Industrial Relations Commission of New South Wales CITATION: PSA o-b Glover v Livestock Health and Pest Authorities Division of the NSW Government Service. [2010] NSWIRComm 1003 APPLICANT; PARTIES: PSA o/b Mr Andrew Glover RESPONDENT Livestock Health and Pest Authorities Division of the NSW Government Service. FILE NUMBER(S): 1270 of 2009 CORAM: Ritchie C Termination of employment Claim for unfair dismissal Applicant worked as a ranger Applicant long term employee terminated without notice Applicant supplied a greyhound trainer with dead rabbits which he had shot at night. Subordinate required to deliver rabbits within working hours.No time made up. CATCHWORDS: Applicant Received $5 per rabbit Respondent had alleged that applicant had used respondent's resources to carry out the storing freezing and delivery of the rabbits directing a subordinate to do the delivery without the approval of the employer. Commission found that the applicant had used employer's resources to store, freeze and deliver the rabbits. Applicant fully aware of the procedure of delivery done within ordinary hours. Manager aware of the storage,freezing and delivery of the rabbits in early 2007 but did nothing to stop it. Commission found that this manager condoned the applicant's action. Commission ordered reinstatement but no backpay. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Burge v NSW BHP Steel Pty Ltd 105IR325 Sydney Ferries Corporation v The Seamans Union of Australia, NSW Branch on behalf of Levy[2009] NSW IRCCom 126 at 91 HEARING DATES: 15/12/09,16/12/09 DATE OF JUDGMENT: 22 January 2010 APPLICANT: Mr D. Nagle of Counsel SOLICITOR WG MCNally Jones Staff LEGAL REPRESENTATIVES: RESPONDENT Mr P Ginters of Counsel SOLICITORS Crown Solicitor's Office DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 22 January 2010 Matter No IRC 1270 of 2009 IN THE MATTER OF: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Andrew Glover) and Livestock Health and Pest Authority (formerly known as Rural Lands Protection Board). Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Andrew Glover re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2010] NSWIRComm 1003 Background 1 On 25 August 2009 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales filed an application for relief in relation to unfair dismissal under section 84 of the Industrial Relations Act 1996 (the Act) on behalf of its member Mr Andrew Glover (the applicant). 2 The applicant had been terminated without notice on 5 August 2009 from the Livestock Health and Pest Authorities Division of the NSW Government Services (South East Livestock Health and Pest Authority) (the respondent). 3 A conciliation of the application was heard on 15 September 2009 but was not successful in settling the application and the matter proceeded to arbitration. The arbitration was heard on 15 and 16 December 2009 with the Decision being reserved. Applicant's Case. 4 When terminated the applicant held the position of Managing Ranger located at the Camden office. Below him was a team of other rangers and a senior field officer. He commenced in 1987 with the Yass Rural Lands Protection Board and in 1993 was appointed to the position of Senior Ranger with the Moss Vale Rural Lands Protection Board in Camden. The Manager of the Camden office up until his redundancy in February 2009 was Mr Graham South. 5 It was the applicant's evidence that since his commencement of employment in 1987 he had not received training on policies and procedures in personal and professional behaviour, conflict of interest, secondary employment and outside earnings, use of Rural Lands Protection Board resources and responsibilities of managers and supervisors. 6 The applicant stated that he shot rabbits after hours to maintain his shooting skills. Prior to 2004 the rabbits shot would be discarded but in 2004 the applicant was asked by WIRES to supply them with some rabbits. This he did free of any charge. 7 The dead rabbits were stored in a freezer that the applicant had at his home. This storage was continued until the applicant's freezer became faulty and was no longer usable. Two other employees of the respondent Mr Lee Parker and his brother Steve brought into work vertical freezers which were then used for storage. This occurred around mid 2005 to early 2006. 8 In early 2006 the applicant stated that he was contacted by a greyhound trainer Mr Robert Stewart and asked whether he could supply Mr Stewart with rabbit carcases being those rabbits that he had shot whilst on his training shoots. A price of $5 per carcase was agreed upon. This the applicant said would cover his costs in ammunition, fuel and his time. He said that he never sold rabbits that he had shot during work time. Mr lee Parker accompanied the applicant on the night shoots. 9 The first lot of deliveries took place on weekends by the applicant. Later all deliveries of rabbits and the collection of monies were completed by another employee of the respondent Mr Lee Parker (Mr Parker) during working hours. The applicant stated that Mr Parker would respond to a phone call from Mr Stewart that another delivery was required. 