Cooma Rural Lands Protection Board v Phillips and Greenwood [2005] NSWIRComm 313

Industrial Relations Commission of New South Wales

CITATION: Cooma Rural Lands Protection Board v Phillips and Greenwood [2005] NSWIRComm 313

Cooma Rural Lands Protection Board Winston Churchill Phillips PARTIES: Gregory Walter Greenwood

FILE NUMBER(S): IRC 3685, 3986, 3963, 5823 of 2004

CORAM: Wright J President; Grayson DP; McLeay C

Unfair dismissal - Appeal - Leave to appeal - Cross-appeals - Whether findings of unfairness at first instance correct - Whether reinstatement in one case and refusal to reinstate in other case in first instance decisions correct - Allegations of protracted misconduct by dismissed employees significant entrenched and bitter interpersonal conflict - Extension of conflict into work environment - Substantial disruption over lengthy period to proper functioning of enterprise - Small statutory enterprise - Whether finding at first instance that employer could have done more to resolve conflict was speculative and incompatible with employee behaviour - Interpersonal dispute between employees properly a matter for managerial intervention - Extent to which employer is required to go or to which it should be accountable for failure to resolve dispute must depend on circumstances of each case - Whether employee protagonists by their conduct repudiated employment contract and or effectively initiated termination of employment - Whether reinstatement order was open at first instance in circumstances where employee absent on workers compensation - Whether order supplementing weekly compensation payments with sick leave available under statute - Whether order for full back pay properly made - Employee thereby bears no responsibility for culpable conduct - Culpable conduct of employees outweighed by deficiencies in procedural fairness - Costs - Tests to be applied in considering whether to award costs - Discussion of relevant criteria - Significant risk in parties taking unduly firm and inflexible approach to settlement - Obligation to consider in objective way the strengths or limits upon case to be propounded at arbitration - Steadfast insistence on reinstatement amounts to conduct inconsistent with intention to settle on any reasonable basis - Prospect of reinstatement at best problematic in circumstances of case - Findings at first instance as to unfairness reasonably open although alternative findings may have been available on the evidence - Appeal bench should not substitute its own views if decision at first instance was reasonably open - Primacy of first instance decision making - Leave to appeal granted in all matters - Appeals upheld in two matters - Orders in one matter set aside - Decision in other matter set aside - Costs on a party and party basis ordered - Appeals otherwise dismissed. CATCHWORDS: