Industrial Relations Commission of New South Wales CITATION: Beacroft v Lismore City Council [2008] NSWIRComm 1053 APPLICANT PARTIES: New South Wales Local Government,Clerical, Administrative, Energy,Airlines&Utilities Union(on behalf of J. Beacroft) Respondent: Lismore City Council FILE NUMBER(S): 100 of 2008 CORAM: Ritchie C Unfair dismissal application Applicant long term employee working in local government proceeded on extended sick leave on mental grounds. Sick leave supported by medical evidence respondent sought independent medical advice. Applicant attended independent medical doctor Applicant provided medical advice from two doctors stating employee should no longer be working Independent medical advice stated a return to work would result in a deterioration in psychological state and not be successful. CATCHWORDS: Respondent sought applicant to participate in a workplace assessment for alternative position Applicant did not believe required to attend such assessment. Respondent therefore terminated without further notice due to failure to comply with assessment-misconduct Applicant argued nil procedural fairness medical evidence to hand showed applicant not fit to work for respondent. Commission found that procedural fairness not present. Commission found termination harsh,unjust and unreasonable. Ordered applicant to be reinstated,backpay using applicant's accrued sickleave, continuity of service maintained. LEGISLATION CITED: Industrial Relations Act,1996 Antonakopoulos v State Bank of NSW (1999)91IR385 CASES CITED: Bostik(Australia) Pty Ltd v Gorgevski (1992)41IR452 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited[2003]NSWIRComm211 Sangwin v Imogen Pty Ltd IRCA 73/96 HEARING DATES: 08/05/08,09/05/08,14/05/08 DATE OF JUDGMENT: 13 June 2008 APPLICANT: Mr N. Martin of the Union LEGAL REPRESENTATIVES: RESPONDENT: Mr A. Dansie of the Local Government Association. DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie Commissioner 13 June 2008 Matter No IRC 100 of 2008 IN THE MATTER OF: New South Wales Local Government, Clerical, Administrative, Energy, Airlines &Utilities Union (on behalf of John R Beacroft) and Lismore City Council. Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of its member John R Beacroft re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2008] NSWIRComm 1053 Background. 1 Mr John R Beacroft (the applicant) commenced employment with Lismore City Council (the respondent) in October 1980 having worked in local government since January 1967. 2 The applicant was employed under the Notional Agreement Preserving Local Government (State) Award (the award). The applicant provided a completed Form 11 and both parties signed a Referral Agreement. 3 The applicant was advised of termination by correspondence signed by Mr Paul O'Sullivan General Manager of the respondent dated 8 January 2008, which took effect on 11 January 2008. At the time of termination the applicant was 56 years of age. 4 The New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the Union), filed a claim for unfair dismissal on 30 January 2008. The application came on for conciliation on 11 February 2008 but failed to settle and a timetable for the filing and serving of evidentiary material was provided to the parties. 5 The Hearing was held on 8 and 9 May in Lismore with final submissions in Sydney on 14 May 2008 when at the completion of submissions I reserved my Decision. On 28 May 2008, I was advised by representatives of Merrill Legal Solutions Pty Ltd, that due to a malfunction with the recording equipment, transcript for proceedings on 8 May 2008 was not available. It was also not available for half an hour of the next day's morning proceedings. As a consequence I had my assistant write to both parties and advise them of this situation and offered them the opportunity to submit their views on the issue. Whilst both parties sought for the matter to proceed reserving their right to appeal, the respondent also sought for the rehearing of the witness evidence lost via the unavailable transcript. I have decided to make my decision based on my recent recollection of the evidence given by the two witnesses, the evidence available and my personal notes taken during proceedings. There is no reason having seen the witnesses give their evidence to make an adverse credit finding against either. Both gave their best endeavours to recount the facts. Whilst the resolution of facts had to take place I based such resolution on all the evidence that was provided to the Commission. It is my view that the provision of justice will be best served by the reaching of a Decision without the recalling of the witness and a further hearing. The applicant was represented by Mr Noel Martin of the Union with the respondent being represented by Mr Adam Dansie from the Local Government Association of NSW. Applicant's Case. 6 The applicant filed witness statements and was subjected to cross- examination. He stated that at the time of termination he was the Rating Services Co-ordinator. He advised that he was first diagnosed in the late 1980's with stress related anxiety and depression. It lasted for some months and was accepted as workers compensation. In 2005 he again did not feel right and he was diagnosed as suffering from anxiety and depression. The treatment continued for approximately six months. 7 In the beginning of 2007 he stated that he did not feel well so he again went to his doctor. He said that he went to his doctor six times in 2007. Again he was diagnosed with stress related anxiety and depression and was referred by his treating doctor Dr MacDonald, to a psychologist Dr Lynette A. Arnoldus-Lewis. He first saw this doctor in April 2007 and a further six times in 2007. 8 It was his view that after a few visits to the psychologist it was apparent to him that he could not continue to work for the respondent. To that effect he wrote to the respondent on 9 May 2007 and advised that it was likely that he would commence sick leave at the end of June 2007. He as requested by the respondent then provided supporting medical certificates. 