Industrial Relations Commission of New South Wales CITATION: Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union. [2007] NSWIRComm 1047 APPLICANT PARTIES: Allan John Veney RESPONDENT New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union FILE NUMBER(S): 3135 of 2006 CORAM: Murphy C Applicant union organiser with 18 years service dismissed for continued acts of defiance, involving challenge to assessment process and alleged general attitude and behaviour. Denial of alleged behaviour and legitimacy of 3 written warnings. Apologies offered on basis of upsetting persons but denial of alleged behaviour causing same. Applicant suspended for recalcitrant attitude and behaviour following meeting to investigate complaint of not visiting council delegates following reallocation of councils to him. Recommendation by then General Secretary to union Executive to dismiss him covered range of issues, challenged by applicant's counsel, inter alia, as out of date and incorrect. CATCHWORDS: Counsel for applicant also challenged failure of Executive to grant delay to allow applicant to obtain legal advice and for Threatened Dismissal application to go before Commission - denial of prospect of injunctive relief. Held: Applicant shown by weight of evidence to have displayed belligerent behaviour during all counselling sessions in August, 2006 and at meeting leading to suspension. Suspension at 13th September, 2006 meeting re complaint of not visiting delegates found to be procedurally unfair given complete lack of notice as to nature of meeting, but applicant found to have provoked suspension due to repeat of defiant attitude and behaviour. Held: Dismissal by Executive on 18th September, 2006 not procedurally flawed for reasons claimed by applicant's counsel, but lack of procedural fairness on 13th September likely carried over into harsh, unjust and unreasonable dismissal. Held: Applicant's provocative behaviour at 13th September meeting, followed by failure to attend Executive meeting as provided for at applicant's request were matters affecting remedy. Held: Primary remedy of reinstatement to be withheld due to impracticality of restoring relationship due to failure to recognise fault, ominous comments to new General Secretary and comments and behaviour inconsistent with need for future management and observance of union policy. LEGISLATION CITED: Industrial Relations Act 1996 Byrne Vs Australian Airlines Ltd (1995) 105 CLR 410 @ 465, Attorney Generals Department Vs Millar (2007) 16O IR 185, Antonakopoulos Vs State Bank of New South Wales (1999) 91 IR 385 Perkins Vs Grace Worldwide (Aust.) Pty Ltd (1997) 72 IR 186; Fightvision Pty Ltd Vs Onisforou (1999) 47 NSWLR 473, Hollingsworth Vs Commissioner of Police (No. 2) 82 IR 282, High Court Decision in South Australia Vs O'Shea (1987) 163 CLR 378, Twist Vs Randwick Municipal Council (1976) 136 CLR 106 R Vs Marks; ex parte Australian Building Construction Employees and Builders Labourers Federation (1981) 147 CLR 471, Gibson Vs Bosnak Pty Ltd (1995) 60 IR 1 Moran Vs Abbott Australia (1994) 54 IR 288 Pecotic Vs AV Jennings [2007] NSWIRComm 1001 CASES CITED: Byrnes Vs Treload (1997) 77 IR 332 Wells Vs Lloyd Moffatt (1998) 83 IR 227, Hill Vs The Department of Education (1998) 85 IR 201 Castlemaine Tooheys Ltd Vs South Australia (1986) 161 CLR 148 John Lysaght (Australia) Pty Limited Vs Federated Ironworkers Association (1973) AILR Para 323 Busways Vs Johnson (1994) 55 IR 255 Bourke Vs McGirr (1995) 87 IR 54 Pepper Vs Webb [1969] 1 WLR 574 Loty and Holloway Vs Australian Workers Union 1971 AR 95 Stephen McMartin Vs Newcastle Wallsend Coal Company Pty Ltd & Ors [2003] NSWIRComm 292, Cahill Vs State of New South Wales (NSW Police) [2005] NSWIRComm 33, Christopher Murray & Anor Vs RentWorks Limited & Ors [2003] NSWIRComm 407 Makita (Australia) Pty Ltd Vs Sprowles (2001) 52 NSWLR 705, Youssef Vs Western Sydney Area Health Service in Matter No. IRC 1097 of 2002 HEARING DATES: 26/03/07, 27/03/07, 29/03/07, 30/03/07, 21/05/07, 22/05/07, 25/05/07, 14/06/07, 11/07/07, 30/07/07. DATE OF JUDGMENT: 23 October 2007 Mr E Moorhouse of Counsel, instructed by Harmers Workplace Lawyers. LEGAL REPRESENTATIVES: Ms K Nomchong of Counsel instructed by White Barnes, Solicitors DECISION: - 100 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Tuesday 23rd October, 2007. Matter No IRC 3135 of 2006 Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union. Application by Allan John Veney re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1047 1 At the time of his dismissal from the union on the 18th September, 2006, Mr Veney had been a full-time organiser with the union since the 19th September, 1988. 2 His termination from the union by the Executive on the 18th September, 2006, followed the suspension of his employment by the then General Secretary of the union, Mr Brian Harris on the 13th September, 2006. 3 The applicant was represented in the arbitration proceedings before me by Mr E Moorhouse of Counsel, instructed by Harmers Lawyers. 4 The respondent was represented by Ms K Nomchong of Counsel instructed by White Barnes Solicitors. 5 The hearing of this matter which commenced on the 26th March, 2007, traversed some ten days, which included final submissions on the 30th July. 6 The list of witnesses called by the parties was as follows: Evidence for the Applicant Allan John Veney - Exhibits 1, 2 and 3 Ray Scoble - Exhibit 12 Jason Michael Gentle - Exhibit 13 Paul Reid - Exhibit 15 and 16 Amanda Jane Wilson - Exhibit 18 Evidence from the Respondent Mark McLeay - Exhibit 20 Steven Hughes, Manager Northern Branch of the union - Exhibit 22 Charlie Henry, employee of North Sydney Council - Exhibit 23 Steven Donley, Director of Organising of the union - Exhibit 25 Valerie Rietdyk, union delegate from Sydney City Council - Exhibit 27 Adam Jacka, union organiser, USU - Exhibit 28 Michael Want, Executive President, USU - Exhibit 29 Clive Parker, employee of Ryde Council - Exhibit 30 Scott Brilley, employee of Lane Cove Council - Exhibit 31 Diane Fahey, employee of Warringah Council - Exhibit 32 Heinz Schramm, union delegate, Warringah Council - Exhibit 33 Rocco Zofrea, union delegate, Warringah Council Pennie Lewis, employee Pittwater Council Grant Marshall, employee Lane Cove Council - Exhibit 36 Jim Mavris, employee and union delegate, Hunters Hill Council Thomas Balto, union delegate, Hunters Hill Council Steve Birney, President of Executive Committee of the USU - Exhibit 39 Brian William Harris, former General Secretary of USU - Exhibit 43 Ben Kruse, current General Secretary of USU - Exhibit 44 INTERIM DECISION 7 On 12th October, 2007 the respondent filed a Notice of Motion, which was heard on 15th October, seeking to admit new evidence on the basis of material filed by the applicant in a Section 106 application to the Commission. The Commission's decision dismissing the Notice of Motion was given ex-tempore on 15th October and released with minor corrections and alterations on 18th October, 2007 as an interlocutory decision in this matter. The following decision has no regard for the matters canvassed at that interim hearing. BACKGROUND AND EVIDENCE OUTLINE 8 Mr Veney's employment which was terminated by the union's Executive on the 18th September, 2006, followed on from the suspension of his employment by Mr Harris, the then General Secretary of the union five days earlier on the 13th September, 2006. His termination was by resolution of the union's Executive at their 3 day state wide conference beginning on the 18th September. 9 The meeting on the 13th September, 2006 where Mr Veney was suspended, was called to make enquiries of him in relation to complaints about his failure to visit delegates and members at Warringah and North Sydney Councils. At that meeting, questions were asked about his contact with delegates and members at the two councils and his activities generally during the preceding four to five week period. The meeting lasted some fifteen minutes until Mr Harris informed Mr Veney that he was suspended and that he would be recommending to the Executive that his employment be terminated. At that point Mr Veney indicated that he wished to challenge his suspension by an approach directly to the Executive, which was scheduled to begin a state wide conference on the following Monday, the 18th September. Mr Veney did not attend the Executive meeting as he originally requested for reasons expanded upon later on in this decision, and a unanimous resolution was passed in his absence (with no one speaking in his support) to dismiss the applicant in accordance with a recommendation by Mr Harris, the then General Secretary, contained in a memorandum of the same day marked "W" to Exhibit 43. 10 Briefly stated, the respondent's position was that the applicant was suspended on the 13th September following his attitude displayed and disrespectful responses to questions from Mr Harris as to his activities in the previous month. The meeting had been called to enquire into a complaint from Mr Heinz Schramm, a delegate at Warringah Council, that the applicant had not visited the council or delegates since taking over that and other northern councils in a re-organisation effective approximately one month before. 11 Again briefly stated, it was the applicant's contention in his evidence that, whilst he felt ambushed and unable to respond properly - (disadvantaged from not being able to refer to appropriate documentation). He claimed to have been co-operative and given adequately detailed explanations as to his activities in the four week period prior to the 13th September. 12 The respondent claimed that the applicant's failure to respond properly to questions was in stark contrast to the lengthy statements claimed by him and set out in his original affidavit Exhibit 1. Contrary to the impression he sought to create, Mr Harris and Mr Want gave evidence that the applicant failed to answer properly and that his posture and demeanour showed him as being resistant to co-operating with what Mr Harris maintained was not a formal disciplinary meeting, but an informal interview, designed to make the appropriate enquiries as to the written complaint from Warringah and as to his activities in respect to the new councils allocated to him. 13 The applicant contended that he should have been put on notice of what the meeting was about, especially given that he was scheduled for a different review, in the form of an organiser's appraisal meeting that morning at half past nine. 14 It was a significant credibility issue pursued by the respondent's case that the applicant's original affidavit, Exhibit 1, referred merely to the issue of his advising the meeting as to his activities over the past month and made no mention of the three previous written warnings throughout the previous six week period. The respondent maintained that these warnings were issued as a legitimate response to the applicant's recalcitrant behaviour in displaying a defiant and belligerent and overall disrespectful reaction to a skills assessment process instituted by management as part of a strategy by the respondent to make the union more efficient to deal with the then recent major changes in Federal industrial relations legislation impacting upon the union. 15 A special meeting designed to facilitate the skills assessment process and to ensure co-operation in an associated appraisal scheme was held with all union delegates in Sydney on the 20th June, 2006. The meeting was said to be, inter alia, to alleviate concerns which existed amongst union staff at the introduction of the proposed staff management scheme. It was to identify areas which might be collectively or individually addressed and to equip organisers to cope in the new industrial environment bought by the WorkChoices legislation. 16 At that meeting, it was Mr Hughes' evidence (who had been assigned the responsibility for implementation) that the applicant, in a provocative voice, challenged Mr Hughes as to what would happen if union organisers did not co-operate in the process. The meeting resulted in a resolution being passed, initiated by the applicant to the effect that the assessments should not go ahead in the manner planned. The applicant's attitude was said to be portrayed by a comment he made to his supervising officer, Mr Mark McLeay, after the meeting, "Veney one - Pigdog nil", which was taken as a reference to Mr Hughes' nickname. 17 The assessment process thence commenced on the 3rd July, 2006, and Mr Hughes' evidence was that the process showed co-operation by organisers, with encouraging results. It involved each organiser completing their own sheet which was assessed at a meeting and a consensus being reached as to the outcome. 18 In the applicant's case, the assessment took place on the 18th July, 2006, with questions put to the applicant the same as other organisers. Present at the assessment were two staff representatives, Mr John Blacklock and Mr Paul Reid. 19 According to Mr Hughes, the applicant displayed a discourteous and rude manner at the outset, which was abundantly clear from his body language and his manner of speech, which showed disinterest in the process and lack of co-operation. According to Mr Hughes, he sat at the table leaning back in a chair and rarely made eye contact with either Mr Hughes or Mr Want, who was the other assessor. The answers he gave were provocative and unhelpful at times and in one instance made the statement, "I like challenging management" (or authority) and after a pause said, "I'm good at it", which was one of the few times that he looked at Mr Hughes in the process. This was taken as a deliberate slight to Mr Hughes and Mr Want. Again, according to Mr Hughes, he and Mr Want had to prompt the applicant by persevering in the process and attempting to develop a dialogue with the applicant. This technique was to no avail, as the applicant did not volunteer comprehensive responses and their efforts were largely unsuccessful. The applicant was dismissive at one point of the need for him to be aware of the demands of Federal legislation requirements, even in the face of the new Federal WorkChoices regime. 20 At the conclusion of the assessment process, Mr Want and Mr Hughes, after meeting separately, agreed that they would not give the applicant his assessment score as it was so low. At 57 out of 100, it was well below the minimum score of seventy. Given the applicant's actual skills, experience and knowledge, Mr Hughes regarded the low score as a deliberate failure to co-operate with the process and claimed that it was the applicant's attitude that let him down. 21 Upon the resumption of the meeting, the applicant was told that he would not be given a score at that stage due to it not being a true reflection of his ability and skills. He was asked if there were any reasons, personal or otherwise, for his poor performance, which was said to have been met with a shrug of the shoulders. Mr Want offered to meet with the applicant for him to be able to privately give reasons for his performance and behaviour at the assessment meeting. 22 As a result of the meeting, a letter dated 19th July, 2006, was drafted and attached as Annexure A to Mr Hughes' affidavit Exhibit 22. 23 No other organiser displayed the discourtesy, disinterest and obstructionism as the applicant in the assessment process, according to Mr Hughes. 24 Mr Hughes in his affidavit set out the background to the type of questions raised which he said were of the type used in respect of applications for positions of organisers. Attachment B to his affidavit Exhibit 43 was a copy of the material distributed to organisers. 25 The letter to the applicant of 19th July, 2006, provided him with his low score and details in a five page document (Annexure A to Exhibit 22). 26 The first page of that warning letter informed him that he had displayed a negative attitude to the process and an unacceptable level of co-operation, and as a result of his performance, the panel recommended to the General Secretary that he receive appropriate counselling and training in respect of the implementation of the Organising Strategy. The letter also required of him: (i) To make a commitment to implementing the Strategy; (ii) That he be reviewed on a regular basis, (no less than fortnightly) by the Metropolitan Manager for a period to be determined; (iii) That he undertake another assessment in the future (within three months) and finally; (iv) That should he refuse to co-operate, the union would take appropriate performance management and disciplinary action. 27 The applicant attended a meeting with management on 11th August. 28 As a requirement of that meeting, on the 15th August, Mr Hughes received a telephone call from the applicant saying, "I've rung to apologise for any offence I may have caused you at the assessment". Mr Hughes claimed that this was said in a belligerent way and, not being impressed with his tone, Mr Hughes asked, "would you have rung me if you hadn't been directed to", to which Mr Veney answered, "No". 29 Mr Hughes pointed out in his affidavit that the applicant had not taken up the offer of Mr Want to meet privately with him, and that no other organiser had shown the discourtesy and disinterest and obstructionism displayed by Mr Veney. 30 At the end of the telephone conversation on the 15th August, Mr Hughes told the applicant that he needed to change his attitude, and at the end of the conversation he remained unconvinced the applicant was genuine in his apology, or that he would conduct himself appropriately in the future. 31 Mr Hughes attached to his affidavit a copy of an e-mail he sent to Mr Harris dated the 16th August, 2006, following a conversation with the applicant, which began by referring to the meeting held the previous Friday, 11th August, between Mr Harris, Mr Kruse and Mr Veney, and complaining that the applicant's apology to him as directed at that meeting was not genuine, and giving further details of the applicant's further statements and generally referred to the applicant's poor attitude. 32 Also of significance in the attachments to Mr Hughes' affidavit was a written complaint by three delegates, and signed by some thirty members at the Warringah Council about the non-attendance of Mr Veney to their affairs. 33 The evidence, including the affidavit of Mr Michael Want, Executive President of the union, to a large extent continued where Mr Hughes' affidavit left off, and dealt with the applicant's attitude and disciplinary process, consistent with the evidence of Mr Hughes as to the applicant's attitude at the 18th July assessment meeting. The applicant, according to Mr Want, was unco-operative and in his view, completely contemptuous of the process and role given to himself and Mr Hughes in conducting the process on 18th July on behalf of the union. He confirmed Mr Hughes' recollection that the applicant, in answer to the question of why he liked working for the union, when he said, "I like challenging authority and I'm good at it", which also struck Mr Want as intended as a slight against himself and Mr Hughes. 34 Mr Want gave evidence of the body language of the applicant, being indifferent, sprawled in his chair and rarely making eye contact. He also rarely developed any point at all and gave brief comments where an elaborate answer would be called for. 35 Mr Want confirmed Mr Harris' account, that upon reconvening the meeting of the 18th July, the applicant was told by Mr Want of his low score and asked as to why the applicant was so difficult in the process. He told Mr Veney that he would be around to discuss it with him. The assessment had taken two and a half hours compared to where the average assessment had taken one and a half hours. Mr Want was a co-signatory to the letter to management of the 19th July mentioned earlier. He informed Mr Harris, the then General Secretary, on the 18th July as to the applicant's conduct and, arising from that conversation, there followed the meeting of 11th August (referred to earlier), to further address the matters raised from the applicant's attitude at the 18th July meeting. The meeting was attended by Mr Harris, Mr Kruse, Mr McLeay and Mr Want on the management side, and by the applicant, accompanied by a staff representative Ms Fraser. 36 Attached to Mr Want's affidavit (Exhibit 29 at tab D), was a record of notes taken by Mr McLeay at that meeting. Those notes revealed a setting out by Mr Want to the applicant as to how he was perceived as performing at the assessment interview on the 18th July, with an explicit warning that future behaviour of that type would not be tolerated and that he has to be completely loyal to the union's goals and objectives. It was also said that the union would not tolerate the sort of behaviour that was displayed before the panel. Management wished to hear him commit to the union's objective. 37 He was accused by Mr Harris at that meeting of having a pre-determined attitude and told that he had placed Mr Harris in a difficult position by challenging the process. Mr Harris left the applicant in no doubt as to his view of the applicant's behaviour in saying that he was furious, and that he was looking for a genuine apology and that he regarded this as one of the most serious challenges that he had faced and that it had made him really angry. Mr Harris went on to tell the applicant that he had the skills to be a good organiser. 38 Ms Fraser, on behalf of the applicant at that meeting, said that the seriousness of the situation was noted and that the message had been received. She further stated that Mr Veney would co-operate with the recommendations and other comments said to him at the meeting and would like to discuss the situation with the two staff representatives that were present at the assessment. 39 The notes also suggest that towards the end of that meeting the applicant had made the comment that he realised he was wrong and was sorry for his behaviour. A short adjournment is shown and when the meeting reconvened, the applicant is noted as giving an undertaking that he was prepared to do all the things that he was asked to do. The notes then show that he received comments as to the seriousness of the matters, which included reference to previous formal warnings given to the applicant, and the tolerance shown by Mr Harris. This appears to have led to a further comment from the applicant that it was not his intention to offend, but only to challenge with genuine views, and commented that he would like to speak to the staff representatives about their impressions of the day, to which Mr Want had commented that he had already had discussions with the staff representative during an adjournment. Further commitments given by the applicant was that he was prepared to work under his manager, and that he did not want to do anything to damage the organisation and make anyone's job harder. The next comment from Mr Harris recorded in the minutes of Mr McLeay was to the effect that it was all about defiance and the questioning of authority of the organisation, which was apparently met with the controversial comment of the applicant, "my last warning was about wearing jeans". Ms Nomchong pointed to this as an indication that the applicant had only taken in the issue of his dress attire from the list of more serious failures included in the warning dated 23rd January, 2006. 40 To the question as to whether he had formally responded to any of the warnings previously given to him, the applicant commented, "I do not know. I accepted them". 