Industrial Relations Commission of New South Wales CITATION: Perfection Dairies Pty Ltd v Finn [2006] NSWIRComm 137 APPELLANT: Perfection Dairies Pty Ltd PARTIES: RESPONDENT: Russell Finn FILE NUMBER(S): IRC 2780 of 2005 CORAM: Wright J President; Staff J; Stanton C CATCHWORDS: Appeal - Unfair dismissal - Whether applicant's bankruptcy precluded application being made under s 84 - Provisions of Bankruptcy Act 1966 (Cth) - Statutory interpretation - Held, that s 84 application available - Whether commissioner's discretion miscarried in finding the dismissal harsh, unreasonable or unjust - Decision at first instance - Extreme language used by commissioner inappropriate - Circumstances of case - Nature of misconduct alleged - Leave to appeal granted - Appeal dismissed. Bankruptcy Act 1966 (Cth) ss 5 60 58 106 116 139L 139U LEGISLATION CITED: Industrial Arbitration Act 1940 s 88F Industrial Relations Act 1996 ss 84 89 187 188 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 Commissioner of Police v Hollingsworth (1997) 77 IR 339 Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR 45 Davis v Port Seal Pty Ltd (1997) 72 IR 414 Ex parte Vine; re Wilson (1878) 8 Ch D 364 Faulkner v Bluett (1981) 52 FLR 115 Finn v Perfection Dairies Pty Ltd [2005] NSWIRComm 1067 Franklins Ltd v Webb (1997) 72 IR 257 Fuller v Beach Petroleum NL (1993) 43 FCR 60 Geia v Palm Island Aboriginal Council (1999) 152 FLR 135 Griffiths v Civil Aviation Authority (1995) 137 ALR 521 CASES CITED: Re Heenan; Ex parte Collins (1993) 116 ALR 146 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd (2003) 128 IR 37 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Najdov v Macedonian Australia Welfare Association of Australia Inc [2004] NSWIRComm 101 NSW Public Service Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Pelechowski v NSW Land and Housing Commission [2000] FCA 233 Plummer v Stannard Bros Launch Service Pty Limited (2005) 145 IR 111 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 Reich v Client Server Professionals of Australia Pty Limited (Administrator Appointed) (2000) 99 IR 69 Roberts v Larload Pty Limited [2005] NSWIRComm 1049 Smith v Chevelle Developments Pty Ltd [2005] NSWIRComm 109 HEARING DATES: 28/11/2005 DATE OF JUDGMENT: 04/24/2006 APPELLANT: Mr P Coleman of counsel John F Law & Associates (Agents) (Mr John Law) LEGAL REPRESENTATIVES: RESPONDENT: Mr A Britt of counsel Bell Lawyers (Mr Paul Blunt) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J President Staff J Stanton C Monday 24 April 2006 Matter No IRC 2780 of 2005 PERFECTION DAIRIES PTY LTD v RUSSELL FINN Application by Perfection Dairies Pty Ltd for leave to appeal and appeal against decision of Commissioner Cambridge given on 10 May 2005 in Matter No IRC 4733 of 2004 DECISION OF THE COMMISSION [2006] NSWIRComm 137 1 The appellant, Perfection Dairies Pty Ltd, has applied for leave to appeal and, if leave be granted, appeals pursuant to s 187 of the Industrial Relations Act 1996 from the decision of Cambridge C given on 10 May 2005 in Finn v Perfection Dairies Pty Ltd [2005] NSWIRComm 1067. 2 The appellant had summarily dismissed the respondent from employment on 15 July 2004 for conduct which it regarded as wilful misconduct. The misconduct involved the respondent having in his possession at the worksite a packet of cigarettes. 3 On 10 May 2005, Cambridge C ordered that the respondent be reinstated to his former position and that the appellant pay the respondent an amount which he equated to the remuneration that he would have received, but for being dismissed, between the date of dismissal and reinstatement. 4 The appellant filed an amended application for leave to appeal and appeal dated 24 June 2005. The respondent made no submissions in relation to whether the appellant should be allowed leave to amend its appeal. Leave was accordingly granted. Leave to appeal 5 The Full Bench of the Commission recently summarised the principles governing leave to appeal in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 at [5] as follows: The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act , will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 6 We have decided, given the scope and substance of the matters raised on appeal that the relevant tests prescribed by s 188(2) of the Industrial Relations Act have been met and that leave to appeal should be granted. The appeal 7 The primary questions raised by the appeal are: (a) Was the termination of employment harsh, unreasonable or unjust? (b) If so, is reinstatement, together with the associated orders, appropriate and practicable relief. (c) Did the respondent, as an undischarged bankrupt, have standing to make and pursue the application. 8 We turn to consider first whether the respondent, as an undischarged bankrupt, had standing to bring an application pursuant to s 84 of the Industrial Relations Act 1996. It was common ground that the respondent was an undischarged bankrupt at the time he made his s 84 application. This was a matter that did not come to the attention of the appellant until after it had filed its notice of appeal and thus led to the need for the amendment granted. 9 Mr P Coleman, counsel for the appellant, submitted that the only person with standing to commence the proceedings was the respondent's trustee in bankruptcy. 10 The issue in these proceedings which arises from the respondent's bankruptcy is essentially whether his right to commence proceedings under s 84 of the Industrial Relations Act after his dismissal by the appellant was "after-acquired property" in terms of s 58 of the Bankruptcy Act 1966 (Cth) and thus divisible among his creditors in terms of s 116 of that statute. 11 If that proposition is answered in the affirmative, it follows that the respondent did not have the legal capacity to commence the s 84 proceedings, Cambridge C did not have the authority to hear the proceedings or (most relevantly) to make the orders he did, and the appeal must be upheld. 12 The provisions of the Bankruptcy Act relevant to the respondent's situation as an undischarged bankrupt at the time of his application are ss 58(1) and (6) and 116 and the definitions of "property" and "the property of the bankrupt" in s 5. Section 58(1) and (6), and those definitions are in the following terms: 58 Vesting of property upon bankruptcy—general rule (1) Subject to this Act, where a debtor becomes a bankrupt: (a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and (b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee. ... (6) In this section, after acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt. ... property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property. ... the property of the bankrupt , in relation to the bankrupt, means: (a) except in subsections 58(3) and (4): (i) the property divisible among the bankrupt's creditors; and (ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt; and (b) in subsections 58(3) and (4): (i) the property, rights and powers referred to in paragraph (a) of this definition; and (ii) any other property of the bankrupt. (It is to be noted that subsections 58(3) and (4), in summary, prevent: (a) a creditor enforcing any remedy against the bankrupt or against the bankrupt's property in respect of a provable debt; (b) a creditor, except with the leave of the Court, commencing any legal proceeding in respect of a provable debt; and (c) distress for rent being levied against the property of the bankrupt). 13 We observe here that the terms of s 58(6) have the effect that "after acquired property" includes property, as defined by the Act, that is acquired by, or devolves on, the bankrupt on or after the bankruptcy. 