9 He did not return to work again but continued on sick leave providing the respondent with the appropriate medical certificates. 10 In October 2007 he received correspondence dated 12 October 2007 from Mr Rino Santin Manager- Finance advising the applicant, that in accordance with the award he worked under, the respondent was requiring him to attend a psychiatrist for an opinion on his condition. He was also advised in the same correspondence, that as from 3 October 2007 he was being paid special leave until "this matter was resolved." 11 As requested by the respondent he travelled to Sydney on 20 November 2007 and saw Dr Synnott. The applicant stated that the doctor advised at the commencement of the meeting that this was not a normal doctor/patient relationship and that anything said was not confidential. Doctor Synnott gave no guarantee as to who may have access to any information that fell from this meeting. 12 Still in November 2007 he visited both his psychologist and his GP. A medical certificate from his psychologist indicated that he was not able to return to work, permanently. Also he received a medical certificate from his GP Dr Macdonald that stated that he was unable to work permanently from 17/12/07 for his current employer in a similar capacity. 13 The applicant received a letter from the respondent on 17 December 2007 indicating they wanted him to undertake a worksite assessment on 19 December 2007. The letter also sought for the applicant to contact the respondent to advise that he would be attending the assessment. The applicant contacted Ms Imerson at the respondent's office and advised that the recent medical evidence he had received, stated that he was permanently unfit to work. Also he stated that he did not believe the respondent had the right to conduct a worksite assessment as he was on sick leave and not workers compensation. The applicant stated in giving evidence that he had contacted his union and taken advice on this request. He asked Ms Imerson to let him know if this would cause any problems. There was no indication from Ms Imerson that failure to attend such an assessment would result in himself committing an act of gross misconduct that would lead to his termination. 14 On 2 January 2008 the applicant attended the respondent's office and provided a doctor's certificate stating that he was not fit to return to work for the respondent. He spoke to Mr John Eddie who was acting in the position of Manager Human Resources. Whilst the applicant had prepared a letter of resignation he did not hand it in as disagreement existed between the two persons as to what section of the award (he was employed under), would be the appropriate section in his circumstances. 15 Mr Eddie later advised him that the General Manager of the respondent, had stated that the respondent would be looking for him to work in other positions and that the respondent would not be paying out his sick leave. He responded that he would not be resigning on medical grounds but that he expected the respondent to advise him by 11 January 2008 whether the respondent would continue to pay his sick leave or pay out his accumulated sick leave in accordance with the award. 16 The applicant said he was surprised, shocked, angry and disappointed to receive a letter of termination from the respondent. 17 It was the applicant's view that whilst the respondent had the right to require an employee to conduct a work assessment if they were on workers compensation, there was no provision under the award requiring such an assessment whilst on sick leave. The applicant said that he had two medical certificates stating that he was permanently unfit to return to the respondent yet he was terminated for wilful misconduct in not attending the proposed work assessment. 18 Two witness statements were made exhibits without the persons being required for cross- examination. Mr Craig Chandler is the local organiser for the Union. His evidence was directed at a conversation held between himself and Mr John Eddy of the respondent. The conversation held around 12 November 2007 centred on Mr Eddy inquiring whether the applicant would change his sick leave to workers compensation and Mr Chandler responding that the applicant did not wish to make a workers compensation claim. 19 Suzanne Ellen Beacroft, wife of the applicant filed a statement. Her statement covered the medical history of her husband. She stated that she noted a marked change in her husband when in October 2007 the respondent placed the applicant on special leave. He was also affected by his visit to Sydney for his meeting with the respondent's doctor. Correspondence from the respondent received in December 2007 also had a negative affect on him. 20 In final submissions Mr Martin stated that the termination of the applicant was unfair, unreasonable and unjust. It was unfair because the respondent never afforded the applicant procedural fairness. They never wrote to the applicant inviting him to answer any allegations giving him the opportunity to respond. The applicant was suffering from a mental illness, had supportive medical evidence, had twenty- eight years of service, and should have been treated with fairness and respect. He was not. When one compares the treatment of the applicant and a Mr Worgan they were not treated the same. Mr Martin stated that as the respondent had accepted that the applicant was on approved sick leave at the point of termination then in accordance with the award he should have been paid out his sick leave or remained on sick leave until his sick leave balance ran out. The respondent did not communicate with the applicant what the process was and its ramifications. No discussion was had between the parties as to what was expressed in Doctor Synnott's report. The latest medical evidence was that the applicant was unfit to work at the respondent's place yet he was required to have a work assessment for the records clerk position. It was a pointless task. The respondent did not wish to terminate the applicant on the grounds of ill health and therefore avoid the payment of accrued sick leave. 