10 The applicant stated that at no time did he instruct Mr Lee Parker to deliver the rabbits during working hours. 11 The vertical freezers located at the Camden office supplied by the Parker brothers were used to store the rabbit carcases and the respondent's baits. When space was not available the rabbit carcases were stored at the applicant's home. 12 The applicant stated that a preliminary investigation was held in relation to his alleged misconduct by an outside firm IAB Services. This was carried out by Ms Rhonda Stein in March 2009. The applicant was unaware of this investigation and was never interviewed by Ms Stein. 13 On 5 May 2009 the applicant received correspondence from Mr Steve Orr, Division Head Livestock Health and Pest Authorities Division. The correspondence stated in part: The alleged misconduct is as follows; 1. That you used your position to gain access to properties to shoot rabbits and that on occasions where baiting contracts were established between the Board and client that once the free feeding process had been completed, you would stop the poisoning and go and shoot the rabbits and keep them for sale. 2. That you have involved other Authority (formerly RLPB) staff in shooting rabbits and gave them a cash payment. 3. That you used Authority (formerly RLPB resources) to freeze and store the dead rabbits. 4. That you used Authority (formerly RLPB resources) to deliver the rabbits, in working hours, to a greyhound trainer. 5. That you received a cash payment from the greyhound trainer via an Authority (formerly RLPB) employee following the delivery of $5 per rabbit. 6. That these activities have been performed without the permission of the Authority (formerly RLPB). The correspondence went on to say that the allegations would be treated as a disciplinary matter and that an investigation would be held and that a Mr Delaney would interview the applicant as part of the investigation. As a disciplinary matter if after consideration of the Investigation Report Mr Orr formed the opinion that the applicant had engaged in misconduct, disciplinary action may be taken against him with one of the potential consequences of disciplinary action being termination of employment. The applicant was interviewed by Mr Delaney on 17 June 2009 and received a copy of the transcript a few weeks later. He only ever received a copy of the executive summary of the report and the detailed report or findings minus the attachments. 14 The applicant received further correspondence from Mr Orr dated 22 July 2009 which stated that he had received and considered the Investigation Report and had formed the opinion that the applicant had engaged in the misconduct that was previously alleged in points 3 to 6 in his letter of 5 May 2009. Mr Orr advised that he did not intend to pursue the allegations made in points 1 and 2. The applicant was provided with the opportunity to make a submission to Mr Orr and to provide any additional information he considered, should be taken into account in relation to the disciplinary action before a final decision was made by Mr Orr. The applicant was required to attend a meeting on 5 August 2009 at the Camden office. The correspondence again advised, "the severest penalty I would conceivably impose is the termination of your employment". 15 The applicant responded to Mr Orr's letter by correspondence dated 29 July 2009. He stated that with respect to allegation 3, he was unaware of any policy or procedures prohibiting the storing of personal property in freezers on the Authorities premises and that the freezers in question were not the property of the Authority but the property of others. With respect to allegation 4 he replied that he did not deliver frozen rabbits to the greyhound trainer during working hours. He recognised that he was the direct supervisor of Mr Parker however he never directed him to deliver rabbits. All deliveries were voluntary as the applicant and Mr Parker acted as partners. He never knowingly took benefit from the use of Mr Parker's time. With respect to allegation 5 he stated that he received approximately $1100 over a three year period which covered the costs involved. With respect to allegation 6 he stated that he believed he had the permission of the Authority to undertake rabbit shooting as the Manager Mr Graham South was fully aware of his activities. Mr South did not have a problem with the issue of rabbit shooting. He was unaware that secondary employment was not allowed however now that he was made aware he apologised to the Authority and if he had known he would have sought written approval. 16 On 5 August 2009 the applicant with his Union representative attended a brief meeting with Mr Orr and Ms Neryl Wilson of the Cumberland Livestock Health and Pest Authority where he was handed a letter of termination dated the same day, noting the termination effective that day. The reason for the termination was for the misconduct in relation to the matters detailed in Mr Orr's previous correspondence dated 5 May 2009 and 22 July 2009. 