14 Section 116 provides that all property that belongs to, or is vested in, the bankrupt at the commencement of the bankruptcy, is divisible amongst the creditors except for certain property specified later in the section. A similar provision is made in respect of property acquired by the bankrupt, or devolved on the bankrupt, during the period of the bankruptcy. 15 Section 116(1)(b) provides that also divisible amongst the creditors is: (b) the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge; 16 Section 116(2)(g) provides that the property divisible amongst creditors does not extend to: (g) any right of the bankrupt to recover damages or compensation: (i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; or ... 17 Section 116(2)(c) and (ca) provide other limitations as to property divisible amongst the creditors pursuant to s 116(1). The first of these provisions refers to property (to a certain value) which is for use by the bankrupt in earning income by personal exertion; the second provision refers to property (again, subject to a certain monetary limit) used by the bankrupt "primarily as a means of transport". 18 In order to understand the statutory context of the relevant provisions of the Bankruptcy Act it is necessary to refer to some other provisions of that statute, although they may not have been applicable to the legal situation of the respondent. 19 Section 60(2) provides that an action commenced by a person who subsequently becomes a bankrupt, is, upon the person becoming a bankrupt, stayed until the trustee makes an election in writing, to prosecute or discontinue the action. It is then provided (by s 60(3)) that, if the trustee does not make an election within 28 days of receiving notice of the action from the other party to the action, the trustee shall be deemed to have abandoned the action. 20 Section 60(4)(a) provides that: (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or a member of his or her family; or ... and 60(5) defines the term "action" for the purposes of s 60 to mean "any civil proceeding, whether at law or in equity". 21 Income which a bankrupt earns during the bankruptcy is subject to Division 4B "Contribution by bankrupt and recovery of property". This division requires that a bankrupt must make a 50 per cent contribution to the trustee for the benefit of creditors, of any assessed amount of income over a certain threshold. 22 Sections 139L and 139U also come within Division 4B. Section 139L has a definition of "income" in very wide terms which provides, inter alia, that "a payment to the bankrupt in consequence of a termination of any office or employment" is relevantly "income" whether or not such payment comes within the ordinary meaning of the word "income". That section also provides that payments to the bankrupt under certain legal aid schemes are not relevantly "income". 23 Section 139U is entitled "Bankrupt to provide evidence of income" and requires the bankrupt to regularly provide certain documents to the trustee including (see s 139U(3)(a) and (b)) pay slips etc. received from the bankrupt's employer, group certificates and payment summaries. The bankruptcy issue - submissions of the parties 24 It is convenient to commence with the approach taken by the appellant in respect of the bankruptcy issue. Mr Coleman in detailed and helpful submissions argued that the respondent had no standing to make an application under s 84 of the Act. Such an application was required to be made by the respondent's trustee in bankruptcy who alone had the requisite standing. 25 Counsel observed that the respondent did not disclose his status as a bankrupt to the Commission, nor apparently to his representatives in the proceedings. 26 Mr A Britt of counsel, who appeared for the respondent, also in detailed and helpful submissions, contended that, having regard to the decisions of the Federal Court in Faulkner v Bluett (1981) 52 FLR 115 and Griffiths v Civil Aviation Authority (1995) 137 ALR 521, decisions of this Commission and the Australian Industrial Relations Commission, and with reference to the relevant provisions of the Bankruptcy Act, the Full Bench should determine that the respondent had standing to commence proceedings under s 84 of the Act. Does a bankrupt have standing to bring a s 84 application? 27 The question whether a bankrupt has standing to bring an application pursuant to s 84 of the Act has not been examined at Full Bench level by this Commission. A convenient starting point is reference to the following observation by Cooper J in Griffiths v Civil Aviation Authority at: There is a unity of object and purpose in the operation of ss 58, 60 and 116 of the Act if it is recognised that the consistent focus of attention is upon rights which the trustee can turn to advantage for the benefit of creditors or upon rights the exercise of which will adversely affect or delay the administration of the estate. It is these rights which fall within the definition of "property" in s 5 and the enforcement of which by action are stayed by s 60(2) upon a person becoming bankrupt. To interpret "property" for the purposes of s 5 in this way avoids the injustice of denying to the bankrupt the power to exercise a right in which the trustee has no interest and the exercise of which cannot operate adversely on the property of the bankrupt or the administration of the bankrupt's estate. 28 The issue to be answered in these proceedings depends on the construction of the relevant provisions of the Bankruptcy Act, having regard to the case law, including what has been referred to as "the common law of bankruptcy". We are mindful however of the admonitions in a number of the authorities to pay close attention to the terms and width of the statutory scheme and to be cautious in the use of English cases and the so-called "common law of bankruptcy" derived from them. For example, in Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR 45, the Court of Appeal dealt with an application for prerogative relief by a litigant in proceedings under s 88F of the Industrial Arbitration Act 1940, who subsequently became a bankrupt. The Court held that the proceedings were stayed by s 60 of the Bankruptcy Act because the s 88F proceeding was an "action" which did not fall within the exemption provided in s 60(4)(a) in respect of actions for any "wrong done to the bankrupt." 29 Kirby P, after setting out the relevant provisions of the Bankruptcy Act (s 58, s 60, s 116(1)(a), s 116(1)(b) and s 116(2)(g) said at 50 - 51: These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee. The trustee has the charge of the estate of the bankrupt. It is then for the trustee to distribute that property as the Act provides, principally for the benefit of the creditors. To secure the benefits and protections which the Act provides to a debtor, the debtor's status is changed, rights are diminished and property is controlled. It could scarcely be otherwise for if it were, valuable interests which a bankrupt might have, in the form of choses in action would not be caught in the net cast by the very wide language of s 116(1). This would be so despite the specific and limited terms of the exemption in the case of rights to recover damages or compensation provided by s 116(2) and the very purposes of gathering in the bankrupt's property (our emphasis). 