21 Mr Martin sought from the Commission an Order for the payment of twenty six weeks or reinstate the applicant until his sick leave expires, or reinstate with back pay plus maximum compensation. Respondent's Case. 22 The respondent filed seven affidavits from employees of the respondent. All were required for cross-examination. The seven were: · Ms Isabel Perdriau----Manager –Human Resources. · Mr John Eddy-----Human Resources Officer. · Mr Rino Santin---Manager –Finance. · Ms Catherine Michele Holland—Debt Recovery Officer. · Mrs Sandra Lee Burrows-Purchasing &Credit Co-ordinator. · Ms Christine Alana Imerson-Injury Management Co-ordinator. · Mr Paul O'Sullivan-General Manager 23 Ms Perdriau stated that she commenced in her present role with the respondent in September 2000. She said she first became aware of the applicant's mental illness in May 2007 through correspondence received from the applicant stating that following discussions with his psychologist he would not be able to continue his employment in his current position in the long term. He stated that it was likely to commence sick leave at the end of June 2007. He sought information as to what was required from the respondent. The respondent replied of what was required in accordance with the award and the possibility that the respondent may require the applicant to see their doctor. The respondent did require the applicant to see a specialist and a list of questions was provided to the doctor for his views. At this meeting between the applicant and Doctor Synnott, the applicant refused to sign a document allowing Doctor Synnott to liaise with the applicant's own doctors. On 4 December 2007, Ms Perdriau met with the respondent's General Manager, Manager- Finance and the Injury Management Co-ordinator to discuss Doctor Synnott's report. On 14 December 2007 another meeting was held to finalise correspondence to the applicant. This correspondence quoted extracts from Doctor Synnott's report and requested the applicant to attend a worksite assessment on 19 December 2007. Mr Santin emailed Ms Perdriau at 5.15pm that same day to advise that the applicant had spoken to him that day and advised that he disagreed with the doctor's report and that he would not be attending the following weeks assessment. The email went on to say that the applicant would be providing at the end of next week another doctors certificate indicating permanent incapacity and that he expects all his leave entitlements to be paid out. On 20 December 2007, Ms Perdriau attended a further meeting with the General Manager and Manager –Finance to discuss the applicant's refusal to attend the worksite assessment. Another letter from the General Manager, dated 21 December 2007, was sent to the applicant, confirming that there was a low likelihood of a return to work but sought clarification as to his intention to resume duties. He was asked to advise by 2 January 2008. The letter stated in part: "If you do not intend to return to work I will have no alternative but to consider terminating your employment." 24 On 7 January 2008, she attended a meeting with the General Manager, Manager- Finance and Mr Eddy to discuss Mr Eddy's discussions on 2 January 2008 with the applicant. On 8 January 2008 she attended a meeting with the same people. At that meeting she put forwarded a recommendation to the General Manager to terminate the applicant's employment. This two page confidential document (attached to her affidavit) had the MISCONDUCT square crossed. It stated under the heading of Reasons for Dismissal: Refusal to cooperate with employer's request to attend a worksite assessment with a qualified Rehabilitation Provider. Under the heading Background Summary: Mr Beacroft had attempted over a period of time during 2007 to use the system unethically to enable him to gain maximum financial benefit. There was an unwillingness to cooperate in exploring possible redeployment. Council has received an expert medical opinion stating that: " there is no absolute psychiatric contraindication to him returning to work and no absolute psychiatric incapacity to work", and Mr Beacroft has submitted medical certification not ruling out working in some capacity. There is inadequate justification of permanent incapacity. 25 Ms Perdriau did not accept the applicant's view that he "had always considered himself a loyal and honest employee." She stated that she had not always found him to be loyal and honest. In her view the applicant over a period of time had behaved in an "unethical manner towards Council in seeking to have access to accrued sick leave entitlements." It was her view that it would have been more ethical for the applicant to resign from work, once he had lost the motivation to work. He should not have sought to stay in paid employment for a period of time that would maximise his financial gain. 26 It was her view that between 29 May 2007 and the respondent's request for the applicant to attend Doctor Synnott's consultation, it became clear to the respondent that the applicant had a certain mindset and had made up his mind that he was not going to return to work. There were parts of Doctor Synnott's report that the respondent was seeking to satisfy itself through a workplace assessment process and they were not able to do this. They were seeking to challenge one of the medical certificates from Doctor Macdonald. 27 The reason the applicant was not invited to come and speak to the respondent prior to the termination letter being sent out was that: " given Mr Beacroft's stress levels, that may place even more stress on him, that we hadn't had success in trying to get him to cooperate with us to come in for attendance at the worksite assessment, so we did not believe that he would actually cooperate and come in to attend the meeting if invited." She also stated that the Union was not called in because the applicant was the union delegate and it had not been involved up to that stage and it was usual that they took the lead from the employee as to whether they wished the union involved. 