41 Comments attributed to Mr Kruse in those minutes was that he had said to the applicant amongst other things, that it was pointless in apologising unless he acknowledged what had occurred, to which the applicant had responded that he did not follow the script deliberately. Mr Harris at that point again referred to the applicant being belligerent, disrespectful, to which the applicant is noted as responding, "if I came across I apologise". Mr McLeay's record of the meeting summarised the situation at the end, with Mr Harris commenting that he had read the applicant's record and went on to say that he was at the point where he was considering recommending the applicant's termination. It was suggested that the applicant put together a further position where he might show cause at a further meeting, and seriously consider a response and commitment to the organisation. It was also put to him that he might think of resigning. 42 A further meeting was held on the 17th August between the applicant, Mr McLeay, Mr Want, Mr Kruse and Mr Paul Reid, the staff representative again to discuss his behaviour during the assessment interview on the 18th July and styled as a "show cause" interview. 43 He was advised that the matter was to be stood over until the 23rd August, and in the meantime he should prepare a list of his entitlements on resignation and consider his response showing cause and giving an undertaking of future commitments and finally to discuss with Mr Harris a possible negotiated exit. 44 On the 23rd August, 2006, another meeting was held with the applicant which involved two staff representatives Mr Paul Reid and Ms Lyn Fraser, together with Mr Harris, Mr Kruse, Mr McLeay and Mr Want. 45 Mr Want gave evidence of having had discussions with fellow management staff, which gave rise to the opinion that the applicant should be terminated, but that he, Mr Want, thought that the applicant should be afforded due process. Out of that meeting on the 23rd August it was decided that the applicant would not be terminated, but given a final warning. Mr Want recalled Mr Harris saying to the applicant, "this is your final, final, final warning, Allan". 46 Mr Want made arrangements to continue the organiser assessment process with Mr Veney and a further assessment meeting with the applicant was set down for 9.30am on the 13th September and Mr Hughes was to be in attendance. 47 Mr Want testified that he became aware around 5.30pm on the 12th September of the complaints received about Mr Veney not visiting Warringah Council. He claimed that his subsequent arrangement with the applicant to commence the meeting at 9.00am to enquire about the complaint, prior to the scheduled assessment was more concerned with the desire to conduct the assessment, in a timely way at 9.30am. 48 Prior to the 13th September 9am meeting, after a review of the applicant's weekly organiser sheets, Mr Want had determined that he had not visited the relevant council, Warringah Council, and he and Mr Harris agreed that morning that the applicant should be spoken to about the apparent absence of visits. It was around that time, 9.00am, that it was agreed that the applicant should be spoken to about the complaints. 49 The applicant's affidavit claimed a concerted prior effort was made to have him attend at 9 am without any clue given as to why he should be there earlier. 50 This area was all relevant to Mr Moorhouse's insistence that the 9.00 am meeting was intended by management to be of a disciplinary nature and that the applicant should have been given proper notice. 51 Mr Want testified that it was not intended that the meeting be a disciplinary meeting, although it was a real concern if the applicant had not been out to Warringah Council in the preceding four weeks, particularly against the background of a change in allocations of council for organisers and the August disciplinary process in respect of the applicant. 52 Mr Want gave important evidence that at that 13th September meeting the applicant gave very short answers, which he believed to be quite defiant during the meeting and answered some of Mr Harris' questions with the comment, "I can't remember" or "I don't know". In response to the question as to where he had been the previous day, the applicant commented, "I don't remember". At that point Mr Harris had said, "come on, I don't accept that", and according to Mr Want's affidavit, the applicant did not respond, but he later agreed under cross-examination that a further explanation was given after Mr Harris' prompt. 53 According to Mr Want, the applicant was deliberately difficult and evasive, and whilst making some explanations about where he had been, he was overall obstructive and his demeanour and poor responses were deliberate. 54 Again, Mr Want gave crucial evidence that he regarded the applicant's behaviour at that meeting as being reminiscent of the assessment of the 18th July and was completely unsatisfactory, particularly in the light of the assurances he had given at the meetings of the 11th August, 18th August and 23rd August. 55 Mr Want had no confidence that the applicant would bear out the objectives and policies of the union and testified that the union was going through a difficult period in the industrial relations climate and needed the support of its people. Mr Want finished his affidavit on the basis that he would find it difficult to overlook the applicant's disrespect towards him and would have considerable difficulty working with him again because of his past attitude to himself and the union. 56 Mr Harris' evidence of the meeting corroborated the main thrust of Mr Want's account as to the applicant's reversion to recalcitrant reaction to questioning as to his activities the previous month. 57 Mr Veney's cross-examination in respect of the meeting of the 13th September where the complaint received in respect of his lack of visits to Wahroonga and North Sydney Councils was of some importance, both from the point of view that the applicant's barrister Mr Moorhouse, alleged procedural unfairness and also in respect to the competing evidence of Mr Want, Mr Harris and Mr Reid as to the applicant's responses which formed the basis of the respondent's claims in these proceedings as to reasons why he was dismissed. 58 Mr Veney denied looking at the floor and refusing to look Mr Harris in the eye and slouching in his body language. 59 In respect of his answers to questions he gave the following responses. 60 As to why he had not been to Wahroonga Council, he agreed saying, "I've been busy elsewhere", but defended his response on the basis that he would need to have checked his diary and his worksheets to be able to answer properly in respect to the questions as to what he had been doing. He agreed that he stated "a range of things" to a further question as to his activities during the 4-5 week period. 61 He agreed that Mr Harris had asked him about his failure to take up the offer of Mr Adam Jacka to go to Wahroonga and that he had answered, "Yeah, but I had another meeting and wasn't available". 62 In respect of whether he had been in touch with the delegates at all, he agreed that he had said, "about three times", but that that was not all that he had said. As to his response to Mr Harris who asked when he had made those calls, he disagreed with the minutes of Mr Want's record of the conference, that he had simply answered "can't remember" and instead said, "can't remember the specifics of those phone calls". 63 In respect of the question as to why he had not been to Wahroonga, he claimed to have answered that "he was focusing on a member at Ryde" and as to why he had not been to North Sydney, who had also complained of his non-attendance, Mr Veney recalled advising Mr Harris that he had seen Mr Charlie Henry who was a delegate at North Sydney. When challenged by Ms Nomchong in cross-examination as to the fact that Mr Henry's visit was some four weeks earlier in June, Mr Veney reverted to suggesting that it was the best of his recollection, but he thought it was in the period July/August and as to why he had said to Mr Harris in answer to Mr Harris' question as to when he had seen Mr Henry, he did not disagree that he had answered, "not sure" and qualified that answer by saying, "and I'm still not sure". 64 He disagreed that he gave his answers in a hostile voice. 65 He agreed that he recalled Mr Harris saying, "well, that doesn't explain why you haven't been out to Wahroonga. They should be a high priority". 66 He agreed that he may have initially said, "I can't remember" in respect of the information sought as to what he had done when he had gone to Pittwater, Ryde and Willoughby Councils on the 5th September, and went on to qualify that this was because he wanted to be certain before he answered the question, and as to Ms Nomchong's challenge that his responses were short, his response was, "it doesn't take much to say I can't recall", and as to whether he continually answered, "I don't know" or "I can't remember", his response was, "if I didn't know or I couldn't remember, then that's what I said". 67 He claimed that it was around that time that he requested to see his Friday Sheets and denied that Mr Harris had volunteered them. 68 The applicant agreed Mr Harris had said to him that he was not happy about his attitude and his answers, and he agreed also that Mr Harris was putting him on notice that he was adopting the same belligerent and defiant attitude that was coming through yet again from previous conferences, and it was the question as to whether Mr Harris was telling him that his attitude was annoying Mr Harris, who gave the answer, "he didn't like the answers I was giving him", but agreed that Mr Harris had said, "I'm not happy about your attitude". He qualified his acknowledgement that the answers he was giving Mr Harris were not good enough on the basis that he agreed that they were not satisfying Mr Harris. He agreed that Mr Harris had conveyed to him that he was annoyed at the way that he was talking to him and the answers that he was giving, and further, that he understood at the time that Mr Harris was unhappy with the attitude shown towards him. He went on towards the end of that part of transcript to agree again that he was conducting himself in the same fashion as the July 18th conference and the meetings in August, and that he understood that Mr Harris regarded his conduct as unco-operative, disrespectful and belligerent. As to why he did not do anything to change that situation, he gave the response, "I don't know how I could". 69 He went on to challenge that he was evasive and unco-operative and also disagreed that when Mr Harris had asked what he had done the day before, that he simply answered, "I can't remember". 70 He also disagreed that Mr Harris had said, "come on, I just don't accept that", although later acknowledging that in no way in his rebuttal affidavit did he deny the accuracy of Mr Want's notes and later in the transcript insisted that he did not simply say "I can't remember" in respect of what he had done the day before, but said, "I can't remember everything that I did yesterday off the top of my head, but two things that I can remember doing". He went on to detail the two things that he had done the day before as to preparing a Section 130 dispute notification in the Commission and that he was the last person to leave the office. 71 He also denied giving his answers to Mr Harris in a sarcastic and distasteful tone. 72 An analysis of the transcript, taking into account the credibility of the key witnesses, supported a version of events at the very least in line with Mr Reid's careful approach in his affidavit (Exhibit 16) - convincing enough proof that the applicant's behaviour did provoke Mr Harris to suspend him. That behaviour included at least a failure to finish his sentences and that some of his answers were short and perfunctory and that he did not elaborate. Mr Reid, in what appeared to be a cautious approach in his affidavit, expressing that he was "unsure" of many of the recollections of Mr Harris in his affidavit, did suggest that Mr Veney was "angry and reticent" and that there was a lot of tension at the meeting. 73 In cross-examination by Ms Nomchong, Mr Reid made many more unfavourable observations as to the applicant being "contemptuous" of the reason for being at the meeting and failing to make eye contact. He agreed with a host of suggestions put to him in cross-examination as to the applicant's poor conduct at the meeting, which corroborated many of the claims of Mr Harris and Mr Want. 74 The Commission has not been prepared to discount the more elaborate evidence by Mr Reid, not ventured in his affidavits (Exhibits 15 and 16) at the time of being called by the applicant's lawyers to give evidence, and/or for reasons associated with him having to be declared a hostile witness. Even putting aside Mr Reid's much expanded evidence in cross-examination by Ms Nomchong, I have been comfortable in finding from his earlier observations that there was a repetition of at least some of the characteristics, which the respondent representatives found so objectionable at previous encounters with Mr Veney. Complaint of Not Visiting Delegates 75 This area of the evidence unsurprisingly occupied a significant portion of the proceedings, although really found to be of secondary relevance, given the focus in the case that the predominant reason for the applicant's dismissal was his continued defiant behaviour at the 13th September suspension interview in the face of a "final final" warning dated 31st August, 2006, "U" of Exhibit 43. 76 This is not to say that consideration of his dismissal by the Executive was necessarily restricted to his behaviour at the 13th September interview, although this was referred to in Mr Harris' memorandum/recommendation to the Executive on 18th September - see "W" of Exhibit 43. Indeed, the Commission has also considered the inclusion of Mr Veney's past record for reasons of the being listed in the recommendation for dismissal, dealt with later under Consideration. 77 Whilst the applicant gave reasonable evidence of a range of activities during the crucial period over August and early September, 2006, the evidence of Mr McLeay was to the effect that there was enough time for the applicant to be able to visit his delegates. The evidence overall in this area pointed to a lack of proper prioritising, with the capacity for greater effort to visit delegates. In particular, opportunity surely existed to meet the delegates of Warringah Council following the cancellation of the meeting of the 7th September by the General Manager and when the applicant was therefore scheduled to be at Warringah Council. This was especially important since he failed to take up the invitation by Mr Jacka for a changeover meeting and Mr Schramm's evidence as to the concern of delegates in respect to the Workchoice changes. Others (such as Mr Jacka) gave convincing evidence of the need to give priority and as to the regularity usually accorded such activity. Many of the other tasks performed by Mr Veney in this period canvassed in evidence were less important. The applicant was also the only organiser with nine new councils. 78 Mr Donley's evidence in respect of the failure of the applicant to carry out any organising works at Ryde detracted from the applicant's contention that his activities at Ryde were a reason for his inability to attend Warringah and North Sydney Councils more regularly. Mr Donley's evidence of the lack of paperwork received from the applicant during this period is also noted. 79 The Commission has noted the submissions of Mr Moorhouse and the evidence in this area did show some particular details of contact, such as by e-mail and telephone, and with the arrangement to meet the General Manager of Warringah Council. Other evidence of activities by Mr Veney was too indirect and loose to be of value on this question. 80 The applicant's declining of the offer of Mr Jacka, the departing organiser, to meet with the delegates of Warringah Council again raised the question as to his judgement on such matters. Whilst it was true that there was some benefit to the union in him completing the matters from Waverley Council, it would have been wiser for him to think of his new obligations and to have perhaps shifted one of the meetings to another date or given the delegates a definite future date. 81 It was difficult to assess from the conflicting evidence as to whether the applicant had put in a proper effort with all his new Councils, but, as touched upon earlier, there were indications through e-mail contact, through his contact with various members and particularly the member at Ryde Council and having regard to other work commitments, that the applicant was certainly not inactive. His oral evidence as to what he believed he would have been likely to have done during the period in respect to named individuals put to him by Mr Moorhouse was again however too uncertain to be given much evidentiary weight. This goes more to the question of whether or not the respondent should have had a proper inquiry and, as pointed out by Mr Moorhouse, none was ever conducted, although again the respondent's case had a different emphasis and other evidence showed that the applicant was suspended because of his continued display of attitude and behaviour that day. 82 There was a whole range of issues not as relevant to the reasons for dismissal, such as whether or not the applicant had been told by Mr McLeay in the presence of Mr Donley, to concentrate on one Council rather than try to visit delegates in all of them, and the absence of clear indication of activities on the Friday Sheets were issues receiving conflicting evidence and not needing to be decided along with a host of subsidiary matters. Final Submissions on behalf of the Applicant 83 Mr Moorhouse contended on behalf of Mr Veney that his suspension on the 13th September and the follow-up recommendation to terminate him (18th September), was at least in part due to the complaint received about his failure to visit delegates and members at Warringah and North Sydney Councils and the failure to satisfy Mr Harris with his answers. 84 Termination for that reason was unfair as the complaint about visiting councils in the month before was not sufficiently serious and ignored the fact that he had a significant increase in workload with the allocation of nine new councils. 85 The termination was also procedurally unfair. Mr Veney was not informed in advance about the complaint, so as to prepare and there was no real investigation by the union into what he had in fact done in the preceding four weeks. 86 The respondent union's case that Mr Veney was dismissed for his attitude and behaviour towards management during that 13th September meeting, which was a continuation of earlier behaviour, should not be accepted by this Commission. The chronology leading to the suspension and termination does not support that case. The letter of termination and the matters put before the Executive go well beyond the question of Mr Veney's attitude towards management that day and where a range of performance issues were included. 87 In any event, even if the Commission accepts the evidence of Mr Harris and Mr Want that his attitude and behaviour at the 13th September meeting were the real reasons for his dismissal, his dismissal is still unfair. 88 Firstly, the evidence does not support that he was unco-operative at the meeting as portrayed by Mr Harris and Mr Want. 89 The extent that his attitude was actually unco-operative and reticent is understandable in the circumstances and insufficient to justify dismissal of a long standing employee. 90 There was no warning given to Mr Veney that he was likely to be suspended and terminated out of that meeting. 91 The Executive decision to accept the recommendation of Mr Harris was procedurally flawed when Mr Veney's request to delay the decision to allow him to take legal advice, and for his lawyers to meet with the union, was rejected. This led to Mr Veney not addressing the Executive and he was not made aware of that fact until two days after termination. 92 The matters put to the Executive were out of date, incorrect or misleading and no one put Mr Veney's version of those relevant events to the Executive. 93 Mr Moorhouse referred to caselaw for the proposition that a termination may be harsh in its consequences for the personal and economic situation of the employee, and because it is disproportionate to the gravity of the misconduct in respect of which the employer acted (Byrne Vs Australian Airlines Ltd (1995) 105CLR410 @ 465). 94 Mr Moorhouse also pointed out the observations of the Full Bench of this Commission in Antonakopoulous Vs State Bank of New South Wales (1999) 91 IR 385 that the adoption of an unfair procedure may of itself result in a dismissal being harsh, unjust or unreasonable. Mr Veney sought reinstatement or re-employment or alternatively the maximum amount of compensation. 95 Mr Moorhouse made submissions in respect of his employment record up to the January, 2006, dealing with evidence brought by the union of various disciplinary matters on his personal file between 1999 and 2001, and a further matter recalled by Mr Harris dated 2004. These included the tow bar incident in 1999; and various allegations of sexual harassment or racist comments in 2000 and 2004 which were denied by Mr Veney. 96 On that latter issue Mr Moorhouse pointed out that the evidence given by Mr Harris of those events were hearsay compared with Mr Veney's denial of the alleged conduct on oath in these proceedings. He also pointed out that there was no full investigation of that conduct at the time (Exhibit 43 paragraphs 47, 34). The Commission should therefore have no regard to those matters as being irrelevant, incorrect and misleading. 97 As to the formal written warnings in February, 2005, and January, 2006, (Exhibit 43 "Q") Mr Veney disagreed with some of those matters and told Mr McLeay about those he disagreed with at the time. 98 In respect of the second written warning that Mr Veney had failed to promote ACTU's Day of Action, he was not given the opportunity to test the complaint, no proper scrutiny of the issue was made at the time. That matter should also not be relied upon by the Commission. 99 Mr Moorhouse then moved on to the 18th July, 2006 appraisal and the subsequent disciplinary process. 100 Mr Veney's evidence rejected Mr Want's suggestion that he was contemptuous of the process and believed that he answered the questions truthfully during the assessment. 101 Mr Veney's behaviour during that appraisal meeting led to three disciplinary meetings during August, 2006. Mr Veney apologised verbally to Mr Want and Mr Hughes for that behaviour and provided a written apology (Exhibit 43 "T") and Mr Reid, staff representative, provided a written apology on his behalf (Exhibit 17). Although he did not believe he had done anything wrong during that process, he gave a genuine apology for "concerns that I caused" and "because I wanted to apologise for upsetting people". 102 The letter provided to Mr Veney on the 19th July, the day after the 18th July process (Exhibit 22) recommended special counselling and training. Mr Veney was also required to make a commitment to implementing the organising strategy and told that he would receive regular reviews and undertake a further assessment. During those disciplinary meetings Mr Veney and a staff representative gave commitments to comply with recommendations and follow union's management as shown by Mr McLeay's notes, at Exhibit 20. Mr Veney gave that commitment in a letter to Mr Harris of the 16th August, 2006, (Exhibit 43 "T"). 