30 Similarly, in Fuller v Beach Petroleum NL (1993) 43 FCR 60, a sequestration order was made against Mr Fuller who was found liable for several claims in tort and for breach of his fiduciary duty as a director of Beach Petroleum. The appellant filed a notice of appeal against the judgment. The majority of the Full Court of the Federal Court (Gummow and Whitlam JJ, Hill J dissenting) dismissed the appeal as incompetent, determining that the appellant's right to appeal vested in the trustee of the estate of the appellant.. The appellant's right of appeal was held to be "property" within the meaning of s 5(1) of the Bankruptcy Act which therefore vested in the trustee upon the appellant's bankruptcy pursuant to s 58(1) of the Act. 31 The majority in Fuller said (at 66 - 67) as to the argument that Parliament had, in s 60(4) and s 116(2)(g), specifically provided "very limited exceptions": [S]ection 116 contemplates that were it not for the express exclusion, what might be called bare rights of action to recover damages or compensation for personal injury, rights not ordinarily assignable would nevertheless be treated as property divisible amongst the creditors of the bankrupt and therefore as property which vested under section 58(1). 32 See also the judgment of the Queensland Court of Appeal in Geia v Palm Island Aboriginal Council (1999) 152 FLR 135 at 140, where Pincus and Thomas JJA and Jones J said: [T]here appears to have been a collection of exceptions to the general proposition that the bankrupt's property vested in the trustee, developed in English cases to fill in what seemed to be gaps in, initially relatively simple, bankruptcy legislation. The Bankruptcy Act 1966 (Cth) has elaborate provisions on this subject, particularly in s 116 and, as to income received after bankruptcy, in Division 4B. Unless there is some pressing reason to do so, such as that it is evident that the Parliament must have intended an exception to be implied, courts should be slow to hold that the statutory scheme to which we have referred has, to some uncertain extent, to be read subject to unstated exceptions, because of doctrines worked out in the older cases, under English statutes. 33 Nevertheless, the way in which the Australian cases relate to relevant English authorities is usefully considered in the judgment of French J of the Federal Court of Australia in Re Heenan; Ex parte Collins (1993) 116 ALR 146. His Honour (at 150 - 152) considered the history of the predecessor section to s 116(2)(g) and held: The protection afforded by the Bankruptcy Act 1966 to compensation recovered in respect of personal injury arises out of the long standing principle that a right of action in a bankrupt does not pass to the trustee "where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character": Beckham v Drake (1849) 2 HL Cas 579 at 604. 34 His Honour also cited with approval the discussion of the policy explaining the general exceptions as outlined by the English Court of Appeal in Ex parte Vine; re Wilson (1878) 8 Ch D 364, at 166 - 167, where the Court said: The general principle always has been that, until a bankrupt has obtained his discharge, all his property is divisible among his creditors. But an exception was absolutely necessary in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his own living. On that principle the trustee could not sue for moneys due to the bankrupt in respect of his personal labour, and, if the bankrupt could sue for them only for the benefit of his trustee, he would really be without remedy. If he could not sue for damages in respect of a personal wrong, such as the seduction of his daughter, or anything like that, the courts of the realm would be closed to him for all practical purposes (our emphasis). 35 We have earlier referred to the fact that Hill J was in the minority in Fuller v Beach Petroleum NL. His Honour was of the opinion that "the subject matter of the action in question could not be regarded as 'property' and was not property divisible among creditors, and further that the bankruptcy legislation did not vest a 'bare right of action' in the trustee." Hill J considered that certain rights of action, beyond those referred to in s 116(2) of the Bankruptcy Act, remain with the bankrupt after bankruptcy, and that any issue of costs could be addressed on a motion for security for costs. 36 In Griffiths v Civil Aviation Authority (1995) 137 ALR 521, the Full Federal Court, (Spender, Einfeld and Cooper JJ) distinguished the majority judgment in Fuller. The issue in this case was a decision of the Civil Aviation Authority varying the appellant's commercial pilot licences following a finding that the appellant was not a "fit and proper person" to hold the licences. As a result of the variation, the appellant was no longer able to earn an income as a pilot and consequently his business failed and a sequestration order was made against the estate of the appellant. The respondent Civil Aviation Authority had filed a notice of motion seeking the dismissal of the appeal as incompetent because the appellant was a bankrupt and had no standing to prosecute the proceedings. Einfeld J, at 536, expressed his agreement with the reasoning of Hill J in Fuller concerning the interpretation of s 116(1)(a), observing that "the English cases are helpful in determining whether, in a particular case, a right of action can properly be described as "property". Einfeld J said: Despite the fact that the decisions in Fuller and Daemar mean that two present justices of the High Court ( Gummow and Kirby JJ) have expressed different views, it is my respectful opinion the reasoning adopted in the cases preserving to the bankrupt actions personal to the bankrupt which have no implications for the estate should be applied to the present appeal. The variations made to the present appellant's commercial pilot's licences are sufficiently personal in their likely effect upon the appellant to retain for himself the right of appeal in respect of them. Given its completely personal nature and the fact that it holds no interest for the estate whatsoever, the right of appeal in this case is not in my view "property" vesting in the trustee upon the appellant's bankruptcy… 37 Cooper J held, at 540 (our emphasis): The definition of "property" is s 5 of the act is expressed in the broadest of terms. However, the definition is to be construed in such a way as would promote the purpose or object underlying the act in preference to a construction that would not promote that purpose or object: Acts Interpretation Act 1901 (Cth) s 15AA. Additionally, the Act is to be interpreted against the background of what has been described as the "common law of bankruptcy": Faulkner v Bluett (1981) 52 FLR 115 at 118. The statutory object of the Act is to vest the property of a bankrupt in a trustee in order that the same may be divisible among the bankrupt's creditors. The trustee is to get in the property and reduce it to a money sum and to disown, for example, the property which would be a drain on the estate. The statutory object is also to protect the person of the bankrupt and his property insofar as his creditors are concerned as at the date of the making of the sequestration order: see s 58(3) and (4) and s 60(1)(a) and (b) of the Act generally Storey v Lane (1981) 147 CLR 549 at 557; 36 ALR 129. The Act is not concerned to protect the person of the bankrupt from legal proceedings brought by persons other than creditors or by persons seeking to enforce payment of an obligation imposed by a statute or in the exercise of a power authorised by statute: see, for example, the imposition of fines and statutory charges together with imprisonment for non-payment in Commissioner for Motor Transport v Train (1972) 127 CLR 396 and generally Re Lattouf (1994) 52 FCR 147 (FC). Nor is the Act concerned to prevent the bankrupt enforcing rights which are personal to the bankrupt and irrelevant to the attainment of the statutory objects of the Act. In consequence, a construction of the Act which denies to a bankrupt the enjoyment of rights which do not affect the value of the bankrupt's estate or the administration of the estate is to be avoided. At common law, a right of action for a personal injury done to the bankrupt where "the damages are to be estimated by immediate reference to the pain felt by a bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property" (per