J & O'Neill CC], unreported Judgment in matter no. 1358 of 1992 delivered on 25 March 1993. CASES CITED: Jones v Dunkel (1959) 101 CLR 298. McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan J], 25IR 107 @ page 114. HEARING DATES: 05/19/2005; 09/20/2005 DATE OF JUDGMENT: 10/28/2005 APPLICANT Mr G Astorga LEGAL REPRESENTATIVES: RESPONDENT Mr R Krajewski DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 28 October 2005 Matter No IRC 5659 of 2004 Colin Howarth -v- Linfox Armaguard Pty Limited Application by C Howarth re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1170 1 Summary dismissal, that is dismissal without notice or payment for any period of notice, is the most severe form of dismissal. Summary dismissal usually only occurs when an employer has properly established that there has been some act of gross and wilful misconduct of a nature incompatible with the continuation of employment for one moment more. Established acts of misconduct such as theft, embezzlement, physical assault in the workplace, or reckless and deliberate destruction of the employer's property, are examples of gross and wilful misconduct which would ordinarily justify summary dismissal. Therefore it was a little unusual to find that Colin Howarth (the applicant), had been summarily dismissed for alleged violation of the employer's security rules involving opening of the driver's door of an armoured motor vehicle. 2 Obviously in an industry involving the transit of cash there would be capacity for an employer to require stringent workplace rules regarding, amongst other things, the security arrangements for operation of armoured motor vehicles. It is quite conceivable that the failure to provide for proper security for an armoured vehicle could involve gross and wilful misconduct deliberately striking at the employment relationship. If however the nature of the security breach was not an action that could be characterised as gross and wilful misconduct aimed against the continuation of the employment relationship, then it would seem that any properly established finding of such a security breach might more likely provide basis for dismissal with notice as opposed to summary dismissal. 3 The potential for the applicant's alleged misconduct, as established by the employer, to represent proper basis for dismissal with notice as opposed to summary dismissal was an issue that was identified during the attempted conciliation of the applicant's unfair dismissal claim. At an early stage of proceedings there was strong prospect identified that the employer's finding of the misconduct of the applicant even if subsequently verified by the Commission, would not have provided for justification for summary dismissal as opposed to dismissal with notice. As a consequence it has been regrettable, indeed somewhat disconcerting, that this matter has proceeded to Hearing and ultimately arbitrated determination. BACKGROUND 4 The applicant is a man who was some fifty years of age at the time of his summary dismissal on 31 August 2004. The applicant worked as a road crew member of the cash in transit operations of Linfox Armaguard Pty Ltd trading as Armaguard (ABN 83099701872), (the employer). 5 The applicant had worked for the employer for a period of approximately four years. The applicant described the first three and a half years of his employment as being as "casual road crew". The applicant was apparently made permanent part-time in March of 2004. 6 The applicant's employment had been without recorded incident concerning his personal workplace conduct or performance up until events that followed an incident that occurred on 18 August 2004. On the morning of 18 August the applicant was part of a three person road crew complement involved in daily operational visits to the Metro Plaza shopping centre in the City of Orange. The applicant was involved in two separate visits to the Metro Plaza shopping centre on the morning of 18 August. 7 The first visit to the shopping centre involved a scheduled replenishment of an automatic teller machine (ATM), located in the shopping centre. This first visit occurred between approximately 8.30 am and 9.00 am. During both visits to the shopping centre, the applicant remained in the armoured vehicle whilst the other two road crew members entered the shopping complex. During the course of this first visit, a fourth person attended the shopping centre in a separate vehicle and acted as an observer during the ATM replenishment operation. 