28 In the lead up and the decision to the termination, Ms Perdriau stated that clause 31B(iii) was referred to. She also stated that the respondent relied on clause 19A(1)(a) of the award and clause 33(iii) when terminating the applicant. 29 Mr Eddy recounted that the applicant had raised concerns with him over the introduction of the new computer software. He believed it would impact on is health and in his view he would not be sticking around after June 2007. These conversations occurred between February and April 2007. In May the applicant foreshadowed to Mr Eddy that he may be going on extended sick leave from the end of June 2007. He sought from Mr Eddy what he had to do with respect to the taking of sick leave and was advised to produce medical certificates and the possibility of being directed to have an independent medical assessment. From this conversation Mr Eddy formed the view that the applicant wished to proceed on extended sick leave until he reached the age of 58 years (6 June 2009). He confirmed that he had a conversation with Mr Chandler of the Union and the clarification of whether a workers compensation claim was involved. He also determined the questions that he wanted Doctor Synnott to respond to in the doctor's meeting with the applicant. 30 On 2 January 2008 the applicant came to Mr Eddy's office and discussed his sick- leave, which he had been on since 28 June 2007. The applicant advised he would not be returning to work. The following day he wrote to the General Manager the Finance Manager and the Manager Human Resources summarising his meeting with the applicant. The applicant sought clarification as to the respondent's view of the sick leave sub-clause (Clause 19(viii) (a). He wished to know their interpretation as to whether it intended to pay out his accumulated sick leave or continue to employ him until the expiration of his accumulated sick leave. 31 Mr Santin stated that in his position the applicant reported to him. Mr Santin gave an overview of the medical certificates that the applicant had provided to him in 2007. Whilst the medical certificate that placed the applicant off from 2 July 2007 was for three months the applicant had advised him that he would not be returning to work. Mr Santin also attended a farewell dinner for the applicant held on 28 June 2007 at a local hotel. In August 2007 he met with the applicant to discuss his return to work intentions. The applicant sought an ex gratia payment for that part of his sick leave entitlement that was above the maximum award sick leave termination provisions in exchange for a doctor's certificate advising he was permanently incapable of returning to work. This request was discussed with the General Manager and Manager Human Resources. Correspondence dated 7 September 2007 was directed to the applicant rejecting this request. The applicant provided a medical certificate placing him on sick leave from 18 August 2007 until 4 January 2008. He also wrote to the applicant on 12 October 2007 to organise his trip to Sydney to see Doctor Synnott and to also advise that as from 3 October 2007 he would be paid from special leave until the matter was resolved. He again wrote to the applicant on 14 December 2007 to organise a worksite assessment. On the same day he spoke to the applicant who advised him, that he would not be returning to work and would not be attending the worksite assessment. He stated that he did not see any conflict between the doctors certificates provided by the applicant and Doctor Synnott's report in regards to the applicant's ability to work and due to the applicant's unwillingness to cooperate with any return to work programme appraisal, the only alternative to resolving this matter was the termination of the applicant. 32 In looking at alternative positions for the applicant the positions of records officer and accounts clerk/weighbridge operator were considered. On 8 January 2008 he spoke to the applicant and advised him of the contents of a letter, addressed to the applicant, that was terminating his services. 33 Ms Holland gave brief evidence that the applicant would not attend Authority training from April 2007 onwards because he would not be here to use and it will be all too hard. He also made comment about assisting his daughter and son-in-law in their property north of Brisbane with the number of jobs to do in his retirement. 34 Similar brief evidence was given by Ms Burrows with respect to the content of conversations with the applicant and the work the applicant was going to do when not working. 35 Ms Imerson was responsible for the managing of the respondent's workers compensation portfolio and providing advice on workers compensation and injury management including the coordination of suitable duties for injured or ill workers. She stated that she spoke to the applicant on 17 December 2007 when he rang to advise he would not be attending the worksite assessment. He advised her during this conversation that he was seeing his doctor that day and would be forwarding on to the respondent his medical certificate in January 2008. It was her view that because the applicant long period of employment with Local Government he would be aware of the need to cooperate with his employer. 36 Mr O'Sullivan stated that in approximately late June 2007, the applicant came to his office and told him that he had a medical certificate that put him off for approximately three months. He also became aware in mid June of a "farewell" held for the applicant. It was his view that the applicant would not be returning to work. In September 20007 he became aware of the request from the applicant to medically retire him. In October 2007 he had a meeting with other managers from the respondent. It concerned him that there was a lack of definition about the nature of the applicant's illness. A second opinion was sought and the applicant was directed to Doctor Synnott. 