Erle J in Beckham v Drake (1849) 2 HLC 579 at 604; 9 ER 1213 at 1222) was not property which passed to the assignee. That exception has been acknowledged and given effect to in Australia in the various insolvency statutes, including the Act: see s 60(4) and s 116(2)(g). However, in my view, it was not the intention of parliament in passing s 60(4) and s 116(2)(g) nor the predecessors of these sections, to state exhaustively the exceptions to the property in the nature of rights of action which would not pass to the trustee and thereby to identify by omission all other rights as "property" within the meaning of s 5 of the Act. 38 Employment is not usually referred to, or known as, property. Whatever legal "interest" an employee has in his or her employment, it is not a property interest. In any event, it seems clear from reference to the relevant statutory provisions and the case law that, although the expression "property", and cognate expressions such as "the property of the bankrupt" and "after acquired property", are to be construed in a very wide sense, the bankrupt's employment is not considered "property" for the purposes of the Bankruptcy Act. 39 Indeed, all the pertinent indications in the statute and the case law are to the opposite effect. For example, there are a number of references in the Bankruptcy Act to "property divisible among the bankrupt's creditors" (see, for example, s 58(6) and the definition of "the property of the bankrupt" in s 5); it could not seriously be suggested that the bankrupt's employment, or the bankrupt's rights as to his or her employment could be divisible among the creditors. Indeed, the statute recognises that it is most desirable that the bankrupt be able to earn income during the course of the bankruptcy and also contemplates the likelihood that a bankrupt who was an employee prior to the bankruptcy would continue to be in employment. The references we have cited from division 4B of the statute, including the references to ss 139L and 139U are also in point. In particular, we do not detect in the scheme of the Australian statute any provision which would be at odds with the observation in the judgment of the English Court of Appeal in Ex part Vine; re Wilson, where reference was made to the necessary exception to the property of the bankrupt being divisible amongst his creditors, "in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his living". 40 Also germane, in the present context, are the observations cited earlier from the judgments in the Full Federal Court in Griffiths v Civil Aviation Authority. In this respect, we refer to the passages emphasised in the extracts cited above from the judgment of Cooper J. In light of those analyses, a relevant question is, would a construction of the Bankruptcy Act which denied the bankrupt's right to take proceedings under s 84 of the Industrial Relations Act be one which denied to the bankrupt "the enjoyment of rights which did not affect the value of the bankrupt's estate or the administration of the estate"? Similarly, was it the intention of Parliament, in enacting provisions of the kind referred to earlier which, as Cooper J observed, did not "state exhaustively the exceptions to the property in the nature of rights of action which would not pass to the trustee", to exclude rights such as those under s 84? Section 84 in the context of a bankruptcy 41 Section 84 of the Act enables an employee to apply for relief in respect of the termination of the employee's employment by the employer on the ground that the termination was harsh, unjust or unreasonable. It is not a civil proceeding at law or equity which relates to the property of the bankrupt. The right to commence proceedings under s 84 is a statutory right which only the employee (s 84(1)) or an industrial organisation of employees (s 84(2)) can exercise. 42 If the application is not resolved by conciliation, the employee may elect to have the matter determined by arbitration. In the event that the Commission determines that the termination was harsh, unjust or unreasonable, the available remedies are set out in s 89 of the Act. The primary remedy provided under s 89 is reinstatement. It is only where the Commission considers that reinstatement is not appropriate that compensation, in lieu of reinstatement, may be awarded. In our view, the fact that compensation is available in such circumstances, does not alter the nature of an application made under s 84. It is clear that the primary remedy under the Act is reinstatement in employment: see, for example, Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 345; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Plummer v Stannard Bros Launch Service Pty Limited (2005) 145 IR 111; and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108. 43 The matter presently before the Commission is not a decision involving a "personal injury or wrong" done to the respondent, but a personal right of the respondent which the creditors could not turn into any advantage to themselves. However, the question whether the right to bring an action under s 84 is property vesting in the trustee is assisted by an examination of how the "personal injury and wrong" exception has developed in bankruptcy cases to exclude from the definition of "property", and preserve to the bankrupt, the right to bring actions which are purely personal to the bankrupt. 44 We consider that the right to make an application pursuant to s 84 is a personal right of the type envisaged in Griffith, where Cooper J observed, as we earlier noted: [T]here is a unity of object and purpose in the operation of s 58, s 60 and s 116 of the Bankruptcy Act if it is recognised that the consistent focus of attention is upon rights which the trustee can turn to advantage for the benefit of creditors or upon rights the exercise of which will adversely affect or delay the administration of the estate. 45 It is these rights, as Cooper J observed in Griffiths, which fall within the definition of "property" in s 5 and the enforcement of which, by action, are stayed by s 60(2) upon a person becoming bankrupt. To interpret "property", for the purposes of s 5 in this way avoids the injustice of denying to the bankrupt the power to exercise a right in which the trustee has no interest and the exercise of which cannot operate adversely on the property of the bankrupt, or the administration of the bankrupt's estate. 46 The right to bring a s 84 application is a personal right in which the applicant is contending that he remains personally suitable to the position from which he has been dismissed, and should be reinstated. It follows that the two questions we posed earlier (in para [40]) should be answered respectively "Yes" and "No". 47 We acknowledge that any money amount which the Commission ordered be paid as compensation may, if the bankruptcy was continuing, be "income" for the purposes of the Bankruptcy Act: see s 139L and para [22] above. Nevertheless, that consideration would tend to support our conclusion, rather than contradict it. 48 We have earlier (in para [15]) set out the terms of s 116(1)(b) of the Bankruptcy Act which provides that also included in "property" divisible amongst the creditors is (broadly speaking) the capacity to exercise, and to take proceedings for exercising powers in, over in respect of property as might have been exercised by the bankrupt. We have also earlier observed that employment is not usually considered part of the employee's property. In that context, reference to s 116(1)(b) is useful because it shows the nature of the connection between the capacity to take proceedings and the bankrupt's property, which is necessary for the capacity to take proceedings to itself be considered property. Although there is the kind of connection between a bankrupt's employment and the capacity (under s 84) to take proceeding contemplated by s 116(1)(b), because the bankrupt's employment is not part of the bankrupt's property, so too any right or capacity the bankrupt might have to take proceedings under s 84 in respect of his employment cannot be part of the bankrupt's property. 