8 Later on that morning the applicant and the two other road crew members assigned to the armoured vehicle on that day, were required to return to the Metro Plaza shopping centre in order to rectify a receipt jam that had been reported in a different ATM. This second visit to the shopping centre occurred at around 10.00 am. 9 On Friday 20th August, one of the two other members of the road crew that were in company with the applicant during the visits to the Metro Plaza on the preceding Wednesday, reported that the applicant had opened the driver's side door of the armoured vehicle whilst parked in the car park of the Metro Plaza shopping centre. The report of the allegation that the applicant had opened the door of the armoured vehicle was made by Aaron Kelly who together with Phillip Grant accompanied the applicant as the three person road crew in the armoured vehicle during both visits to the Metro Plaza shopping centre on the morning of 18 August. Mr Kelly made his report of the alleged opening of the armoured vehicle door to his immediate supervisor Mr Michell. This verbal report was made in the presence of another road crew member. 10 Mr Michell told Mr Kelly that the allegation was serious and that it would need to be made in writing. Mr Kelly constructed correspondence dated 23 August 2004, addressed to Mr Morgan Hourigan, the employer's Area Operations Manager and which set out the allegation that the applicant had opened the driver's door of the armoured vehicle during the second visit to the Metro Plaza shopping centre on 18 August. Mr Hourigan then initiated a process involving formal investigation of the allegations that had been documented by Mr Kelly. 11 The employer's investigation of the allegation made against the applicant involved the attendance by two of the employer's specialist investigative personnel (the investigators), at the Orange premises of the employer. The investigators interviewed various individuals including, Mr Kelly, Mr Michael Brown, who was the person present when the allegations made by Mr Kelly were first raised verbally with the immediate supervisor Mr Michell, Mr Michell was also interviewed, as was the applicant and Mr Phillip Grant, the other road crew member who was in company with Mr Kelly and the applicant during both visits to the shopping centre on 18 August. 12 The investigators took written statements from Mr Kelly and Mr Brown and they made typed documents described as "record of conversations" with Mr Michell, the applicant, and Mr Grant. The statements and "records of conversation" were provided to Mr Hourigan who also travelled to Orange as part of the investigation into the allegations made by Mr Kelly. 13 On Monday 30 August 2004, Mr Hourigan met with the applicant after the applicant had been interviewed by the investigators. Mr Hourigan advised the applicant that he was suspended from duty on pay and that he was to attend for a further meeting at 1.00 pm the next day. The applicant attended the meeting as arranged on 31 August, and he was provided with a letter entitled "Immediate Termination of Employment". 14 On 20 September 2004, the Transport Workers Union of New South Wales, (the TWU), made a claim alleging that the applicant's dismissal was unfair. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). Following unsuccessful attempts to resolve the matter by way of conciliated agreement, the claim proceeded to Hearing that involved two separate days, 19 May and 20 September 2005. The TWU, on behalf of the applicant, has asserted that the applicant's dismissal was unfair and has pursued Relief in the form of the reinstatement of the applicant to his previous position as a road crew member of the employer's Orange based operations. THE EVIDENCE 15 The evidence presented in this matter has been astonishingly incomplete. The primary factual contest involving the allegation made by Mr Kelly, that the applicant had opened the armoured vehicle door at the Metro Plaza, was subject to direct evidence only from the applicant and Mr Kelly. 16 The Commission was not provided with any evidence from the person that the applicant admitted to speaking with in the car park of the shopping centre on the morning of 18 August. The applicant denied that he opened the door of the vehicle to speak to this person, (apparently a Mrs MacDonald), and despite the protracted trial of this matter, involving two separate days of Hearing, there was no evidence adduced from Mrs MacDonald. 17 Similarly the employer failed to provide any evidence from potentially the most important witness, Mr Grant. Mr Grant apparently remains employed by the employer and was interviewed by the investigators as a person who would have witnessed the opening of the armoured vehicle door as alleged by Mr Kelly. However Mr Grant has not provided any evidence in these proceedings. In addition to the absence of this potentially vital evidence from Mr Grant, the evidence of the employer's investigators revealed that Mr Grant refused to sign and acknowledge the "record of conversation" document that had allegedly involved an interview conducted with him on the morning of 31 August 2004. 18 Consequently the Commission has been required to resolve a fundamental factual conflict regarding the allegations made against the applicant, without any evidence from two witnesses who would ordinarily be considered vital to the determination of that question. 