Industrial Relations Commission of New South Wales CITATION: Stevenson v Mid Western Regional Council [2009] NSWIRComm 1086 APPLICANT PARTIES: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (the USU), (on behalf of Michael Allan Stevenson) RESPONDENT Mid Western Regional Council FILE NUMBER(S): 121 of 2009 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - misconduct - final written warning - further misconduct - valid substantive basis established - employment record considered - proper process followed - dismissal assessed in context - application dismissed. Industrial Relations Act 1996 LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999 Road Transport (Driver Licensing) Regulation 2008 CASES CITED: Alexander v Commissioner of Police [2009] NSWIRComm 3, Boland J President. HEARING DATES: 28, 29 July, 18 Sept 2009 DATE OF JUDGMENT: 17 November 2009 APPLICANT Mr A Jacka from the USU. LEGAL REPRESENTATIVES: RESPONDENT Mr J McConnell from the Local Government Association of New South Wales. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 17 November 2009 Matter No IRC 121 of 2009 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Michael Allan Stevenson) and Mid Western Regional Council. Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of its member Michael Allan Stevenson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. D E C I S I O N [2009] NSWIRComm 1086 1. This matter involves a claim for unfair dismissal made pursuant to the provisions of Part 6 of Chapter 2 (Sections 89 - 90) of the Industrial Relations Act 1996 [NSW], (the Act). 2. The claim was filed on 2 February 2009, by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (the USU), and was made on behalf of Michael Allan Stevenson, (the applicant). The application named the respondent employer as the Mid Western Regional Council, (the Council). 3. The matter was the subject of unsuccessful conciliation proceedings conducted in Bathurst on 3 March 2009. Subsequently the Hearing of the arbitration of the claim has involved proceedings including an Inspection and Hearing conducted in Mudgee on 28 and 29 July 2009. Further proceedings involving Submissions were held on 18 September 2009. Unfortunately there was no appearance for the applicant on 18 September. Subsequently on the 21 October 2009 the USU has filed the applicant's final submissions in reply. BACKGROUND 4. The applicant is a male who was some 33 years of age at the time of his alleged unfair dismissal. The applicant was advised of his dismissal on 12 January 2009, by way of letter dated 9 January 2009. At the time of dismissal the applicant had worked for the Council for a period of approximately three and a half years. The applicant was employed in a position described as Heavy Vehicle Plant Mechanic. 5. The applicant was dismissed for misconduct. The misconduct primarily related to two incidents that each involved alleged dangerous driving of motor vehicles. The first misconduct event occurred on 29 October 2008, when the applicant had driven a Council vehicle in a manner which caused a member of public to make a complaint. Following the Council's investigation of the complaint, the applicant was eventually issued with a first and final written warning dated 2 December 2008. The second misconduct event occurred three days after the first and final written warning was issued. On Friday 5 December 2008, the applicant was alleged to have driven his own motor vehicle in a dangerous manner whilst leaving the Council's depot premises. 6. Following the Council's investigation of the second misconduct event of 5 December 2008, the applicant was provided with a Termination of Employment letter dated 9 January 2009. The Termination of Employment letter relied upon factual conclusions regarding the second misconduct event coupled with the circumstances of the earlier misconduct event for which the applicant had received a first and final written warning letter. 7. Upon termination, in addition to any leave entitlements, the applicant was paid four weeks wages in lieu of notice. 8. During the period that the Council investigated the second misconduct event the applicant had been firstly on sick leave and then on paid suspension from duty. The applicant had been provided with details of the alleged nature of the second misconduct event and as part of his response to the allegations, he attended a meeting with relevant Council representatives on 8 January 2009. The letter of dismissal of the following day 9 January 2009, confirmed that the Council's investigation had led to particular findings about the nature of the second misconduct event such that the Council concluded that the applicant had driven dangerously in his vehicle whilst exiting the depot premises. 9. In broad terms the Council concluded that the applicant had done a "burnout" making a skid mark with the tyres of his vehicle that was some 10 metres in length. The factual conclusions reached by the Council regarding the second misconduct event when coupled with the first misconduct event, provided the Council's justification for the applicant's dismissal. 