Industrial Relations Commission of New South Wales CITATION: Griffith City Council v USU (on behalf of O'Hara) (No 2) [2006] NSWIRComm 302 APPELLANT: Griffith City Council PARTIES: RESPONDENT: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Shane O'Hara) FILE NUMBER(S): IRC 2655 of 2006 CORAM: Wright J President; Walton J Vice-President; Staff J CATCHWORDS: Application for leave to appeal and appeal - Unfair dismissal - Conviction for offence of driving over prescribed limit of alcohol - While driving employer vehicle - Misconduct - Conciliation - Matter settled - Utilitarian, punitive and rehabilitative elements - Settlement approved - Leave to appeal granted - Orders at first instance varied. LEGISLATION CITED: Industrial Relations Act 1996 ss 84 89 Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999, Re (No 3 of 2002) (2006) 61 NSWLR 305 CASES CITED: Commissioner of Police v Dobbie [2006] NSWIR Comm 285 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of O'Hara) and Griffith City Council [2006] NSWIRComm 1102 HEARING DATES: 13/09/2006, 15/09/2006 EXTEMPORE JUDGMENT DATE: 09/15/2006 APPELLANT: Mr S Prince of counsel Solicitor: Ms E Wilson LEGAL REPRESENTATIVES: Maddocks Lawyers RESPONDENT: Mr M Barnes, Solicitor White Barnes Solicitors JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President STAFF J Friday 15 September 2006 Matter No IRC 2655 of 2006 GRIFFITH CITY COUNCIL AND NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION (ON BEHALF OF SHANE O'HARA) Application by Griffith City Council for leave to appeal and appeal against a decision of Commissioner Bishop given on 23 June 2006 in matter no. IRC 2917 of 2005 DECISION OF THE COMMISSION [2006] NSWIRComm 302 (Ex tempore) 1 This matter was part heard on Wednesday 13 September 2006. At the close of the submissions of the appellant, and at the invitation of the Commission, the parties agreed that the matter would be adjourned into further conciliation, first between themselves and subsequently with the assistance of the Commission. That latter aspect of the conciliation was conducted by Justice Walton, Vice-President. 2 Upon resumption of the matter today the parties informed us that the matter had settled but, in doing so, indicated that that agreement would involve the grant of leave to appeal and the upholding of the appeal in part, with a variation to some of the orders made by the Commissioner (New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of O'Hara) and Griffith City Council [2006] NSWIRComm 1102). 3 As has been pointed out on many occasions by Full Benches of this Commission, agreements reached between parties (even arising out of conciliation processes before the Commission) are not determinative of whether or not leave to appeal should be granted. We consider, however, that the agreement reached in this matter does constitute a suitable basis for the grant of leave to appeal and that the variations proposed to the orders made by Commissioner Bishop are, in the circumstances, entirely appropriate. 4 In broad terms, the agreement involves orders retaining the order made by the Commissioner to reinstate the respondent, Mr O'Hara, together with orders clarifying continuity of service issues and disposing of stay orders granted by the President on 10 July 2006. However, the orders made by the Commissioner are qualified by the introduction of certain conditions and the giving of undertakings. Those conditions essentially put in place safeguards against a repetition of any adverse behaviour at work by Mr O'Hara associated with the consumption of alcohol including the imposition of what is essentially a final warning that a breach of the undertakings would result in summary dismissal and provisions assisting Mr O'Hara in overcoming any difficulties associated with the use of alcohol. Hence, the conditions have a utilitarian value as well as punitive and rehabilitative elements to guard against any potential future misuse. 5 We consider that those conditions constitute an entirely appropriate modification to the orders and also represent a wise and mature approach by the appellant Council to the issue of alcohol related problems at work. We hope that the arrangements will result in Mr O'Hara maintaining successful employment with the Council into the future. 6 We would propose to make two observations. Some reliance was placed in this matter upon the judgment of the New South Wales Court of Criminal Appeal in Re Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2006) 61 NSWLR 305 ("the guideline judgment"). The guideline judgment is an important judgment having significant public policy implications associated with the elimination of "drink-driving" so as to enhance road safety (the judgment was, of course, a guideline judgment with reference to the offence of high range prescribed concentration of alcohol). Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove J and Dunford J agreed) acknowledged (at paragraph [145]) that the disqualification of a person from driving may have a very significant impact upon the ability of a person to retain employment. However, the treatment of the guideline judgment as, in essence, and of itself, a bar to the exercise of the Commission's discretion under Part 6 of Chapter 2 of the Industrial Relations Act would involve error. Whilst misconduct associated with drinking at work and, in particular, drink driving at work may constitute a proper basis for dismissal for misconduct, it does not follow that relief in the case of such conduct is necessarily excluded under Part 6 of Chapter 2 of the Act, as an unfair dismissal application will ultimately need to be determined upon the facts and circumstances of the particular case. The Commission is required to find whether under s 84 of the Act the dismissal was harsh, unjust or unreasonable and whether relief should be given under s 89 of the statute. 7 Further, the reliance upon the recent decision of the Full Bench of the Commission in Commissioner of Police v Dobbie [2006] NSWIRComm 285 is somewhat misplaced. That matter turned upon its own very particular facts and circumstances including, in particular, the mitigating factors concerning the police officer in question and the undertakings given by him. 8 We make the orders proposed in Exhibit A and accept the undertakings proffered by the respondent. _______________________ 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. 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