19 It is puzzling that despite the protracted proceedings, the TWU on behalf of the applicant, could not adduce any evidence whatsoever from Mrs MacDonald, a person who could potentially collaborate one important aspect of the applicant's version of events. The applicant consistently denied that he opened the armoured vehicle door, but admitted that he spoke to Mrs MacDonald through the transit safe area of the armoured vehicle. 20 Similarly the Commission is perplexed by the absence of Mr Grant as a witness. Mr Grant was with Mr Kelly at the time of the alleged opening of the armoured vehicle door. The Commission was provided with documentation that Mr Grant apparently confirmed the opening of the door but then later would not sign a "record of conversation" to that effect. 21 The Commission must record its severe disappointment at the Parties failure to provide evidence that would, on any reasonable assessment, be fundamental to the primary determination required in this instance. The Commission has consequently been required to resolve the primary factual conflict regarding the alleged opening of the armoured vehicle door with only the benefit of the directly conflicting evidence of the applicant and his accuser, Mr Kelly. 22 There were three witnesses called to provide evidence on behalf of the applicant. The substantial evidentiary material was provided by the applicant himself and some additional evidence was provided by his wife, Irene Jill Howarth. The evidence provided by the applicant's wife has ultimately become important in respect to the primary factual conflict concerning the allegation of the applicant opening the armoured vehicle door. Additional evidence was provided by Mr Alexander Law. Mr Law gave evidence regarding other incidents of security breaches that had occurred in the employer's operations, both at Orange and elsewhere in New South Wales. 23 The employer called a total of five witnesses. The only evidentiary material going to direct observation of the alleged incident upon which the applicant's dismissal was based, was provided by Mr Kelly. Further evidence was provided by supervisory staff of the employer and the investigators who were involved in interviewing various employees connected with the allegations made by Mr Kelly. The final witness for the employer was Mr Morgan Hourigan who was the relevant managerial officer who made the decision to summarily dismiss the applicant. 24 Although there was disturbing deficiency with evidence regarding the primary factual conflict concerning the allegation of the opening of the armoured vehicle door, there was only minor conflict in evidence about the events surrounding the employer's investigation of the allegation, and the subsequent determination to dismiss the applicant. THE CASE FOR THE APPLICANT 25 Mr G Astorga from the TWU appeared on behalf of the applicant. Mr Astorga submitted that on both substantive and procedural grounds, the applicant's dismissal was unfair. 26 Mr Astorga made a primary submission that the event that involved the alleged opening of the armoured vehicle door did not actually occur. Mr Astorga further submitted that if however, the Commission did find that the incident did occur, then the applicant's dismissal should still be found to be unfair on the basis that the penalty of dismissal for such conduct was inconsistent with the employer's general practice, and that further, there were procedural deficiencies that should also render the applicant's dismissal as harsh, unjust and unreasonable. 27 Mr Astorga referred to the notion of "a fair go all around" and he referred to a variety of decided Cases which he said supported the applicant's claim. 28 Mr Astorga submitted that the primary factual question regarding the alleged opening of the armoured vehicle door was an "unprovable reason for dismissal". Mr Astorga said that there was no credible evidence presented which could lead the Commission to conclude that the allegation of Mr Kelly was sustainable. Mr Astorga submitted that the evidence provided by Mr Kelly was not credible and that it was patchy and unreliable. 29 Mr Astorga criticised the employer's failure to provide evidence from Mr Grant. Mr Astorga made further submissions regarding various other incidents that had occurred in the employer's operations on other occasions and which did not involve dismissal but which involved the issuing of formal warnings. In this respect Mr Astorga submitted that there was an inconsistency between the treatment of the applicant in this instance when compared with events involving security breaches by employees in other areas of the employer's operations. Consequently Mr Astorga submitted that if the Commission was to find that the applicant did actually open the armoured vehicle door as alleged by Mr Kelly, then the applicant should have been given a warning, rather than dismissal. 