17 In cross-examination the applicant stated that the allegations made against him were part of a conspiracy. The participants being Mr Daniel Shaw, Mr Geoff Mills (both rangers) and a Mr Yateman who is a Director on the Cumberland Rural Lands Protection Board. Whilst he confirmed that he had never been provided with a ranger's handbook he agreed that it would have been important that he had an understanding of the policies and procedures that applied to the Authority and its rangers. He denied having any knowledge of policies of the Board or the Authority in relation to the code of conduct or conflict of interest. He did recognise that it was important in his employment that he was not seen to be in positions of conflict of interest and to avoid such circumstances and to disclose to his employer circumstances that might give rise to a conflict of interest. He advised that the property where he and his family reside is not owned by he or his wife. He is the manager/caretaker for which both he and his wife receive an income. The income is paid into a joint bank account and is declared in his tax return. By correspondence dated 20 December 2001 the applicant advised the Chairman of the Moss Vale Rural Lands Protection Board that he had taken up the position of Caretaker/Manager of the Hermitage. He stated in the letter that he did not think these responsibilities would conflict with his duties as a Managing Ranger. He confirmed that he wrote this letter so as to declare circumstances where there may be a potential conflict between his interests and the interests of his employer. The applicant confirmed that he had been given an AJC Official Pass but returned the pass the AJC when directed to by Mr South because of a potential conflict of interest. He also advised that he was with the owner of the Oran Park Raceway at a time when discussing rabbit management when the applicant stated that he was meaning to attend the races. The owner said that the next time he saw his son ask him for some tickets. The applicant subsequently saw the son and obtained the tickets without charge. The applicant did not see this action as a potential conflict of interest because the owner (and his family) of the freeway were friends of his. He did not believe what he had done was wrong. Other employees of the Authority were offered tickets but were declined. 18 The applicant confirmed that in early 2006 he came to an arrangement with Mr Stewart that Mr Stewart would pay him $5 per rabbit. He also confirmed that monies received were not included in any tax returns. Whilst he stated that he never used his employers guns or ammunition for shooting the rabbits at night, the applicant accepted that it would be very difficult to differentiate what ammunition was used for shooting rabbits at night and what he used for target shooting practise. Yet he made a claim for depreciation of guns connected with work in his tax returns. 19 The applicant stated in early 2007 after Mr Parker had spoken to Mr South that he had told his direct supervisor Mr South that he was shooting rabbits after hours and whether he had any problem with that and was told that he hadn't. He agreed that he did not tell Mr South that he was also selling the rabbits. The reason he did not tell Mr South was because he was only getting $5 per rabbit "and that was quite an insignificant number to the number that we were shooting" and that the issue centred on rabbit shooting at night. The applicant did not believe he had an obligation to advise his employer that he was receiving a payment for the rabbits he shot nor that Mr Parker was delivering the rabbits during working hours and receiving a payment. He did not see any potential conflict of interest. 20 The applicant agreed that it was in early 2007 that Mr Parker ceased going night shooting with him. Whilst Mr Parker stopped shooting he continued delivering the rabbits to Mr Stewart and continued to be paid up until 2009. 21 It was the applicant's view that Mr Parker was delivering the rabbits during working hours not on his behalf but as a joint arrangement. He did not see any problem with this as there existed flexible work arrangements and employees who carried out personal matters during working hours would take some time off their lunchtime or something to compensate. 22 The applicant did admit that in respect it might be construed that he had instructed Mr Parker to make those deliveries and that he received a financial benefit from it. Also that it may be construed that the Authority or Board resources were used to do it. 23 The applicant admitted that if the Commission found that he had directed a junior employee to make deliveries of rabbits during working time and to collect monies and return same to himself then that would be entirely inappropriate. 24 The applicant did not make the deliveries during working hours because he was too busy and therefore did not sell any rabbits during working hours. 25 The applicant could not recall how Mr Stewart got Mr Parker's telephone number or how Mr Stewart first got in contact with Mr Parker or how Mr Parker became involved in the delivery arrangements. The applicant stated that it was a joint arrangement between himself and Mr Parker but he could not remember having discussions with Mr Parker about him delivering the rabbits to Mr Stewart. 