103 The final and last warning given at the conclusion of the meeting on the 23rd August, 2006, was followed up in writing by letter dated the 31st August (Exhibit 43 "U"). Whilst that letter required Mr Veney to undertake a further reprisal with an improved attitude and undertake certain reviews and training, he had already given those commitments. 104 During those August meetings Mr Veney was asked several times as to whether he wished to resign (Exhibit 20 "T"14/6,page 22). 105 At the commencement of the 17th August meeting, he informed the union that he did not wish to resign and considered that his actions during the appraisal process did not warrant termination, and wished to continue working for the union. 106 Mr Veney's alleged behaviour during the 13th September meeting is the only way in which it is suggested that he did not live up to the commitments he gave during and at the end of the August disciplinary process. 107 Mr Moorhouse moved to the issue of the complaint received about the alleged failure to visit Warringah and North Sydney Councils. 108 A complaint originated from a conversation by Mr Schramm, an organiser for Warringah Council to Mr Hughes, that Mr Veney had not been out to visit the council. Mr Hughes wrote out the complaint from Mr Schramm and suggested that two other delegates, Ms Fahey and Mr Zofrea also sign the complaint. Mr Schramm's main concern in raising the matter was to get Mr Veney to come out and visit. Ms Fahey testified that she signed the complaint in the expectation that it would be bought to the attention of Mr Veney's manager and she would be happy if he came out to visit. Likewise, Mr Zofrea was seeking to have him come out, although Mr Harris acknowledged that such disciplinary action is usually done by the Supervisor, such as Mr McLeay. The process moved very quickly from the informal complaint stage received by Mr Hughes, and conveyed to Mr Harris the afternoon before, to having interviewed Mr Veney at nine o'clock the next morning. No satisfactory reason was established for such urgency. 109 The urgency meant that Mr Veney was not given notice of the meeting, nor an opportunity to obtain and consider relevant documents; and given the nature of the complaint, and the fact that Mr Veney was on a final warning, it was also important that the process not be rushed. The fact that Mr Veney had expected that morning to undertake the further performance appraisal scheduled for him and that it was a matter of some importance, was also relevant, given the disciplinary process already undertaken. 110 Neither Mr Harris nor Mr Want were able to give a satisfactory explanation as to why the meeting was held that morning, the reference to the need to find out the basis of the complaint very quickly, given the size of the site with the large number of members was the only good reason, along with the suggestion that there was some discontent in the metropolitan branch about Mr Kruse's appointment to General Secretary. Neither was any adequate reason given as to why a direction could not have been given for Mr Veney to visit the delegates at Warringah forthwith, with an inquiry to be held later. 111 Mr Veney was given no notice of the 13th September meeting until receiving a call from Mr Reid, the staff representative at about 9am that morning, telling him that Mr Harris had mentioned something about a complaint and wanting Mr Veney to come to his office. 112 Mr Veney had expected to have his further appraisal meeting that morning. 113 The meeting lasted for perhaps fifteen minutes and commenced with Mr Harris informing Mr Veney of the complaint, and he then questioned Mr Veney about his contact with delegates and members of the two councils involved. Evidence shows that the majority of the meeting was concerned with those matters, and what Mr Veney had been doing in the four weeks since he has been allocated the two councils, along with other new councils. There was special interest shown in 5th September and why he had not visited Warringah that day. Towards the end of the meeting, Mr Harris asked general questions about how Mr Veney organised his time and his approach to working for the union. 114 Some inconsistency existed with Mr Harris initially acknowledging that he had arranged for Mr Reid to be present as a staff representative, and subsequently suggesting that it was a matter of convenience - he (Mr Reid) went to fetch Mr Veney and then stayed. Mr Veney's evidence was that Mr Harris had asked Mr Reid to attend. Mr Reid's evidence was that he was there in his capacity as staff representative, and that Mr Harris had asked him to be available for the meeting. Mr Want's evidence was that Mr Reid was invited or arranged, and discussed his attendance with Mr Harris earlier that morning. By contrast, the evidence by Mr Harris as to why Mr Reid was present was apparently given as support for his view that it was not a disciplinary meeting. Regardless of how this is described, said Mr Moorhouse, it was clear that it was arranged to question him about the complaint. 115 According to Mr Want's affidavit, he and Mr Harris were already aware the Friday sheets had shown that he had not visited Warringah and therefore the Commission can infer that the meeting was called to take disciplinary action. In any event, it can only have appeared that way to Mr Veney. 116 As to Mr Veney's alleged attitude at the meeting, described as being defiant and evasive by Mr Harris and Mr Want, his evidence was that he was not defiant and had not set out to be difficult or evasive. However, he was conscious of not giving the answers about his whereabouts without first reviewing the relevant documents, such as his Friday sheets and his diary, and he was unhappy and annoyed that he had been called to attend a disciplinary meeting, where he had no forewarning, and in circumstances where he understood he was to have his further organisers assessment. Mr Harris should have expected that Mr Veney would have that reaction and had regard to that in assessing his behaviour during the meeting. 117 Mr Reid's description of Mr Veney as displaying anger and reticence was on the assumption by Mr Veney that he had expected to be conducting his further appraisal meeting and the fact that he was surprised to have to attend. 118 Mr Reid gave evidence that there was a lot of tension in the room, and he accepted that Mr Veney's demeanour was open to various interpretations, he could not recall Mr Veney not answering Mr Harris' questions which is contrary to what Mr Harris said in his evidence. Mr Reid's evidence was: " I do not recall Mr Veney not answering Mr Harris' questions. Rather as described in paragraph 7 above, there were a couple of occasions when Mr Veney would start to reply to questions, but didn't properly finish his sentence." 119 The contemporaneous notes taken to the meeting do not support that Mr Veney repeatedly failed to answer, or that he repeatedly said, "I can't remember". Mr Harris' evidence that the applicant had replied, "I don't remember" in respect of questions as to what he had performed the day before, was simply incorrect. That answer was of importance to Mr Harris because he had included it in his memorandum to the Executive. 120 That should be contrasted to Mr Veney's evidence that he said, "I can't remember everything I did yesterday", but went on to refer to several matters that he had done the previous day. The contemporaneous notes support Mr Veney's evidence that he answered that he worked on a Section 130 dispute the day before and was the last to leave the office. Mr Want eventually accepted when pressed in cross-examination that Mr Veney did answer that way after being prompted by Mr Harris. 121 By Mr Harris' account, the answer given by Mr Veney about what he had done the previous day was the high point of his alleged poor attitude. His evidence also differed from the others in respect of whether Mr Veney pulled out his diary and whether the Friday sheets were on the table and made available to Mr Veney. 122 The Commission needs to take significant care with Mr Harris' evidence of the meeting. Dealing with the actual suspension, Mr Moorhouse drew attention to the admission by Mr Harris that Mr Veney's suspension was made without notice and without giving any opportunity to address that matter prior to announcing his decision. Mr Want's evidence in transcript of 22nd May, page 27, line 55 and page 28, line 10, supports this. He believed that the Commission should conclude that Mr Harris made a rash and unfair decision in announcing the suspension and made without procedural fairness. 123 Mr Moorhouse also alluded to the evidence of Mr Ray Scoble which showed that Mr Harris on the day afterwards had indicated that when asked about Mr Veney's future. Mr Jacka's evidence suggested that words to that effect were said by Mr Harris, while Mr Harris himself gave unconvincing and unclear evidence. 124 Turning to the issue of Mr Veney's activities since the reallocation of councils, Mr Moorhouse first alluded to the fact that the reallocation was to take effect from the 14th August, 2006 and in Mr Veney's case meant the substitution of all his existing councils, with nine new councils, and he was the only organiser allocated an entirely new compliment of councils (See McLeay Transcript see 30/3 page 66 line 30). This had the effect of giving Mr Veney more delegates to meet. To this can be added the fact that the resignation of one of the metropolitan organisers resulted in the remaining metropolitan organisers at a slightly greater workload according to Mr McLeay's evidence. Whilst acknowledging that he did not visit Warringah Council in the period since reallocation, Mr Veney gave evidence of a number of phone conversations with both Mr Schramm and Mr Zofrea (see Exhibit 3 paragraph 3A and 64, Exhibit 34 paragraph 10, Exhibit 33 paragraph 10). 125 In addition, Mr Veney had arranged to meet with the General Manager of the council and also to meet with the delegates on the 7th September, a meeting which was cancelled at short notice (Exhibit 3 paragraph 3C) (See Jacka's evidence transcript 21/5 page 79, lines 1-15). 126 A planned visit to Warringah on the 5th September had to be cancelled at short notice so that the applicant could assist Mr Gentle, who was a Ryde Council Ranger, whose employment at the time was in jeopardy. He informed Mr Zofrea at the time and they expected to meet on the 7th September (see Zofrea transcript 22/5 page 75 line 40). 127 In addition Mr Veney communicated by e-mail with Ms Fahey and other Warringah delegates (Exhibit 1AV4 and Exhibit 19). 128 In respect of North Sydney Council, Mr Veney attended that council on a number of occasions to visit Mr Charlie Henry. 129 Still in respect of contact with new councils Mr Moorhouse directed the Commission's attention to the fact that Mr Veney had spoken to Mr Clive Parker, a delegate of Ryde Council, on several occasions (transcript 26/3 page 30) and he assisted Mr Jason Gentle who was a ranger at Ryde Council, who had been suspended and faced termination. Mr Veney had met Mr Gentle on four occasions and later in early September, 2006. 130 On the 5th September he visited a number of new councils including introductory visits to delegates at Willoughby and Pittwater Councils (Exhibit 1 paragraphs 56-60). Mr Goodmanson's evidence of transcript of the 22/5 page 8 bears this out. 131 On a general basis Mr Veney gave evidence that he sought to obtain e-mail addresses and phone numbers for his new delegates (transcript 26/3 page 32 and also Exhibit 19). Mr Moorhouse defended Mr Veney's work generally around and following the reallocations beginning with the period after the 14th August. Every day for two weeks and thence regularly thereafter Mr Veney and other organisers were required to meet at the union's office at the commencement and conclusion of each day to discuss daily activities with Mr McLeay (Exhibit 1 page ….. paragraph 62, T29/3 page 18 and Mr McLeay's Exhibit 20 paragraph 65-66). 132 In addition to this, Mr McLeay had informed the applicant during a discussion about organising works projects that he should focus on one council at which to recruit, rather than attempt to visit all his new councils (Exhibit 1 paragraph 63, Exhibit 20 paragraphs 74-79 and T30/3 page 69). 133 During those daily visits Mr McLeay never told Mr Veney to ensure he should visit Warringah or North Sydney Councils or to change his priorities and visit all of his new councils. Mr McLeay accepted that he was required to monitor Mr Veney closely at that time during the disciplinary process and that he was looking at Mr Veney's Friday Activities Sheets and that he was probably aware that Mr Veney had not visited Warringah (T30/3 page 71). 134 An unusually long period of time was required to be spent in the union's office during the change-over period and the Friday Sheets did not require recording the actual work time performed in the office, but rather simply that they were present in the office. Much of that work related to the handover and required Mr Veney to work on referral agreements which had been said to be a priority at the time. Mr McLeay accepted that there was a short term increase in Mr Veney's work load due to the reallocation of the nine new councils. On the 11th and 22nd August the applicant had spent two days working in the union's information centre as directed by Mr McLeay, and also attended three disciplinary meetings involving himself on the 11th, 17th and 23rd August. On the 30th August he spent two hours meeting with Mr McLeay and Mr Donley to establish his new organising works project at Ryde Council and identifying particular issues. 135 In respect of the Executive meeting of the 18th September which was followed by the union's conference for two or three of the following days, the decision to terminate Mr Veney was taken around lunchtime, when Mr Harris spoke in favour of his recommendation to terminate the applicant, and the matters included in his memorandum (see Rietdyk T21/5 p75). The discussion about Mr Veney's termination involved Mr Want and others, and lasted for five or ten minutes. Ms Rietdyk's evidence was that the complaint of not visiting councils was raised, although it was more to do with the performance and attitude of the applicant. No one spoke on behalf of the applicant. 136 Mr Moorhouse referred to specific items in the Memorandum prepared by Mr Harris for the Executive which he believed were out of date, incorrect or misleading, beginning with a claim that Mr Veney could not remember where he was and what he had performed even on Tuesday afternoon the 12th September. The evidence of the meeting does not support this contention. Questioning on his weekly information sheets was another matter raised by Mr Harris, when in fact Mr Veney was not questioned on those documents, except as to what he had done on the 5th September, to which Mr Veney had given a relatively detailed answer. 137 In respect of the allegation that Mr Veney had lied about where he was on the 15th July, 1999, which related to his non-attendance to the meeting because of a proposed funeral that ultimately occurred on the following day, Mr Harris acknowledged that Mr Veney did not lie. He did not try to hide what had occurred on that day. 138 In respect of the theft of a tow bar raised by Mr Harris' memorandum, the official record shows some doubt about this matter, and the union has given him the benefit of the doubt and that he had received the tow bar as part of an audit processing conducted. Also there had been a practice of union members obtaining such items without prior approval, but subsequently making payment (see Harris T14/6 page 14 lines 2045). 139 In respect of the inclusion of the alleged inappropriate comments to staff and a member of a sexual and racial nature on three occasions, the relevant memorandum of the 26th March, 2001 referred to is not in evidence in these proceedings. Those allegations were denied by Mr Veney and never investigated by the union, and such prejudicial material should never have been put to the Executive, particularly as Mr Veney was not aware that the matter had been put, and never had a chance to reverse it. The matters should not have been put to the Executive meeting in the way they were, especially as Mr Harris acknowledged that no attempt to correct any of those matters were made in talking in favour of the dismissal. 140 Turning to the fact that Mr Veney had filed a threatened dismissal application on the 15th September before this Commission, and on that day consulted his solicitors, Mr Moorhouse dealt with the fact that his solicitors, Harmers Lawyers, had faxed a copy of a letter to the union's office. That letter requested the deferral of the decision, and requested a meeting to discuss and resolve the matter. The letter also noted that the application lodged had been allocated to Commissioner Connor for conciliation and Mr Veney's solicitors anticipated and approached the Commissioner to have the matter dealt with urgently. The letter also indicated he was obtaining legal advice and would not be able to attend the Executive meeting on Monday. The letter made it clear that he wished to contest the dismissal, but did not state that he did not wish to be heard. Mr Veney instructed his solicitors to ensure the union saw the letter prior to the Executive meeting and was satisfied that the letter had been received (T27/3 page 81, T29/3 page 33). 141 The letter was provided to Mr Birney and Mr Harris on Monday morning before the Executive meetings and was discussed by them, with Mr Harris indicating to Mr Birney the letter would not change his position. Mr Harris spoke against the proposal of Mr Veney's solicitors on the basis it was simply a delay tactic and a waste of union's resources and in circumstances where Mr Veney had already received three warnings (Rietdyk T21/5 page 77, Harris T14/6 page 60). No one from the union contacted Mr Veney to inform him that the decision would not be delayed, and he did not know until after he was dismissed. 142 Mr Birney accepted the Executive could have dealt with the dismissal at any time on the Monday the 18th, or could have reconvened, over the following days. 143 Mr Moorhouse offered the following challenge to the respondent's reliance upon the argument that Mr Veney was dismissed because of his attitude and behaviour and not because of his failure to visit particular councils. 144 Firstly, Mr Veney's suspension came during a meeting about the complaint which he was required to answer. Secondly, the suspension meeting dealt solely with that issue of not contacting two councils, along with whatever he did instead of visiting councils. Thirdly, Mr Harris' memorandum for presentation to the Executive meeting on the 18th September, did not specify any particular reason for termination and the first two paragraphs refer to the interview called for the purpose of dealing with the complaint of not visiting councils and his alleged failure to account for his whereabouts at the meeting. The remainder of the memorandum referred to previous warnings and earlier performance issues. Similarly, the letter of termination did not specify any particular reason, and again the first two paragraphs refer to the interview on the 13th September and his alleged failure to account for his whereabouts. 145 Mr Veney's evidence was that he understood he was suspended because of his failure to visit councils as per his application in relation to his then threatened dismissal. 146 The notes of the meeting of the 13th September indicate that it was in Mr Harris' mind that it was about whether Mr Veney visited councils and perhaps his general style as an organiser. 147 Mr Moorhouse went on to deal with the impact upon Mr Veney including aspects such as his age and long experience with the union. Since his dismissal, he has been unable to find full-time employment and has been required to do casual taxi-driving. Mr Harris acknowledged the difficulties that a long standing union organiser would have in finding such alternative employment. The union was informed of the harsh impact dismissal would have upon him during the August disciplinary meetings, but these would have been apparent to the union in any event. Mr Veney filed his threatened dismissal application when he was still employed and the union was put on notice of that application, prior to the decision to dismiss and that the matter was sought to be dealt with on an urgent basis. 148 In that connection, Mr Moorhouse drew attention to the fact that the Commission has the power to order an employer not to dismiss an employee threatened with dismissal (S.89(7)). The dismissal effectively prevented Mr Veney from seeking interlocutory relief and having the fairness of his dismissal canvassed while he remained employed. His dismissal meant that it became more difficult for him to be reinstated. 149 Mr Moorhouse turned to the issue of the superannuation benefits foregone by the applicant in respect to his termination, providing the background for Mr Veney's history within what was originally known as the Local Government Superannuation Scheme from 1st December, 1974, which was a defined benefit retirement scheme as well as a contributor financed benefit component and a basic benefit component. At the time of his dismissal he was contributing the maximum nine per cent of his salary and his evidence was that he intended to contribute at the maximum rate until his retirement. He intended to work at least to age fifty-eight to accrue the maximum benefits. 150 Mr Moorhouse then outlined the disadvantages to Mr Veney, amounting to a differential of $101,153.20 as one indicator of his loss which would be even greater if he was required by financial circumstances to take his required retirement benefits prior to age fifty-eight. Mr Moorhouse went on to deal with the evidence of Mr Rozetto, a forensic accountant bought in by the union to challenge the evidence given by Mr Veney about the impact on his superannuation benefits. 151 He attacked the basis upon which Mr Rozetto had made assumptions and his calculations, and especially the notion that Mr Veney would either suffer no loss or only a modest loss. Most of that criticism was on the basis that Mr Rozetto had been instructed to determine the position at age sixty-five. He compared the report tendered from Mr Stevenson, on behalf of Mr Veney, showing the effect of his dismissal on projected superannuation benefits (Exhibit 40). Mr Stevenson is an actuary working in the superannuation industry since 1971 and directly involved with the LGSS. Results of Mr Stevenson's comparison tables are shown in Exhibit 4 and show that each projected retirement age, Mr Veney suffered a reduction to the value of his employer financed benefit as a result of his dismissal, with the greatest loss shown at age sixty at retirement. 152 Mr Moorhouse submitted that the Commission can be satisfied on the evidence that Mr Veney's dismissal has adversely affected his projected retirement benefits, particularly if he had wished to retire at age fifty-eight or within a couple of years of that age. 153 Mr Moorhouse went on in his final submissions to deal with the appropriate remedy, pointing out that reinstatement is the primary remedy and should be ordered unless reinstatement and re-employment is impracticable. Reluctance to re-employ will not necessarily make reinstatement impracticable, and Mr Moorhouse referred to relevant caselaw to reinforce the key point that provided an employer is of even average fair-mindedness, problems resulting from re-employment are often self inflicted and any reluctance is likely to be short-lived (Perkins Vs Grace Worldwide (Aust.) Pty Ltd (1997) 72IR186) which was quoted with approval in Hollingsworth Vs Commissioner of Police (No.2) (1999) 82IR282 @ 341/2. 