30 Mr Astorga made further submissions about the inconsistency with which the employer treated the alleged misconduct of the applicant. Mr Astorga said that the employer had been made aware of the nature of the allegation and still permitted the applicant to continue to work. Mr Astorga said that this was inconsistent with the applicant subsequently being dismissed for such alleged misconduct. 31 Mr Astorga also made submissions which severely criticised the employer's investigation processes. Mr Astorga said that the investigation that the employer conducted was neither full, nor extensive, nor fair. Mr Astorga said that the employer's investigation was biased and started from a basis which suggested that its intent was to establish that the allegations made by Mr Kelly should be made out. 32 Mr Astorga severely criticised certain aspects of the conduct of the investigators. Mr Astorga said that the investigators adopted outrageous tactics whereby they endeavoured to illicit answers from the applicant by making suggestions that the door opening incident had been captured on close circuit television (CCTV), and that there also had been a complaint made by a member of the public. Mr Astorga submitted that these outrageous tactics demonstrated that the investigative process was biased and unfair. 33 Mr Astorga further submitted that the employer had not properly established that the applicant was guilty of the serious and wilful misconduct as alleged. Mr Astorga submitted that there was insufficient evidence upon which to properly establish that the applicant had committed the act as alleged by Mr Kelly. 34 Mr Astorga urged the Commission to find that the applicant had been unfairly dismissed and to reinstate the applicant to his former position. Mr Astorga said there had been no evidence to suggest that reinstatement was at all impractical. Mr Astorga made submissions about the financial loss that had been suffered by the applicant as a result of his unfair dismissal. THE CASE FOR THE EMPLOYER 35 Mr R Krajewski appeared for the employer. Mr Krajewski commenced his submissions by advising that reinstatement was not acceptable to the employer. Mr Krajewski stated that the employer refused reinstatement or re-employment. In addition, Mr Krajewski said that the employer also rejected that there be any form of compensation provided to the applicant because of the nature of the incident and the misconduct that took place. 36 Mr Krajewski submitted that the incident as alleged by Mr Kelly did occur. Mr Krajewski submitted that the incident having occurred, it represented a serious breach of the company's policy for which it was entitled to dismiss. 37 Mr Krajewski made further submissions which rejected the applicant's assertion that the procedure of the employer involving the investigation into the incident was in any way unfair. Mr Krajewski submitted that the employer had undertaken a proper and thorough investigation, interviewed the various persons that were connected with the incident, and had properly concluded that the applicant had opened the armoured vehicle door and was therefore guilty of gross misconduct that warranted his dismissal. 38 Mr Krajewski rejected the applicant's suggestions that the investigative process was in any way unfair. 39 Mr Krajewski also submitted that the evidence provided by the applicant's wife should be disregarded and that it in no way assisted the resolution of the question regarding the incident involving the applicant opening the door of the armoured vehicle. 40 Mr Krajewski made further submissions which referred to a variety of other decided Cases which he said supported the decision of the employer to dismiss the applicant. Mr Krajewski submitted that even if the applicant's version of the event was correct then the applicant was guilty of failing to properly keep observation of his fellow road crew members, and this represented the height of irresponsibility. 41 Mr Krajewski further submitted that the dismissal was not disproportionate at all to the gravity of the misconduct which had taken place. In this respect Mr Krajewski said that there was no inconsistency in respect to any of the other incidents that had occurred on different occasions and which involved other security breaches. Mr Krajewski rejected the submissions made by the applicant and urged the Commission to reject the claim. CONSIDERATION 42 As mentioned earlier in this Decision, the defence of this claim was, at an early stage, identified to have some difficulty in respect to the summary dismissal in circumstances that might ultimately not establish that the actions of the applicant could represent gross and wilful misconduct of a nature that would justify summary dismissal, as opposed to dismissal with notice. The basis for the misconduct cannot, when one considers the evidence in totality, represent an action that was a wilful challenge to the continuation of the employment. Consequently even if the factual contest was resolved in favour of the employer's version, the misconduct of the applicant would not justify summary dismissal. 