26 The applicant stated that the money Mr Parker collected from Mr Stewart was for both the applicant and himself. 27 The applicant denied ever asking Mr Parker to assist him in unload the rabbits from the applicant's vehicle. 28 The applicant stated that he had spoken with a couple of businesses about employment but had not taken it any further as he was keen to get his old job back. 29 The applicant stated that prior to entering the room on 5 August 2009 for the interview with Mr Orr, it was his view that he would be reprimanded. Both he and his union representative were shocked and stunned by the decision to terminate his services without notice notwithstanding that previous correspondence from Mr Orr had noted that termination was a consideration. 30 Mr Robert James Stewart gave evidence and stated that he is a greyhound educator. He educates greyhounds to run around a track and chase rabbits on a mechanical arm. At his kennels he maintains on average 20 to 25 greyhounds at a time. He stated that he has known Mr Glover from around mid to late 2006. He said that rabbits were delivered to him every 2 to 3 months with the number of rabbits varying from 20 to 40 rabbits at a time. At first Mr Glover delivered the rabbits on a Saturday morning or sometimes during the week around 9.00am to 10.00am but in the last 12 to 18 months Mr Stewart would contact Mr Parker directly when he required a delivery and pay Mr Parker $5 per rabbit. 31 Mr Stewart stated that after about 12 to 18 months of the applicant delivering the rabbits, the applicant said to Mr Stewart that he had a workmate that had time to deliver the rabbits. So Mr Parker then started to make the deliveries. These deliveries were made more often on weekdays again between 9.00am and 10.00am. Other than he knew both the applicant and Mr Parker worked for the Authority he was not aware of who was senior to whom. 32 Mr Stewart stated that it was the applicant who provided Mr Parker's mobile telephone number. On occasions when Mr Stewart called the applicant to get a delivery he would be told to call Mr Parker. 33 In final submissions it was the applicant's submission that allegations 4 and 6 of the termination letter had not been made out. Allegation 3 was the use of Authority resources ie freezers on the Authority's premises to freeze and store the dead rabbits. This was partly accepted as the freezers were located on the Authority's premises but did not accept that the freezers were the property of the Authority. Allegation 4 being the delivery of the rabbits to Mr Stewart during working hours was rejected as the applicant never did this. He did deliveries at weekends and then Mr Lee Parker did the deliveries. Allegation 5 was accepted. Allegation 6 was the applicant carried out the activities without the permission of the Authority. Mr South had been told of the activities in detail by Mr Parker in early 2007. These activities were condoned by Mr South. The purported misconduct did not amount to a valid reason for termination. Even if the purported misconduct was able to support that it was a valid reason for termination, the situation that the applicant had been in continuous service since 1987 would make the termination a too severe outcome. Where there was a conflict in evidence between the applicant and Mr Parker re frequency of deliveries, whether Mr Parker was instructed by the applicant to do a delivery and when Mr Parker ceased being paid, then the applicant should be believed. The failure of the respondent to call the decision maker Mr Orr results in the Commission not knowing what Mr Orr took into account in arriving at the decision to terminate is unsatisfactory and the Commission should draw the inference that the failure to call this evidence is because it is against the respondence case. Also the Commission is unaware what alternatives Mr Orr considered other than termination. The respondent had failed to discharge the onus relating to proving the facts of the case. No evidence was led by the respondent, which could lead to reinstatement being deemed impracticable. Case for the respondent. 34 Mr Lee Parker stated that he is employed by the Cumberland Livestock Health and Pest Authority as a Ranger. He was promoted to this position in approximately November 2009. Prior to the promotion he held the position of Senior Field Officer commencing employment in about January 2006. 35 In his previous role of Senior Field Officer he reported to the applicant. Prior to commencing employment with the Authority he went shooting rabbits with the applicant whom he had met through his brother Steve who worked for therespondent. 36 After he commenced with the respondent he went shooting at night with the applicant approximately 3 to 5 times. 