Industrial Relations Commission of New South Wales CITATION : Gillespie v Eaglereach [2001] NSWIRComm 143 PARTIES : John Lennard Gillespie Eaglereach Wilderness Resort FILE NUMBER: IRC 4505 of 2000 CORAM: Harrison DP Alleged unfair dismissal - refusal to work as rostered - offer to seek alternative employment accepted CATCHWORDS : Termination lawful and reasonable - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 Smith v Director General of School Education 1993 51 IR 204 Ex parte Wurth, re Tully 1954 55 SR NSW 47 Lane v Arrowcrest 1990 27 FCR 427 Hollingsworth v The Commissioner of Police 1999 88 IR 282 CASES CITED : Gibson v Boznak (1995) 60 IR 1 Buckman v Burdekin Resources (1998) 85 IR 415 Electricity Commission of NSW t/as Pacific Power v Nieass and Others 1995 81 IR 26 Rapp v Wauchope RSL Club 1995 81 IR 116 Wells v Lloyd Moffat Investments P/L 1998 83 IR 226 HEARING DATES: 03/14/2001 DATE OF JUDGMENT: 06/25/2001 APPLICANT Mr D Smyth Solicitor, Parke Maher Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr A Duc Restaurant and Catering Industry Asscn of NSW JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 26 June 2001 MATTER NO IRC 4505 OF 2000 JOHN LENNARD GILLESPIE AND EAGLE REACH WILDERNESS RESORT Application by John Gillespie re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 Mr John Gillespie (the applicant) commenced employment with the respondent employer, Eaglereach Wilderness Resort ("Eaglereach') in mid November 1997 on a trial basis as a handyman. 2 On 9 December 1997 Mr Gillespie was offered, and accepted, the position of Maintenance Supervisor which he held up to the termination of that employment on 1 September 2000. 3 The application in this matter was filed on 8 September 2000 and subject to a preliminary hearing before Mr Commissioner Cambridge on 10 October 2000. Those proceedings concluded on the basis that the applicant would consider information passing between himself and the respondent's representative during the course of formal proceedings and private conference, and advise his requirements in respect to further proceedings and form of representation by 27 October 2000. 4 The matter was next before Cambridge C on 5 December 2000 consequent upon correspondence received from Mr D Smyth, Solicitor of Parke Maher Solicitors acting on behalf of the applicant. The correspondence was dated 31 October 2000 and received in the Industrial Registry on 1 November 2000. 5 In the proceedings on 5 December 2000 Mr Smyth appeared with and on behalf of the applicant. Mr A Duc appeared for the Restaurant and Catering Industry Association of New South Wales on behalf of the respondent. 6 Those proceedings established that the matter could not be resolved by agreement between the parties and that it was the applicant's wish to press the matter to arbitration. 7 Application was made by Mr Duc that the matter be dismissed pursuant to Rule 146 of the Commission's Rules on the basis that the applicant had failed to meet the requirement to advise in writing by 27 October 2000. This application was refused by Cambridge C and directions issued to bring the matter to hearing on 6 March 2001. The parties were encouraged to continue to explore resolution of the matter by agreement in parallel with preparation for hearing consistent with the provisions of s86 and 87(2) of the Industrial Relations Act 1996 ('the Act') . 8 By correspondence dated 8 December 2000 directed to the Industrial Registrar, the respondent sought reference of the matter to an alternate member of the Commission pursuant to s173 of the Act. The matter was reallocated by the President and listed for the purpose of directions on 6 February 2001. In those proceedings the matter was scheduled for arbitration on 14 March 2001. 9 On hearing Mr Smyth continued his appearance for the applicant; Mr Duc continued his appearance for the respondent. 10 Mr Smyth brought evidence from the applicant in affidavit form (exhibits 1 and 2) and orally. 11 Mr Duc brought evidence from Mr Drew Brazaitis, a former employee of the respondent under subpeona; Mr Paul Miley, Chief Executive Officer of the respondent organisation; and his wife Mrs Carmen Miley, Resident Manager of Eaglereach. 12 The uncontested evidence of Mr and Mrs Miley was that the resort occupies an area in excess of one thousand acres, purchased by them in 1989. The Miley's subdivided an area of 10 acres for the construction of their own dwelling, followed by the construction of one lodge adjacent to their house. The resort was then developed by progressively selling off blocks of land from 1992 onwards to establish the current total of 37 lodges, all of a different size and design, owned by individual investors. 13 The evidence was that three investors have brought more than one property, only four investors do not rent through the Eagle Reach Resort management. 14 The lodges are rented for weekends, holidays and conferences. 15 The resort offers attractions such as bushwalking, horse riding, fishing, tennis and other nature based activities. 16 Mr and Mrs Miley have an on-site manager's licence and run a fully audited trust account for lodge rentals. 17 Mr and Mrs Miley have a 20 year contract with the Body Corporate to manage and maintain the community property. 18 The evidence of Mrs Miley was that the resort management is structured into separate maintenance, cleaning, restaurant and reception divisions, engaging approximately 20 employees in total in various capacities. The evidence of Mrs Miley was that there have been three persons engaged in the maintenance division since the establishment of this division in 1991. 