154 Mr Veney's evidence is that he is committed to undertaking any training and to carry out any directions given by the General Secretary of the union. 155 Mr Moorhouse pointed out that Mr Harris who suspended Mr Veney and recommended his dismissal has now left the union, and Mr Veney does not have a history of difficulties with Mr Kruse, the new General Secretary. Mr Donley would be Mr Veney's manager if he was reinstated and he gave evidence that he would not have any worries about Mr Veney's attitude towards management. 156 There was an additional factor in favour of reinstatement in this case, and referred again to the fact that his dismissal prevented him from seeking interlocutory relief. 157 Mr Moorhouse dealt with the evidence given by Mr Kruse as to the number of vacancies for organisers within the union, and no evidence was lead as to impracticability by reference to available positions. 158 In the alternative, Mr Moorhouse made submissions in favour of a maximum compensation being awarded to reflect the loss of long term employment, the period of his unemployment, his reduced superannuation benefits. He provided details of the applicant's remuneration which included details of the provision of a motor car, a base salary of $1162 per week and the employers superannuation contributions. He submitted that the figure of $1325 per week should be adopted as representing Mr Veney's remuneration. The Respondent's Final Submissions 159 Ms Nomchong began her address in reply by emphasising that Mr Veney's termination occurred through his repeated acts of defiance, arrogance and a contempt for union management and its strategies and his rude and unco-operative behaviour towards senior officials. 160 The biggest issue going to the question of credit was whether or not the applicant was telling the truth when he comes to the Commission and says that the reason he was terminated was because of the answers he gave to Mr Want and Mr Harris on the 13th September which were considered unacceptable. 161 Related to that, Ms Nomchong claimed that his original affidavit wrongly created the impression that on the 13th September, 2006 he was co-operative and helpful and gave details of lengthy explanations of where he had been in the four week period prior to that date. 162 She went on to say that Mr Veney was in a very special position, having had eighteen years experience as a union organiser, including appearances before this Commission. He knew there was a need to be full and frank and open and honest about all the salient features of the industrial dispute. This was not the way Mr Veney presented his case where in his original affidavit he presented a picture of having a flawless existence at the United Services Union, but that on the 13th September he was ambushed when he was required to go to a meeting hurriedly called by Mr Harris, the General Secretary, and Mr Michael Want, the Executive President. He maintained that he was ambushed by a disciplinary interview in respect of what he was doing in the four week period and at the end of that interview, with no notice or warning to him whatever, he was suspended. 163 The evidence is that in the 13th September, 2006 meeting, he was actually not only unhelpful and unco-operative, but that the answers that he gave had to be dragged from him in monosyllabic version. 164 Not only did his original affidavit try to convey the impression that large tracks of detailed dialogue were offered by him, but the significance of that affidavit was also that it fails to mention the three formal warnings given to Mr Veney, along with the long history of poor performance, and all the detailed things that were said to him in the three weeks before in the August disciplinary meetings. He tried to create the impression of a flawless and unblemished career and being ambushed on the 13th September. 165 The Employer's Reply filed in these proceedings, before affidavits material was required, put the applicant fairly and squarely on notice that the reason for his termination was his rude and belligerent behaviour and sets out the three former warnings that he had been subjected to. None of that appeared in the applicant's original affidavit later filed with the Commission for these proceedings. 166 In order for the applicant to convince the Commission that the interview of the 13th September, 2006 was an ambush as he alleges, the Commission would have to be satisfied that some sort of conspiracy had gone on between Mr Schramm, Mr Zofrea, Mr Hughes, Mr Want, Mr Harris and perhaps even Mr Reid, the staff representative. This is because the way the applicant presents his case is that the background to the meeting on the 13th September was contrived as a surprise and ambush - a predetermined, disciplinary meeting meant to bring about the end of his employment. 167 Against that possibility Ms Nomchong asked the question; for what unthinkable reason would Mr Harris have contrived an on the spot disciplinary meeting with Mr Veney in circumstances where the union have gone to so much trouble during July and August to ensure that every disciplinary meeting was carried out in accordance with the rules of procedural fairness? She instanced the show/cause meeting on the 23th August, 2006 where Mr Harris had decided against Mr Kruse's advice to continue Mr Veney's employment, when Mr Kruse thought that he should be sacked at that point. Ms Nomchong believed that, given that, the respondent could have then properly terminated the applicant. This indicated against the contrived ambush. 168 In response to what she described as the shifting sands of the applicant's case, a second case theory emerged to the effect that Brian Harris was biased and out to get Mr Veney. This was inconsistent with the evidence led and unchallenged that Mr Harris convinced others that Mr Veney should be given a last chance following the 23rd August show/cause meeting after a final, final, final warning had been given to him, and Mr Harris took the opportunity to have a private meeting with Mr Veney, using colourful language, and saying to him, "what the f..k are you thinking" or "don't you get it" which led to Mr Veney turning to Mr Harris saying, again in a rude and recalcitrant manner "do you want me to be Mr Puckeridge", which was explained to mean a reference to someone who had gone through the motions. 169 A third case theory which now appears to be abandoned by the applicant, at least if Mr Moorhouse's final submissions are any guide, was that the Executives acceptance of Mr Harris' recommendation was merely them "rolling their armour", because it was Mr Harris' swansong. The suggestion that the Executive took no independent decision making was put to a number of witnesses and that proposition proved contrary to the evidence of Ms Rietdyk, Mr Birney, Mr Kruse, Mr Want and Mr Harris. The reality was that twenty-three (23) Executive members who knew Mr Veney over a long period of time unanimously voted to terminate his services. 170 Ms Nomchong turned to the issue that the applicant had said over and over again in these proceedings, that he had done nothing wrong to warrant his termination. If the applicant genuinely believed that to be true, it is an indication that he would not be unlikely to change his attitude. 171 Again in respect of the applicant's credibility, Ms Nomchong referred to the instance of Mr Charlie Henry who is a delegate from North Sydney Council and who had suffered a workplace injury and had been advised by Mr Veney to be untruthful in the information given to his employer. As a result of misleading information, Mr Henry was found out and suffered disciplinary action. 172 An indication as to his credit also relates to the post termination job applications made by him. Mr Veney had made those applications knowing full well that he was never going to be successful in those applications and also putting Mr Ben Kruse as a referee without asking. The Commissioner can draw the inference that Mr Veney was seeking to embarrass Mr Kruse with local councils; Mr Kruse being the new General Secretary of the union. 173 The fourth matter going to the applicant's credibility was his strange application to be re-enrolled as a member of the Federated Clerks Division of the union. In the application form he claimed that he was employed by his own company by the name of Three Legs O'Man. In the course of cross-examination the applicant was forced to disclose that the company merely owned a property in the country and did not employ. 174 Ms Nomchong thought that the most important issue going to the credit of the applicant was his attempt to blackmail Mr Kruse on the 16th October, 2006, where he told Mr Kruse that he was going to "go about getting a sponsor" which Ms Nomchong described as slippery language when really he was actually attempting to threaten him to get someone whose sole interest would be to damage the union movement to fund him in his litigation. Ms Nomchong described this situation as being, to use a colloquial phrase, that the applicant "was happy to get into bed with someone who has the sole interest of damaging the union". She told the Commission that the applicant should not have attempted to blackmail a person to whom he would be responsible to if he was reinstated. Clearly the applicant wished to achieve a payout from the union, but Ms Nomchong contended that this was a significant point in respect of the applicant's claim for reinstatement. 175 Ms Nomchong went on to refer to other issues such as the tow bar incident where Mr Moorhouse had reminded the Commission that there was no formal recording of the theft by the applicant, but Ms Nomchong asked the Commission to heed Mr Birney's evidence where the applicant had given the excuse of the secret audit and gave that excuse, which turned out to be what she described as a bullshit exercise. 176 In respect of the tow bar/harness incident she asked the Commission to see it for what it was, manipulative and contriving. The important part of that tow bar issue was that he was at the time Manager of the Southern Branch and not simply an employee. It was incorrect to say that there was no formal outcome because the outcome was that he was demoted and lost his position as Manager at the Southern Branch, and bought back to the position of Organiser. 177 Ms Nomchong referred to the racist and sexist remarks, admitting that Mr Moorhouse was correct that those issues never came to a formal investigation, but she said the reason for that was that Mr Veney's wife was terminally ill at the time when the complaints were made and Mr Harris took the view that it was inappropriate to burden Mr Veney with a formal investigation. Also the complaints had not at that time been put in writing. She went on to suggest that that did not mean the complaints had no objective basis or foundation, and Mr Birney's evidence was that he himself had received many complaints of a similar kind. 178 Further to the prior performance issues of the applicant, the two most serious had there origins in the fact that Mr Veney had a view about the way he should do his work as an organiser, and the way the union should operate and approach its industrial strategies. It was certainly his view that the organising works program put into place by Mr Donley was not in accordance with his own view of how an organiser should behave or do his duties. Mr Donley gave evidence about the applicant being recalcitrant in filling out and submitting weekly sheets. One sheet was designed to stipulate the steps which the organiser was going to do in the coming week, and the Friday sheets were the goals and objectives actually performed during that week. According to Mr Donley's evidence, this was to ensure that organisers were setting themselves goals and measuring achievements. It was also provided as a tool for union management to monitor. In addition to these sheets, there was a separate project whereby an organiser had to identify a single council in their group and they were to implement a delegate structure so that the council could be self-servicing and better organised to deal with industrial issues. 179 Mr Donley's evidence was that, as given in Exhibit 25 paragraph 16, where he described the applicant as being the worst performer of the Sydney based organisers in terms of lodging his weekly project sheets and developing the organising works project. He also gave evidence "I could see from his body language and his attitude in the meetings that the applicant was just disinterested". That failure was the subject of his first formal warning, which is dealt with later in these submissions. 180 The second issue in his long term performance was his dismissive treatment of members as demonstrated from the evidence of various witnesses where he chose to do what he thought was important. A prime example of this was the ACTU Day of Action on the 15th November, 2005, where complaints were received from Camden and Randwick to the effect that no information or material had been sent and that delegates were not given the information they needed to participate in the Day of Action. This resulted in the applicant's second formal warning which again is dealt with later in these submissions. 181 Exhibit 43, which was Mr Harris' affidavit, contains two formal written warnings to the applicant. Annexure Q dated 3rd February, 2005 was a letter from Mr Harris to the applicant setting out a number of performance issues raised with him by Mr Mark McLeay, his then supervisor, setting out five dot points in clear terms what was considered wrong with his behaviour up to that time. These were inappropriate and inconsistent priorities, failure to supply Friday's Sheets and whereabouts sheets, acceptable delays in providing site visitation plan for the Sydney City Council, poor attitude to some delegates and members, and in particular, failure to provide all delegates with prompt and timely representations and an inability to keep prearranged appointments. 182 Attached to that letter at Annexure Q was an extract of the Local Government (State) Award, Clause 31, involving appeal procedures from decisions of management. 183 The applicant's second formal warning, also at Annexure Q was dated the 23rd January, 2006. 184 A series of six dot points in that second formal warning set out Mr Veney's behaviour about eleven months after the first warning. These included failure to make delegates and members aware of the importance of ACTU Community Day of Action. The second dot point was the failure to make delegates and members aware of the venues. The third dot point was failure to advise Mark McLeay of after hours attendances. The fourth dot point was "failure to comply with unions dress code policy". The fifth dot point was "the complaints about your style of representation. You appear not to be interested in taking up issues on behalf of members, your attendances erratic, you are moody and you pick and choose which issues". The sixth dot point was "your failure to provide organising project to Mark McLeay or Steve Donley, Director of Organising". 185 In bold type at the bottom of that warning was an indication that this was a Stage 2 disciplinary warning and that Mr Harris regarded the issues as unacceptable and again a copy of the appeal provisions of the award was attached. The warning finished up with the statement "your history of investigating and representing the issues that interest you and not representing interests that don't must stop. You have an obligation to treat all members with respect and dignity. As an official with more than twenty years service with the union you have responsibility to act professionally at all times". 186 Ms Nomchong asked the Commission to draw the only conclusion from the applicant not taking up the offer of an appeal procedure under Clause 31A(iii) which entitled the employee to delete or amend any disciplinary or other record on their personal file which they believed to be incorrect, out of date, incomplete or misleading. The conclusion to be drawn was that they were factually correct. 187 Turning to the next event in Mr Veney's career, Ms Nomchong referred to the meeting on the 20th June, 2006, where during the course of the meeting Mr Veney had a run-in with Mr Steven Hughes. In the course of that meeting Mr Veney had challenged Mr Hughes by asking "what happens if we don't comply?". Mr Veney said about that meeting, that he was simply taking a position expressed by a number of organisers who were dissatisfied with the fact that they had to undergo an assessment. Ms Nomchong said it was more than that because after the meeting he had commented to Mr Mark McLeay, his supervisor, "Veney one, Pigdog nil", meaning a reference to Mr Hughes' nickname and to convey some sort of victory over Mr Hughes in embarrassing him at the meeting, and moving a motion that the assessments should not go ahead. The assessments did go ahead and in that context where he thought he had achieved a victory over Mr Hughes, the assessment interview on the 18th July, 2006, became the next stage in respect of Mr Veney's behaviour. 188 At that assessment interview, the evidence was that his body language and manner of speech indicated he was entirely disinterested in the process and not co-operating. He sat leaning back and rarely made eye-contact, did not volunteer comprehensive responses and had to be prompted. His behaviour was completely contentious of the process, and at one point he looked at Mr Want and said, "I like challenging authority and I'm good at it". 189 Ms Nomchong took the Commission to the transcript of the 27th March, where she believed the single most remarkable piece of transcript in the proceedings showed the applicant's attitude to the concept to "work to rule" where he conceded that is exactly what he was doing, and doing just enough to get over the line. The applicant's reaction on transcript when he realised what he had said should not diminish the fact that this was exactly what Mr Veney was doing, that is, working to rule. Moreover, the applicant's attitude showed that he did not believe he was doing anything wrong. 190 The applicant had received the lowest score of any organiser and taken twice as long to conduct the assessment. He had scored nearly zero in respect of some questions including that related to the Federal jurisdiction. He showed a lack of co-operation and understanding of Work Choices which now places employees under the Federal jurisdiction, and an unacceptable level of co-operation in relation to training. The latter aspect was in the face of the fact that the respondent had even suggested the answers that need to be given, and he was given a long period of time in which to study the assessment process, yet came up with monosyllabic answers, working to rule and failing to give any answers on two very important areas of the assessment process. 191 Mr Paul Reid, a staff representative who was present, not only at the staff assessment mentioned above, but also present at the meeting of the 13th September, 2006, which led to the applicant's suspension from duty, gave important evidence that Mr Veney was hostile, unco-operative, rude and defiant at the assessment interview. An example was in respect of the applicant's role at Waverley Council. During the assessment interview on the 18th July he gave evidence that the reason he selected Waverley Council was that it was easy, as it already had a delegate structure, which is an indication of how Mr Veney approaches his work under the strategy of the organising works program set up by his employer. Mr Reid's evidence included the comments "there was certainly something, something there, resistance, hostility, I don't know what the correct word was, but there was something there". Mr Reid corroborated what Mr Hughes said about a failure to make eye contact, dismissive body language and the voice he was using was hostile and defiant. Ms Nomchong suggested to the Commission that simply because the applicant didn't raise his voice or thump his hand on the table, did not mean his attitude was less insolent or less co-operative and less rude. Rudeness she said can come across by what is not said and how something is said and body language, just as it came across as abusive language. 192 Ms Nomchong moved on to the first disciplinary meeting which occurred on the 11th August, 2006, which she described as being important because management bought home in no uncertain terms to the applicant what was wrong with his behaviour. At that meeting was Mr Harris, Mr Want, Mr Kruse and Mr McLeay, with the applicant being accompanied by Lyn Fraser the staff representative. 193 The evidence of Mr Kruse was that he was made very angry by Mr Veney's response when referred to the two previous warnings where he said that his last warning was about "wearing jeans". When the comparison is made with the contents of the two previous warnings set out earlier, it is clear that the only thing that the applicant took out of those formal warnings was the dress code breach and that he disregarded all the others because he did not wish to hear it. That again indicates that, in his heart, he believed that he hadn't done anything wrong. His trivial and glib reference to those formal warnings showed again a very belligerent and disrespectful attitude. That meeting on the 11th August showed that the applicant, even at that meeting, through his body language, manner of voice, and the way he behaved, continued to be disrespectful and recalcitrant. He was asked to apologise, but instead of accepting that he had done something wrong, he gave a Clayton apology to the effect that if he came across that way he was sorry. That was not good enough. 194 The applicant, following that meeting, was directed to make apologies to both Mr Want and Mr Hughes, in addition to the Clayton's apology given during the meeting. Mr Hughes' evidence of the apology received by telephone from the applicant was shown not to be true, when Mr Harris asked the applicant whether he would be making the phone call if he hadn't been directed to, to which Mr Veney replied in the negative. 195 At the show/cause interview which happened on 17th August Mr Harris began that meeting by advising the applicant that the issue was purely about his behaviour and he was offered the ability to resign, which carried the important advantage to him of being able to access his unused sick leave. He could not have done if he had been dismissed, and thus would be in a better financial position than if he was terminated. The evidence shows that he was told at that meeting by Mr Kruse and Mr Harris to go and get a list of his entitlements, which showed that the respondent was fully aware of important issues of superannuation etc. for a fifty-three year old man with eighteen years service. That offer was met by the applicant with the attitude that he had done nothing wrong, although the transcript shows that he was fully aware of the very real possibility of his dismissal. The applicant was put on fair and square notice which is in line with the authorities in respect of procedural fairness. The result of that show/cause meeting was that Mr Kruse thought that the applicant should be dismissed, but Mr Harris took the view of giving the applicant a final opportunity and then at the meeting which followed shortly afterwards on the 23rd August, 2006, he was given his "final, final, final warning". 