43 However having regard to the stringencies that would apply to security requirements for cash in transit operations, it would have been open for the employer to have dismissed with notice for the misconduct of the applicant, had it been properly established. Regrettably when the evidence regarding the alleged incident upon which the dismissal was based is carefully examined, the employer's substantive finding cannot be confirmed. The Substantive Question 44 Although the question as to whether the applicant did or did not open the armoured vehicle door on 18 August would have been more easily resolved with the benefit of evidence from Mrs MacDonald, and Mr Grant. The applicant's version is supported by three significant evidentiary components. 45 Firstly, the evidence of the applicant's wife regarding a telephone call at around 9.00 am which was verified by the telephone account record is an important component of corroborative evidence. The telephone account records show that there were two telephone calls made on the morning of 18 August apparently by the applicant to his wife. The first call is recorded to have been made at 9.09 am, and the second call at 10.57 am. The applicant's evidence was that the discussion with Mrs MacDonald about sale of her property occurred during the first visit to the shopping centre at around 9.00 am. The first telephone call was alleged to have involved the applicant advising his wife of the sale of Mrs MacDonald's property. During cross-examination of the applicant's wife, the telephone account record of the second call at 10.57 am was the subject of the following important evidence: "Q.--- you are saying that you had a conversation with your husband at 9 o'clock and then immediately below that the same reference is made. Now, you're saying on the one hand that you had a conversation with your husband at 9 o'clock or 9.09. How does the Commission know that that conversation did not take place at 10.57 am? A. Because I remember it distinctly just after I had taken my children to school and they have to be at school at 5 to 9.00." Transcript of proceedings (19/05/05) @ page12. 46 The evidence about the applicant's wife fixing the time at which she was told about Mrs MacDonald's property sale was convincing and unshaken by any further cross-examination. This evidence strongly supports the applicant's contention that it was during the first visit to the Metro Plaza that he had a discussion with Mrs MacDonald. At this time, according to the applicant, she had approached the armoured vehicle whilst he was awaiting the return of the road crew members who were replenishing an ATM, as opposed to clearing a receipt jam in an ATM which was performed on the later visit. 47 The second evidentiary component which assists the applicant's version as opposed to Mr Kelly's allegation, involves the absence of any evidence from Mr Michell who was the support or observer on the first scheduled visit to the shopping centre on the morning of 18 August. As with the absence of any evidence from Mr Grant, the employer's evidentiary position which fixed the incident as occurring during the second visit circa 10.00 am, would have been assisted by evidence from Mr Michell, the observer during the first visit to the shopping centre at around 9.00 am. It would seem reasonable to assume that whatever Mr Michell may have observed as the support person during the first visit to the shopping centre would have great potential to either disprove or support the applicant's version regarding the alleged discussion with Mrs MacDonald. 48 The absence of evidence from Mr Michell is compounded by the third evidentiary component that assists the applicant's case and that relates to the absence of any evidence from Mr Grant. The absence of evidence from Mr Grant is exacerbated by the evidence that Mr Grant refused to sign the "record of conversation" document when he was interviewed by the investigators. Mr Grant's apparent refusal to sign the "record of conversation" document must be considered in the context of other unfortunate aspects of the interview process which will be mentioned later. 49 There are therefore three significant evidentiary components that support the applicant's position and which must be weighed against the absence of any evidence from Mrs MacDonald. The failure to have Mrs MacDonald produce any evidence represents a strong evidentiary component to support Mr Kelly's allegation. There was suggestion that Mrs MacDonald would be called as a witness or that some other means for introduction of her evidence would be pursued. Regrettably there was no evidence from Mrs Macdonald and also an absence of evidence of any further pursuit of her evidence, or any other explanation for the absence. 