19 The evidence of Mr Gillespie was that he commenced employment in the maintenance division in mid November 1997 on a trial basis. 20 Mr Gillespie deposed that some two weeks later a Mr Paul Thomas, the then maintenance supervisor, left the resort following an argument over use of his own vehicle to pick up supplies. Mr Gillespie deposed that he was subsequently offered the position of maintenance supervisor. 21 This was disputed by Mr and Mrs Miley who deposed that it was some months after November 1997 that Mr Thomas left for personal reasons without dispute and Mr Gillespie was then promoted to the position of maintenance supervisor. 22 Mr Gillespie deposed that he was given a contract on 8 December 1997 with a job description and roster, which he signed, and subsequently commenced employment as a full time, permanent employee in the capacity of maintenance supervisor from 22 December 1997. His hours of work were 7.00 am to 3.30 pm Monday to Thursday and 10.00am to 6.00 pm on Fridays. 23 It was Mr Gillespie's evidence that in early 1998 an additional employee was engaged to meet increasing work requirements and coincidentally his hours were altered to a 4.00pm finish Monday to Thursday, with a requirement that he work on Sundays. Mr Gillespie deposed that he protested this arrangement and was informed that "this is the way the industry works and if he didn't like it he could leave" 24 Mr Gillespie's evidence was that this was a consistent response by Mr Miley to questions or queries by him. 25 Mr Gillespie's evidence was that in May 1998 he was informed by Mr Miley that maintenance was "up for tender" as investors were unhappy with the level of charges. Mr Gillespie deposed that Mr Miley won the tender for the maintenance and subsequent thereto continually informed Mr Gillespie that there were insufficient funds for supplies and consistently required Mr Gillespie to work additional unpaid hours and to collect supplies and equipment in his own time, in his own vehicle, during the course of his journey between the resort and his residence, some 45 minutes drive. 26 Mr Gillespie gave evidence that in September 1998 he was asked to increase charges to investors for maintenance tasks and offered an incentive of $100 per month if charges in excess of $2,500 were achieved. The applicant deposed that he received three payments, but otherwise did not achieve the $2,500 per month additional billing criteria. 27 Mr Gillespie gave evidence that in June or July of 1998 a severe wind storm created significant damage across the resort, resulting in him being required to work until 2.30 am on the night of the storm and return at 6.00 am the following day and to work additional hours for the ensuing three weeks to clean up storm damage. Mr Gillespie deposed that when asked for extra payment in respect to these additional hours, Mr Miley informed him that this was simply something he needed to do for the good of the resort so it could be kept open and all jobs preserved. Mr Gillespie's evidence was that he was never paid for these extra services, nor was he given any time off to compensate for the extra hours worked. 28 In cross examination Mr Gillespie conceded that he did get some days off in lieu for which he completed an appropriate leave form. 29 Mr Gillespie deposed that he was instructed to be available for callout whenever there was a maintenance problem and indeed was called on many occasions, including Christmas Day 1998 when he was required to fix various problems including the restaurant water pump. 30 Mr Gillespie deposed that he never received any additional remuneration for being on call or being called out. 31 On 26 November Mr Gillespie was offered a wage increase to $540 gross per week to be paid fortnightly in a revised contract of employment (tendered as an attachment to Mr Gillespie's statement of evidence, exhibit 1), effective from 3 December 1998. Relevant aspects of this arrangement are stated below: Compensation You will be paid $540.00 gross per week. Your salary will be paid fortnightly. Commencement Date Your pay increase will be effective from 3rd December 1998. Confidentiality While 'performing your role, you will be required to ensure that all information you have access to is treated in the strictest confidence. This applies particularly to gun lists, reservations information and financial information pertaining to Eaglereach Wilderness Resort. Hours Of Work Not less than 40 hours, 5 days per week, exclusive of meal breaks or such longer periods as may be required for the proper performance of your duties. You will be required to perform shift work including weekends and public holidays without additional payments. Days off and days in lieu for public holidays to be taken each month as per roster. Superannuation You are entitled, as per the industrial ruling, to be paid superannuation at the prescribed rate. Annual Leave Twenty(20) days per annum after each years service on your anniversary employment date. Eaglereach Wilderness Resort recommends that annual leave be taken during the low season. Sick Pay Eighty (80) hours paid sick leave per annum, on completion of each years service, which is calculated on a pro-rata basis, and to be covered by medical certificate. Non-Performance In the event that the primary responsibilities and all the duties of your position, are not performed to our satisfaction, after the appropriate counselling and 3 warnings (1 verbal and 2 written), your services with Eaglereach Wilderness Resort will be terminated with the appropriate notice periods Termination One (1) months notice in writing is required by either party for the termination of this agreement except in cases of gross misconduct. All other conditions as they effect all employees of Eaglereach Wilderness Resort shall apply. As acceptance of the above terms and conditions please sign the second copy of this letter and return it to the Chief Executive within (7) days. Please sign and return copy of this letter to Paul Miley to acknowledge receipt. 