49 Before concluding this aspect of the decision, we should refer to a number of other cases. The first is the judgment of Schmidt J, sitting in the Commission in Court Session, in Smith v Chevelle Developments Pty Ltd [2005] NSWIRComm 109, which counsel for the appellant submitted was equally applicable in respect of an application brought under s 84. Her Honour there held that an applicant had no standing to bring a s 106 claim because of the operation of s 5, s 58 and s 116(2) of the Bankruptcy Act. In particular, her Honour determined that the right to bring such proceedings is "property", as defined in s 5 and s 58, and such proceedings were not exempted by s 116(2) of the Bankruptcy Act. 50 That case, in which Ms Smith, pursuant to s 106 of the Industrial Relations Act, was seeking payments for days off, commission payments, payments of annual leave, compensation and statutory superannuation, is distinguishable from the present case. The applicant was seeking to either enforce a contract, or receive damages for its unfairness and her Honour was satisfied that Ms Smith's right to bring proceedings under s 106 of the Act was after-acquired property which vested in the trustee under s 58(2) of the Bankruptcy Act, being property divisible amongst the creditors of the bankrupt, (s 116(1)), which did not fall within the exceptions provided by s 116(2). Her Honour found the proceedings under s 106 was property. 51 Proceedings under s 84, as we have already observed, certainly where reinstatement is being sought, are clearly distinguishable from the s 106 application considered by her Honour in Smith. The relief obtained by the respondent in these proceedings, a reinstatement order, cannot be property which satisfies the definition of "property of the bankrupt" as found in the Bankruptcy Act, since such an order cannot be property divisible amongst the bankrupt's creditors, unlike the relief sought by Ms Smith. 52 We have therefore concluded that an action of the present kind may be brought by a bankrupt. In our opinion, the reasoning adopted in cases such as Griffiths v Civil Aviation Authority, preserving actions personal to the bankrupt, which have no implications for the estate, should be applied to the present appeal. The termination of the respondent's employment and the rights provided by s 84 of the Act are sufficiently personal in their likely effect upon the respondent to retain for himself the right to bring such an application. Given, as we have found, it is a proceeding of a completely personal nature and not an action claiming damages or other sums on the basis of wrongful dismissal under a contract for personal service, and the fact that it holds no interest for the estate whatsoever, the application brought by the respondent, is not, in our view, "property", vesting in the trustee upon the respondent's bankruptcy. 53 Finally, we should refer to two other cases. First, the judgment of Madgwick J in the Federal Court in Pelechowski v NSW Land and Housing Commission [2000] FCA 233 where his Honour came to a different conclusion to ours. We do not consider it is necessary to discuss his Honour's decision in detail which we note was a short extempore decision relating to an application for judicial review of a decision of a judicial registrar who had declined to grant relief against alleged unfair dismissal as had been claimed by Mr Pelechowski. We regret to say that to the extent that our conclusions differ with those of his Honour, we do not accept the conclusion reached by his Honour. 54 The second decision is that of Commissioner Macdonald in Roberts v Larload Pty Ltd [2005] NSWIRComm 1049 where he determined that a s 84 application did not fall within the definition of "property" for the purposes of s 5 of the Bankruptcy Act. We note that the conclusion we have reached is broadly the same as that reached by the Commissioner, although we have reached the conclusion by a somewhat different process of reasoning. 55 We would therefore dismiss this ground of the appeal. Did the commissioner's discretion miscarry in finding the dismissal harsh, unreasonable or unjust? 56 The background to the dismissal from employment in this matter may be shortly stated. On 15 July 2004, the respondent, who had worked for the appellant for approximately four years and one month as a forklift driver/dockhand, was summarily dismissed for behaviour that the appellant treated as wilful misconduct. The respondent's misconduct involved bringing a packet of cigarettes onto the appellant's worksite. 57 The appellant had introduced a no smoking policy as part of the Perfection Dairies Enterprise Agreement 2000 which was effective from 9 March 2003. On 29 May 2004, a fire broke out at the premises. A brief investigation revealed that the fire may have been started by a smouldering cigarette which had been disposed of in an electrical duct. As a result, the appellant immediately introduced a ban on the possession of cigarettes in the workplace, including the work car park. The respondent injured himself at work on 31 May 2004 and was certified unfit for work until 11 June 2004. 58 Mr Madden, the Dock Manager of the appellant, could not recall telling the respondent about the policy, or providing the respondent with a copy of the policy, although he was directed in early June 2004 by the General Manager to inform employees of the new policy. 59 The ban was communicated to employees generally by way of a memorandum, although the respondent was on worker's compensation leave when this occurred. Several signs were erected, advising employees that they could not smoke on any of the appellant's sites, or have cigarettes on their person or in their vehicles. The signs concluded by stating that "This rule is absolute. There is no tolerance." 60 On 14 July 2004, the respondent admitted that he had taken a packet of cigarettes onto the worksite in his bag. At approximately 1 pm on that day, he removed the cigarettes from his bag, in the presence of his supervisor, and put them into his pocket prior leaving the site for lunch. The respondent did not smoke at the worksite. 61 Upon his return from lunch, and in front of Mr Madden and Mr Wilson, the respondent placed the packet of cigarettes in his bag, which was under his desk in the office. 62 Mr Madden reported the possession of cigarettes by the respondent to Mr C Hall, Operations Manager, who contacted the General Manager, Mr S Lester, who advised Mr Hall that company policy must be followed which meant the dismissal of the respondent on the grounds of wilful misconduct. 