196 The necessary and clear conclusion from that sort of language should have been that the applicant took the message, that one more problem and he was out of employment. The notes of the meeting show the applicant acknowledging that he understood that he had escaped termination in relation to recalcitrant behaviour and attitude. He agreed that his employers thought he was discourteous, unco-operative, rude, although disagreeing that he was completely at odds with the employer. 197 On that basis, Ms Nomchong thought the Commission should conclude that a substantive and procedural fairness had been accorded to the applicant. 198 She went on to reiterate the instance of the private meeting after that final meeting in August, where Mr Want and Mr Harris had given a special warning to the applicant and she also reiterated the language of the letter of the 31st August which contained the phrase, "this letter serves as a final warning. The gravity of the situation should not be underestimated". She quoted other relevant extracts of the letter of warning to the applicant to reinforce the gravity of the situation and that there was no ambiguity in the letter presented to the applicant. 199 It is in that context the Commission should view the meeting on the 13th September. Firstly, she reinforced the evidence of the respondent that the meeting was not intended as a disciplinary meeting, which she again said would be inconsistent with previous conduct of Mr Harris who had gone to some trouble to follow the formalities and quoted the evidence of Mr Harris where he would have conducted the proceedings differently, and prepared the allegations in a formal sense and allowed Mr Veney to put together his defence. The reason he did not take those more formal steps was because he was exploring a complaint and he needed to have the complaint dealt with prior to the conference commencing the following Monday. Ms Nomchong described that meeting as a fact finding issue to address a complaint from a long standing delegate from Warringah Council and he had known that Mr Veney was going to be in attendance for his organiser assessment meeting, also scheduled that day. 200 Ms Nomchong drew the Commission's attention to what she believed was the first time the Commission had heard an admission by the applicant's counsel, Mr Moorhouse, that the behaviour of Mr Veney at that meeting was unhappy and annoyed, which was contrary to the applicant's affidavit material which contained nothing about him being blunt or short or monosyllabic due to being unhappy and annoyed. 201 The evidence of Mr Want and Mr Harris was that there was nothing said like those large tracks of dialogue included in the applicant's original affidavit. They were forced to drag information out of him, one sentence at a time and the large pieces of dialogue in his affidavit was simply never said at all. 202 She repeated that this was a credit issue for the Commission, who should prefer the evidence of Mr Want and Mr Harris, who had gone to the trouble of getting the Friday sheets because they did not want him to be ambushed. In that meeting the applicant did not make eye contact, he was belligerent, unco-operative and monosyllabic and doing it in a way, deliberately calculated to be unco-operative and defiant. 203 No where in the applicant's affidavit is any statement to the effect that he was taken aback by the enquiry as to where he was, or that he asked for an adjournment. 204 She drew attention to the fact that no where in the preamble to the lengthy paragraphs of the applicant's affidavit does he suggest anything (contrary to the impression conveyed) that those tracks of dialogue were not all said in one go. In any event, the applicant says that he was blunt and unhappy and annoyed which was why he acted the way he did. This is contrary to what his affidavit material intends to convey. He also says he was reticent because he did not have any documentation, whereas the truth of that matter is that the amazing, detailed and lengthy information included in the affidavit material of the applicant was all the information which he could have given on the 13th September. He actually had less information available to him at the time he was making his affidavit, than he did when he was sitting in the room with Mr Want, given that the evidence was that he was subjected to a robbery in which his diary was stolen, to which he had access on the 13th September. If he had given the explanation contained in his affidavit, he would still have his job. He had all the information at his fingertips, but he chose not to give it. 205 Ms Nomchong instanced answers given by Mr Veney such as "well, I think the answer to that is obvious", which she thought was very telling, it was certainly not obvious to Mr Harris. The contrast between the content and detail in the applicant's affidavit with the recalcitrant short form answers dragged out of him by Mr Want and Mr Harris could not be greater. She asked the Commission not to be concerned about how often the applicant said I can't remember, or that he gave some information about whether he saw a ranger on a particular day. The Commission has to accept that his attitude was unco-operative and belligerent and deliberately defiant. 206 Mr Harris having reached the point of exasperation in that interview where the applicant at one point said I can't remember, and although he did say something after that, it caused Mr Harris to explode saying, "I don't believe that", which drew the comment from Mr Veney that he thought he was doing a Section 130 application at the Commission. It was understandable then with the applicant not being able to remember, that Mr Harris came to the view that the entire exchange was the same as what had happened on 18th July, and in the disciplinary meetings in August, even though he had given a commitment to do better and to apologise. 207 She reinforced those submissions by drawing the Commission's attention to paragraph 42 of Mr Want's affidavit Exhibit 29, where he said, "I noticed that the applicant kept his answers very short and was quite defiant during the meeting. He answered some of Mr Harris' questions with, "I can't remember or I don't know"". Ms Nomchong reminded the Commission that there are three people who have given evidence about the applicant's unco-operative behaviour and belligerence and being deliberately defiant which was the same conduct with which he had been warned three weeks previously beforehand. She asked that the Commission find that the decision by Mr Harris to suspend the applicant was reasonable in the circumstances. 208 Had the applicant said to Mr Harris and Mr Want at the interview, that he wished to have time to prepare answers, that would certainly have been given, but instead no such thing was requested, and none of the dialogue was suggested in the applicant's affidavit and there was no request for any adjournment or anything else. Mr Veney did however, seek the opportunity to address the Executive and he was given that opportunity. 209 In respect of that request granted to submit to the Executive, the Commission should note that Mr Veney was a long standing union official, who knew the Executive comprised of twenty-three members from around New South Wales, and met only once in every three months. Mr Birney gave evidence that the request was unusual, but he decided to permit the applicant ten minutes to address the Executive. 210 Ms Nomchong referred to the fact that the applicant, between the 13th and 15th September sought legal advice from Harmers Workplace Lawyers who represent him in these proceedings, but it is interesting that at no time during that time did Mr Veney or his legal representatives contact Mr Harris with a view to discussing his termination. Mr Harris' evidence was that if he had been contacted by either Harmers or Mr Veney he would have made time to meet. What happened was that a letter was sent from Harmers Workplace Lawyers which the printout at the top shows was faxed at 7.21pm on Friday night and given that the union office closes at 4pm, the unchallenged evidence was that the first time that Mr Harris and Mr Birney saw that letter was on the morning of the Executive meeting on the Monday, 18th September. No explanation was given for the letter being sent so late. The letter was attached at AB7 of Exhibit 1, which Ms Nomchong described as self-serving and an attempt to manipulate some procedural unfairness where none was to be found. 211 The letter from Harmers Workplace Lawyers said amongst other things that Mr Veney had not yet been able to give instructions to his lawyers and accordingly requested the union to defer any decision to terminate his employment so that he could obtain legal advice, and also suggested that a meeting be arranged to discuss the issues. Ms Nomchong thought it important that the letter also said that the applicant "will not be in a position to attend the Executive meeting on Monday". This shows that the letter assumed that the request for deferral was going to be granted, but nowhere in the letter does it say if the union decides not to defer please contact us immediately. The applicant did not even have the courtesy to inform Mr Reid, the staff representative who had represented him and written on his behalf to management previously of his intentions,. 212 In any event, the request for deferral was put to the Executive and they decided that the letter was nothing more than an elaborate delaying tactic. The applicant well knew what was going to happen on Monday and he was seeking to wriggle out of coming along and having a proper discussion. Neither did the applicant seek to ring Mr Harris over the weekend to discuss his letter from the Solicitors. Mr Kruse was another one that he could have rung, and who he said that he had a good working relationship with. There were others that he could have rung and for all he knew the letter could still have been sitting in the fax machine on Monday morning at the beginning of the conference. So to say that there is some sort of denial of procedural fairness, when the applicant's solicitors took no steps whatever to determine whether even the letter had been received, or what should happen if request for deferral was not granted, is simply mischievous. 213 There was a unanimous decision for his dismissal. Also missing in the course of the applicant's case is anything as to what he might have said to the Executive to change their mind and for an argument in respect of procedural fairness to have any validity, it is incumbent upon the applicant to show that there was some prejudice afforded to him, that is something he was going to say to the Executive, but changed his mind. 214 Ms Nomchong went on to emphasise the twenty years experience of the applicant with the union. Not someone who was shy of public speaking and certainly not to the Executive, and being experienced in disciplinary matters. This was shown by his lengthy and detailed submissions made in regard to the tow bar issue. Ms Nomchong repeated that there was no evidence of what the applicant was going to say to the Executive, and thought that it was an interesting question because at no stage had he appealed on the three former warnings as provided for. It is highly unlikely on the balance of probabilities that anything that the applicant could have put to the Executive would have changed their minds, and even if it had swayed one or two members it would not have swayed the twenty-three members of the Executive and the decision would have been the same. This point was important to the question of procedural fairness. 215 Ms Nomchong asked the Commission to disregard the evidence of the applicant's loss as a result of his dismissal in terms of his superannuation on the basis that it was a furphy. In the process she referred them to expert reports and the fact that the applicant had not reached the maximum number of points, which was something of his own doing. Should the Commission have regard to the fact that the applicant might be deprived of the benefit of superannuation payout at a certain level, anyone's dismissal would be harsh for that reason alone. 216 Ms Nomchong then took the Commission to several relevant cases dealing with the issue of procedural fairness, the first of which was the High Court Decision in South Australia Vs. O'Shea where the Court held that, "where decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the decision making process, viewed in its entirety, entails procedural fairness". 217 She next took the Commission to a decision of Chief Justice Wilcox in the Industrial Relations Court of Australia in Gibson Vs Bosnak Pty Ltd where at page 7 of that decision the Court referred to the important decision in Nicholson Vs Heaven and Earth Galleries and said "I discuss the significance of Section 170D(c)….. I observe that the Section imposed an important limitation on an employer's power of dismissal. Ordinarily before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an opportunity of defence. However, I also pointed out that the Section does not require any particular formality. It is tended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the Section". 218 Again in respect of procedural fairness, Ms Nomchong pointed out that there was no inherent right to address the Executive and the evidence showed that it was an unusual step that the applicant was granted that right. Secondly, it was the applicant who determined not to attend the meeting and to have it deferred, saying through solicitors, "I'm not going to be available at all on Monday", and thirdly, as already mentioned, no attempts were made to contact anyone to ascertain whether the letter had been received or considered. Fourthly, the Executive had a busy and full agenda in this meeting, and fifthly, it was not a matter for the applicant to determine whether or not the Executive would deal with this particular motion. He cannot turn a choice by the Executive to determine its own business in its own way into procedural unfairness. He well-knew the infrequency of Executive meetings and the evidence showed that it had a full and busy conference agenda. 219 Mr Birney gave evidence that he was not expecting any legal discourse about unfair dismissals from the applicant, but was expecting him to come and say how sorry he was, which is not something he needed legal advice to do. 220 Ms Nomchong made submissions that if the Commission were to find some technical procedural unfairness within the entire period between June and September, 2006, she asked the Commission to refer to the decision of the Full Bench of this Commission in Moran Vs Abbott Australia to the effect that, "technical unfairness where it exists doesn't mean that the Commission is bound to intervene". On a similar basis, the decision of Commission Connor in a recent decision Pecotic Vs A V Jennings was relevant where the Commissioner said, "moreover, procedural issues alone do not conclude the matter. They should not be considered in isolation, but in the context of the overall employment and all of the circumstances of the dismissal of an employee". 221 In Byrnes Vs Treloar (1997) 77IR332 the Court of Appeal considered the question of whether or not insubordination is sufficient to warrant a dismissal. That was an appeal against a decision of District Court Judge Bell and the following is relevant, found at page 332, "it appears for years she had her own ideas about the way in which the Association should be run and about her role in running it, ideas that did not always coincide with those of the members of the governing board". 222 Ms Nomchong said that decision was an all fours with Mr Veney's case. The Court of Appeal held in that case, "it is apparent that the appellant refused to recognise the authority of the Executive director, as well as his authority as President of the Association. Bearing in mind the provocative content of the allegations of the appellant being made against him on the 19th October, 1992, and its dissemination by the applicant, he was giving her a lawful direction to respond. In effect, she refused to obey any directions……. her failure to obey a lawful instruction went to the root of the foundations of the contract of employment". Mr Veney refused to be polite and civil to senior members and had his own ideas on how the organisation should be run. 223 In another case of Wells Vs Lloyd Moffatt, Harrison DP of this Commission came to a view in respect of a person not communicating over a period of time when he said, "the tenability of the applicant's submission is totally destroyed by the unrefuted evidence that she adopted a position of refusing to converse with Mrs Moffatt from late August and maintained this stance to the time of her termination on the 22nd September, 2007. Any employee who takes a deliberate and sustained attitude of non communication cannot expect their employment to continue". Ms Nomchong intended that Mr Veney had sustained a deliberate view about being unco-operative and unhelpful, dismissive and rude, and therefore there were both substantive and procedural fairness attached to his dismissal. 224 Ms Nomchong turned to the criticism of the letter of termination, which was at Annexure AB9 of Exhibit 1. She maintained that the letter of dismissal made clear, apart from his failure to answer questions properly at the interview on the 13th September, referred to the various warnings that he had received, which included the phrase, "a final formal warning was issued on the 31st August which related to your behaviour towards management during an assessment interview. This resulted in you being counselled in respect to your unacceptable behaviour and attitude". 225 Ms Nomchong took the Commission to the various subsections of Section 88 to show that the applicant's dismissal was both procedurally and substantively fair. 226 She believed that the respondent faced a catch 22 situation with the applicant claiming not to have done anything wrong, so why would his commitment to training and other matters be likely to improve. 227 She interpreted the fact that the applicant was given an additional lifeline by Mr Harris at the August meeting, the 23rd August. This represented the fact that the respondent was conscious of the effect upon the applicant being fifty-three years old, who had some outstanding superannuation and that he would lose his unused sick leave, yet Mr Veney was the master of his own destiny. 228 Ms Nomchong also addressed the question raised by Mr Moorhouse that the failure of the respondent to delay his termination deprived him of the ability to get injunctive relief when he had lodged a threatened dismissal application prior to the 18th September meeting. This assumed that the applicant would actually get injunctive relief. She claimed that the tests to get an injunction to prevent a dismissal going ahead is an incredibly high one. In Hill Vs The Department of Education mentioned by Mr Moorhouse, a decision of Her Honour Justice Schmidt dealt with charges against Mr Hill of sexual impropriety towards a student. Her Honour was faced with the situation in that case where Mr Hill had been dismissed, he would amongst other things be placed on the "not to be employed" list, lose access to a superannuation scheme to which he could never get back into because it would close down and a number of other factors. Quite literally Her Honour said in a colloquial fashion that the eggs could not be unscrambled by any orders made at the end and therefore damages in that common law sense were not going to be the appropriate remedy. This situation is not the case of Mr Veney and there was no evidence of the Harmers WorkPlace Lawyers rushing to the Commission on Friday afternoon seeking urgent injunctive relief, which was the date of the letter to the respondent. They left things in abeyance knowing that a decision was going to be taken on the 18th September. 229 Ms Nomchong told the Commission that any member of this Commission would want to hear all of the nature of the prima facie case unless there was very good reason to give injunctive relief without doing so. They would want to place themselves in a position to at least come to the view that the test in Castlemaine Tooheys could be satisfied. 230 The issue was not raised in Mr Veney's application and it appears to be a recent invention. 231 Ms Nomchong next turned to the issue of remedies in the event the Commission would intervene on behalf of Mr Veney. She dealt with the Hollingsworth case raised by Mr Moorhouse, claiming that that was easily distinguishable on the basis that it is not simply the case here that the employer did not want to re-employ him. There is a real and rational basis for the fact that the reinstatement would be impracticable, the first of which is the loss of trust and confidence. 232 Dealing with authority of Perkins Vs Grace World Wide which Ms Nomchong said talked about the fact that not all misconduct genuinely led to a loss of trust and confidence. In this case, Mr Veney believes in his heart of hearts that he has not done anything wrong, and the Commission can take from that, that if he was to be reinstated, he would regard himself as bullet proof. 233 Ms Nomchong referred to several authorities for the proposition of where relationship and trust had completely broken down. 234 She took the Commission to the area of transcript where Mr Donley would be responsible for Mr Veney if he was reinstated, gave evidence of the difficulty he would have should the applicant be reinstated. His objections largely surrounded the inability of Mr Veney to act as a team member, and the fact that he thought that it would be too intense for him to keep chasing up to make certain Mr Veney was out doing work as required. 235 Both Mr Kruse and Mr Donley gave evidence of being unable to work with Mr Veney because of his past recalcitrant attitude, and they were unconvinced that he could work in a team work environment and thirdly, that the WorkChoices legislation put them in particular jeopardy. 236 Ms Nomchong referred to the post termination employment applications made by Mr Veney where he overtly criticised the union and derided the union, such as his application to Warringah Council, the applicant said, "I have been selling unionism for more than thirty years, but the brand I have long promoted now seems totally devoid of any enduring value". Added to that was the blackmail threat to Mr Kruse. That was simply inconsistent with any work relationship. There was also a lack of contrition by Mr Veney, although there has been Clayton apologies, we have heard over and again that his evidence was that he has done nothing wrong. He is therefore unlikely to change. 237 Referring to the manner in which Mr Veney conducted his duties where he had not visited Warringah Council for four weeks prior to his suspension and failed to make contact with delegates of councils, that should be contrasted against what Mr McLeay and Mr Donley said about the duties of an organiser. The evidence of Mr Adam Jacka was that there needs to be regular visits to delegates and membership meetings. 