10. The applicant has challenged the dismissal primarily on the basis that the Council's factual conclusions about the detail of the second misconduct event were erroneous such that, the applicant did not drive in a manner which could be held to have been dangerous and therefore his dismissal was without proper justification. THE EVIDENCE 11. The evidence presented in this matter has concentrated upon the factual contests surrounding the detail of the second misconduct event of 5 December 2008. This event has been described by the Council as a "burnout". Notwithstanding the contested aspects of the evidence relating to this event, it may appear that the event could not be accurately described as a "burnout". 12. The depiction that might be logically attached to the term "burnout" would usually involve the rapid rotation of the tyres of a motor vehicle such that an amount, sometimes a significant amount, of smoke would be generated by the friction between the rubber tyre and the surface upon which the tyre was rotating rapidly. There was no evidence that the second misconduct event involved the observation of smoke created by the rotating tyres of the applicant's motor vehicle. However, for convenience, and as will be explained later, the term "burnout" will be used to describe the second misconduct event. 13. The factual contest about the nature of the second misconduct event (burnout) has involved substantially different recollections of the event as conveyed by witnesses called for the respective Parties. In simple terms the evidence provided by witnesses for the applicant including the applicant, suggested that the burnout involved nothing more than a momentary loss of traction of at most, about a second in duration, and which could have caused as little as a one metre skid mark. Alternatively the evidence from witnesses that were called on behalf of the Council, provided testimony that the applicant caused the tyres of his motor vehicle to loose traction for a period of at least three seconds and of such duration as to have left a distinct skid mark of approximately ten metres in length. 14. In large part the Commission has been required to determine which of the two distinctly different versions of the burnout should be preferred. The applicant and two other Council employees were called to give evidence in support of the applicant's version of the burnout. The Council called four witnesses only two of whom had visual observation of the burnout. The other two witnesses called to provide evidence on behalf of the Council were approximately one hundred metres away from the location of the burnout. These two witnesses claimed to have heard rather than to have seen the burnout. 15. The evidence of the burnout diverged significantly upon the degree of severity and duration of the loss of traction of the wheels of the applicant's motor vehicle. The settlement of this factual contest has become central to the primary determination of the applicant's claim. 16. If the evidence from the applicant and those witnesses called on his behalf is accepted, the burnout was of such little significance that it could not be a proper basis for any misconduct whatsoever. Alternatively if the Council's version of the burnout prevailed, the misconduct was sufficient, particularly given the currency of the first and final warning for the earlier misconduct event involving similar alleged dangerous driving of a motor vehicle, to provide ample justification for the applicant's dismissal. 17. Consequently the consideration of this matter has concentrated upon examination of the evidence of the detail of the burnout. Ultimately this examination has required the Commission to make findings about the severity and duration of the loss of traction of the wheels of the applicant's motor vehicle during the burnout. THE CASE FOR THE APPLICANT 18. At the Inspection and Hearing conducted in Mudgee, the applicant was represented by Mr A Jacka from the USU. At the conclusion of the taking of evidence in Mudgee the Parties agreed that written submissions should be provided in the matter. Subsequently on 7 September 2009, the USU provided written submissions. These written submissions were supplemented by the applicant's final submissions in reply filed on 21 October 2009. 19. The written submissions provided by the USU urged the Commission to find in favour of the applicant and to "reinstate, re-employ or pay the maximum remuneration under the Act for the unfair dismissal of Mr Michael Stevenson." 20. The written submissions provided by the USU asserted that the evidence of the burnout should lead the Commission to conclude that the applicant "merely lost traction for a short time in an unsealed car park." These submissions stated that the applicant's conduct in respect of the burnout did not represent driving in a dangerous or unsafe manner. It was submitted that the witness evidence provided by those called on behalf of the applicant supported the applicant's version of the burnout. 