50 The consideration of this aspect of the matter has become something like a contest to see which side could make the greater mistake with failure to bring logically important evidence. Although not the subject of submissions from either side, this assessment has essentially become a matter of competing strengths to inferences of a Jones v Dunkel Jones v Dunkel (1959) 101 CLR 298. nature. In this regard, it would logically seem to be easier to have an existing employee provide witness evidence, as opposed to some other person who is not connected with the employer's operations. In addition, there was demonstrated to have been some attempt to produce evidence from Mrs MacDonald whereas there seemed to be no suggestion from the employer that it would attempt to bring any evidence from Messes Grant or Michell. 51 In addition to the supporting evidentiary components that assist the applicant's version of the contest regarding the opening of the armoured vehicle door, the Commission must also record a more beneficial impression of the opposing witnesses in respect to their observed characteristics during proceedings. 52 The applicant presented as an understandably anxious witness. Despite the applicant's overt level of nervousness he did not try to conceal his underlying personality and he endeavoured to answer questions openly and without undue hesitation. The applicant did not conceal the understandable umbrage he felt from being dismissed in circumstances that he believed to be wrong and unjust. Importantly the applicant was prepared to acknowledge certain points of detail that did not assist his case. His openness, particularly about matters such as his personal trust of Mr Grant, notwithstanding that apparently Mr Grant had at some point, corroborated the allegations made by Mr Kelly, assisted the veracity of his evidence generally. In simple terms the applicant acted naturally. The applicant's demeanour and his observed conduct generally throughout proceedings was consistent with that of a witness of truth. 53 Mr Kelly presented as a hesitant and guarded witness. Apart from the observed characteristics of Mr Kelly which did not assist in positive findings regarding questions of contest, his evidence suffered greatly from no plausible explanation for the delay between the incident of the morning of 18 August, and its subsequent reporting on the 20th. Ultimately when required to adopt a preference as between the evidence of Mr Kelly and that of the applicant, the Commission has decided in favour of the latter over the former. 54 Consequently the primary factual determination regarding the incident upon which the applicant's dismissal was based has not been substantiated. Therefore the Commission must determine that there was no proper factual basis upon which the employer relied as reason for dismissal. Procedural Issues 55 There were a variety of concerns that emerged from the evidence of the employer's investigative processes. The most alarming concerns involve the recorded interview process that included questions which were misleading, intended to intimidate, and based on inferences of fact that the questioner knew not to be true. 56 Specifically Mr Simpson is recorded to have asked the applicant questions about the CCTV facilities in the shopping centre. The questions about the presence of CCTV followed a question regarding a member of the public being a resident of Orange, having laid a complaint about the applicant having the driver's side door of the armoured vehicle open. Mr Simpson confirmed that there was no complaint made by any member of the public but that the question was framed more to conceal the fact that the allegation had been made by another employee, Mr Kelly. 57 This is not justification for making a deliberately misleading question followed by the questioning regarding the presence of CCTV. The obvious inference that was intended by the line of questioning was that the employer had much stronger evidence upon which to establish the opening of the door allegation than was actually in its possession. The applicant was entitled to know and see the documented allegation of the other employee, Mr Kelly and the misleading line of questioning was a reflection of the broad approach to the investigation which can be summarised as a general presumption of guilt, rather than innocence. 58 The employer's investigative process was also flawed by the failure to provide the applicant with a proper opportunity to answer the allegation(s) of the other employee, as opposed to subjecting the applicant to a line of misleading and intimidating questions. There was no reason why, particularly by 31 August, that the applicant should not have been made plainly aware of the allegation so that he might have been able to have an opportunity to properly rebut the circumstances which the employer found to have been basis for dismissal. 