37 In his consideration of Doctor Synnott's report, it suggested to him that the main reasons why the applicant had not been attending for work was because he wanted to retire and had lost the motivation to return to any kind of employment and that the applicant's current position of Rating Services Coordinator, in itself, was not a substantial contributing factor to his current medical condition. 38 On 4 December 2007, he attended a meeting with Ms Perdriau and Mr Santin to review Doctor Synnott's report. He was aware a letter was sent to the applicant requesting him to attend a worksite appointment with a rehabilitation provider. He was also made aware that the applicant had advised that he would not be attending that appointment. On 21 December 2007 he wrote to the applicant asking him to advise by 2 January 2008 whether he would be returning to work and that if he did not intend returning to work he would consider terminating his services. 39 On 2 January 2008, Mr Eddy advised that the applicant had been to his office and advised he would not be coming back to work and wanted to know whether the respondent was going to terminate him. 40 On 7 January 2008, he met with Ms Perdriau, Mr Eddy and Mr Santin to discuss the applicant. He believed that Doctor Synnott's report gave him good reason to explore the possibility of a return to work, albeit under alternative duties. He believed there were two options available to the respondent. The first was for the respondent to terminate the applicant on medical grounds and pay out his untaken preserved sick leave balance. The second was to terminate his employment on the grounds that he was wilfully refusing to cooperate with their request to undertake a workplace assessment with a view to him returning to work. 41 The following day another meeting was held to discuss a recommendation from Ms Perdriau to terminate the applicant's employment. Mr O'Sullivan said that he decided to terminate the applicant for the reason that not all avenues for a return to work had been exhausted and that the applicant's behaviour as an employee, since around September 2007 and more recently through December and early January 2008 was completely unacceptable. He believed that the applicant's refusal to cooperate was the primary factor preventing his return to work. Mr O'Sullivan's affidavit states that he then wrote to the applicant terminating his employment due to serious and wilful misconduct. During cross-examination Mr O'Sullivan accepted that the words serious and wilful misconduct were not expressed in the letter of termination. He stated that the letter of termination was the correct document and the applicant was not terminated for wilful misconduct. He went on to say in re examination that the reasons given in the letter of termination constituted misconduct especially the first dot point. It was Mr O'Sullivan's view that at one point the medical certificates, provided by the applicant, were not accepted by the respondent. This was not communicated to the applicant. He stated that prior to the termination of the applicant he did not seek to contact the applicant to advise the seriousness of his situation. He also advised that he did not consider the length of service of an employee, be it this case or any other employee, into consideration prior to termination. He believed that Doctor Synnott's report cast doubt on whether there was or was not any opportunity for the applicant to return to work, which was in conflict with the medical certificates provided by the applicant. Mr O' Sullivan accepted that there was a low likelihood for the applicant to return to his present job. In responding to a question from the Commission, Mr O'Sullivan accepted that misconduct as expressed in Annexure N1 of Ex2, was a correct summary of the issue. In responding to a question as to why he did not afford the same procedural fairness to the applicant as he had to another employee being considered for termination, Mr O'Sullivan referred to the applicant's intransigent attitude. It was this attitude as to why he did not give the applicant a second warning about termination. He stated that the medical certificate from Doctor Macdonald of 17 December 2007 was not in his view a conclusive certificate that this was the end. Mr O'Sullivan did not agree with the statement of Ms Perdriau that the applicant had attempted to use the system unethically to enable him to gain maximum financial benefit. 42 Mr Dansie provided written final submissions, which he spoke to. Mr Dansie stated from the outset, that the applicant was terminated for misconduct. He said that the termination letter should not be looked at in isolation but that the applicant's behaviour from mid 2007 onwards showed that he had made a decision not to return to work. Correspondence dated 9 May 2007 indicated he would not be returning to work. The applicant's fitness for employment was not the reason the applicant permanently ceased working at the end of June 2007. The applicant did not wish to learn the new computer system because he had no intention of working beyond June 2007. The function held at the end of June was a farewell to the applicant. He did not seek from his doctor any views with respect to alternative work other than the respondent. 43 The respondent was seeking to establish a better understanding of the applicant's position by carrying out a workplace assessment. Doctor Synnott's report was open for the respondent to have such a view. The respondent believed that the applicant may make a claim for workers compensation, therefore the respondent had a right to carry out a workplace assessment. Under the workers compensation legislation there is a requirement for both employer and employee to organise and participate in a return to work programme. It was the applicant's refusal to cooperate in the work assessment that did amount to serious misconduct. Mr Dansie sited Clause 31B(3) and (4) of the award as being relevant to the proceedings. Also clauses 19A(i)(a) was a significant factor and clause 33. He also stated that in this particular case length of service would not have featured significantly in this decision to terminate because the applicant had made it clear to the respondent that he was not going to participate in the workplace assessment. Consideration and Decision. 