Industrial Relations Commission of New South Wales CITATION: Plummer v Stannard Bros Launch Service Pty Limited [2005] NSWIRComm 301 APPELLANT Christopher Dean Plummer PARTIES: RESPONDENT Stannard Bros Launch Service Pty Limited FILE NUMBER(S): IRC 2784 of 2005 CORAM: Wright J President; Boland J; Stanton C CATCHWORDS: Appeal - Leave to appeal - Unfair dismissal - Reinstatement primary remedy - Whether failure at first instance to make a finding regarding impracticability of reinstatement - Technical error not sufficient to warrant leave to appeal - Error as to compensation awarded - Amount of compensation increased - Additional evidence on Appeal - Observations regarding re-organisation of respondent's business and the impracticability of reinstatement - Leave to appeal granted - Appeal upheld LEGISLATION CITED: Industrial Relations Act 1996 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Christopher Dean Plummer and Stannard Bros Launch Service Pty Limited [2005] NSWIRComm 1068 Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 CASES CITED: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 Little v Commissioner of Police (No.2) (2002) 112 IR 212 Wells v Lloyd Moffat Investments Pty Ltd t/as Moffats Oyster Barn Restaurant (1998) 83 IR 226 HEARING DATES: 08/02/2005 DATE OF JUDGMENT: 08/29/2005 APPELLANT Mr R Reitano of counsel Solicitor: Mr P Macken Leigh Virtue & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P Newall of counsel Solicitor: Mr A Woods Fisher Cartwright Berriman JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Boland J Stanton C Monday 29 August 2005 Matter No IRC 2784 of 2005 CHRISTOPHER DEAN PLUMMER v STANNARD BROS LAUNCH SERVICE PTY LIMITED Application by Christopher Dean Plummer for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 11 May 2005 in Matter number IRC 7246 of 2003 DECISION OF THE COMMISSION [2005] NSWIRComm 301 1 This is an application by Christopher Dean Plummer for leave to appeal and, if leave is granted, an appeal pursuant to ss 187 and 188 of the Industrial Relations Act 1996 from a decision and orders of Commissioner Tabbaa in Christopher Dean Plummer and Stannard Bros Launch Service Pty Limited [2005] NSWIRComm 1068. 2 The appellant, Mr Plummer, had been dismissed from his employment with Stannard Bros Launch Service Pty Limited, the respondent in these proceedings, on 1 December 2003. Mr Plummer sought relief under the unfair dismissal provisions of the Act by way of reinstatement. In her decision of 11 May 2005, the Commissioner granted relief but not reinstatement. The Commissioner ordered compensation of four weeks' pay. 3 Mr Plummer had been employed by the respondent for about eight and a half years as a deckhand. His working arrangements were very flexible and involved rotating, 12-hour day and night shift work over a seven-day period followed by seven days off. An agreement operated whereby if an employee could not work a shift, someone else would need to be called in to fill in for the absent worker. This avoided the need to hire casuals to replace an absent employee but it was an arrangement largely managed by the employees themselves. 4 Between 14 April and 1 December 2003 Mr Plummer was absent from work on sick leave on 23 occasions. Commissioner Tabbaa accepted evidence that there was dissatisfaction amongst Mr Plummer's fellow employees about his excessive time off and the consequential effect on their workload. In August 2003 Mr Plummer was counselled about his sick leave absences and advised in future he would be required to provide medical certificates in respect of any absences for reasons of illness or injury. The appellant was aware the respondent would be "keeping a close look at his sick leave record." 5 In September 2003, Mr Plummer telephoned one of the delegates, Mr Mayer, and advised that he was taking a week off to attend the funeral of a close friend in Queensland. The Commissioner observed: Neither sick leave nor bereavement leave would have been applicable in the circumstances. Mr. Plummer had not completed a leave application form. Mr. Plummer was acutely aware of the warning he had received only one month earlier, yet he had not seen fit to telephone Mr. Osborne to seek authorisation for his absence bearing in mind that the position of Charge Hand was a rotating position and was filled by casuals on occasion. In addition, Mr. Plummer had not attempted, upon his resumption at work, to seek out Mr. Osborne and explain the reason for his absence. 124 It was Mr. Osborne who had approached the Applicant and asked for the reason for his absence. Mr. Plummer contended that he had been asked for " a certificate " and he had produced a medical certificate. The medical certificate, dated 07 October, 2003, stated: Christopher Plummer of ... saw me today. He states that he left home 22/09/03 to go to Queensland to arrange a funeral for a close friend who died on 21.09.03. He returned to work on Sunday 28.09.03. 6 The appellant stated he went on a holiday to Thailand on 28 October 2003 and was due to recommence work on 7 November 2003. The appellant said he had sustained an ear infection on or about 5 November 2003 and had to cancel his flight home. He sent a message to the respondent that he would not be able to return to work on 7 November. Mr Plummer said when his infection cleared, he took the first available flight home arriving at 1.00 pm on 18 November 2003. He attended work at 3.00 pm on the same day. Other employees had refused to cover his shifts during his extended absence. 7 The appellant made no effort to approach, or contact, Mr Osborne to explain his absence from 7 November to 17 November. Subsequently, the appellant was asked for an explanation for his absence. He was asked to either provide a medical certificate from a local (i.e, Thai) medical practitioner or provide proof of his travel arrangements that would attest to his whereabouts during the relevant period. The evidence of Mr Osborne was that the appellant's sister had informed him that her brother had consulted a doctor in Thailand. 