63 The respondent was subsequently directed to attend a meeting in Mr Hall's office and to bring his bag to the meeting. Mr Madden did not inform the respondent the reasons for the meeting. During the meeting the respondent acknowledged being told about the memo prohibiting the possession of cigarettes by an employee named Jason, but he had never been provided with a copy of the memo. The respondent was suspended on full pay. On 15 July 2004, the respondent was informed that his employment was terminated summarily. Decision at first instance 64 After canvassing the background to the matter, summarising the submissions of the parties and considering what he regarded as the relevant evidence, Cambridge C held: [22] The determination of this matter may have been reasonably predictable. Summary dismissal for one incident involving possession of cigarettes in the workplace even if contrary to the stated and understood policy of the employer, would be very unlikely to represent gross and wilful misconduct which could justify summary dismissal. [23] The employer introduced the policy involving total prohibition of cigarettes in the workplace as an over-reaction to a fire that had apparently been started by smouldering cigarettes. The smouldering cigarettes appeared to have been discarded into a electrical wiring chute as a means to hide evidence of smoking, which had presumably occurred in a part of the workplace that was designated as a non-smoking area. The fact that the employees were endeavouring to conceal evidence of the smoking by discarding the cigarettes in this fashion created the probable cause of the fire. This demonstrated that in addition to the addictive characteristics of nicotine, workplace policies requiring behavioural alteration of employees are unlikely to be successful unless established by way of some consultative process. [24] After the fire the more stringent policy regarding total prohibition of cigarettes in the workplace was introduced by decree from the General Manager without any consultation with employees or their representatives. The process of endeavouring to modify workplace behaviour by issue of decree will almost always fail and particularly so in circumstances where addiction to a substance such as nicotine is involved. Any employer who introduces policies, practices or directions by decree and without proper consultation will likely fail to have such measures observed or implemented as desired. [25] Notwithstanding that the prohibition on cigarettes in the workplace policy was unreasonable and introduced without any consultation, it was also not directly conveyed to the applicant. The applicant was absent from work at the time at which the decree regarding the policy was announced and distributed to the employees. Although the applicant would have seen the various signs in the workplace stating things such as; "THIS RULE IS ABSOLUTE" and; "THERE IS NO TOLERANCE"; these words have little meaning unless they are read in conjunction with the memo that was issued by the General Manager. [26] As was demonstrated by various examples raised during the proceedings, the rigidity of this policy was plainly absurd. Even a cursory examination revealed various practical difficulties regarding the apparent observation of the stated policy. There was therefore every justification for the applicant to have assumed that he was not seriously in breach of the policy when he was taking his cigarettes out of his bag, putting them in his pocket, and leaving the worksite to go and have a smoke. The applicant was certainly not conducting himself in a way that would directly attack the employment relationship. [27] The decision to dismiss the applicant was taken by the General Manager without hearing from the applicant. The subordinate managers then followed a process that appeared to provide for some opportunity for the applicant to make out a defence or offer an explanation. As the decision to dismiss had already been taken this process was nothing more than "going through the motions" of procedural fairness. In reality the General Manager, Mr Lester denied the applicant procedural fairness when he made the decision to dismiss before giving the applicant an opportunity to be heard. 65 The Commissioner then set out his conclusions in this way: [28] In this case the summary dismissal of the applicant occurred as a result of behaviour that the employer described as "wilful misconduct which results in immediate dismissal". This alleged misconduct involved bringing cigarettes onto the workplace. The employer had established a policy that attempted to totally prohibit possession of cigarettes in the workplace. This policy was introduced without consultation and without direct advice to the applicant. The policy is plainly impracticable, unrealistic and unreasonable. [29] The applicant admitted to breach of the policy but could not reasonably be held to have misconducted himself in a deliberate and wilful fashion such as to justify his summary dismissal. The applicant was also denied proper procedure when the decision to dismiss was taken before he had been given any opportunity to offer any explanation or make out a defence regarding his alleged misconduct. [30] Therefore the dismissal of the applicant was harsh, unreasonable and unjust. 66 It would appear from what the Commissioner said at [28] and [29] that the bases upon which he decided the dismissal of Mr Finn was harsh, unreasonable or unjust were: (a) the respondent had established a policy that attempted to totally prohibit possession of cigarettes in the workplace; (b) this policy was introduced without consultation and without direct advice to the respondent; (c) the policy is plainly impracticable, unrealistic and unreasonable. (d) the respondent could not reasonably be held to have misconducted himself in a deliberate and wilful fashion, such as to justify summary dismissal; (e) the respondent was denied procedural fairness. Grounds of appeal 67 In essence, the appellant took issue with the following findings: (a) That the no smoking policy itself was introduced without consultation (para 23) thus leading to the incident which caused the fire. (b) Further, that the policy of banning cigarettes from the workplace was "unreasonable" (para 25), "absurd" in its rigidity (para 26) and "plainly impracticable, unrealistic and unreasonable" (para 28). (c) Next, that the policy was no directly conveyed to the respondent (para 25). (d) Then, that the decision to dismiss was made before giving the respondent the opportunity to be heard (para 27). (e) The Commissioner found the dismissal to be harsh unreasonable and unjust (para 30). (f) Rejected the submission that reinstatement was impracticable (para 31) and, (g) Ordered reinstatement with full back pay. 68 The appellant's grounds of appeal were as follows: The Policy The Commissioner erred in relation to the following findings, conclusions and determinations: (a) That the introduction of a policy banning cigarettes from the workplace was an "over-­reaction". (b) The introduction of a no smoking policy was established without a consultative process. (c) The appellant's policy was "unreasonable", introduced by "decree" and "without proper consultation". (d) The policy is "plainly impracticable, unrealistic and unreasonable". (e) The applicant had not had the policy directly conveyed to him. (f) The policy was absurd and the rigidity of the policy was plainly absurd. Procedure The Commissioner erred in relation to the following findings, conclusions and determinations: (g) The decision to dismiss was made by the General Manager without hearing from the applicant. (h) The General Manager denied the applicant procedural fairness. (i) The meeting with the applicant was "nothing more than going through the motions". (j) The meeting only gave the appearance of providing an opportunity to the applicant to answer the allegation. (k) The applicant was denied proper procedure. (1) The decision to dismiss was taken before he had been given any opportunity to explain or make out a defence to the alleged misconduct. Unfair Dismissal The Commissioner erred in relation to the following findings, conclusions and determinations: (m) The breach of the policy by the applicant would not "directly attack" the employment relationship. (n) The dismissal was harsh, unreasonable and unjust. Additional Misconduct (o) The evidence makes it clear, and it was admitted by the applicant, that he lied to his employer in relation to two matters at the meeting held prior to dismissal. This constitutes a separate incident of misconduct which itself justifies dismissal. The Commissioner did not consider this evidence. Reinstatement (p) The Commissioner erred finding that there was no evidence to establish that reinstatement is impracticable. (q) The Commissioner failed to consider the importance of maintaining and enforcing the breached policy. (r) The Commissioner failed to consider the fact that the applicant lied to the appellant's managers at the meeting regarding two matters thereby making a re-establishment of the employment relationship impracticable. Submissions of the parties 69 Mr Coleman challenged the Commissioner's findings that the policy of banning cigarettes from the workplace was "unreasonable" at [25], "absurd in its rigidity" at [26] and "plainly impracticable, unrealistic and unreasonable" at [28]; that the policy was not directly conveyed to the respondent; that the decision to dismiss was made before giving the respondent the opportunity to be heard; that reinstatement was practicable; dismissal was harsh, unreasonable and unjust. It followed, it was submitted, that properly viewed, the dismissal was not harsh, unreasonable and unjust and the Commissioner erred in not so finding. 