44 The letter of termination received by the applicant gave the reasons for termination as : · Your refusal to attend the scheduled worksite assessment and unwillingness to cooperate with Council in the exploration of possible redeployment opportunities. · Dr Synnott's report, which does not rule out you being able to work despite your psychiatric symptoms. · Inadequate justification of permanent incapacity on medical grounds. 45 As expressed above the applicant was advised of the reasons for termination, which the General Manager in giving his evidence believed constituted misconduct. This view was confirmed in final submissions given by Mr Dansie. 46 The respondent relied on particular sections of the award to terminate the applicant. They were in part: Clause 19 LEAVE PROVISIONS A. SICK LEAVE (i) Employees who are unable due to sickness to attend for duty shall be entitled during each year of service to sick leave of 3 weeks at the ordinary rate of pay subject to the following conditions:- (a) the council shall be satisfied that the sickness is such that it justifies the time off; and (b) that the illness or injury does not arise from engaging in other employment; and ( c) proof of illness to justify payment shall be required after 3 separate periods of absence in each service year or where an absence exceeds 2 working days. (d) when requested, proof of illness shall indicate the employee's inability to undertake their normal duties. (ii) Proof of illness may include certification from a qualified medical/health practitioner, registered with the appropriate government authority. (iii) The council may require employees to attend a doctor nominated by council at council's cost. CLAUSE 31. DISCIPLINARY PROCEDURES B. EMPLOYER'S RIGHTS AND OBLIGATIONS (iii) Be entitled to take other disciplinary action before and/or during the procedures in cases of misconduct or where the employee's performance warrants such action. (iv) In appropriate circumstances be entitled to terminate an employee's services in accordance with clause 33, Termination of Employment of this award. CLAUSE 33. TERMINATION OF EMPLOYMENT (iii) In cases of serious misconduct, a council may summarily dismiss an employee following a proper investigation and provided the employee is afforded procedural fairness. Where an employee is summarily dismissed, subclause (iv) shall not apply. 47 It was evidence in the proceedings that the applicant was advised through correspondence from the respondent that in October 2007, "special leave is being paid until this matter is resolved". During final submissions Mr Dansie for the respondent advised the Commission that once the respondent was satisfied that the applicant was entitled to sick leave, they treated it as sick leave, so there was in fact no special leave. Mr Dansie stated that when the respondent received the second doctor's certificate in December 2007, the leave was reverted back to sick leave. This reversal was not communicated to the applicant. Doctor Macdonald's certificate dated 17 December 2007 stated: This is to certify that Mr John R Beacroft seen 17/12/07 will be unable to work from 17/12/07 permanently for his current employer in a similar capacity Additional Comments/Diagnosis anxiety depressive and stress symptoms related to physical proximity to workplace and communications relating to his current workplace. It therefore must be the case, that at the time of the applicant's termination, the applicant was on approved sick leave. I therefore fail to understand or accept the respondent's evidence, that Clause19A(i) (a) was relevant to the termination of the applicant. No medical doctor was summoned to give evidence during these proceedings. 48 Clause 31 Disciplinary Procedures outlines the rights of both the employee and employer including termination of employment. I believe that clause would have to be read in conjunction with clause 33 Termination of Employment where a claim of misconduct is involved. 49 Clause 33 (iii) as expressed above includes the phrase dismiss an employee following a proper investigation and provided the employee is afforded procedural fairness. 50 A Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of misconduct. In Humphries v Cootamundra Ex-Services and Citizens memorial Club Limited [2003] NSWIRComm211 the Full Bench stated at para118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. In Sangwin v Imogen Pty Ltd (unreported IRCA,73/96 8 March 1996), His Honour Justice von Doussa held: When the dismissal is based upon the alleged misconduct of the employee, the employer must satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as within its power before dismissing the employee it conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and having done all those things, the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct or the employees work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable. It was Mr Martin's submission that the applicant was not given procedural fairness in the process that led to his termination. He stated that at no time was the applicant placed on notice that if he failed to undertake the worksite assessment he, without further notice would be terminated for misconduct. It was Mr Martin's submission that the applicant had been treated differently than other employees who were facing termination on the grounds of misconduct (see Ex E). Mr Martin also raised the issue that at no stage was it raised in correspondence by the respondent to the applicant of the necessity to attend the worksite assessment on the basis that the applicant may in the future make a workers compensation claim and the requirements on both the employer and employee under workers compensation legislation to comply with certain processes. 