32 The signature of the applicant appears on the document in acceptance thereof. 33 On 23 December 1999 Mr Gillespie was supplied with a motor vehicle for work and reasonable personal use. The terms of the provision of the motor vehicle are documented in correspondence to Mr Gillespie from Mr Miley dated 23 December 1999, quoted hereunder. Congratulations, you now have a work vehicle for your use - to travel to and from work, reasonable personal use, excluding annual leave time, and to pick up any supplies for the resort As per our insurance policy, it is important for you to know the following conditions apply for use of the vehicle: Our policy does NOT cover any loss or damage occurring if the vehicle a) Was not reasonably secured against further damage or theft, following an accident. b) Is being driven by anyone: · Who does not hold a legal driving licence to drive the vehicle in Australia, · Who is under the influence of alcohol or drugs, · Whose blood alcohol reading exceeds the legal limit, · Who following an accident, refuses to provide or allow the taking of a sample of breath, blood or urine for testing analysis. · Is being used to carry more passengers or carrying or towing a heavier load than it was designed for, · Is used for purposes other than those shown in the schedule. Failure to comply with these conditions would also mean instant dismissal, without remuneration. John, thankyou for all your hard work and efforts during 1999. Lets work together and have happy and rewarding 2000. 34 The evidence of Mr Gillespie was that the job became more and more difficult as the expectations of him became higher and higher with fewer resources. Mr Gillespie deposed that on many occasions he tried to arrange a call-out roster and was unsuccessful. 35 Mr Gillespie's evidence was that the events leading to his dismissal commenced on Tuesday, 25 July 2000 when he was asked to work on Sunday, 30 July and Monday, 31 July 2000 which were rostered days off (RDO's) for him. The requirement for him to work arose due to annual leave by his assistant. Mr Gillespie deposed that he explained to Mr and Mrs Miley that he was unable to work on that day as his wife had been made redundant and that he had another job on Monday, 31 July 2000. 36 Mr Gillespie's evidence was that Mr Miley said to him, "You work for us and nobody else". Mr Gillespie protested that they were his RDO's, to which Mr Miley replied, "That's not good enough" and suggested that Mr Gillespie find alternative employment. Mr Gillespie's evidence was that he replied, "Fine, I will if I can", and walked away. 37 Mr Gillespie did not work at Eaglereach on Sunday 30 July or Monday, 31 July 2000, returning to work on Tuesday, 1 August 2000. Mr Gillespie's evidence is that he worked a full week and covered the shift on Sunday, 6 August 2000 as his assistant was still on leave and took Monday, 7 August 2000 as an RDO. Mr Gillespie deposed that he worked his normal week on Tuesday, 8 August to Saturday, 13 August 2000 as per the roster, having the following Sunday and Monday off and returned to work on Tuesday, 15 August 2000. 38 Mr Gillespie 's evidence was that on Tuesday, 15 August 2000 at about 2.00 pm Mr Miley asked to meet with him before he left for the day. Mr Gillespie deposed that this meeting took place at about 2.30 pm and Mr Miley put to him that he had two jobs, one at Eaglereach and the other collecting firewood, to which Mr Gillespie responded that he had done so since the start of winter and that Mr Miley was well aware of it. Mr Gillespie's evidence was that he asked Mr Miley whether his work performance had dropped off, to which Mr Miley responded in the negative, informing the applicant that he was giving him one month's notice because he needed a full time employee and with Mr Gillespie's outside work, a new baby and family commitments, his availability was not good enough. Mr Gillespie deposed that Mr Miley then put to him that if he went quietly on the basis that his contract was terminated because of the requirement for a full time employee, he would obtain a good reference and separation papers. 39 Mr Gillespie deposed that his conclusion from the requirement to be "full time" was for someone to be working or on call 24 hours a day, 7 days a week. 40 Mr Gillespie deposed that on Friday, 1 September 2000 Mr Miley approached him informing him that he was not required to work out the remaining two weeks of his notice. Mr Gillespie's evidence was that he was then offered his payment in lieu of notice and other entitlements and asked to sign what he described as a three page document put to him by Mr Miley as an indemnity. Mr Gillespie's evidence was that he refused to sign this document, received his payment and left. 41 Mr Gillespie's evidence was that he worked at Eaglereach for over three years and had never received a verbal or written warning. His evidence was that he only ever received words of commendation and encouragement from the managers and lodge owners. 