70 Counsel for the respondent submitted that the Commissioner had properly applied the legislative tests in determining that the respondent's dismissal was harsh, unreasonable and unjust: Najdov v Macedonian Australia Welfare Association of Australia Inc [2004] NSWIRComm 101 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. 71 It followed, Mr Britt submitted, that as reinstatement is the primary remedy under s 89 of the Act, other remedies may only be ordered if reinstatement is considered to be impracticable. The Commissioner had given active consideration to the practicality of reinstatement and had correctly found that it was not impracticable to reinstate the respondent. Consideration 72 Mr Finn was employed as a forklift driver, although, at the time of dismissal, he was on restricted duties as a result of a workplace accident and was working as an office assistant. 73 In the present case, the respondent was dismissed for "wilful misconduct which results in immediate dismissal". The onus of proving an allegation of misconduct leading to termination of employment, regardless of whether the dismissal was summary, or by notice or payment in lieu of notice, is on the party alleging misconduct: Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1997) 72 IR 257 at 261. 74 The reasons expressed by the appellant in its letter to Mr Finn on 15 July 2004 for terminating the respondent's employment were: This letter is to notify you of your dismissal from Perfection Dairies due to you bringing cigarettes onto the Baulkham Hills site. At approx 1.00 pm this afternoon ( sic ) you were observed to have removed a packet of cigarettes from your bag and place ( sic ) them into your pocket. After approx 15 to 20 minutes later ( sic ) you were again observed to remove a packet of cigarettes from your pocket and placed ( sic ) into the front pocket of your bag. By bringing cigarettes on site you have contravened company policy. This behaviour will be treated as 'wilful misconduct which results in immediate dismissal'. 75 As the letter makes clear, the appellant considered the conduct of the respondent amounted to wilful misconduct justifying summary dismissal. However, as appears from the decision, the Commissioner disagreed with the appellant that the conduct justified summary dismissal. The Commissioner placed considerable emphasis on what he considered to be the impracticable nature of the policy and the appellant's failure to provide procedural fairness. 76 The no smoking policy was introduced as part of the 2000 enterprise bargaining negotiations. The Perfection Diaries Enterprise Agreement 2000 provided in cl 11(c) for the introduction of a no-smoking policy with a three year introduction period. The appellant contended that the Commissioner's finding that the policy itself was introduced without consultation, was plainly wrong. It does not, in our view, emerge from a proper reading of the Commissioner's decision. The Commissioner's focus in the decision is on the total prohibition of cigarettes and not the non smoking policy of the appellant which was introduced as part of the enterprise bargaining process. 77 A fire occurred at the Baulkham Hills site of the appellant on 29 May 2004. Three days later, a new policy providing for the total prohibition of cigarettes at any of the appellant's sites was introduced without any consultation with employees. From 2003 until 3 June 2004, the appellant accepted employees smoked but directed that they could not smoke in the workplace, although accepting that there should be some mechanism by which they could smoke. 78 The introduction of the total prohibition of cigarettes on site occurred notwithstanding cl 21 of the Enterprise Agreement which required the appellant to establish a consultative committee to meet regularly for the purposes of discussing day to day issues at the site. The difficulty in implementing a policy involving the total prohibition of cigarettes on site without consultation is how such a policy would be able to operate consistently with the no smoking policy introduced in 2003, particularly where the prohibition of cigarettes extended to the employee's vehicles if they are parked on site. 79 We accept that the appellant was entitled to take a precautionary approach in light of the fire and its concerns about workplace safety. However, it seems to us that, partly because of the lack of consultation and the speed with which the total prohibition of cigarettes was introduced, insufficient consideration was given to a practical mechanism that would enable employees who have an addiction to nicotine to smoke in their own time off site. For example, perhaps those employees who smoked should have been directed to book their packet of cigarettes with the Gatekeeper, if there was one, or other authorised person. It is to be remembered that during the period that the total prohibition of cigarette policy was introduced, Mr Finn was on sick leave, not returning to work until 12 June 2004. 80 We do not consider that the Commissioner erred in finding that the total prohibition of the cigarette policy was introduced without consultation. 81 However, we would observe that the language used by the Commissioner in referring to the total prohibition of cigarette policy was extreme. The descriptors and adjectives such as "absurd" and "unrealistic" were inappropriate and have a potential to undermine the appellant's genuine attempt to ensure safety at the workplace. Such extreme language should be avoided in decisions of the Commission. 82 Once again it is necessary for the Full Bench to emphasise the observations made by Cahill VP in NSW Public Service Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46 at 51, in an analogous but not directly similar situation, where his Honour said: Some of those statements and observations are couched in terms which in my view are unnecessarily extravagant ... It is pertinent to observe, however, that where criticisms are considered to be justified in the context of a case such as this, care should taken to ensure that they are couched in terms which are not immoderate or unnecessarily hurtful and that they do not extend beyond bounds which are reasonable and proper in the particular circumstances. 