21. The submissions filed by the USU challenged the alternative version of the burnout as provided by the evidence given by those witnesses called on behalf of the Council. These submissions challenged the evidence that concerned the alleged measuring of skid marks shortly after the time of the event. The USU submissions urged the Commission to reject evidence that a skid mark of about ten metres in length was measured by those witnesses that were called on behalf of the Council. Further, the submissions criticised the absence of any photographic evidence of the alleged ten metre skid mark and asserted that it would have been reasonable for the relevant Council individuals that were examining skid marks to have taken a photograph at that time. The absence of such photograph was said to severely impugn the evidence of there being any ten metre skid mark. 22. The submissions made by the USU further criticised the acknowledged error made by Council in asserting that there was a ten (10) kilometre speed limit sign established for the Council's depot premises. The Council acknowledged that the depot speed limit sign was fifteen (15) kilometres per hour rather than ten (10) kilometres per hour. The submissions made by the USU asserted that the error of the lower speed limit contributed to the preference that should be made for the applicant's version of the burnout rather than that provided for by the witnesses for the Council. 23. Further, the submissions made by the USU sought to reject the evidence provided by those witnesses called for the Council who heard, rather than observed the burnout. These submissions suggested that the distance that these individuals were away from the location of the burnout could have led to significant potential for whatever they heard to be something other than the applicant revving and skidding the wheels of his motor vehicle. 24. The submissions made by the USU also criticised what was alleged to be deficiencies in the Council's approach to maintaining Occupational Health and Safety protocols for the vehicular traffic in the Council's depot premises. The submissions of the USU criticised the alleged absence of any memo or other notification to employees regarding the speed limit and vehicle driving requirements for the Council's depot premises. 25. In an alternative submission, the USU proposed that if the Commission found that some misconduct occurred in respect of the burnout the decision to then invoke dismissal of the applicant was a disproportionate response and as such should be determined to have been harsh, unjust and unreasonable. In support of this proposition the submissions of the USU also made mention of the economic and personal circumstances of the applicant. 26. In addition, the submissions of the USU also suggested that the Council may have moved to dismissal in part as a consequence of the applicant's activities as the USU delegate for the Council. Specifically the USU submissions stated that "in this instance Council has taken a severe and harsh approach not because of his (the applicant) alleged actions but because of who he was." 27. In summary, the submissions made by the USU reiterated the primary relief sought by way of reinstatement of the applicant on the basis that his dismissal satisfied the statutory criteria. In the alternative, the submissions of the USU urged that the Commission make Orders for the maximum compensation available for the applicant's alleged unfair dismissal. THE CASE FOR THE COUNCIL 28. In this matter the Council has been represented by the Local Government Association of New South Wales (LGA). Mr J McConnell from the LGA represented the Council during the Inspection and Hearing conducted in Mudgee. Mr McConnell filed written submissions on behalf of the Council and he appeared at the Submissions proceeding held on 18 September 2009. 29. The LGA submissions made by Mr McConnell firstly dealt with the absence of evidence to challenge the first misconduct event of 29 October 2008. These submissions urged the Commission to conclude that the first misconduct event and the consequential final written warning to the applicant, were matters that were not challenged. Consequently, according to the submissions made by the LGA, the Council was entitled to take into account the applicant's past conduct and in particular, the warning given in respect of the first misconduct event. 30. According to the submissions made by the LGA, the Commission was required to determine the degree or magnitude of the loss of traction that occurred in respect of the burnout event of 5 December 2008. If, as the LGA's submissions urged, the Commission was to find that the burnout was as broadly portrayed by the evidence provided by witnesses called for the Council, the event would demonstrate that, when coupled to the earlier misconduct event and the subsequent warning, the applicant's conduct in that context represented misconduct that justified the dismissal. 31. The submissions made by the LGA addressed in detail the burnout event. These submissions urged that the Commission should have a preference for the evidence provided by the Council's witnesses. In particular the LGA submissions highlighted that evidence provided by Messrs Cam and Marskell was established very soon after the event. In particular Mr Marskell was asked to create a document describing the burnout and that this documentary material, dated 8 December 2008, represented one of the more contemporaneous documentary records of the event. 32. The submissions made by the LGA asserted that the contrary evidence provided by the witnesses called for the applicant involved the need to recollect the event many months after its actual occurrence. Consequently the LGA submissions asserted that the best evidence in terms of its closeness in time to the actual event came from the material provided by the witnesses for the Council. 