59 If the employer had adopted a reasonable and measured process for investigation, it may have been quite easy for the applicant to have contacted Mrs MacDonald and have her make contact with the employer's representatives, such that any detail of the involvement of Mrs MacDonald on the morning of 18 August, presumably at the first visit circa 9.00 am, may have been established. 60 Further, there appeared to be little consideration of the refusal of Mr Grant to sign the "record of conversation" about the alleged incident upon which the dismissal was based. It would have been obvious even at that time, that Mr Grant might likely become a key witness in any contest about the allegation made by Mr Kelly. The evidence revealed that there was a complete absence of any proper examination of why Mr Grant would refuse to sign the "record of conversation". Once again, this particular flaw in the investigative process is further example of the adoption of a presumption of guilt and a desire to reach a conviction and conclusion without any proper contemplation of an alternative other than guilt, followed by dismissal. 61 A further aspect of procedural deficiency involved the final interview with the applicant which commenced with the applicant being advised of his dismissal. Mr Hourigan had pre-prepared the termination of employment letter, and the interview was really a termination meeting held for the purpose of implementing the predetermined dismissal. The suggestion that the applicant may have been in a position to offer some protest such as to alter the employer's decision is clear evidence of an absence of natural justice. The process was that the applicant having been found guilty, sentenced to dismissal, was then given an opportunity to endeavour to convince the employer to reverse both the finding and/or the sentence. This process would be akin to the Commission writing the Decision in this matter before Hearing and then inviting the unsuccessful side to try to convince the Commission to adopt an alternative outcome. Condonation 62 One further aspect of consideration involves the concept of the condonation of misconduct of an employee. In this instance the employer was aware of the allegation of Mr Kelly as early as 20 August. Mr Kelly documented his allegation by 23 August, and the nature of the allegation regarding the alleged opening of the armoured vehicle door, was clear from the outset. Despite the employer having knowledge of the alleged misconduct of the applicant, it continued to allow the applicant to perform work in accordance with his ordinary roster. It is totally inconsistent with the alleged severity of the misconduct to allow the employee to continue to perform work, and then subsequently summarily dismiss for reason of the alleged misconduct having been proven. 63 It would seem that if an employer becomes aware of an allegation of gross misconduct and does not react as soon as practicable, and deal with that misconduct in accordance with its alleged severity, then there may be no subsequent right to rely upon that misconduct as a basis for summary dismissal. Summary dismissal, by its nature, arises from misconduct of such severity that there could be no contemplation of the employment continuing for a moment more. It is totally incompatible to have an employee continue to perform active service in the knowledge that they may have committed an act so contrary to the continuation of employment as to justify summary dismissal. 64 The approach to any case involving suggestion or allegation of misconduct that might justify summary dismissal, must see the employer act in a manner which is consistent with and recognises the severity of the alleged misconduct. In such instances, employers would ordinarily suspend from duty any employee subject to allegation of misconduct that could be characterised as justification for summary dismissal. 65 There are a variety of decided Cases on the question of condonation of particular conduct that is subsequently sought to be relied upon as the basis for dismissal, in particular, mention is made of the Case of McCasker v. Darling Downs Co-operative Bacon Association Ltd, McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan J], 25IR 107. a Decision of the Supreme Court of Queensland, and it is also relevant to quote from a Decision of the Full Commission of this Commission in Australian Meat Holdings Pty Ltd v. The Association of Foremen and Supervisors where it was stated: "Condonation was not argued by any party but in our view these facts border very much upon the situation in which it would at least be arguable that the Company had put itself beyond the point where it could rely an [sic] the events of the Friday as justifying instant dismissal. In any event we would view its conduct as unfair for the further reason that in all of the circumstances the conduct complained of was not so aggravated as to warrant instant dismissal." Australian Meat Holdings Pty Ltd v The Association of Foremen and Supervisors , Full Commission of the Industrial Relations Commission of NSW, [Fisher P , Peterson J & O'Neill CC], unreported Judgment in matter no. 1358 of 1992 delivered on 25 March 1993, @ page 8. 