83 This passage was cited with approval in Reich v Client Server Professionals of Australia Pty Limited (Administrator Appointed) (2000) 99 IR 69 at 99 where the majority of the Full Bench observed: Although Cahill V-P in that case was referring to comments made in relation to a party to the proceedings, the comments are generally appropriate in any context in which a judicial or quasi-judicial officer is dealing with a matter. The reasons are not only reasons of hurt or damage but also are of concern to the reasonable bystander that the issues in the case, and even the question of the application of relevant precedents, are being approached in an unemotional, impartial and even-handed way. ... We regret having to state that the use of extreme language in decisions is entirely inappropriate. The only mitigating factor in the present situation is that at least his Honour did not use that language in relation to a party to the proceedings before him. Such comments are equally applicable to the language used by the Commissioner in this case. 84 Next, the appellant challenged the Commissioner's findings that the policy was not directly conveyed to the respondent. The appellant conceded in its written submissions that the evidence at first instance fell short of establishing that the respondent read the memorandum. Furthermore, the evidence establishes that the policy as to total prohibition of the possession of cigarettes was not read by the respondent or provided to him by the appellant. Although the relevant sign stated, among other things, "you cannot smoke on any of our sites or have cigarettes on your person, or in any vehicle" and "this rule is absolute, there is no tolerance", the signage could not be said to represent the appellant's policy as set out in its memorandum. In addition, it makes no reference to summary dismissal for a single breach. We do not consider that the Commissioner erred in respect of his finding that the policy was not directly conveyed to the respondent. 85 It was contended by the appellant that the respondent had lied in interviews with the appellant's managers, when he stated he had not seen the signs. However, the respondent's evidence was that he had not read any of the signs. Accepting the respondent's evidence that he had not read the signs, the evidence does not, in any event, demonstrate that the respondent was aware of the policy and the consequences that were said to flow from a breach of the policy. Had the respondent known of the policy, it seems to us highly unlikely that he would have taken a packet of cigarettes from his bag in front of Mr Madden before lunch on 14 July 2004 and upon his return to work, placed the packet of cigarettes in his bag in front of both Mr Madden and Mr Wilson without attempting to disguise this action. In addition, the respondent admitted in the meeting with Mr Madden and Mr Hall that he had cigarettes on the premises. 86 Next, the appellant challenged the Commissioner's findings that the decision to dismiss was made before giving the respondent an opportunity to be heard. In respect of this ground of appeal, the chronology which emerges from the evidence is that on 14 July 2004, Mr Madden reported to Mr Hall that the respondent had cigarettes on the premises. Mr Hall contacted the General Manager about the matter and the General Manager informed Mr Hall that the company policy must be followed which Mr Madden notes in his diary "was to dismiss Russell on the grounds of wilful misconduct because he had cigarettes on his person". 87 This decision was made prior to a meeting on 14 July 2004 between Mr Hall and Mr Madden. 88 We do not consider that the Commissioner erred in finding that the decision to dismiss was made before giving the respondent the opportunity to be heard. 89 The appellant contended that when the company policy, the ban on smoking and the procedures followed are properly considered, the dismissal is not harsh, unreasonable and unjust. 90 In our view, the circumstances of this case, which involved one incident of breach of a policy of prohibition of cigarette possession which was introduced without consultation with employees and while the respondent was on worker's compensation, does not represent gross and wilful misconduct which would justify summary dismissal. In addition, the respondent was denied an opportunity to be heard and provide any explanation for his conduct prior to a decision being made by the General Manager to summarily terminate the respondent's employment. 91 The appellant submitted that the Commissioner's extreme criticism of the respondent and its managers with respect to the policy would, unless rectified on appeal, substantially weaken the policy. The result, it was submitted, would be to expose persons to risk and the appellant and others to, among other things, the risk of prosecution for breach of the absolute obligations imposed by the Occupational Health and Safety Act 2000. There was no evidence before the Commissioner, nor before the Full Bench to support this contention. We have already referred to the inappropriateness of the language used by the Commissioner in his decision. We do not consider that any decision that we make would result in the consequences suggested by the appellant. 92 The appellant raised an additional reason justifying the termination of the respondent on appeal. In essence, this ground was that the respondent had lied in respect of not seeing the memorandum or the signs and the location of his cigarettes. This information was known to the appellant at the time of dismissal and was therefore capable of being relied upon in the proceedings before the Commissioner. The respondent conceded, correctly in our view, that if the appellant had become aware of additional information, not known at the time of the dismissal, the appellant would have been entitled to consider that information and to come to the view that, had it been known, the information would also have warranted the dismissal: Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 430; Commissioner of Police v Hollingsworth (1997) 77 IR 339 at 365 -366 and Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 325. However, it is not open to the appellant to rely on this aspect on appeal as it cannot be said to be a new matter. 93 Finally, the appellant submitted that in light of the admitted lies of the respondent to his employer, it must lead to the conclusion that reinstatement or re-employment is impracticable because of the loss of trust and confidence involved. There was no evidence before the Commissioner or the Full Bench in this respect. Furthermore, the mere fact an employee may have lied to an employer does not necessarily preclude an order for reinstatement: Davis v Port Seal Pty Ltd (1997) 72 IR 414. A similar submission was advanced in respect of the respondent's failure to disclose his status as a bankrupt to the Commission and his employer. Once again, there is no evidence in support of the contention of impracticability. 94 Even if there had been some suggestion of lack of trust, it seems to us, this, by itself, would not be a convincing basis for the refusal of the grant of reinstatement as such a view would be based upon a false premise that the respondent was aware of the no possession of cigarette policy and its consequences and deliberately flouted the policy: cf Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [125]. 95 As observed earlier, reinstatement is the primary remedy available pursuant to s 89 of the Act. We concur with the Commissioner's finding in this regard; there was no error in this respect. 96 Upon a close examination of the reasons of Cambridge C and after considering the carefully argued case brought by the appellant the Full Bench is not satisfied that Cambridge C committed any error of principle, nor has it been shown that the Commissioner's decision at first instance was not reasonably open to him in terms of the applicable principles which bind the Full Bench in hearing appeals. 97 Accordingly, although leave to appeal is granted, the appeal is dismissed. We order accordingly. ______________ 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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