33. The submissions made by the LGA asserted that the evidence about skid marks of approximately ten (10) metres in length represented sufficient basis to establish that the severity of the loss of traction of the applicant's motor vehicle was such that it represented dangerous and reckless driving. This established the proper basis for the applicant's dismissal according to the LGA. 34. Further, the submissions made by the LGA stressed that the applicant had been dismissed for serious misconduct with payment in lieu of notice. According to these submissions the onus for making out a case to warrant the intervention of the Commission lay with the applicant. The LGA submissions asserted that the case had not been made to warrant the intervention of the Commission. 35. The submissions of the LGA also referred to various Authorities which were said to provide for basis to reject various aspects of the submissions made on behalf of the applicant. In particular, the LGA submitted that the actions of the applicant represented both misconduct and a defiant disregard for the warning of the Council. According to the submissions of the LGA, the applicant had engaged in conduct which demonstrated that he was determined to display wilful disregard for the reasonable instruction and requirement of the employer. 36. In summary, the submissions made by the LGA urged the Commission to find that the applicant had committed a second serious misconduct and that in the circumstances the Council's actions in dismissing the applicant were justified. The LGA urged the Commission to dismiss the application accordingly. CONSIDERATION 37. The consideration of this matter has logically commenced with an examination of the evidence regarding the burnout event of 5 December 2008. As mentioned earlier in this Decision although the event had been described as a burnout there was no evidence that any smoke was produced by the loss of traction of the wheels of the applicant's motor vehicle. However there was no dispute that there was an event involving the applicant loosing traction which did attract attention of others at the time. 38. On the applicant's version, the event was nothing more than a momentary and inadvertent loss of traction for a very short period. Alternatively the Council maintained that the event involved wheel spin such that skid marks of about ten (10) metres were created. 39. Although the term burnout might suggest that the presence of some amount of tyre smoke would be a prerequisite for the use of that description, an examination of the relevant road safety legislation has revealed otherwise. Although neither Party referred the Commission to any particular road traffic legislation, the term burnout appears in the Road Transport (Driver Licensing) Regulation 2008. The offence of burnout involves the loss of three driving licence demerit points. Further the burnout offence is referenced to the provisions of section 41(1) of the Road Transport (Safety and Traffic Management) Act 1999. Section 41(1) reads as follows: ( 1) A person must not, on a road or road related area, operate a motor vehicle in such a manner as to cause the vehicle to undergo sustained loss of traction by way of one or more of the driving wheels (or, in the case of a motor cycle the driving wheel) of the vehicle". 40. Essentially therefore a burnout is an offence specified by section 41(1) of the Road Transport (Safety and Traffic Management) Act 1999. The offence in simple terms, involves the sustained loss of traction by one or more of the driving wheels of a vehicle. The use of the word "sustained" would be an important issue of potential contest in any prosecution for an offence under section 41(1) of the Road Transport (Safety and Traffic Management) Act 1999, and similarly represents the fulcrum of the determination of this matter. In brief, the Commission has been required to determine whether or not the burnout event of 5 December 2008 involved a sustained loss of traction or alternatively whether any loss of traction was inadvertent and minimal. 41. The inquiry as to whether the burnout involved a sustained loss of traction requires a proper assessment of the severity of the burnout. It is therefore necessary to examine the evidence from each one of the witnesses to the incident about the duration of the loss of traction (aka. wheel spin) and the apparent length of any skid marks that were caused as a consequence of the wheel spin of the applicant's vehicle. 42. Firstly the evidence from the applicant in response to questions from the Commission involved a duration period of a fraction of a second and a skid mark of perhaps one (1) metre. The following extract from transcript is relevant "Q. Now, there's something that occurs here and you describe it in your statement as a momentary loss of traction when you accelerate after the pedestrians have moved to one side or whatever. Could you just estimate for me firstly the time, the period of time that you think might have involved the loss of traction with the wheels spinning? A. A fraction of a second. Q. A fraction of a second? A. Yes it wouldn't have been too long, maybe a second. But a second is a long time. Q. All right. And then could you estimate for me the length of the distance that the car would have travelled while there was this loss of traction? A. I estimate maybe a metre. Q. A metre, one metre? A. Yes" Transcript of proceedings (28/07/09) @ page 22. 