42 Mr Gillespie's evidence was that since termination of his employment he has been able to find intermittent casual work, earning a total of $2,250 in the period from termination to the deposition of his affidavit of evidence filed on 27 December 2000. He further deposed that his employment at Eaglereach was regulated by the Motels, Accommodations and Resorts, &c. (State) Award ('the award') (315 IG 1064) and that he remains unemployed. 43 The evidence of Mr Miley concurred that the applicant was employed pursuant to the award, a copy of which he deposed was placed on an internal wall of the depot where maintenance equipment was kept. His evidence was that the applicant's employment was further regulated by the contract signed by him in terms of attachment B to exhibit 4 (Mr Miley's affidavit of evidence) dated 8 December 1997, and attachment C to exhibit 4, a further contract signed by Mr Gillespie with effect from 3 December 1998, being that to which Mr Gillespie referred to in his evidence (quoted above). 44 Neither party took me directly to the award. The classification Hospitality services grade 3 is defined at p1067 to include at point (i) "handyperson, which means a person who is not a tradesperson and whose duties include the performance of routine repair work and maintenance in and about the employer's premises and other general duties such as pool, garden, etc. 45 The award provides a rate of pay of $445.50 per week to apply on or from 3 December 1999 (at p1170) and an allowance for work outside daily hours in the following terms: 18. HOURS OF WORK 18.1 The hours of work of a full-time employee are an average of 38 hours per week. 18.1.1 The average of 38 hours per week is to be worked in one of the following ways: (a) a nineteen day month, of eight hours each day; (b) four days at eight hours and one of six hours; (e) four days at nine and a half hours per day; (d) five days of seven hours and 36 minutes per day; (e) 152 hours per each four week period; or (f) 160 hours per each four week period, with a day banked per period up to a maximum of five. (g) any combination of the above. 18.2 The arrangement for working the average of 38 hours per week is to be agreed between the employer and the employee from the alternatives in clause 18. 1. 18.3 The agreed hours of work arrangement must meet the following conditions: 18.3.1 A minimum of six hours and a maximum of eleven and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals. 18.3.2 An employee cannot be rostered to work for more than ten hours per day on more than three consecutive days without a break of at least 48 hours 18.3.3 No more than eight days of more than ten hours may be worked in a four week period. 18.3.4 An employee shall be entitled to eight full days off per four week period; and 18.3.5 No employee shall work more than ten days in succession without a rostered day off. 18.4 Broken Shifts - Spread of Hours Where broken shifts are worked the spread of hours can be no greater than twelve hours per day. 18.5 Wage Entitlements Employees shall be entitled to a week's wages, in accordance with clause 12 of this Award for each week of work. 18.6 Sickness on Rostered Day Off Where an employee is sick or injured on his/her rostered day off he/she shall not be entitled to sick pay nor shall the sick pay entitlement be reduced as a result of sickness or injury on that day. 18.7 Pay Day In the event that an employee by virtue of the arrangement of his/her ordinary working hours is rostered off duty on a day which coincides with payday such employee shall be paid no later than the working day immediately following such payday. 18.8 Work Outside Daily Hours 18.8.1 Full time or regular part-time employees who are required to work any, of their ordinary hours outside the hours of 7.00 a.m. to 7.00 p.m. on Monday to Friday inclusive, shall be paid $1.17 per hour, or part thereof, for any such time worked outside the said hours with a minimum payment of $1.78 for any one day. 18.9 Posting of Roster 18.9.1 A roster for all full time and regular part-time employees showing normal starting and finishing time and the surname and initials of each employee shall be prepared by the employer and shall be posted in a conspicuous place or places accessible to the employees concerned. 18.9.2 The roster shall be alterable by mutual consent at any time or by amendment of the roster on 7 days notice. 18.9.3 Where practicable, 2 weeks' notice of rostered day or days off shall be given provided that the days off may be changed by mutual consent or through absence through sickness or other cause over which the employer has no control. 18.9.4 Provided that the provisions of this clause do not permit a change to the agreed number of hours each week or each four week period of a regular part-time employee. 18.10 Work on Rostered Days Off All work performed on an employee's rostered day off shall be paid for at double time, with a minimum of 4 hours at the rate of double time. 18.11 Make-Up Time 18.11.1 An employee may elect, with the consent of the employer, to work "make- up time", under which the employee takes time off during ordinary hours, and works those hours at a late time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay. 18.11.2 An employee on shift work may elect, with the consent of the employer, to work "make-up time" (under which the employee takes time off ordinary hours and works those hours at a later time), at the shift work rate which would have been applicable to the hours taken. 46 It is questionable whether the classification "handyperson" would encompass the position of Maintenance Supervisor. These issues were not argued and on the evidence it is not possible to come to a conclusion. 