37 In early 2007 he said that he was loading rabbits in the back of his vehicle when he was approached by Mr South asking what he was doing. Mr Lee Parker stated that he told Mr South that he and the applicant went rabbit shooting at night and that the applicant had an arrangement with a local greyhound trainer to supply rabbits and be paid $5 per rabbit. Such deliveries were carried out in company vehicles by himself under the instruction of the applicant during working hours. Mr Parker stated that he enquired of Mr South if there was a problem with him going shooting with the applicant and was advised that there was a concern and that he should cease the practice. He also enquired as to whether he should continue to deliver the rabbits that he was instructed to do by the applicant, and was told by Mr South that as the applicant was his boss then you do as you are told. Mr Parker said that he ceased shooting with the applicant from then on. He stated that he was aware that the applicant continued to go rabbit shooting at night. The rabbits would be stored in the freezers at work that he had brought from home and regarded them as being owned by the Authority. 38 Mr Parker stated that he was told by the applicant to deliver the rabbits to the greyhound trainer. He stated that it was the applicant who passed on his details so the trainer could contact him and ask about rabbit numbers. When he received a call from the trainer for a delivery he would tell the applicant, who then told him to deliver the rabbits and to write it in his diary so he would not forget. Mr Parker also would write on the board at work when there were deliveries. He said he would write "Leppington". 39 When he went shooting with the applicant he would receive a payment for his work. When he stopped night shooting with the applicant in about 2007( after his talk with Mr South) these payments also stopped. All the money he then collected from the trainer on delivery of the rabbits would go to the applicant. Pages of Mr Parker's diary were made an exhibit showing when he made some of the rabbit deliveries. 40 He confirmed that deliveries were made in work time and took between 30 and 50 minutes. Deliveries were made once or twice a month. The applicant was fully aware of what he was doing as he told Mr Parker to do the deliveries. 41 In cross-examination Mr Parker stated that he did not give Mr Stewart his mobile phone number and presumed that the applicant had provided it to Mr Stewart. He stated that once he stopped shooting rabbits at night with the applicant he continued to deliver the rabbits to Mr Stewart but he ceased getting any money or being offered any money. In his view he did not deserve to get any money because he did not earn it. 42 He stated that he had had an ongoing concern with going out at night shooting rabbits with the applicant and that he raised that with the applicant who assured him it was okay. 43 The surplus freezers he brought in to his workplace belonged to his parents and a relative. He did not seek any money for the freezers nor did he want the freezers back. 44 Mr Parker stated that he was interviewed by Ms Stein in March 2009 but was not interviewed by Mr Delaney. He stated that he was neither spoken to by Mr Orr or Mr Boyd with respect to the delivery of rabbits. 45 When a delivery had to be made he would tell the applicant where he was going or be asked by the applicant to go and make a delivery. This procedure commenced in 2006 and occurred approximately 15 to 20 times a year. At no time did the deliveries occur outside of normal working hours. Where on pages of his diary he wrote delivery of rabbits, the rabbits were delivered that day but not at the time near where the note was written. 46 In responding to a question from the Commission Mr Parker said that on the days that he made the deliveries he did not work back or take a shorter lunch. 47 Mr Matin Boyd also gave evidence for the respondent. He is the Human Resources Manager with the Livestock Health and Pest Authorities State Management Council and has been employed since August 2006. Mr Boyd's statement consisted of correspondence that passed between Mr Orr and the applicant culminating in the termination of the applicant. 48 Mr Boyd confirmed that Mr Orr was the decision maker in the termination of the applicant and to the best of his knowledge Mr Orr did not give the applicant any verbal indication as to why Mr Orr formed the opinion that the applicant had engaged in misconduct. Mr Boyd stated that he was not present when the applicant was terminated. It was Mr Boyd's understanding that Mr South was the applicant's immediate supervisor. Mr South had brought to the applicant's attention the issue of the applicant receiving an AJC pass in 2007. Mr Boyd accepted that it was part of the job of Mr South to bring to the attention of the applicant any potential conflicts of interest. He also stated that he was aware that Mr Orr reviewed the IAB reports but was not aware what Mr Orr finally did rely on to make his determination. Mr Boyd stated that prior to the termination of the applicant he spoke with Mr Orr and they discussed various options. Mr Orr viewed the matter to be extremely serious, that being sending a young officer during working hours to go and do a foreign order. Mr Boyd was unaware at the time of termination whether Mr Orr was aware of the conversation between Mr Parker and Mr South that took place in 2007. Mr Boyd did not know at the time of the termination whether Mr Orr was aware that Mr Stewart the greyhound trainer had not been interviewed in the investigation process. 