43. This evidence needs to be considered and evaluated with the evidence that was provided by the second witness called for the applicant's case, Mr Falconer. Mr Falconer provided the following evidence: "COMMISSIONER: Q. So where you say 4 metres in length, you really think that would accurately be about 2 and three-quarter metres? A. Well, I can - when I said 4 metres, your Honour, I was maximum [sic] . Like I believe it was from this distance, I believe from here to there. I presume that's probably about 10 feet or something. I don't know. Q. All right. Well could you give me your estimate of the length of time that you believe that the wheels of the car may have been spinning? A. It wouldn't have been very long. It wouldn't have been - I suppose if - I don't know, you couldn't say one, two, maybe three seconds of [sic] something. I don't think it would have been - you know, I don't know. It wouldn't have been - it was no great distance of time, I know it wasn't that. It was - basically when he took off, he put his foot on the accelerator and it just spun the wheels to there and then he just went out at that speed and turned the corner. It wasn't fast or anything, I didn't think it was." Transcript of proceedings (28/07/09) @ page 44. 44. The third witness called for the applicant, Mr Fyfe, provided the following evidence during his examination in chief about the burnout incident: "Q. Right. Now, when you observed Mr Stevenson move off, did you see anything unusual about the way he moved off? A. No, just I heard the actual engine rev and I heard like a slight gravel noise for what I believed was probably only a split second and then I just went about my business ." Transcript of proceedings (28/07/09) @ page 47. 45. The evidence provided by Mr Fyfe suggested that there would be no skid mark whatsoever left from the burnout that he remembered. The burnout as described by Mr Fyfe, would have been of such little moment that it is hard to imagine that it would have prompted any recollection. Something clearly happened on the afternoon of 5 December that caused other individuals to notice the manner in which the applicant was driving his vehicle. It is difficult to believe that if it was of a nature as described by Mr Fyfe that anyone would have taken any notice. 46. It is also relevant to record that in at least one other aspect, the evidence provided by Mr Fyfe, was at best, inaccurate. When asked about the surface of the car park Mr Fyfe provided the following evidence: "Q. Now, in your statement you also say at paragraph 2 that the carpark is very slippery due to substandard loose surface. Can you describe the surface? A. Yes, well, I ride a motorbike to work most days and the gravel when they just resealed it, which wasn't long before this incident took place, the gravel was probably a minimum of 6 inches thick, you could barely turn the bike around without nearly falling off it." Transcript of proceedings (28/07/09) @ pages 46-47. 47. It would be highly unlikely that the gravel material used for sealing the depot roadway surfaces would be "a minimum of 6 inches" thick. This level of inaccuracy together with the time frame that elapsed between the burnout and the initial statement of Mr Fyfe of 31 March 2009, casts some doubt upon the veracity of the evidence adduced regarding Mr Fyfe's recollection of the event. 48. The concern arising in respect to the veracity and or accuracy of the evidence of Mr Fyfe is also present with the evidence provided by Mr Falconer. In fairness, both Mr Falconer and Mr Fyfe were asked to recollect an event some months after it had occurred. The potential for inaccuracy and perhaps understandable confusion is exacerbated by the time frame that was involved. As a further example of the apparent inaccuracies of this evidence, Mr Falconer provided the following evidence during his examination in chief: "Q. Now, what you say is that upon reaching your car, you noticed Mick Stevenson leaving the carpark, is that correct? A. Yes, I said "See you later" to him as I walked past his ute." Transcript of proceedings (28/07/09) @ page 29. 49. The importance of this evidence is that Mr Falconer has described the applicant's motor vehicle as a "ute". All other references to the applicant's motor vehicle involved descriptions of a dark green or blue Holden Commodore sedan, and at no stage was there any other evidence to suggest that the vehicle was a utility. There was no suggestion in any other evidence that the vehicle involved in the burnout was a utility motor vehicle which would obviously have greater potential to loose traction than a sedan motor vehicle. Apparently Mr Falconer saw the applicant driving a utility motor vehicle. 50. The evidence provided by the applicant and the witnesses called in his support, needs to be compared and contrasted with the evidence of those witnesses called for the Council. One most notable feature of the evidence provided by the witnesses called for the Council is the documentary material included from Messrs Stewart and Marskell. In particular a document dated 5/12/2008 and signed by Mr Stewart represented the most contemporaneous documentary record of the burnout. 51. Further, the evidence provided by Mr Marskell included a documentary record dated 8/12/2008. This documentary record included reference to a skid mark of ten (10) metres or more in length. These relatively contemporaneous records provide evidence that is more likely to be accurate than that developed by testing the memory of others some months after the occurrence. 