47 Mr Miley's evidence confirmed that Mr Gillespie's hours of work were altered during the course of his employment to meet the needs of the resort. He deposed that all staff were requested to work until 7.00 pm on a Friday, once a month, and that all employees other than the applicant agreed. 48 The evidence of Mr Miley was that he would often see Mr Gillespie after 3.00 pm travelling between the resort and Maitland and when asked why he had left early, Mr Gillespie offered a variety of reasons from needing to collect his daughter from school, get to a shop that closed early, or that he had started early that day due to the heat. 49 Mr Miley's evidence confirmed the storm of June 1998 and the requirement of the applicant to attend to the resort and clean-up arrangements. His evidence was that whenever Mr Gillespie was required to work overtime he was provided with days off in lieu thereof. This evidence was supported by a roster (attach G to ex 4) which detailed the days off afforded to Mr Gillespie . 50 Mr Miley's evidence was that Mr Gillespie's duties included the requirement to pick up supplies and other goods from local vendors, which he deposed all employees did when requested. He deposed that such supplies included newspapers, coffee and other items. 51 The evidence of Mr Miley was that Mr Gillespie was often told to plan his day better to avoid unwarranted travel time around the resort, putting that Mr Gillespie would often return to the depot for morning break, lunch and afternoon break and would collect other maintenance employees regardless of where they were on the resort. 52 In dealing with Mr Gillespie's work performance Mr Miley deposed that throughout his employment there was a constant need to inform him about his duties, his role as a supervisor, and the timing of various tasks to be performed. Detailed memorandums setting out Mr Gillespie's duties and instructions to him are tendered (attach H1 through H11 of ex 4). 53 Mr Miley deposed that at various times the applicant had young people as assistants, some serving for short periods of time. Statements of exit interviews for two employees who had ceased employment, Mr Daniel Wright and Mr Drew Brazaitis are attached to exhibit 4 as attachment 1. 54 Both Mr Wright and Mr Brazaitis were negative in their comments concerning Mr Gillespie. 55 The handwritten criticisms by Mr Wright are not dated and there is no evidence of these issues being taken up with Mr Gillespie at any time. Mr Wright was not called to give evidence and accordingly those allegations must be dismissed as being without substance. 56 Mr Brazaitis put that he reluctantly left employment at Eaglereach due to a personality clash with Mr Gillespie. 57 Mr Braizaitis alleged that he gave Mr Gillespie a carton of beer for a broken chainsaw, the property of the resort. 58 It is not contested that the chainsaw was damaged beyond repair and that Mr Miley had instructed Mr Gillespie to dump it. Mr Brazaitis asked Mr Gillespie if he could have it and was given the item. Mr Brazaitis confirmed he was unable to repair the chainsaw. 59 Mr Gillespie denied that he asked for or received a carton of beer in return for the broken chainsaw. 60 Mrs Miley's statement of evidence (ex 5) contains a number of memos to Mr Gillespie concerning issues, job requirements and organisational matters (attachments D1 to D10 and attach E). 61 The evidence of Mrs Miley was that Mr Gillespie's employment was terminated on 15 August 2000 by the giving of one month's notice in writing following verbal advice to Mr Gillespie on that day. 62 Mrs Miley deposed that rostering arrangements at Eaglereach were for two maintenance employees to be on duty at any one time. Mrs Miley put that Mr Gillespie was initially rostered to work from 10.00 am to 6.00 pm on Fridays; and that two of the maintenance employees would share weekend work on an alternating basis, one weekend on and one weekend off. 63 Mrs Miley's evidence was that the rosters were subsequently altered to provide for Mr Gillespie to be rostered off on Sundays and Mondays and for the other maintenance employee (Mr Jason Robards) to be rostered off Fridays and Saturdays. Mrs Miley put that these arrangements arose at the suggestion of the employees who understood and accepted that maintenance coverage at weekends was essential as this was the time when most guests were at the resort. 64 Mrs Miley deposed that there was agreement between the maintenance staff that they would cover each other should an employee go on leave and that this became the usual practice. 65 Mrs Miley's evidence was that in May 2000 it became apparent that there was a need to alter hours of work on Fridays to meet the needs of the resort. 66 On 24 May 2000 Mrs Miley directed a memorandum to staff, including Mr Gillespie, in the following terms: "We have discussed this many times and now need to take immediate action. All our guests check in for the weekend on Friday normally between 2pm and 7pm and this is when we need to have at least one staff person on site to handle any problems. At the moment all our Maintenance and housekeeping staff have left the Mountain by 4.30pm and this is just simply unacceptable in the Tourism industry where it is important to give guests service. During this time reception is under great strain checking everyone in and Treetops staff are under pressure preparing the Buffet. We are just about to go into a busy winter and have to rectify this problem as soon as possible. After giving it a great deal of thought and trying to work out a fair system for everyone we need to put the following in place starting in the month of June. Each staff member works 11am to 7pm on Friday nights for one month every six months. We feel this is most reasonable for our industry. Please let me know in the next 5 days if there is any particular Month you can not work Friday nights or if there is any particular month you wish to be on duty and I will make up the roster. Between the hours of 5pm to 7pm you will be required to work from Reception." 