238 Finally, Ms Nomchong referred to the question of mitigation of the applicant's losses as required by the legislation. There was a lack of objective evidence about what the applicant had been earning since the day of the termination and it was only in oral evidence produced at the commencement of the proceedings that he told the Commission that he was doing casual taxi driving and where he suggested that he had earned around $4,000 at that stage, but the details are missing as to when it was earned. There was not one iota of evidence about his actual earnings, and accordingly a Jones and Dunkell inference should be drawn by the Commission where the applicant failed to comply with his obligations to prove mitigating and economic loss. 239 As to the job applications made by the applicant, the Commission can be satisfied the applicant has made no genuine attempt to mitigate any loss and the only job applications he has made have been for positions such as human resources managers which are jobs well beyond his skill and experience, and he included to those applications a referee in a person of Mr Kruse, whom he knows would not support his application. There were no applications such as for a truck driving, plant operation or administrative duties and no application to another union for example. Section 89(6) is a mandatory requirement for the Commission to take into account any such mitigation. Neither was there any reference by the applicant to the unused sick leave that he might have availed himself if he resigned as suggested to him. Mr Moorhouse's submission in reply 240 Mr Moorhouse asked the Commission to consider Ms Nomchong's submissions as being based entirely on the premise that none of Mr Veney's evidence should be accepted and all of the evidence of the witnesses for the respondent should be accepted where there is a conflict between them. 241 It is certainly not accepted that Mr Veney's behaviour and responses in the meeting of the 13th September were belligerent, deliberately hostile, evasive and those sorts of phrases used by Mr Want and Mr Harris in relation to their evidence. 242 The Commission needs to find that the things that happened on the 13th September justified dismissal or resulted in the dismissal being unjust and unreasonable. 243 Mr Veney's credit was attacked on the basis of his affidavit material, but he genuinely believed he was terminated for failure to visit councils. Whilst this was said to be substantially against his credit, the chronology, factual circumstances and content of that 13th September meeting must lead to the Commission to decide that it was open to Mr Veney to believe that his failure to visit councils was the reason for his dismissal, especially as the exchange between Mr Veney and Mr Harris immediately before he was suspended went back to that very issue of council visits. If Mr Veney genuinely believes that to be the case, that provides an explanation for the matters which are or are not included in his first affidavit. 244 Mr Moorhouse disagreed with Ms Nomchong's reading of the evidence that Mr Kruse was supposed to have wanted to dismiss the applicant at the end of the 23rd August meeting, but that Mr Harris said that he should be given one last chance. It is not included in the transcript of the 14th June at page 80, lines 13 to 36. Whereas it does say that Mr Harris thought Mr Kruse thought that the applicant should be terminated, and does not say that Mr Harris thought differently. 245 In respect of the alleged threat to Mr Kruse referred to as a blackmail attempt in settlement discussions in October, there is no evidence of that matter being put to the Commission by Mr Kruse, who gave evidence on the 14th June this year. 246 In respect of the reference to Mr Kruse on the 27th March at page 108 of the transcript, Mr Moorhouse suggested that on the following page he explains his interest in that question. This shows that Mr Veney did not back away in the witness stand from matters unfavourable to his case. 247 In respect of the allegation that Mr Veney did not believe in the organising works project, the contrary is shown in the evidence, where he said that he accepted the organising work strategy and the transcript of the 26th March at page 58 at line 20 where he denied being against the strategy and he did think that it was a worthwhile strategy. 248 Mr Moorhouse referred to the transcript in re-examination on the 29th March at page 4 where Mr Veney referred to the mentoring and the building up of delegates, consistent with the organising works model, which has always been his practice. Although there is a factual dispute about this matter, Mr Veney did not accept that he did not apply himself to the Waverley organising works project. 249 The criticism of Mr Veney for allegedly arranging for delegates to participate in disciplinary meetings by reference to Ms Wilson and Mr Goodmanson was unjustified. There was a single visit to Mr Goodmanson, according to Ms Wilson's evidence, but Mr Veney did come with Ms Wilson to her first disciplinary meeting, which she found to be a learning experience. That sort of thing is exactly consistent with organising works project, that is building up networks of delegates and contacts to perform work within the structure. 250 Mr Moorhouse turned to the criticism of Mr Veney in not following up a grievance procedure provided for under Clause 31 of the Local Government Award. His evidence was that he had considered it pointless to follow up the Clause 31 procedure, given that the General Secretary of the union had signed the letters. In respect of what he allegedly had not done on the Community Day of Action, this should be considered in the context that he had sought to have the matter investigated and questioned those who had complained. That request had been denied by Mr McLeay and Mr Harris. 251 In respect of the suggestion from Ms Nomchong that the union had acted fairly and appropriately in offering Mr Veney to resign and to collect his accrued sick leave, Mr Moorhouse submitted that the fact that he opted to continue his employment cannot somehow be held against him. His evidence was that he wished to remain with the union for which he had worked for eighteen years, and given the build up in his superannuation entitlements, he wished to remain. 252 Mr Moorhouse suggested that it was simply incorrect to suggest that the applicant had told the Commission that he was unhappy or annoyed in relation to the disciplinary meeting of the 13th September. 253 Exhibit 3, paragraph 88, Mr Veney's affidavit in reply shows that he denied being defiant or that he avoided answering questions or was evasive. It goes on to say, "I was, however, conscious of not giving answers to questions about my whereabouts without first reviewing my Friday sheets and other records of my work activities, such as my diaries. I was also unhappy and annoyed that I had been asked to attend a disciplinary meeting, called to deal with complaints about which I had no forewarning in the circumstances where I had understood that I had attended for the purpose of my organiser's assessment". 254 In respect of the allegation that Mr Veney's first affidavit provided lengthy answers which could not reconcile with the evidence of Mr Harris and Mr Want as to what was actually said, Mr Moorhouse believed that it was merely a formatting question. 255 At paragraph 22 of Exhibit 1, the material in that first lengthy paragraph, were extracts in reply to a series of questions about his activities. In that vein, Mr Moorhouse referred to Mr Harris' evidence in around the beginning of the meeting where he acknowledged Mr Veney had pointed out the difficulties of answering questions without relevant documents. Mr Moorhouse quoted from the transcript where Mr Harris finally said at page 22 of the 14th June at line 21, "similar sort of words he said, but he didn't request that he be allowed to go and get them or whatever". 256 It is not correct to suggest in final submissions that Mr Veney was annoyed and upset in the manner as suggested by Ms Nomchong. The applicant's reference to Friday's Sheets showed him ill prepared and the manner of dealing with that issue by Mr Harris and Mr Want. was not on all fours. Mr Want suggested they were presented some time during the meeting, whereas Mr Harris gave evidence that the Friday Sheets were there the whole time. Mr Veney claimed that one of the first things he said was that he would like to have access to them. 257 There is a contradiction in Ms Nomchong's concession that Mr Veney did, after some prompting by Mr Harris, say things that he had done the previous day. Mr Harris was adamant that Mr Veney in fact gave no answer to that whatsoever, and disagreed with Mr Want's notes of the meeting. Mr Harris' evidence was essentially that that matter was a high point of the alleged attitude Mr Veney displayed. The concession is now properly made and Mr Harris' is simply incorrect about his contention and the only dispute is as to the extent to which his activities of the day before had to be dragged out from him. While Mr Want's paragraphs 42 and 43 of his affidavit which claimed that Mr Veney made no answers about what happened the day before, was qualified when in cross-examination he accepted that Mr Veney had addressed his activities once Mr Harris had said to him that he did not accept he could not remember. That can be found at the transcript of the 22nd May at page 8 line 4. 258 Mr Moorhouse submitted that there was no proper explanation for the urgency for the meeting to take place when it did and invited the Commission to examine the evidence that the matter was expressly presented to Mr Veney as a complaint bought by delegates, and that the meeting took place in the context of the staff representative being invited into the meeting. 259 Turning to the issue of a request by Harmers Lawyers on behalf of the applicant to delay the Executives consideration of his suspension, Mr Moorhouse first disagreed with Ms Nomchong that he had no idea whether the letter from his solicitors was even received by the union. Mr Veney gave evidence that he had consulted his solicitors on the Friday afternoon the letter was sent and was told the letter was faxed to the union. He had instructed his solicitors to ensure someone from the union saw the letter prior to the Executive meeting and he was satisfied by his solicitors that the letter had been received. Ms Rhonda Boyce was named as the person who had confirmed that the union had received the fax. The evidence being that she'd brought the letter to Mr Birney and Mr Harris on Monday morning shortly before the Executive meeting. 260 The submission that anything Mr Veney might have put to the Executive meeting would not have changed their decision, is speculation. In respect of the superannuation loss, Mr Moorhouse dismissed the suggestion that the applicant was master of his own destiny and should have contributed earlier so that it was not an issue upon his termination. He was entitled to organise his own financial affairs in a certain way and perhaps contributed to the maximum level closer to retirement. The maximum benefits accrue at the age of 58. 261 The suggestion that Mr Veney only applied for jobs which were beyond his expertise is simply wrong. Mr Veney attempted to mitigate his situation as required with a range of position applications shown in Exhibit 3 paragraph 111. Mr Veney, in cross-examination, actually identified positions which would not have been a promotion compared with his position with the union. 262 Further to the issue of the Executive meeting on Monday morning, the 18th September, Mr Moorhouse pointed out that Mr Veney had been told on Friday by the staff representative that the meeting would start at 10am on Monday (See AV6 of Exhibit 1). It should be taken that the comment in Harmers Solicitor's letter that he would not be there on Friday can be taken to refer to not being available at 10am. 263 Mr Moorhouse turned to the caselaw relied upon by Ms Nomchong and attempted to distinguish cases such as Wells' case, Byrnes' case and Treloar's case on the basis that Mr Veney had not refused to speak to management or obey unlawful or unreasonable commands. In his case, and particularly in relation to the meeting of the 13th September, his criticism of him can be characterised as a vague concept of eye contact, slouching in the chair, hostility and evasiveness in circumstances where Mr Veney does not accept those characterisations. If Mr Harris had said towards the end of the 13th September meeting words to the effect, "this seems to be just more of the same….., more of what you're just given us a commitment you wouldn't do, what's going on here". The Commission can assume the outcome would have been different, given that he always made clear that he wished to keep his job and had given commitments to management in the context of the August disciplinary process. 264 If Mr Veney was to be reinstated, it is not valid to say that he would be bullet proof as suggested by Ms Nomchong and he would be able to be treated like any other employee. 265 Mr Moorhouse asked the Commission to take into account in respect to the contacts with delegates that he gave evidence that he uses e-mail and phone contact as a convenient method to maintain liaison. 266 Mr Veney did not say that all he did do was maintain e-mail and phone contact, but that had occurred during a particular period whilst he was in the office, and it was not his usual practice, but occurred during the reallocation period. His evidence was that he had a number of phone conversations with Mr Schramm and Mr Zofrea and made various arrangements to go to Warringah which did not come to fruition during the period. 267 In respect to Mr Veney's earnings as a taxi driver, evidence was given by him on the 26th March at page 28 line 45. In that area he also gave evidence about seeking to stay within the Local Government industry because of the particular superannuation scheme, which explains his concentration of that type of application. In that process he did give evidence of his earnings as a taxi driver, although not able to update that information. PRIMARY EVIDENCE - CONSIDERATION 268 The following includes and reflects an assessment of the credibility of competing witnesses, arising out of which the applicant was found to be a less reliable witness in respect to certain areas, for the reasons indicated. Mr Veney's Employment Record: 269 Because of the challenge by Mr Moorhouse to unfavourable matters raised by the respondent as to the employment record of the applicant, the Commission has been required to have regard to Mr Veney's record over his eighteen years with the union. In any event, as relevant caselaw makes clear, it is a necessary consideration as to the fairness or otherwise of his dismissal. 270 As a pertinent general observation, the applicant was shown on balance to be a difficult person to get along with on occasions, and it is fair to say that he succeeded in getting off side with several senior officers of the union and others on more than a reasonable number of occasions during his long career, even allowing for the contentious nature of his job. In so finding, the Commission has taken full account of the applicant's responses on transcript, which contained many denials as to his behaviour when pressed by Ms Nomchong. 271 More specifically, his employer had over the years expressed in writing several areas of dissatisfaction with his performance, which included two very strong official warnings on 3rd February, 2005 and 23rd January, 2006. 272 Not all of the matters mentioned in the affidavit of Mr Harris, and eventually finding their way into the recommendations to the Executive on the 18th September ("W" of Exhibit 43), were of full forensic value before this Commission. There was an element of hearsay, at least in respect of the allegations of sexist and racist remarks to other employees, which required some selectivity by the Commission. This arose largely from the fact that they were not fully investigated by senior managers for one reason or another mentioned in proceedings. By the same token, and giving appropriate weight, there were sufficient shortcomings established to indicate that the majority of matters included in formal warnings at least were properly relied upon to show that he had a far from unblemished record over eighteen (18) years, including not following reasonable directions of his employer. 273 Mr Moorhouse's dismissal of complaints such as that related to the ACTU Day of Action, on the basis of the applicant's evidence that he was prevented from having the allegations properly investigated, was noted. However, that matter proved to be an example of where the employer was justified in including past shortcomings in his style of operation brought to his attention and placed on his record at the time. It is difficult to accept Mr Moorhouse's submissions and Mr Veney's own evidence (as to it being "pointless") of why he did not at the time challenge those matters included in the official warnings, especially given his wide industrial relations experience and the tenacity displayed by him on occasions. Ms Nomchong made a valid practical point that the applicant ought surely have pursued the challenge to those matters as provided for under Clause 31 (Disciplinary Procedure) of the award, and as he was invited to do at the time. The further excuse offered, that the Executive was not interested in such staff matters, was also incomplete and unconvincing, especially when he was so quick to signal his intent to invoke the Executive's review of his suspension. The idea that the names of the complainant be given to him so that he could confront them would ordinarily be an undesirable precedent for any workplace and could lead to undue pressure preventing future complaints or scrutiny of any employees' behaviour. 274 Again as to a specific issue, the Commission has been far from convinced to disregard the tow bar incident, for the reasons advanced by Mr Moorhouse and because some "benefit of the doubt" was given to him at the time. That conclusion related more to the alleged continued possession of the harness associated with the tow bar. His demotion at the time from Manager of the Southern Region to Organiser reflected a proper investigation which found some dishonesty on his part and that the excuse of testing the system through some "independent audit process" was disingenuous to say the least. The fact that he repeated that excuse in his cross-examination did not assist his credit in the eyes of the Commission, as well as being an example of a tendency to deny all wrongdoing throughout this case, as emphasised by Ms Nomchong in respect to the reinstatement claim. 275 The applicant received a reprimand over his failure to present his Friday Sheets on time as shown by the memorandum from Mr McLeay of the 16th August, 2005 (Exhibit 20). 276 The evidence such as that of Mr Donley that the applicant was not a team player, was confirmed by the evidence of others as to his conduct over the years on a variety of occasions. This characterisation was especially evident at the time of the crucial Skills Assessment Process on 18th July, 2006. 277 There were other examples of unsatisfactory performance in his role mentioned in warning letters of 5th February, 2005, and 23rd January, 2006, referred to earlier and confirmed by an analysis of competing evidence throughout this case. 278 The complaints giving rise to those warnings included how he conducted himself with delegates as well as with management, and although the Commission has taken account of the applicant's evidence on that issue, the applicant has been found to be wanting on that score, as a matter of weight. 279 Given that the last written warning was some five months before the 20th June, 2006 meeting, when Mr Veney challenged Mr Hughes over the assessment process, these warnings (apart from anything else), should have been a signal to him to show some respect for management decisions, not to unnecessarily defy them. As much as anything, he needed to at least mind his manners and not attract further adverse attention to himself, as he ended up doing on 20th June, 2006 and 18th July, 2006. 20th June Staff Conference: 280 Mr Veney's robust challenge at the open forum on the 20th June, 2006 to Mr Hughes' authority at a meeting where Mr Hughes was attempting to allay reported concerns amongst organisers about the skills assessment process about to be undertaken was of itself deserving of some criticism. Whilst there was some overall resistance by staff to what was envisaged as a scheme to enhance the effectiveness of union resources, it had to be considered in the context that it was an Executive approved initiative at that stage. By the applicant's own evidence he was aware that the assessment process was being promoted as a way forward to deal with a much more hostile and riskier environment bought on by recent Federal legislation, and the tone and manner of the applicant's opposition was crass in the circumstances. His explanation in cross-examination, related to believing the situation was being prejudged when hearing of Mr Hughes' prediction of who was likely to fail, (which was probably little more than a realistic comment by Mr Hughes), was not sufficient to justify his strident conduct at the meeting. The machinations of internal union politics were not a direct feature of the evidence in this case, but even if this had been the case, the crisis facing the union movement at this stage should have been of paramount concern. 281 The fact that Mr Veney was not alone in his concerns at that stage as to the planned assessment process was reflected in the fact that a resolution was passed against Mr Hughes' involvement. The applicant played a lead role at the meeting by being blunt and confrontational towards Mr Hughes, who he knew to be officially directing the process. His loaded question in front of the audience of, "what happens if we don't want to co-operate" and, according to Mr Hughes, accompanied by a provocative voice, and according to his own evidence, pressing the question as to "what consequences" might ensue, resulted in a testy exchange. He continued to show his hostility after the blocking resolution was passed with the comment to his then supervisor, Mr Mark McLeay, "Veney one - Pigdog nil". This was a reference to Mr Hughes' nickname from his earlier days as an organiser. That was not denied in proceedings. 18th July Assessment: 282 Having managed to put Mr Hughes off side in respect of the assessment project, it was established that he continued his opposition at the 18th July scheduled assessment interview with Mr Want and Mr Hughes, by being decidedly contemptuous. The record "A" attached to Exhibit 29 bears this out, along with other evidence, such as to the significantly longer time taken during the assessment, (where endeavours were made to inspire his participation), the paucity of his answers and the low scoring at his interview reflected his enduring negativity. The evidence of this episode which I have preferred, leaves no doubt that Mr Veney was deliberately obstructionist and disrespectful and deserved the reprimand which quickly followed. Taking into account his cross-examination, the evidence overall left me in no doubt on such things as that he gave perfunctory responses where he knew that more was required and encouraged from him. His evidence of having provided honest answers away from simplistic prepared answers, if true, showed insensitivity to the overriding directives of his employer designed to meet a crisis within the union movement related to the seismic shift in industrial relations, which brought the potential for stiff penalties under the WorkChoice changes. His rebuff to the question related to his knowledge of the Federal legislation was especially indicative of this "brinkmanship", especially as his own evidence in cross-examination showed an awareness of the objectives of the union's process. 283 The warning letter of the 19th July, and the assessment material attached, (Exhibit 22 "A") was a hard hitting and detailed document, which clearly warned of the option of disciplinary action and should have convinced any reasonable person in Mr Veney's shoes that their attitude and performance at that point were unwelcome and, in the absence of evidence of any conspiracy, deserved unequivocal compliance with the reasonable directions of his employer. 