51 It was Mr Dansie's submission that the termination was not either substantially or procedurally unfair. By correspondence dated 14 and 21 December 2007 directed to the applicant by the respondent, indicated to the applicant that termination was being considered. Even if the Commission found that there was a procedural defect then such a defect should not necessarily mean that a finding of the dismissal being unfair. 52 I do not accept Mr Dansie's submission. It was clear from the evidence that the applicant had placed the respondent on notice that he was proceeding on extended sick leave. I should comment at this point that the function held prior to the applicant proceeding on this extended leave was not in my view a retirement farewell. It was a gathering of work colleagues, speeches were had but no present or card was given to the applicant. Such items would be the norm where a person had worked for some 28 years. He had provided medical evidence supporting his absence. He had been paid whilst absent. He had attended at the request of the respondent their doctor in Sydney. He had complied with what he was required to do. Rightly or wrongly, he did not believe he was required by law to attend the worksite assessment. In his view such worksite assessments were only required in a workers compensation matter. He sought advice from his Union as to his position. At no point was he advised in writing that failure to attend this worksite assessment would result in termination on the grounds as expressed in the subsequent letter of termination, which the respondent categorised as misconduct. When one considers in comparison the correspondence received by a Mr Wogan on 18 February 2008 it is expressed in part: As a result of the above it has been recommended to me that your employment be terminated on the grounds of misconduct. In addition to the above, ongoing investigations into your Workers Compensation claim of May 24th, 2007 indicate doubts about the veracity of your claim. You have the opportunity to provide me with grounds why your employment should not be terminated. Should you wish to show cause why your employment should not be terminated your submission must be received by me no later than 12 noon on Monday, February 25th, 2008. Yours faithfully Paul G. O'Sullivan. General Manager This employee was advised what the recommendation was with respect to his future employment, and he was given the clear opportunity to defend himself. This opportunity to defend himself was not provided to the applicant. I do not accept the view given by Ms Perdriau that the applicant was not invited in for a meeting, was based on the concern held for the applicant's stress levels and their view that he would not attend any meeting. The applicant should have been given the opportunity to answer the respondent's concerns. He should have been placed on written notice their concern that non- attendance would be looked upon as an act of misconduct and that a worksite assessment was needed even if only to cover a future workers compensation claim as submitted by Mr Dansie. An employee with 28 years of service should have been given every opportunity to be able to state his case. I should also add that no evidence came before this Commission highlighting any counselling given to the applicant for poor work performance or poor attitude. 53 It is my finding that the applicant was not afforded procedural fairness. Having concluded that the applicant was dismissed and that he was not afforded procedural fairness, I turn to the issue as to whether of itself the failure to afford procedural fairness should lead to a conclusion that the dismissal was harsh, unjust or unreasonable. 54 In Antonakopoulos v State Bank of NSW (1999)91IR385 at 389 a Full Bench of the Commission stated as follows: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust and hence, establish the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. The Full Bench in the above case also considered Mason v Electricity Commission of NSW (1995)62IR436; McCabe v New South Wales Police Service( unreported, Cahill J, Vice-President, Hill J and Connor C, IRC 3112 of 1994, 3 July 1996); Bigg v New South Wales Police Service(1998)80IR434; Oswarld v New South Wales Police Service (1990) 90IR42 and Johnson v Catholic Education Office, Diocese Of Parramatta (1998) 87IR57. 55 With respect to the term misconduct, I note the comments in Bostik(Australia) Pty Ltd v Gorgevski (1992) 41IR 452 at 459: These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trail judge's expression that a court must decide whether the decision to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." 56 A ground of dismissal was the content of Doctor Synnott's report that did not rule out the applicant being able to work despite his psychiatric symptoms. The report itself, which became Ex 9, was an eight and one half page document. I note Doctor Synnott's answers to the following questions: 8. Is Mr Beacroft fit for pre-injury duties? In my opinion, from a strictly psychiatric perspective, Mr Beacroft would not successfully return to pre-illness duties. Any attempt to return him to work would see a deterioration in his psychological state-he has moved on and has no motivation to return to work, and has a negative mindset about returning to employment. 9. If not fit for pre-injury duties, when would Mr Beacroft be fit ? In my opinion, Mr Beacroft will not return to his pre-illness duties-or any alternative duties. He has prepared himself for retirement and the end of his working life-and has no motivation to return to his job. 10. Is Mr Beacroft fit for suitable duties, e.g. a different position or reduced hours ? In my opinion, Mr Beacroft is unlikely to work in any alternative duties. 