67 Mrs Miley's evidence was that all staff agreed to this arrangement with the exception of Mr Gillespie who declared that he had another job on Friday nights and would not participate in the change of hours. 68 It was Mrs Miley's evidence that on 20 June 2000 Mr Robards applied for and was granted two weeks annual leave. Mrs Miley deposed that she did not approve the leave until Mr Gillespie agreed to cover for Mr Robards. Mrs Miley's evidence was that she subsequently asked Mr Gillespie, "Could you cover the weekends while Jason is away", to which Mr Gillespie replied, "that won't be a problem, there's Daniel, there's me, that won't be a problem". 69 Mrs Miley deposed that on 26 June 2000 Mr Gillespie terminated the employment of Daniel Wright which caused her to remind Mr Gillespie of the commitment to cover for Mr Robards on weekends, to which she put Mr Gillespie responded, "Not a problem". 70 It was Mrs Miley's evidence that prior to Mr Robards' departure on annual leave on 25 July 2000 arrangements were made for Mr Gillespie to be rostered off on Wednesday and Thursday, 26 and 27 July 2000, in anticipation of the requirement that he worked the following weekend to cover Mr Robards' absence. 71 Mr Gillespie denies any prior arrangement that he work on 30 or 31 July 2000, putting that the time rostered off on 26 and 27 July 2000 was time owed to him. 72 Mrs Miley deposed that immediately before the commencement of Mr Robards leave he informed her that Mr Gillespie had no intention of covering for him at the weekend. Mrs Miley then contacted Mr Gillespie who confirmed that he did not intend to be there on the weekend which fell within the period of Mr Robards approved leave; in Mrs Miley's evidence he put to her, "I have a Christening on Sunday and another job on Monday", and shrugged his shoulders. 73 Mrs Miley deposed that she was devastated by this response and, with the resort fully booked for the coming weekend, she would be left without maintenance staff. Mrs Miley asked Mr Gillespie to wait and called Mr Miley and informed him of these events. Mrs Miley deposed that Mr Gillespie put to her and Mr Miley, "Would you prefer I look for another job?" Mrs Miley deposed that there was consensus then that Mr Gillespie should look for another job, Mr Gillespie then left the office and arrangements were made for a sub contractor to cover certain maintenance for the weekend and for other employees to take on additional duties in that period. SUBMISSIONS 74 Mr Smyth relied on the evidence of Mr Gillespie to support his submission that Mr Gillespie was dismissed and had not resigned his employment. Mr Smyth submitted that the disciplinary procedure detailed in the contract of employment of one verbal warning followed by two written warnings in respect to unsatisfactory performance was not complied with by the respondent. 75 Mr Smyth submitted that the conduct of the applicant could not be held to constitute grounds for an employer to justify summary dismissal without warning. 76 Mr Smyth submitted that there had been an attempt to amplify issues of conduct beyond proportion by presenting what were in fact quite ordinary and normal inter office memoranda as warnings and reprimands, leading to termination of employment. 77 Mr Smyth submitted that assertions concerning misuse of the motor vehicle provided to Mr Gillespie were unproven and in any event Mr Gillespie was permitted some private use of the motor vehicle, the boundaries of which he had not transcended. 78 Mr Smyth put that the evidence of Mr Brazaitis, which suggested Mr Gillespie improperly sought advantage by disposal of the damaged chain saw, was a scurrilous attempt to impugn Mr Gillespie by a disgruntled former employee who bears a grudge and should not be accepted. Mr Smyth put that there was absolutely no basis for the allegations made by Mr Braizaitis. 79 Mr Smyth submitted that I should accept Mr Gillespie as a reliable witness of truth and on the facts so deposed should find that the termination of employment was harsh, unreasonable and unjust. 80 Mr Duc submitted that the termination of Mr Gillespie's employment was not harsh, unreasonable or unjust. The primary submission put by Mr Duc was that Mr Gillespie was not dismissed, having left his employment by mutual arrangement due to conflicting alternative employment. 81 Mr Duc further submitted that if the Commission were to find that Mr Gillespie was dismissed, that such dismissal was justified on the grounds of conduct having regard to his misuse of the company vehicle and improper disposal for personal benefit of the broken chain saw, the property of his employer. 82 Mr Duc contended that the termination of employment was further justified on the grounds of unsatisfactory performance, putting that the termination was substantively and procedurally fair. 83 Mr Duc relied upon an offer by Mr Gillespie to Mrs Miley that he look for another job, her response that if he were dissatisfied he should do so, and Mr Gillespie's advice to Mrs Miley that he would. 84 Mr Duc submitted that the applicant knew he had to look for other work and was in the process of doing so. 85 Mr Duc referred to the case of Smith v The Director General of School Education ((1993) 51 IR 204 at 219) where a Full Bench of the Commission accepted the ordinary meaning of dismissal as suggested by Brereton J in Ex Parte Wurth (re Tully ((1954) 55 SR (NSW) 47) as being: "The termination of the services by the employer without the employee's consent". 