8 Mr Plummer did not attend to Mr Osborne's request until three days later. He stated that he needed to catch up on the sleep he lost through having the ear infection and the jet lag. The appellant, nevertheless, obtained a medical certificate and whilst it expressed the opinion that it was "highly likely" Mr Plummer suffered an ear infection, the opinion was given on the basis of what the medical practitioner had been told by Mr Plummer. 9 On 21 November 2003 the appellant said he took the medical certificate and travel document to work that afternoon. In the absence of Mr Osborne he copied the medical certificate and left it for him in an envelope on his desk. The appellant provided no explanation as to why he had not left a copy of the travel document. 10 Mr Plummer agreed to attend a meeting with Mr Osborne to discuss that absence on 27 November 2003. Mr Plummer did not attend, saying he forgot. In this respect, Tabbaa C observed: It is difficult to understand how, in light of the circumstances, one can arrange such a meeting for that afternoon and, on the same day, depart for the Central Coast on the pretext that he had forgotten about the meeting. Nevertheless the meeting had been rescheduled for 1 December 2003. 11 At the meeting on 1 December 2003 Mr Osborne said to the appellant that he did not believe that Mr Plummer had an ear infection and did not accept the medical certificate. He advised the applicant that he was dismissed, effective immediately. 12 There were five grounds of appeal: (1) The Commissioner erred in failing to decide whether it was impracticable to order reinstatement and/or re-employment. (2) The Commissioner erred in failing to consider whether an order for reinstatement or re-employment should be made and in failing to consider whether it was impracticable to make such an order. (3) The Commissioner erred in failing to give any reasons for why an order for reinstatement or re-employment was not made. (4) The Commissioner erred in failing to make an order for reinstatement or re-employment in circumstances where there was no sound reason not to so order. (5) The Commissioner erred in failing to find reinstatement was practicable. Consideration 13 It may be seen that the issue in the appeal is quite a narrow one. The appellant's main contention was that there was a failure on the part of the Commissioner to deal with and make findings upon the issue of the impracticability or otherwise of reinstatement prior to making an order for the payment of compensation. It was submitted for the appellant that it was incumbent on the Commissioner, absent a finding that reinstatement was impracticable, to make an order reinstating the appellant in employment. Mr Reitano of counsel for the appellant submitted the failure to make such an order for reinstatement should be corrected on appeal. 14 Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 15 In the present case, Tabbaa C did not make an express finding that reinstatement was impracticable and she did not articulate any reasons as to why she considered reinstatement to be impracticable. We consider the Commissioner erred in those respects. However, the error can only be regarded as technical in nature and, of itself, would not constitute a ground for granting leave to appeal. A careful reading of the Commissioner's decision shows that she did give active consideration to the issue and there is an unmistakable inference to be drawn from her decision that she did, in fact, consider reinstatement to be impracticable. We do not consider that it is open to us on appeal to come to a different conclusion on this aspect having regard to the applicable appeal principles and the findings made by the Commissioner against the appellant, to the extent that we have found them open to her. 16 The Commissioner would have not found the dismissal to be harsh had it not been for the respondent's failure in relation to the Queensland absence to ensure its policies and procedures were complied with: [139]. That is, the respondent, in the Commissioner's words had "allowed the crew to run the show", leaving them largely unsupervised, including making their own arrangements regarding absences. In that environment the respondent had failed to warn or counsel the appellant about his Queensland absence in September 2003, notwithstanding that the respondent had made clear to the appellant in August 2003 that it was dissatisfied with the appellant's absenteeism, and that the appellant's attendance record would be closely watched in future. The Commissioner considered the respondent had thereby condoned the appellant's conduct of not properly communicating the reasons for his absences to the respondent and, accordingly, the subsequent dismissal triggered by the Thailand incident was considered harsh in the circumstances. 17 More significantly, however, in the context of a consideration of the appeal grounds, the Commissioner gave reasons why she considered the dismissal would not have been unfair but for the respondent's failure. That is to say, the appellant was unable to work unsupervised and appeared to "run his own race" by taking "a deliberate and sustained attitude on non-communication": Wells v Lloyd Moffat Investments Pty Ltd t/as Moffats Oyster Barn Restaurant (1998) 83 IR 226 at 231-232 per Harrison DP. If these reasons constituted a proper basis for finding the dismissal itself would not have been harsh, unreasonable or unjust save for the employer's condonation of certain conduct, it must necessarily follow that reinstatement was impracticable. The fact that the employer condoned the appellant's conduct of not properly communicating the reasons for his absences to the respondent in relation to the Queensland absence and this failure led to the Commissioner finding the dismissal was harsh, does not make reinstatement practicable if the Commissioner's findings against the appellant were correct. 