66 The circumstances in the present case involved the summary dismissal of the applicant almost two weeks after the alleged incident, and over a week after the employer had been formally advised of the allegation of the incident. During this period the applicant had been permitted to work as usual. It would therefore seem that the employer had not treated the alleged misconduct with the severity that it later attributed to that misconduct in the form of summary dismissal. CONCLUSIONS 67 This case has been most notable for the absence of potentially vital witnesses connected to the primary factual conflict surrounding an incident upon which the applicant's dismissal was based. Despite the significant evidentiary deficiencies, the Commission has been required to determine the factual position upon which the reason for the applicant's dismissal was based. 68 Having carefully examined the evidence, on balance and weight, the Commission concludes that there is insufficient evidence upon which to establish that the applicant opened the door to the armoured vehicle on the morning of 18 August 2004, whilst the vehicle was located in the vicinity of the Metro Plaza shopping centre in Orange. 69 An analysis of the evidence regarding the allegations made by Mr Kelly against the applicant, primarily that the applicant opened the armoured vehicle door whilst speaking to a member of the public, cannot be substantiated. Therefore the reason for the applicant's dismissal cannot be established to have a basis in fact. Consequently the applicant's dismissal has no substantive basis and was unfair. 70 In addition, the procedure that the employer adopted for investigation of the allegation made against the applicant, was significantly flawed, such that the applicant was not provided natural justice. The erroneous procedures adopted by the employer, led the employer to a substantive conclusion which cannot be supported upon proper Hearing. 71 Further, the employer did not treat the alleged misconduct of the applicant in a manner that was consistent with the severity that was subsequently attached to that action by way of summary dismissal. Therefore the employer, even if the misconduct against the applicant had been proven, had no right to dismiss the applicant summarily, as opposed to dismissal with notice. 72 Therefore the dismissal of the applicant was without substantive reason, adopted with procedural error, and incompatible with the alleged misconduct of the applicant. Consequently the applicant's dismissal was harsh, unreasonable and unjust. 73 The applicant has sought reinstatement as remedy for his unfair dismissal. The evidence provided by Ms Wood regarding her view about some undesirability concerning the reinstatement of the applicant does not establish any impracticality in respect to reinstatement. Therefore the Commission is prepared to provide for reinstatement of the applicant as appropriate remedy for his unfair dismissal. 74 Although Orders involving reinstatement would ordinarily provide for full remuneration for losses of the applicant as might be anticipated to be made pursuant to section 89(3) of the Act, in this instance the Commission is not prepared to provide for full remuneration to the applicant in respect of the intervening period between dismissal and re-instatement. The Commission has decided that although the applicant's dismissal was unfair, the applicant was guilty of some misconduct involving his distraction from the duties that he should have been performing whilst situated in the armoured vehicle in the shopping centre car park. Therefore the Commission is prepared only to provide for a fixed amount of remuneration in respect of the intervening period between dismissal and reinstatement. ORDERS In this matter, for the reasons outlined herein, I have Determined that the dismissal of the applicant was harsh, unreasonable and unjust and I hereby make the following Orders: ORDER 1 1. The Commission Orders, pursuant to section 89(1) of the Act, that the employer reinstate the applicant to his former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable and within twenty one days from the date of this Decision. ORDER 2 2. The Commission Orders, pursuant to section 89(3) of the Act, that the employer pay to the applicant an amount of $10,000.00 as remuneration for the applicant in respect to the intervening period between dismissal and reinstatement. This amount is to be paid to the applicant as soon as practicable, and within twenty one days form the date of this Decision. ORDER 3 3. The Commission Orders, pursuant to section 89(4) of the Act, that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment. oooOOOooo 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.