86 Mr Duc put that Mr Gillespie had consented to leave and accordingly there was no dismissal from employment to ground jurisdiction. 87 Mr Duc relied upon the evidence of Mr Brazaitis; and the findings of Von Doussa J in Lane v Arrowcrest ((1990) 27 FCR 427) reviewed by a Full Bench of this Commission in Hollingsworth v The Commissioner of Police ((1999) 88 IR 282 at 325) to support the proposition that where a relevant fact is discovered post dismissal, it can be used to justify termination and preclude remedy. 88 Mr Duc relied upon the evidence of Mr and Mrs Miley to ground an argument that the particular work performance of Mr Gillespie was unsatisfactory to the point of substantiating the conclusion of that employment. In particular, Mr Duc went to attachment D7 of Mrs Miley's affidavit which states: "I keep asking for things to be done but nothing is ever followed through or completed. … Quite frankly, we have three full time men yet the resort looks like a mess and no one seems to care". 89 Mr Duc submitted that these words conveyed a desperation with consistent failure to follow management's directions. 90 Mr Duc submitted that the evidence of Mr and Mrs Miley was unshaken in regard to Mr Gillespie's refusal to be available for work on Sunday, 30 July 2001 and Monday, 31 July 2000, despite prior agreement and commitment to be available. Mr Duc characterised this refusal to be available as a malicious attempt to sabotage operations for the weekend, putting that Mr Gillespie had advised on several occasions that he would be available, only announcing his unavailability the day before the employee whom he was to replace was to commence annual leave. 91 Mr Duc relied upon the findings of Wilcox CJ in Gibson v Bosmac Pty Ltd in the Industrial Court of Australia ((1995) 60 IR 1 at 9) in which the termination of employment of an employee who refused to work Saturday overtime was found not to be harsh, unreasonable or unjust. Mr Duc relied in particular on the following passages from Gibson: "I do not suggest that employees are accountable to their employers for the way they spend their off-duty hours, or obliged to submit to questions regarding their private plans. Mr Gibson was entitled to decide that he would not work on the Saturday and not reveal his reason. However, equally I think, Bosmac was entitled to decide that, if Mr Gibson adopted that attitude, it would dispense with his services. The nature of the company's business was such that, from time to time, it would inevitably be asked to provide immediate service. A delay in the provision or repair of equipment urgently required for an agricultural, mining or manufacturing operation could cause a customer significant loss. Refusal of immediate service might seriously damage the company's reputation and goodwill. The company maintained a relatively small workshop, with only 11 workshop employees. It was inherent in the nature of its business that in times of urgency the company would need to call on employees to work overtime and to press those who had no particular reason for refusal. If Mr Ehsman had conceded Mr Gibson the right to absent himself from overtime without explanation, even though the company had an urgent job that required a maximum attendance, he could not reasonably have refused the same concession to others. The result would have been intolerable from the company's point of view. It would have been unable to indicate to a customer when an urgent job would be completed. In this situation, it seems to me that Mr Ehsman, and anyone else who was involved in the decision to terminate Mr Gibson's employment, was entitled to reason that, if Mr Gibson was not prepared to explain any difficulty he had in working on a Saturday, in the circumstances it was better to dispense with his services. That decision was based on a valid reason based on the operational requirements of the respondent's business. The limitation imposed by subs(1) of s170DE was satisfied. And, having regard to the size and nature of the respondent's business, it seems to me that the decision was not harsh, unjust or unreasonable. I appreciate that the applicant was an employee of eight years' standing, a competent worker whose conduct and performance was satisfactory in all respects save in relation to Saturday overtime. But that exception was an important one, justifying the decision that was made. I do not think the termination was substantively unfair." 92 Mr Duc submitted that Mr Gillespie had received appropriate warning, whilst conceding that the particular word "warning" had not been specifically used; putting that the tone and content of the substantive communication by memorandum forming the evidence of Mrs Miley clearly conveyed warning to Mr Gillespie. 93 Mr Duc submitted that there was no obligation upon the employer to give a warning. In support of this submission he relied upon the Judgment of a Full Bench of this Commission in Buckman v Burdekin Resources ((1998) 85 IR 415) wherein it is held at p418 that: "Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness." 94 In support of this argument Mr Duc referred to a judgement of a Full Bench of the Commission in Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others ((1995) 81 IR 46) wherein it was held at p68: "We do not wish to say that absence of warnings in appropriate circumstances might be taken into consideration in contemplating notions of harsh unjust and unreasonable. In industrial circumstances as in other avenues of life an employee or an employer must be taken to be aware of the natural and probable consequences of their actions. However, we reject as industrially inappropriate any notion that adult, responsible and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street". 