18 That leads us to a consideration of whether the Commissioner was correct in coming to the conclusions she did. It would appear that in arriving at the decision at [139] the dismissal would not have been "harsh, unreasonable and unjust" the Commissioner had regard to a number of aspects of the evidence. Firstly, there was the evidence of the members of the Health and Safety Committee that Mr Plummer was not pulling his weight because his absenteeism was excessive. We have some reservations about the Commissioner's reliance on this evidence because the three members of the Committee either could not or would not provide any details of Mr Plummer's absences and there was some evidence from the appellant that his Union and one of the Committee members (also a union delegate), Mr Provan, was pursuing a vendetta against the appellant. 19 Those reservations, however, are not such as to permit us to reach a different conclusion to that arrived at by Tabbaa C. Having had the advantage of seeing the witnesses give their evidence, the Commissioner stated at [117] she had no reason to doubt the evidence of Mr Osborne that three of the delegates and members of the Safety Committee had drawn his attention to the dissatisfaction brewing amongst fellow employees in relation to Mr Plummer's excessive absences and the resultant effect on their workload. Further, in relation to the alleged vendetta, Mr Osborne said in his evidence he was not aware of it and the Commissioner observed in her decision that Mr Plummer had not reported the alleged incident that, according to the appellant, would have led Mr Provan to victimise him. We note that the incident occurred 12 months prior to the complaints being made by Mr Provan and the two other Committee members about Mr Plummer's absenteeism and there was no evidence in the meantime of a vendetta being pursued against Mr Plummer. It was also the case that the complaints about absenteeism by the Committee members were made in August 2003 in circumstances where Mr Plummer had taken 10 days (it would appear to have been single days), as sick leave since April 2003. Further, it was Mr Osborne's evidence that after Mr Plummer had been counselled about his absences he accepted the warning "for taking excessive time off work". 20 Secondly, the Commissioner considered the appellant appeared to "run his own race" by taking "a deliberate and sustained attitude on non-communication". In this respect, despite having been warned about his absenteeism by Mr Osborne and told in August he had been putting pressure on his workmates because of his absences, the appellant took a week off the following month to attend the funeral of a close friend in Queensland. The appellant did not advise Mr Osborne of his absence and did not complete a leave request form. Nor did the appellant seek out Mr Osborne on his return to work and advise him of the reasons for his absence. The appellant was asked to obtain a "certificate" in relation to the absence and he provided a doctor's certificate that said the appellant "…states that he left home 22/09/03 to go to Queensland to arrange a funeral for a close friend who died on 21.09.03. He returned to work on Sunday 28.09.03." 21 To provide a doctor's certificate containing, as it did, the appellant's assertion he attended a funeral was less than satisfactory- even bordering on being contemptuous of his employer - given the concern his employer had recently expressed regarding his excessive absenteeism. For the appellant to suggest he only provided what he was asked for - a "certificate" - is an affront to common sense. 22 Next, there was the Commissioner's reliance on the Thailand incident. The Commissioner found that: (1) The appellant made no effort to approach, or contact, Mr Osborne to explain his absence from 09 November to 17 November inclusive: [127]. This was despite the concern that had been expressed to the appellant by Mr Osborne about the appellant's excessive absenteeism and the burden that was placing on his fellow employees. (2) The appellant was asked to provide a medical certificate regarding his ear infection or provide proof of his travel arrangements that would attest to his whereabouts during the relevant period. The appellant provided a certificate that again merely related what the appellant had told the doctor: [129]. (3) The appellant took three days to comply with the request to provide a doctor's certificate: [129]. (4) The appellant failed to attend a meeting with Mr Osborne on the afternoon of the day the request to attend was made because "he had forgotten about the meeting": [131]. (5) Despite having advance notice of the meeting with Mr Osborne on 1 December 2003 and the stated purpose of the meeting, he had not taken into the meeting any documentation regarding his travel arrangements. He did not produce any details regarding his travel agent even though, according to him, he had visited that office two or three times to alter his return flight: [132]. 23 The Thailand incident was another example of the appellant's manifest disregard for his employer's concern about his absenteeism. The appellant had a clear obligation to his employer in the circumstances to properly explain his absence. He failed to communicate in a reasonable and timely way why he was absent. It is little wonder his employer lost confidence in him. 24 It was open to the Commissioner to conclude that, but for the respondent's failure to press home its concern in relation to the Queensland absence, either by a further warning or counselling of the appellant, that the dismissal was not "harsh, unreasonable and unjust". 