284 The warning letter required, amongst other things, fortnightly reviews to deal with the unfinished business of the applicant's defiance of the skills assessment scheme. Mr Veney's denial of that attitude and behaviour at the assessment, from hindsight, reinforced the need for follow up action by his employer. The resulting three disciplinary meetings, which took place over August, 2006, were scrutinised by Mr Moorhouse of Counsel in an effort to show that he did not display a recalcitrant attitude and behaviour as alleged in those interviews, and that therefore the warnings which followed each meeting were, in effect, superfluous. The following is a consideration of that important argument and by extended implication, whether those three fortnightly reviews and the resulting written warnings were an elaborate "set up" so to speak. 11th August Counselling Session: 285 The first of the fortnightly meetings, which took place on the 11th August, 2006, followed a report to Mr Harris, the General Secretary, by Mr Want of his concern as to Mr Veney's conduct during the 18th July assessment interview and were originally flagged as being conducted by the Metropolitan Manager. The meeting was actually attended by Mr Veney and his then staff representative, Ms Fraser, along with the incoming General Secretary, Mr Kruse, Mr Harris (outgoing General Secretary), Mr Want (Executive President) and Mr McLeay, (his supervisor) - who took notes at the meeting. A summary of the important things said by persons attending has been completed earlier under the outline of evidence. 286 Mr Want gave evidence that those notes of the meeting at "D" of Exhibit 29 reflected the contents of the meeting. These showed the applicant apparently agreeing to co-operate in the recommended course of action over the assessment process and later apologising for his conduct on 18th July, although qualifying somewhat, how he viewed the matter. Despite the offerings of contrition from the applicant and staff representative Ms Frazer, the management representative persisted with very stern warnings as to how he should behave in the future. The last of these multiple warnings informed Mr Veney that his termination was being considered and he should "show cause" why he should not be dismissed and suggested that he consider resignation. He was required to give a formal response by the next (17th August) meeting and to show cause. 287 The applicant, as required, did apologise to Mr Want following the 11th August meeting, but unfortunately waited until almost the eleventh hour to ring Mr Hughes with the apology required towards him. In that telephone conversation he was perceived by Mr Hughes as effectively nullifying the apology by his reply to Mr Hughes' question as to whether he would have apologised if he had not been required to do so, by answering in the negative. This may have been seen by Mr Veney as an honest response, but it is unsurprising in the circumstances that senior management (to whom Mr Hughes complained) saw such a response as an indication that the applicant still had lingering difficulties with what was required of him. Also, the evidence of Mr Want was that the applicant had earlier brushed off an invitation to discuss the 18th July assessment in an abrasive manner, which also apparently had increased the sense that the applicant was unrepentant about the 18th July. 288 The language of the apology on the 15th August (Exhibit 15) written by Mr Reid on Mr Veney's behalf can also be said to have been reasonably construed by the respondent as being somewhat hedged and not a full commitment. 289 However, the applicant's own apology written a day later on the 16th August (Annexure 2 Exhibit 43) can only be described as fulsome, and the fact that it was not accepted as such, even by Mr Kruse, can only comfortably be reconciled by the evidence that the applicant's demeanour and attitude at all the August meetings, was shown to have remained somewhat defiant and generally difficult. The evidence of Mr Kruse and Mr Reid was particularly supportive of that proposition. 290 The respondent's apparent resistance to Mr Veney's so called apologies might also reflect a deep suspicion as to his motives because of his habitually difficult personality, as experienced by more than one witness in the evidence. The earlier written apology on his behalf at the time by Mr Reid offering the excuse for his behaviour on 18th July as simply "Allan Veney being Allan Veney" was one such clue as to how he was generally regarded and his evidence here of not having done anything wrong on 18th July goes a long way towards explaining the respondent's continued pressure upon the applicant at subsequent meetings. 17th and 23rd August meetings: 291 As earlier indicated, the notes again taken by Mr McLeay at the meeting on the 17th August, although only an outline, left the Commission with some question as to why the union representatives at that meeting continued to approach the situation as if Mr Veney had not given the oral undertakings at the earlier conference and the fairly unequivocal written commitment he gave on the 16th August ("T" of Exhibit 43). However, apart from the evidence of continued displays of defiance at all these meetings, this pressure on him can very likely be looked at as an apparent fulfilment of the requirements for him to be reviewed fortnightly by the Metropolitan Manager as per the recommendations of the 19th July warning. 292 Again, at least from the notes taken by Mr McLeay which were recognised in evidence as a fair outline of what was said, the further meeting on 23rd August is puzzling for the same reason, in that it seemed to be a repetition of the 17th August meeting, without signs of any fresh issues taken up with the applicant to address the strong reliance by Ms Nomchong upon the three written warnings issued after the meetings. It was not that the respondent had been found to have been "putting the applicant through the paces", so to speak, or falsely warned Mr Veney, given the evidence that he was still being perceived as being difficult, along with the requirement for fortnightly reviews, but simply that there were no fresh issues in between the 17th August conference (which followed the 16th August apology) and the 23rd August meeting. Apart from the deep suspicion of the applicant alluded to above, which may have required additional reinforcement by tough counselling, again the evidence of Mr Kruse and Mr Reid indicating some persistent display of poor attitude at the later conferences, provided a further explanation for the tone of the 23rd August minutes and the third written warning dated 31st August, 2006. 293 I have to agree with Mr Moorhouse that the pressure on the applicant to resign at that stage during those meetings is not something that Ms Nomchong should use to support her argument as to some benefit offered to the applicant. When one considers the detriment in store for the applicant in respect of superannuation entitlements and the ability to move to other worthwhile employment, his rejection of a payout at that stage, even of his substantial unused sick leave entitlement, is unsurprising. 294 The applicant was certainly on notice that any further such failings on his behalf would very likely result in his dismissal, as acknowledged by him in evidence. This factor was relevant to the Commission's crucial assessment of the applicant's conduct at the 13th September meeting. 13th September "Suspension"/Interview: 295 The Commission's focus in respect to the 13th September, 2006 meeting, centred upon the dual aspects of whether the applicant was accorded procedural fairness, and also whether the applicant's behaviour and attitude displayed were as claimed in the respondent witnesses' evidence, and therefore such as to reduce, or even nullify, the extent of any procedural shortcomings. This was relevant to Ms Nomchong's argument advanced with the support of legal precedent (dealt with later) that the Commission should look at all the relevant circumstances in considering the question of process. 296 Whilst there was no warning as to the nature of the interview with Mr Veney on 13th September, the strong line of warnings at that stage would surely mean to a reasonable person that they were likely to be vulnerable in respect of the lack of visits to new councils (for whatever reason). Accordingly, the same person in Mr Veney's shoes should have gone out of his way to provide a proper explanation to Mr Want and Mr Harris, or else be reasonably apologetic about not being able to. In the circumstances, another sensible thing for him to do, as suggested by Ms Nomchong, was to seek an adjournment. Also, he might have asked to be able to put in writing what activities he had been engaged in the previous month, or to simply ask for more time to provide answers to Mr Want and Mr Harris. The manner of seeking any of these options would have been important. The respondent's obligations on those same options are dealt with later under the subheading of Procedural Fairness. 297 The evidence of Mr Veney himself as to his responses at that crucial meeting has been found to have a surprising level of consistency with the respondent's accounts given by Mr Harris, Mr Want and Mr Reid. Certainly, Mr Veney denied a range of matters put by Ms Nomchong such as that he failed to make eye contact and looked at the floor; slouched in his body language; was predominantly unresponsive, evasive or unco-operative. He also disagreed that he gave perfunctory responses of "can't remember" in answer to questions asked of him as to when he claimed to have contacted delegates on three occasions by phone, or when asked as to what he did the previous day, claiming to have given more elaborate responses. However, there were a range of acknowledgements by him in cross-examination which were seen by me as being at least partly supportive of the respondent's contention that Mr Harris had experienced at that meeting. This was the type of attitude and behaviour for which Mr Veney was warned in the three August counselling sessions and in the resulting written warnings. 298 He remembered saying as to his activities the previous month, "I've been busy elsewhere" and "a range of things" and "yeah, but I had another meeting and wasn't available". These three responses were capable of being read by Mr Harris as inadequate and even brusque in the context of him being given an opportunity to satisfy his employer on the serious complaints in respect of not visiting Warringah Council (with 400 union members employed) or North Sydney Council. 299 Similarly, his claim to have been focusing on a member at Ryde Council, as the reason for not going to Warringah Council, was short on the kind of detail which he could have easily have offered, unless a short answer was calculated to annoy and show disrespect, as contended by the respondent. 300 He acknowledged saying, "I can't remember" to the question as to what he had been doing when he went to Pittwater, Ryde and Willoughby Councils on 5th September, 2006 - eight days prior to the 13th September meeting. He denied saying it in a fashion to show disinterest, and being unco-operative. He claimed to have answered initially in that way, because he wanted to be sure before answering fully. As to whether such a response was short and perfunctory, Mr Veney said, "It doesn't take much to say I can't recall". 301 Later in the same area of his cross-examination, Mr Veney significantly acknowledged that Mr Harris had told him that he was not happy about his attitude and answers. He also accepted that the General Secretary was putting him on notice that the same belligerent and defiant attitude was coming through yet again. When asked if Mr Harris was telling him that it was his attitude that he was annoyed with, the applicant answered, "He didn't like the answers I was giving him". He agreed that Mr Harris had actually said, "I'm not happy about your attitude". He went on to also agree that Mr Harris had said to him that he was annoyed with the way the applicant was talking to him and the answers he was giving and, separately conceded that he understood that Mr Harris was unhappy with the applicant's attitude towards him. 302 To the proposition that the applicant's attitude and answers were exactly the same behaviour that he displayed at the 18th July assessment and August meetings, the applicant responded, "Yes, I was conducting myself in the same fashion". He understood from those meetings that senior people in the union thought he was unco-operative, disrespectful and belligerent, but said that he did not know "how he could change that view of him", but then disagreed that he was evasive and unco-operative. 303 The applicant's evidence in this area left little doubt, at least, that he knew how irate his responses had made Mr Harris. This does not mean that he conceded any real wrongdoing, as many of his answers to Ms Nomchong made clear, but there was some significance in several of the above concessions, such as to being aware as to Mr Harris' annoyance at his attitude towards him and that he conducted himself in the same fashion, which he had at the August counselling sessions and the 18th July assessment, although it must be remembered that the applicant denied any wrong doing on that occasion. However, the fact that he understood that Mr Harris regarded his conduct as unco-operative, disrespectful and belligerent, begged the important question as to why Mr Veney could continue to maintain under oath, that he believed that he was dismissed because of the complaints of him not visiting delegates at Warringah and North Sydney Councils and his inability to provide answers at short notice as to his activities over the crucial four to five week period over August/September in question, per se. 304 There was therefore a fundamental credibility gap identified in this area of the evidence, which extended to embrace the fact that his original affidavit made no mention of the significant disciplinary interviews throughout August and written warnings arising therefrom, all of which were abundantly clear as to the need for a change of attitude and behaviour. He gave evidence of understanding this to be the case and, for him to ignore those warnings in his original affidavit, Exhibit 1 (as pointed out by Ms Nomchong), along with the reasons given in writing for his dismissal by the respondent in its reply at the time of receiving his Form 7A Threatened Dismissal application, was damaging to his credit. 305 The Commission has been satisfied overall that Mr Veney did not say all the things to Mr Harris and Mr Want as claimed in his original affidavit. Moreover, I have not been able to accept Mr Moorhouse's argument that the body of text of the explanations claimed to have been said by him in his affidavit, were actually broken up into a series of responses to individual questions. On a minor point, had he been able to remember all that he claimed to have said so fluently in his original affidavit, he would be unlikely to forget the significant questions in between those alleged responses. 306 Apart from any other evidence to the contrary, if Mr Veney had said those things in large chunks or even broken up in various responses as now claimed, he would not logically have been dismissed. In fact, it beggars belief that his employer would not have been satisfied with those responses claimed in his affidavit, Exhibit 1, again in the absence of any evidence of some kind of conspiracy against his continued tenure. 307 The more likely scenario, based on Mr Want and Mr Harris' evidence, and corroborated by Mr Reid's important observations in examination and cross-examination and in the light of his own concessions as detailed above, is that he did give half answers and was irritating and non-responsive in other ways. 308 Instead of communicating properly when called to account on 13th September, it is clear from the evidence that Mr Veney provided a number of begrudging responses to both Mr Harris and Mr Want. The question of whether or not he was inspired to do so by annoyance of being caught unprepared as suggested in Mr Reid's evidence at one point, and emphasised by Mr Moorhouse, is a consideration dealt with under procedural fairness. 309 In a different vein; given his long experience, and even in conducting disciplinary matters in the interests of members, it should have occurred to him to accept, despite the lack of notice, that a legitimate enquiry was being conducted about a serious complaint. Instead, the evidence shows that the resistant manner in which he approached his answers confirmed for Mr Harris that he was continuing his recalcitrant and difficult attitude, which had previously landed him in trouble. Again, that finding was not inconsistent with some of his own evidence noted above and, faced with a repetition of that behaviour which the Commission accepts included body language apparently intended to irritate and show disrespect, it is not altogether surprising that Mr Harris reacted in kind, when he suspended him and told he was being recommended for dismissal. 310 Mr Moorhouse identified some inconsistencies in the evidence between Mr Harris and Mr Want, particularly in respect of the question to Mr Veney on 13th September as to what he had done the day before. 311 Mr Want suggested that it was the point at which the applicant said" I can't remember" (what he did yesterday) that Mr Harris said, "that's not good enough, I'm suspending you" etc. The notes of the conference indicate that apart from a slightly different record of Mr Harris saying "I don't accept that!", there were further exchanges well after that point, but before being told that he was suspended. The Commission accepts that Mr Veney did provide a more fulsome explanation to the previous days activities, but only belatedly, and being prompted by Mr Harris' exclamation of "I don't accept that". Mr Want was forced to accept that this had happened, after initially insisting that this was the point at which the applicant was dismissed. 312 The Commission has not been able to reconcile with any degree of accuracy why those inconsistencies occurred in Mr Harris and Mr Want's recollection, but does not believe they are serious enough to indicate that Mr Want's evidence is otherwise unreliable. 313 Accordingly, whilst Mr Moorhouse was correct that the employer needed to rely upon some further act of defiant behaviour at the 13th September interview, there is reliable evidence that the applicant was belligerent on that occasion, not only from Mr Harris and Mr Want's account, but also from Mr Paul Reid. Mr Reid's evidence was of the applicant, not completing sentences, and indulging his habit of not looking people in the eye and also included a variety of adjectives to describe his negative behaviour, such as belligerence and demeanour, although much of it had to be weighted on the basis that his elaborations were prompted by questions from Ms Nomchong and not included in his original affidavit, Exhibit 15, (prepared when called as a witness for the applicant). 314 The other argument by his Counsel that any reticence and lack of co-operation by the applicant at the 13th September meeting is understandable in view of the lack of warning given as to the nature of the meeting, has been taken aboard by me. However, such a stance must also be considered in the context of his recent three written warnings, which, as already suggested, behoved him not to allow himself to be incited into a repeat of poor behaviour. This leads to a consideration of the other important focus in this case, only touched upon so far, as to the process adopted towards Mr Veney's dismissal. Procedural Fairness - 13th September : 315 The leading cases on procedural fairness, including some referred to me by Counsel, show that there is no fixed procedure to follow, except where provided for as a matter of policy by the organisation or by industrial instrument and that each case needs to be examined on the circumstances. 316 Section 88(b) of the Industrial Relations Act 1996 provides a natural justice/commonsense test for an employee to be given the chance to defend themselves, and to quote more precisely: " (b) If any such reason was given - its nature, whether it had a basis in fact and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment". 317 There is no doubt that Mr Veney was provided with some opportunity to give answers as to his activities the previous four to five weeks, but it would seem that the respondent had, not just a countervailing, but a predominant responsibility to avoid accusations of ambush as levelled by Mr Veney and his barrister, by providing some notice of the nature of the meeting. 318 It is apparent that it would have been more sensible and certainly fairer for the respondent to delay its decision on suspension to consider some alternatives, such as the options mentioned earlier as being available to the applicant. To emphasise - these might have been; either to allow a written response by the applicant to enable facts provided to be checked, or even to considered the complaint along with his assessment interview later that morning. Another option was to have at least delayed the decision on suspension until later in the day, and whence Mr Harris may have been able to have a discussion with Mr Want (who was across the situation) as to what to do next to address the further display of unco-operativeness. Accordingly, the normally telling fact that he was on a "final final" warning, had to be considered in the context of a lack of warning as to the nature of the meeting. 319 The Commission agrees with Counsel for the applicant that there was no real urgency in chasing up on the complaints from Mr Schramm and therefore greater care could have been taken, especially as the other (assessment) interview had already been scheduled for 9.30am that day, and particularly in view of the applicant's long employment and even longer association with the union. The fact that the Executive was to meet the following week, may or may not have inspired the need for expedition, but there was no real evidence of this. 320 On another issue related to the question of proper process, Mr Moorhouse insisted that there was an issue of the credibility of Mr Harris in the difference between his evidence compared to that of Mr Reid and Mr Want, as to whether Mr Reid, the staff representative, was asked to be present or whether he simply stayed more as a matter of course. Mr Reid appeared to contradict Mr Harris that he was actually asked by him to be present. The differences might well be explained on the basis of recollections and perceptions, as opposed to Mr Moorhouse's contention that there was a vested interest in Mr Harris not being seen to have enlisted Mr Reid's deliberate presence on the basis of his and Mr Want's insistence upon the meeting being merely to investigate a complaint and not being intended as a disciplinary interview. It is quite plausible from the evidence that some confusion arose in respect to Mr Reid's scheduled presence for the 9.30am appraisal meeting and that there was no deliberate attempt by Mr Harris to disguise the fact that Mr Reid was asked to also attend the 9.00am meeting. 