52. Balanced against these more contemporaneous documentary records the absence of any photographic material was surprising. There was no explanation for why none of the various Council officers who either witnessed the burnout or who commenced the subsequent investigation, had the presence of mind to photograph the skid marks. This aspect of the case represented the strongest evidence in support of the applicant's version of the burnout. Curiously the absence of photographic evidence from the Council created more doubt about the Council's version of the detail of the burnout than did the witness evidence from those called for the applicant. In summary, the question that emerged was, could the absence of a photo outweigh the inconsistencies and inaccuracies of the evidence from the applicant and those called on his behalf? 53. A careful evaluation of all of the evidence concerning the burnout despite there being no photograph taken at the time, leads to a conclusion that, on balance and weight, the burnout was more accurately reflected by the evidence provided by the witnesses called on behalf of the Council. Although there may have been some slight exaggeration of some of the aspects of the burnout, in broad terms, the version provided by the Council witnesses did not contain the significant inconsistencies and manifest errors that were displayed in the testimony from the applicant's witnesses. 54. Consequently the factual findings made in respect of the burnout are broadly consistent with the evidence provided on behalf of the Council. The Commission finds that the applicant deliberately over accelerated his motor vehicle causing sustained loss of traction by one or more wheels of the motor vehicle, aka. excessive wheel spin. The applicant caused his vehicle to loose traction for a sustained period of at least 3 seconds, probably longer. The loss of traction was deliberately sustained and potentially dangerous. Consequently the actions of the applicant represented misconduct generally in accordance with the findings made by the Council. 55. A further aspect of consideration of this claim has involved a broader contextual analysis of the established misconduct so as to determine whether dismissal was an appropriate penalty in the circumstances of this case. This "contextual" analysis as I have described it, is a well established principle for consideration of a claim for unfair dismissal. Indeed, His Honour Boland J, President, conveniently summarised this aspect of consideration in Alexander v Commissioner of Police [2009] NSWIRComm 3; "…what has become a fundamental guiding principle that even if there are grounds for terminating a contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence:" Alexander v Commissioner of Police [2009] NSWIRComm 3, Boland J President. 56. In this case, as part of the contextual analysis of the dismissal, it is important to acknowledge that had the burnout been an isolated incident and something not arising so soon after the issuing of a final warning in respect to similar misconduct, there may have been some considerable prospect for successful challenge to the Council's dismissal actions. The earlier burnout that the applicant performed on 29 October in Swords Court while driving a Council vehicle, demonstrated that the burnout misconduct of itself, did not warrant dismissal at that time. 57. However when the Council's decision is considered in the context of the issuing of the final warning a few days earlier, the burnout of 5 December as has been factually established, represented misconduct of a difference nature and of elevated seriousness. The second burnout, performed just days after the provision of a final written warning, amounted to the applicant's blatant defiance of the Council's valid and reasonable warning. In this context, the burnout of 5 December was misconduct that provided justifiable basis for the applicant's dismissal. CONCLUSION 58. The determination of this claim for unfair dismissal has hinged upon the resolution of factual contests concerning the detail of the burnout performed by the applicant when driving his motor vehicle out of the Council's depot on 5 December 2008. A careful evaluation of all of the evidence provided about the burnout has established that it was a deliberate and sustained loss of traction and not a minor inadvertent occurrence. 59. Driving a motor vehicle in an irresponsible and reckless manner when connected with employment, will often establish misconduct that can justify dismissal. However, the misconduct should be assessed in context to ensure that dismissal is an appropriate penalty as opposed to some lesser sanction. 60. In this instance the applicant was fortunate that the Council did not move to dismissal for his first misconduct incident of 29 October 2008. The Council made a considered and reasonable decision to issue a final warning. Unfortunately, instead of accepting and complying with the warning, the applicant displayed a defiant disregard for the employer's proper attempts to deal reasonably with workplace misconduct. The repetition of similar misconduct was highly regrettable and the Council's decision to subsequently dismiss was appropriate and not something that the Commission could legitimately disturb. 61. Therefore the dismissal of the applicant was not harsh, unreasonable or unjust. Consequently the application is dismissed and the proceedings are concluded accordingly. oooOOOooo 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.