49 In final submissions the respondent stated that it was the actions of the applicant in directing a subordinate to carry out inappropriate actions during working hours and that the applicant was aware that such actions were inappropriate. The evidence of Mr Parker confirmed that the deliveries he carried was done with the knowledge of the applicant. Mr Orr did not have to give evidence because the evidence of Mr Parker proved the allegations. What only falls is whether the termination was harsh, unjust or unreasonable. When confronted by Mr South the applicant did not tell Mr South that he was being paid by the greyhound trainer for the rabbits. The applicant was aware of the principle of conflict of interest but was selective in his application of adhering to the principle. It was the respondent's view that Mr South should have acted on the information given by Mr Parker but that he didn't do anything ought not be visited against the respondent as a waiver or a condonation. When it was brought to Mr Orr's attention he did do something about it. The respondent stated that reinstatement was impractical because it would likely impose unacceptable problems or embarrassments or seriously affect productivity or harmony. Consideration and Decision. 50 From Mr Orr's letter to the applicant dated 5 August 2009 it stated in part: The reason that your employment has been terminated is for misconduct in relation to the matters detailed in my letters dated 5 May 2009 and 22 July 2009. 51 In correspondence dated 22 July 2009, Mr Orr stated in part : I have considered the Investigation Report, a copy of which is included with this letter, and I have formed the opinion that you have engaged in misconduct that was previously alleged in point 3 to 6 of my letter to you dated 5 May 2009 as attached. I do not intend to pursue the allegations made in points 1 and 2 of the letter of 5 May 2009. 52 Points 3 to 6 of the correspondence dated 5 May 2009 were: 3. That you used Authority (formerly RLPB resources) to freeze and store the dead rabbits. 4. That you used Authority (formerly RLPB resources) to deliver the rabbits, in working hours, to a greyhound trainer. 5. That you receive a cash payment from the greyhound trainer via an Authority (formerly RLPB) employee following delivery of $5 per rabbit. 6. That these activities have been performed without the permission of the Authority (formerly RLPB). 53 The applicant's termination letter of termination dated 5 August 2009 stated in part that his termination was effective 5 August 2009 and that: Your termination will take effect upon service of this notice. 54 As the applicant was terminated for misconduct the onus therefore falls on the respondent to prove that the actions that he was terminated for did take place. 55 It is clear from the evidence that the applicant utilised the freezers located on the Authority's premises to store the dead rabbits in readiness for delivery. In cross-examination Mr Parker stated: Q. Whose freezers were they that were delivered to the LHPA ? A. They were a relative's of mine and one of my parents. Q. And the relative of yours and your parents never asked for any money ? A. No, they didn't. Q. They never wrote to the Board as it was then saying, these are now your freezers, do with them as you wish, we don't want them any more ? They never wrote anything like that, did they? A. They didn't write it, but we made it clear to the Authority that we didn't want the freezers back. Q. To who ? A. To the manager and to-well, both managers and because we were just going to throw them out anyhow. Q. So they were just surplus fridges at home were they, or freezers at home ? A. Yes, they were. Yes, they were. Q. And they just found their way to the Authority, because otherwise they would get taken to the tip ? A. No, I was asked by Andrew if we had any spare freezers that we didn't need to put dog baits into, so we can freeze dog baits. And at the time my parents were throwing away a small upright freezer and my aunty was throwing one away and it just happened to be we had them when Andrew asked for them and we delivered them to work. Q. So they were being thrown away and had they not been taken to the Board, then they would have gone to the tip ? A. Yes. It is my finding that the freezers were a gift from the Parker family to the respondent and therefore became the property of the respondent. It is therefore my finding that the applicant utilised the respondent's resources to freeze and store the rabbits. 