25 The Commissioner's finding that the respondent's failure "to properly communicate its displeasure with the Applicant's response to the Queensland absence" led her to conclude the respondent had, at least in part, condoned the appellant's impugned conduct. Accordingly, Tabbaa C found that the dismissal was harsh and she ordered compensation of four weeks' pay. 26 We do not consider the relief granted by Tabbaa C was adequate in the circumstances and in that respect the Commissioner erred. We propose to grant leave in order to correct the error. 27 In our opinion, the respondent's handling of the appellant's termination of employment was unsatisfactory. Having found cause to warn the appellant of his absences in 2003 in circumstances where employees to a significant degree managed their own work arrangements, it was incumbent on the employer to engage in closer supervision of the appellant, not only to ensure he understood his obligations and complied with them but also to avoid any further friction amongst the workforce caused by the appellant's absences. 28 That the employer took no meaningful action in relation to the Queensland absence may have led the appellant into thinking nothing had changed and he could continue to "run his own race", although it should have become apparent to the appellant, when he was challenged about his absences in November 2003 after returning to work, he needed to do his best to explain his extended absence. Instead, his response was cavalier and reflected a disregard by him not only for the ordinary courtesies owed by an employee to his employer but also for the security of his employment. 29 There is also the consideration that the appellant had been employed with the respondent for some eight and a half years and termination would have caused unexpected hardship to the appellant, albeit a misfortune to which he contributed. Nonetheless, we consider that the Commissioner erred in ordering compensation of only four weeks' pay, which was at the lower end of the range that was available to her. The amount of compensation was inadequate in all of the circumstances and we have increased it by a further 13 weeks. 30 There is one final matter that we should address and that is the further evidence admitted on appeal pursuant to s 191(2) of the Act, that being the affidavit of Margaret Fulham, human resources manager for Adsteam Marine Limited. Her affidavit went to the practicability of reinstatement of the appellant with the respondent. 31 The respondent is a member of the Adsteam group of companies. Ms Fulham deposed in her affidavit that prior to 1 July 2004 employees engaged by Adsteam in the provisions of lines and mooring services in Sydney had been employed by the respondent. On or around that date, those employees had their employment transferred to Adsteam Harbour Pty Limited and the respondent was "no longer the employing entity of any employees." 32 Ms Fulham further deposed: Should the Commission make an order that the Appellant be reinstated or re-employed, Adsteam would be forced to either make another employee in the position of Deckhand with Adsteam Harbour redundant, or alternatively provide the Appellant with a job that does not require to be performed, at significant cost to Adsteam. 33 In view of the conclusion we have reached on the relief appropriate on appeal, it is not strictly necessary for us to determine whether the circumstances of the reorganisation of the respondent employer would, of itself, have made an order for reinstatement of the appellant impracticable for the purposes of s 89(5) of the Industrial Relations Act. However, in view of the issue being raised and strenuously pressed, we consider that it is appropriate to deal with it. There are two reasons why, if it had been relevant, we would not have considered that this material would have provided a factual basis to find that it was impracticable to reinstate the appellant. The first reason relates to the timing of the placing of the evidence before the Commission. Without reciting the chronology in detail it is clear that there was sufficient time between the decision being reserved, the reorganisation taking place and the decision being given, for an application to be made by the respondent to re-open the proceedings to place the further evidence before the Commissioner. To make a finding in the respondent's case on the basis of the additional evidence on appeal would be tantamount to permitting the respondent to put forward a different case on appeal to that mounted at first instance. 34 The second reason is that the factual material shows that the activities of the Adsteam group of companies at the relevant location on Sydney Harbour were carried on through a series of related companies, including the respondent, and although the respondent may not have any longer been the employer of employees, we have little doubt that had the reinstatement of the appellant been ordered, the practical effect of that situation would have been that he would have continued to perform work of a similar kind to that he had carried on whilst in the employment of the respondent and the respondent would have made appropriate arrangements to either have his employment continued with it or with one of the related companies. Orders 35 The Commission makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld to the extent determined by this decision. (3) In addition to the amount ordered to be paid by Tabbaa C the respondent shall pay to the appellant an additional sum equivalent to thirteen weeks' pay within 28 days of this decision. (4) In the event that there is any dispute as to implementation of order (3) the parties have leave to file short submissions on the issue provided that occurs within 21 days of today. _________________________________ 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.