95 Mr Duc also referred to the matter of Rapp v Wauchope RSL Club ((1995) 81 IR 116) and Wells v Lloyd Moffat Investments Pty Ltd t/as Moffats Oyster Barn Restaurant ((1998) 83 IR 226). CONSIDERATION 96 I do not find support for the termination of employment on the grounds of misconduct as advanced by Mr Duc. 97 The conditions of use of the motor vehicle provided by the employer allow reasonable private usage and there is no evidence to substantiate that the applicant went beyond those parameters or, if he did, was ever warned or counselled by the employer to amend his usage. 98 The disposal of the broken chain saw in the circumstances presented in this matter is trivial; I prefer the evidence of Mr Gillespie that he had authority to dispose of it and did so to Mr Brazaitis at his request for no personal benefit. 99 The issue of performance in terms of maintenance standards and quality was clearly an issue of exasperation for the employer and one in which the vast body of memoranda revealed difficulties in communication between the parties, the balance of responsibility I find falling to management to take a more direct approach with Mr Gillespie and relevant staff rather than peppering them with memoranda that were obviously not producing the desired result. This matter does not ground a basis for termination of employment. 100 To the extent that the employer might regard these issues of sufficient cumulative effect to amount to conduct justifying termination of employment, I find the respondent is bound by the disciplinary regime of its own device. The applicant is entitled to expect the procedure found in the contract of employment of one verbal and two written warnings to be applied in a positive and direct manner. It is incumbent upon the respondent when giving a warning pursuant to that procedure to say so specifically. 101 I find that the conduct of the applicant in respect to the use of the motor vehicle and disposal of the chain saw did not fall within the category of dishonesty as referred to in Nieass. I note that Buckman deals with the circumstances of a probationary employee prior to the statutory exclusion of that category of employee and is unhelpful in this matter. 102 There is tension between the Award and the contract of employment in respect to hours of work and payment therefore. Both parties contend that the Award applies. The Award provides payment of $445.50 per week at the relevant time in respect to a 38 hour week, with additional payment of $1.17 per hour for work outside ordinary hours and the usual overtime arrangements. The contract of employment suggests a rate of pay of $540.00 per week for a minimum 40 hour week with a requirement for shift work, weekends, and public holidays without additional payment with time off in lieu to be taken as per roster. 103 It is not open to the parties to contract out of the Award, if indeed the Award applies. Neither party explored the function of the contract of employment and the tension between it and the Award, nor touched upon any question of adequacy of the contract of employment. 104 I do not find it necessary to examine these matters, the relevant common criteria found in both the Award and contract of employment is the obligation to attend for duty as rostered and to carry out those duties in a competent and diligent manner. 105 In respect to the matter of Mr Gillespie's requirement to work on Sunday, 30 July and Monday, 31 July 2000 I prefer the evidence of Mr and Mrs Miley to that of the applicant. Mr Gillespie was evasive in his denial of the arrangements and inconsistent in his evidence that he was not offered time off in lieu of additional hours, then deposed he was given some minimal time; ultimately putting that the additional days rostered off on 26 and 27 July 2000 were not in anticipation of working on 30 and 31 July but time owed to him from prior additional hours. 106 The evidence that Mr Gillespie held employment in addition to his commitment to Eaglereach is uncontroverted, there is nothing to prevent that additional employment in the contract of employment between Mr Gillespie and the employer as presented in these proceedings. There is however an obligation upon the applicant to meet the requirements of his employment should he wish to continue therein. 107 The evidence further supports the applicant's offer to seek alternative employment and acceptance thereto by the employer. The evidence is obscure as to whether the applicant indeed proceeded to pursue departure from his employment with Eaglereach on his own initiative so as to give rise to a resignation. I find the respondent genuinely expected departure by the applicant. 108 It is not necessary in my view to determine this issue as the applicant's refusal to provide maintenance coverage on 30 and 31 July 2001 was in direct abrogation of his contract of employment and his prior undertaking to be available. 109 I find that there was a termination of employment by the employer due to the failure of the applicant to meet the obligations of employment. 110 I find that such termination was not harsh, unreasonable or unjust and accordingly decline to intervene. 111 Matter No IRC 4505 of 2000 is so concluded. 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.