56 It was the consistent position of the applicant that he did not use the Authority's resources to deliver the rabbits in working hours. He made the initial deliveries at the weekend. The deliveries were then carried out by Mr Parker. Mr Stewart stated that some of the deliveries were made by the applicant were carried out during the week. On such days the applicant was not in work clothes. Mr Parker stated in his evidence that he was "directed", "instructed" and "asked" by the applicant to do the deliveries. It is my finding that this financial enterprise was commenced and organised by the applicant. Once it was up and running he organised Mr Stewart to liaise with Mr Parker for delivery. I am satisfied that it was the applicant who provided Mr Stewart with Mr Parker's mobile phone number for ease of communication. I am satisfied that Mr Parker when communicated by Mr Stewart that a delivery was required would tell the applicant and then carry out the delivery. Those deliveries were carried out during normal working hours with the full understanding and approval of the applicant. There existed a regularity of delivery over the approximately three years that makes this "foreign order" different to a one off situation where an employee leaves work to tender a sick cow at home. On the days that the delivery took place, Mr Parker gave clear evidence that he did not make up any time as a consequence of the time lost on that day. It was the applicant's responsibility as Mr Parker's direct supervisor to make sure that make up time takes place where an employee has to take time off during the day. It is also my finding that post the discussion with Mr South, Mr Parker ceased going night shooting with the applicant and also ceased receiving any financial benefit from the sale of the rabbits. I believe his evidence when he said that he had no entitlement to payment when he did not do any of the work in shooting the rabbits. In this I prefer the evidence of Mr Parker to that of the applicant. It is my finding that the delivery of the rabbits during normal working hours using the Authority's vehicle by Mr Parker, was done under instruction be it expressed or implied by the applicant. I therefore find that the applicant did use Authority( formerly RLPB resources) to deliver the rabbits, in working hours, to a greyhound trainer. 57 The applicant agreed that he received payment of $5 per rabbit on delivery. 58 It was the submission of the applicant that as at sometime in early 2007 he had a conversation with the manager of the Camden office Mr South with respect to night shooting rabbits. That conversation took place because the applicant was aware a prior conversation had taken place between Mr South and Mr Parker. Mr Parker gave evidence that in early 2007 he as a response to an enquiry from Mr South told Mr South what he and the applicant had been doing in night shooting rabbits, storing them in the freezer and then Mr Parker was delivering them to a particular greyhound trainer and being paid $5 per rabbit. Mr Parker stated that he was advised by Mr South to cease the night shooting. With respect to the other aspects of delivery he was told words to the effect, to do what he was told as Andrew was his boss and you do what your boss tells you. 59 Comment was made that the applicant in conversation with Mr South failed to advise him of the storage, delivery and payment for the rabbits. He only told Mr South part of the story. Logically if the Commission accepts the evidence of Mr Parker then Mr South had the full story prior to commencing the discussion with the applicant. No evidence was brought by either party that sought to add or contradict the statements of Mr Parker. I have no reason not to accept what Mr Parker stated. As nothing further occurred by way of any other management action at the time, then Mr South must have accepted and approved of the shooting, storing and receiving payments on delivery of the rabbits. I note the comments made by a Full Bench in Burge v NSW BHP Steel Pty Ltd 105IR 325 : In any event, we are satisfied the conduct of the appellant referred to has been condoned by the respondent or that it has waived any right it may have had to dismiss him for serious and wilful misconduct. As Macken J observed in Australasian Transport Officers' Association v Department of Motor Transport [1988] 25 IR at 235 at p 244, "the doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission". In that respect, his Honour referred with approval to the following statement by Cook J in Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 at p 25 : ... where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having "condoned" that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action. It was accepted in evidence that Mr South brought to the attention of the applicant in 2007 that the applicant should return an AJC pass that he had been given. At that time Mr South recognised that there may exist a conflict of interest. Mr South therefore did act on that occasion in my view in a correct manner. The respondent in final submissions stated in part that if the Commission finds the inaction of Mr South to be wrong then that was an abrogation of his responsibility and that when the employer in the form of Mr Orr, is put on notice, he instituted the disciplinary investigation. The inaction of Mr South in early 2007 when he was advised by Mr Parker as to what was taking place was plainly wrong. He was told the whole story by Mr Parker who clearly sought guidance and or approval from the manager of the Camden office. His failure to act at that time condoned the actions of the applicant. Taking into consideration the comments of the Full Bench in the above matter I am not in a position to accept that the respondent has proved this point. 