13. Is the reason for Mr Beacroft not working related to choices he has made or is it related to psychiatric incapacity ? In my opinion, a significant component of Mr Beacroft not working is related to (i) his current mindset and " not wanting to do it" regarding taking on the changes in the workplace,(ii) no motivation to continue working and wanting to retire . These are choices he has made-but, any attempt to get him to return to work would lead to a deterioration in his psychological state. In my opinion, there is no absolute psychiatric contraindication to him returning to work and no absolute psychiatric incapacity to work-but, there would be a deterioration in his psychological state were he to return to employment, and it would not be successful. Taking into consideration the total medical evidence that was placed before this Commission, I do not accept the respondent's view that the applicant may have been able to carry out alternative employment with the respondent. The weight of evidence draws me to conclude that any further employment by the applicant at the respondent's workplace would have been detrimental to his health. Mr Dansie made it clear in his submissions that the failure of the applicant, to participate in the worksite assessment amounted to misconduct. This categorisation of the applicant's failure to attend was expressed by Mr O'Sullivan. Mr O'Sullivan stated in his letter of termination " I have no alternative but to terminate your employment effective Friday January 11th, 2008……… I do not accept that Mr O'Sullivan had no alternative but to terminate. In my view the respondent had the option of contacting the Union to assist in resolving this issue. The Union had given advice to the applicant with respect to attending the worksite assessment. Alternatively the respondent could have notified a dispute to this Commission. This was not a matter that encompassed stealing, fighting or the taking of illicit drugs and therefore required immediate action yet, it resulted in a long-term employee being terminated. He could have written to the applicant, with a copy to the Union putting on clear notice that failure to attend would automatically lead to termination on the basis of failure to comply with a reasonable direction, misconduct, giving the applicant the opportunity to comply or to state his case at a meeting of the parties why he did not have to comply. Mr Dansie also stated that the applicant's pattern of behaviour confirmed that from 28 June 2007 he had made a decision that he no longer was going to work for the respondent. In his words it was akin to abandoning his employment. 57 The difficulty I have accepting that submission is that from 28 June 2007 onwards up to the point of termination, the applicant had provided the responded with medical certificates stating that the applicant was unfit to come to work. As previously stated in this decision, no doctor was summoned to give evidence and attest to the truth of the medical certificates issued to the applicant. I therefore must accept such medical evidence as being valid. As again already noted, such medical evidence must have been acceptable to the respondent as legitimate, as sick leave payments took place. 58 The latest medical certificates provided by the applicant to the respondent on 2 January 2008 from his GP dated 17 December 2007 and his psychologist dated 22 November 2007 both expressed that the applicant was unfit for work. Doctor Lynette Arnoldus-Lewis stated: My client Mr John Beacroft is unfit to work and will not be returning to work due to his chronic anxiety and depression. If you require any further information please contact me. Doctor Macdonald's certificate is expressed above in point 46. 59 Notwithstanding the negative views of the applicant's doctors with respect to ongoing employment, it would be reasonable to conclude that the applicant himself had recognised that future employment with the respondent would be deleterious to his health. That in my view should have been recognised by the respondent as a mitigating reason why he did not wish to attend the worksite assessment and for the respondent to therefore seek alternative ways of resolving the matter. 60 I can understand and accept that the reaction of the applicant on the receipt of his termination letter was one of surprise, shock and anger. The applicant after a long-term employment in local government was terminated for reasons categorised as misconduct. 61 In summary it is my finding that the termination of the applicant by the respondent was harsh, unjust and unreasonable. 62 As expressed previously the applicant sought maximum compensation, or reinstatement (without back pay) and paid sick leave until his sick leave credits are exhausted in accordance with the award clause 19A(viii)(a), or reinstatement with back pay plus maximum compensation. 63 Taking into consideration the evidence that came before this Commission and the findings that I have made, I believe it appropriate (section 89(1)) that the applicant be reinstated to his former position, that the respondent pay to the applicant a sum of money (section 89(3)) equal to the amount the applicant would have received from the date of termination to the date of reinstatement, that such period is not taken to have been broken by the dismissal (section89(4)) and that the payment for the period between that date of termination and date of reinstatement be debited from the applicant's outstanding sick leave credits (89(8)). I make the following Orders: ORDER 1.That Lismore City Council reinstate Mr John Robert Beacroft to his former position. 2. That Lismore City Council pay to Mr John Robert Beacroft a sum of money equal to an amount that Mr Beacroft would have been paid from the date of his termination to the date of his reinstatement. 3. That the period of employment of Mr Beacroft with Lismore City Council is taken not to have been broken by the dismissal. 4. That the payment as expressed in point 2 of this Order is to be taken from the applicant's accrued sick leave credits. 5. That this Order must be complied with within 21 days from the date of this Decision. This matter is now concluded. D.W. Ritchie Commissioner. 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.