60 The applicant stated that the action of terminating him had in some fashion been part of a conspiracy. No evidence was provided to the Commission that could sustain such an accusation and I dismiss such a claim. 61 There was also argument over the quantum of deliveries that took place between 2006 and 2009. Mr Stewart stated that he received deliveries every two to three months. Mr Parker stated that he made deliveries about 15 to 20 times a year. I make no finding with respect to the actual number of deliveries that did take place as its relevance as to whether it was at the high end, in the middle or the low end I do not believe is critical to the determination of this matter 62 The non-appearance of Mr Orr was commented upon during proceedings. In his termination letter to the applicant dated 5 August 2009 he stated in part: In making the decision to terminate your employment I have considered a number of matters and documents including your letter dated 29 July 2009. From the Commission's point of view I am unaware exactly what Mr Orr did or did not take into consideration with respect to his consideration of the Investigation Report. I am unaware as to what the other matters and documents consisted of. I am unaware as to what alternative options he considered other than termination without notice. I am unaware as to whether he was aware of the failure of Mr Delaney to interview Mr Parker and Mr Stewart as part of the Investigation Report. I am unaware as to whether he was aware of the inaction of Mr South in 2007 and therefore the possible ramifications to the respondent. 63 In summary it is my finding that the respondent has proved that the applicant did utilise the resources of the respondent to freeze and store dead rabbits, to deliver the rabbits during working hours and to receive a cash payment from a greyhound trainer for the rabbits. I do not find that that these activities were performed without the permission of the respondent. 64 The applicant did work for the respondent and its predecessors since 1987 and had in the intervening years received a number of certificates, awards and commendations. This constituted some 22 years of service. It would seem that the applicant was a dedicated employee who took a strong interest in his duties, yet his failure to recognise the issues of conflict of interest and his direction of a subordinate to carry out on a regular basis the delivery of dead rabbits during working hours as part of a ongoing commercial enterprise does him no favour. He accepted and declared an interest to his employer in December 2001 correspondence when he took over with his wife the caretaker/manager role of a named property. This was an appropriate action. I do not accept his defence that he had not attended any courses or been made aware of particular policies of the respondent with respect to conflict of interest or outside employment. I believe the applicant had been around long enough to be aware of particular policies or able to find out such information if he had tried. 65 In summary taking into consideration all the facts in this case and his length of service it is my finding that the termination of the applicant was harsh. The applicant seeks reinstatement with back pay. Other than submissions from the bar table there was no evidence before this Commission that would prevent this person from returning to employment with the respondent. Whilst it is the applicant's claim for back pay it is not one that I will accede to. I note the comments of the Full Bench of this Commission in Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy[2009]NSWIRCComm126 at 91 …….It is a common practice in unfair dismissal cases where an order for reinstatement is made, for orders of back pay (or, more correctly described, lost remuneration), to be tailored according to any identified culpability of the applicant as to the circumstances surrounding his/her dismissal. Thus, in cases where misconduct may be found by the Commission to be proven, but not necessarily justifying dismissal (as is the case here), or in circumstances where a dismissal is found to be too 'harsh' (again, as is the case here), a lesser amount, or no amount at all, may be considered as a 'penalty' for the applicant's conduct. There is nothing inherently wrong in this approach: see Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296. In the present case, we do not consider it appropriate or just for Mr Levy to receive back pay given his contribution to the circumstances that led to his dismissal. I believe that the above case is relevant to this matter as the applicant did clearly contribute to the circumstances that led to his dismissal. I make the following Orders : ORDERS 1. In accordance with section 89(1) of the Act, I Order the Livestock Health and Pest Authorities Division of the NSW Government Service (South East Livestock Health and Pest Authority) to reinstate Mr Andrew Bruce Glover to his former position within 21 days of the date of this Decision. 2. In accordance with section 89(4) of the Act. I Order that the period of employment of the applicant with the respondent is taken not to be have been broken by the dismissal. D. 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