321 This issue of whether or not the respondent actually considered or should have considered that the enquiry of the complaint from Warringah Council was a disciplinary interview, the fact is that it turned out that way, with the applicant's suspension from duty on pay and Mr Reid's presence was only one essential. As such, it was more important that the applicant should have been put on notice of the matter to be discussed to avoid prejudice, with such an unplanned approach. 322 Mr Moorhouse's argument that the applicant's dismissal from 18th September, 2006 was procedurally deficient and disproportionate to the gravity of the offence, relying upon caselaw such as the well known decision in Antonakopoulous Vs The State Bank of New South Wales (1999) 91 IR 385 @387, was naturally therefore a major focus in this case. The reference contained in that case to the decision of the Full Bench in Bourke Vs McGirr, as to the need for the Commission to look at all of the relevant circumstances, (as highlighted in the submissions of Ms Nomchong), was particularly apposite to this case, along with the segment from the judgement of the High Court in Byrne Vs Australian Airlines Ltd, also highlighted. The extract from Antonakopoulous brought to my attention by both Counsel for their separate purposes is worthy of repetition here: "It is now well established that the exercise of the discretion of the Commission pursuant to s84 of the Act must be directed to a determination as to whether a dismissal was harsh, unreasonable or unjust. A consideration of unfair procedures will be relevant to the determination of that question. It was stated by a Full Bench in Burke v McGirr (1995) 87 IR 54 at 56, that: "the discretionary basis for reinstatement resides in the terms of the statute …A consideration of the procedures followed in implementing a dismissal may be relevant in a particular case. Nevertheless, all the relevant circumstances must be considered by the Commission in determining whether a dismissal was harsh, unreasonable or unjust, not merely such procedures alone." However, in our view, the adoption of, or application of, an unfair procedure may, in itself, result in a dismissal being harsh, unjust or unreasonable. Authority for this approach is clear. For example, in the joint judgment of Brennan CJ, Dawson and Toohey JJ Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430; 61 IR 32 at 43, their Honours described circumstances in which the adoption by an employer of an unfair procedure in the termination of an employee may appropriately give rise to a finding that a dismissal was harsh, unjust or unreasonable as follows: "Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a): see Gregory v Philip Morris Ltd (1988) 24 IR 397 at 412-413, 414-415; 80 ALR 455 at 471, 473, per Wilcox and Ryan JJ; Wheeler v Philip Morris Ltd (1989) 32 IR 323 at 346-347; 97 ALR 282 at 306-307, per Gray J." 323 Notwithstanding that there were wider issues involved, it must be acknowledged that the applicant had to have been caught unprepared to answer questions as to dates and events. He apparently did not have an opportunity to review the Friday Sheets at the beginning of the conference and the evidence as to this did differ between Mr Want and Mr Harris, as to when exactly he did have access to assist his recollection. Mr Veney referred to his diary to answer some questions, but putting aside the conflicting evidence as to whether he initiated reference to such material or not, overall the fact emerges that he was ill-prepared to give comprehensive responses to questions, which might have saved the day for him. Just as importantly, proper notice may have prevented his defiant reaction and otherwise poor responses, which the Commission has been satisfied that he indulged in yet again, through the evidence of three witnesses, and in the face of explicit warnings. 324 The question arising from that important finding is, as to whether the subsequent dismissal on 18th September, 2006 by the Executive's decision, which was really stage two of the process, was harsh, unjust or unreasonable in the circumstances where his earlier suspension was procedurally flawed, but where the applicant was found to have provoked that situation. 18th September Dismissal by Executive 325 In support of its case as to the reasons for dismissal, the respondent was not assisted by the language of both the dismissal letter and the recommendation to the Executive, which were attacked by Mr Moorhouse as a basis for his contention that the applicant was dismissed for various reasons other than his attitude and style of responses given at the 13th September meeting. Both documents, although inadequately drafted in terms of the respondent's case, were however quite capable of being read as also including the question of his behaviour and attitude displayed at crucial interviews. The predominant aspect coming through the evidence was that the applicant was seen by Mr Harris as continuing to be obstructive at the 13th September interview as the reason for his suspension and the inclusion of all those historical and other matters in the correspondence can be reconciled with a requirement to have regard to the lengthy and nature of his employment record. 326 Given the broad emphasis in Mr Harris' recommendation to the Executive to dismiss Mr Veney (Exhibit 43"W"), the Commission has, (taking in Mr Moorhouse's submissions), found that the applicant's dismissal by the Executive was likely to have been at least influenced by the complaint of not visiting Councils. In the process, the respondent may have made insufficient allowance for the fact that the applicant had been allocated nine new Councils - another claim by Mr Moorhouse. However, the evidence in this case, which showed in some detail what the applicant did or did not do in that one month prior to his termination, was a necessarily inexact exercise and has not shown with any precision, his actual capacity to visit Councils. Nevertheless, having regard to the importance of visiting delegates dealt with elsewhere in this decision, especially in the climate of uncertainty because of the WorkChoices (and mentioned by Mr Schramm), the Commission has not been satisfied that the applicant took advantage of sufficient opportunities within that period to make proper contact with delegates. The Commission noted the evidence discussed earlier (some of which was inexact) of sending e-mails and making telephone calls and as otherwise detailed in Mr Moorhouse's final submissions. 327 On another significant point relied upon by Mr Moorhouse, the Commission has not agreed that the applicant's actual dismissal by the Executive on the 18th September was procedurally flawed because it ignored the last minute request by Mr Veney's legal representatives, Harmers Lawyers, to delay the decision to dismiss to allow him to get legal advice. Despite the supposed ten minute limit imposed on his appearance before the Executive, along with the number of matters raised in Mr Harris' recommendation, there was a realistic opportunity for the applicant to address the 25 person Executive. As an experienced industrial relations practitioner, he could have done a number of things, including some or all of the following: - Attacked the list of both previous and more recent matters included in Mr Harris' recommendation, along with the fact that notice of those matters should have been provided to him to facilitate his defence; - Complained to the Executive generally about the lack of notice of the nature of the 13th September meeting and therefore the lack of procedural fairness; - Told the Executive of his specific efforts during the previous month as an explanation of why he did not visit Warringah; - Told the Executive he needed more time to respond to the questions as to what he had been doing and why he had not visited delegates; - Assured the Executive that he had already given apologies and undertakings and at the same time convinced the Executive of the genuineness of those apologies; - Asked the Executive to delay the decision pending the conciliation proceedings in his Threatened Dismissal Application under S.84, to be conducted by Commissioner Connor. 328 The Commission has likewise rejected the related claim by Mr Moorhouse that the applicant was unfairly disadvantaged by the timing of the dismissal in the face of his solicitor's last minute request for delay, which was said to have denied him the opportunity to seek an injunctive remedy around the conciliation phase before Commission Connor. That argument overlooks the point made by Ms Nomchong that there was no indication that injunctive relief was being sought from the Commission in his threatened dismissal application. The Commission has found Ms Nomchong's argument persuasive, as to the special circumstances motivating the Commission to intervene with injunctive relief and that members of the Commission would ordinarily be loath to intervene against a dismissal without proper evidence as to the merits of a claim. The Commission has also had regard to the decision of the Full Bench of this Commission in Sydney Water Corporation and the Australian Services Union in Matter No. IRC 2770 of 2005, delivered on 15th September, 2005, as a guide to the circumstances where interim orders are appropriate in dismissal cases. It is clear from that decision that the Commission would not lightly interfere with an employer's right to dismiss an employee without first coming to the view that such dismissal would be harsh, unjust or unreasonable. 329 Whether the Executive should have allowed the delay requested by the applicant and to have re-convened on another occasion, had to be considered, inter alia, on the basis of the evidence of why he decided not to attend, and whether there was anything for him to lose in doing so. The obvious answer is that related to the tactical advantages, such as being able to frustrate and delay a decision, especially until after the impending retirement of Mr Harris, who had suspended him. There was significant expense attached to the conference, which was structured in a certain way and that it was some months before another conference could re-convene - a fact known to Mr Veney. Also, in the meantime, the respondent could have been prejudiced for a variety of reasons in its ability to properly later dismiss the applicant had it delayed consideration from that meeting. 330 As to Mr Moorhouse's other argument against the validity of the 18th September dismissal - that the matters contained in the memorandum from Mr Harris to the Executive recommending his dismissal on the 18th September, 2006, were either incorrect or out of date - this is only marginally true, when balanced by other considerations. Whilst some of the matters referred to, such as the applicant's use of racist and sexist language, were not subject to a formal investigation at the time, Mr Harris' memorandum to the Executive spoke of only "allegations" and did not claim the matters as proven. As to whether some of the matters could be characterised as out of date, the Executive was, after all, obliged to have some regard as to whether or not the applicant had an unblemished record over his long eighteen years of employment at that stage. It was open to the members of the Executive to consider, although there was no real evidence as to any debate that some matters happened some years previously. The Commission has earlier found that the tow bar incident was quite properly relied upon, which occurred in his early years with the union. 331 In any event, the Executive's apparent unchallenged consideration of previous matters to do with the applicant's conduct was surely again a question of the applicant's contribution to his own downfall, when he passed up a fairly unique opportunity to influence the Executive against passing the resolution to dismiss him. 332 The Commission has not been in the position of being able to decide upon the evidence by Mr Scoble and Mr Jacka in respect of whether or not Mr Harris had indicated the next day, the 14th September at a meeting, that the applicant would not be returning, that is, prior to the Executive's consideration. At worst, Mr Harris may have been expressing a wish rather than being able to predict the Executive's consideration. In any event, the evidence of Mr Kruse and Ms Rietdyk indicated a relatively broad and independent discussion by the Executive of Mr Harris' recommendation to dismiss and, again, the applicant's failure to attend that conference was a lost opportunity for the applicant to defend himself, particularly against any procedural unfairness. 333 Leading on from that matter, the Commission does not accept that the Executive necessarily "rubber stamped" Mr Harris's recommendation, although the applicant's last minute failure to attend, and instead requesting a delay, might have encouraged some members to become impatient or even hostile with dealing with the matter. Whilst no evidence was bought as to what was said by Mr Harris in respect of the applicant's attitude at the meeting, the evidence of Ms Rietdyk in particular was that attitude was discussed. Moreover, the memorandum to the Executive on the 18th September by Mr Harris alluded to his attitude at the meeting, saying that he did not remember where he was the previous day, (although he was shown to have responded more fully when prompted) . It also referred to the previous warnings relating to his behaviour during an assessment interview on the 18th July and the counselling which followed in respect of "unacceptable behaviour and attitude". This suggests that the consideration by the Executive was conducted on a reasonably broad basis. although the unanimous decision to accept the recommendation and the absence of any speaker in support of Mr Veney would naturally create the opposite impression. The alleged goodwill towards the retiring Mr Harris in adopting his resignation was only an unfounded assumption. 334 Again, in respect to the belated letter from the applicant's solicitors, the fact that the respondent union decided to regard the letter from Harmers Lawyers, as simply a delaying tactic had been considered in the light of the fact that the applicant had been given an opportunity, albeit brief, to address the Executive. The last minute nature of the request, faxed at 7.21pm on Friday night, 15th September, without waiting for a reply and in the absence of any attempt earlier to approach by phone during the course of that week, gave the appearance of a litigation tactic rather than a genuine attempt to properly exercise options. Mr Veney's evidence of only deciding to go to his lawyers on Friday, rather than attend the Executive (as approved on Thursday), because Mr Reid's letter to him advised that he only had a ten minute session with the Executive, failed to impress me as a valid consideration, especially given his experience of making representations. The lateness of his lawyer's representations effectively prevented the respondent from obtaining their own legal advice prior to the Executive's deliberations. 335 Accordingly, the Commission has not been able to find significant fault with the Executive's actual consideration of his suspension, but with the important exception that there was no recognition of the fact that the applicant was effectively denied procedural fairness in his suspension interview when he was required to provide details in respect of matters for which he should have been given some notice, as earlier found in this decision. The question of remedy should take into account those aspects of the contribution of the applicant to his own demise at the workplace in provoking his suspension on 13th September is dealt with below under Remedy, along with his failure to take up the prospect of forestalling his dismissal before the Executive on 18th September, 2006. 336 Put another way - the Commission, whilst not finding the dismissal on 18th September procedurally flawed on the basis maintained by Mr Moorhouse, has determined that his dismissal that day was unfair because of the earlier procedural unfairness in respect to the lack of notice given in respect to the nature of the 13th September, 2006 meeting and impacting upon the 18th September deliberations. The fact that the Executive were not alerted to this inadequacy in process is worthy of the Commission's intervention - but taking account of the applicant's own failure to so enlighten the Executive. The Commission accordingly has decided that dismissal to be harsh, unjust and unreasonable, especially in view of the long association and employment with the union and the serious impact upon him. This reasoning included that, as an ex-union official, he would likely to be impeded in achieving new suitable employment. SUMMARY/CONCLUSION 337 Mr Veney's long employment with the union was far from unblemished, being characterised by a series of generally well-grounded formal warnings. 338 His more recent behaviour displaying defiance of management initiatives, particularly in the 18th July assessment interview, understandably attracted the anger of senior officers, concerned with strategy to meet the WorkChoices challenge to union power. He received further strongly worded warnings, accompanied by a series of counselling sessions throughout August, 2006 involving senior officers of the union. His apologies given at the time, or at least the earlier ones, were marred to an extent by a degree of hedging or qualification, and were therefore not well received, especially by Mr Want and Mr Hughes. He eventually appeared to offer unqualified contrition but there was evidence that at all the conferences in August, his demeanour and apparent attitude left some of those present with the impression that he did not genuinely recognise any fault. His evidence of reconciling his claim of not being at fault, with the fact that he did apologise - "I was apologising because I was required to apologise and I genuinely wanted to apologise for upsetting people" - did not explain the conflict in his stance. 339 This left the Commission satisfied that the three warnings given to him were not simply a ploy to hasten his departure, but by the same token the Commission was not able to give the same power to the "final, final" warning given to him on 31st August, 2006, as attributed by Ms Nomchong. 340 The crucial meeting of 13th September, which resulted in his suspension and recommendation for dismissal by the then General Secretary, Mr Harris, was found to have been blighted by a repeat of disrespectful behaviour towards management seeking an explanation as to his activities over the previous four to five weeks, following a complaint from Warringah Council delegates that he had not visited them since taking over as organiser. The Commission found that recalcitrant behaviour at that interview to be established on the evidence of three persons present, despite what was finally judged to be some minor inconsistencies in the respondent's account, especially when compared with the flaws found in sections of the applicant's evidentiary approach. 341 However, whilst the applicant was found to have effectively provoked his own suspension, the Commission has had to be open to the strong claim by Mr Moorhouse that the applicant was also effectively ambushed, even though this may not have been intended by those claiming to have simply sought to interview him about a serious complaint just received from Warringah delegates. The inescapable conclusion from the lack of notice as to the nature of the meeting was the likelihood of significant prejudice to the applicant's ability to explain and defend himself. Even though a disciplinary interview as such was not intended, the result was just that, although the applicant was not justified in reverting to type in his responses, which he himself admitted were annoying to Mr Harris at the time. 342 Having regard to major precedents referred to me by Counsel, the Commission has accepted the paramountcy of the employer's obligation to provide procedural fairness in this situation confronting Mr Harris, who had other options available. But the applicant's contribution to his own fate at that conference was a matter to be taken into account in the question of remedy, along with the applicant's obdurate position, in effectively turning his back on the opportunity to influence the Executive's decision on Mr Harris' recommendation for his termination on the 18th September, 2006. 343 The Commission has not accepted that the 18th September decision was procedurally flawed on the basis of Mr Moorhouse's submission as to: (i) The broad range of the recommendation to it; or (ii) The refusal to grant the belated request by Mr Veney's lawyers to delay the decision; or (iii) That his resulting dismissal robbed him of the opportunity of obtaining injunctive relief through his Threatened Dismissal application already filed. The applicant's actions were understandably seen as a simple delaying tactic and arrived too late to be respected, as well as being likely to have robbed the respondent of its own opportunity of controlling the situation on its terms. Ms Nomchong's submission that he could have phoned the likes of Mr Harris and Mr Kruse, would have been a reasonable thing for him to do, from Thursday onwards over the weekend. 344 The applicant was found to have passed up a tangible opportunity, albeit brief, to influence the Executive's decision, which was the second phase of termination, although crucial to the respondent's process and which he had successfully sought leave to do. 345 That aspect was also to be regarded as a further contribution by Mr Veney to his own demise, to be considered in respect of any remedy available. 346 The earlier procedurally unfair nature of the suspension on 13th September, although needing to be weighed against the applicant's provocative conduct, was apparently not something which occurred to the Executive. They may however have been made more conscious of that shortcoming by Mr Veney had he attended as originally planned and made the sort of representations listed earlier, including the need to be given notice of Mr Harris' range of matters in his recommendation to the Executive. 347 Accordingly, the applicant's dismissal on the 18th September, 2006 has been found to be harsh, unreasonable and unjust on the basis of a flawed suspension process, carried over into his dismissal on 18th September, 2006, and for the reasons stated, should attract the Commission's qualified intervention. R E M E D Y 348 The Commission has taken into account the submissions of the respondent in respect of the applicant's efforts to achieve other employment and whilst he might have broadened his basis for applying for positions, the Commission cannot find the same level of fault as urged by Ms Nomchong. It is understandable, as explained in his oral evidence, that he sought employment in the Local Government sector, so as to pick up on his superannuation accumulated benefits. His earnings since dismissal were shown to be minimal in comparison to his overall loss. 349 The unusual difficulty for the applicant, given his age and background as a union official over eighteen years, has also been taken into account by me. The detriment to his superannuation, although not accepted as a mathematical exercise for me, is a relevant consideration and I have been comfortable in not needing to argue against the more generous calculation of his superannuation, by expert witness, Mr Martin Stevenson, for the reasons identified by Mr Moorhouse. On that basis I have not had to agree or disagree with his logic as to the more likely loss and also as to why it should not be held against Mr Veney, that he chose not to take out maximum benefits on the basis that he had the choice of doing so towards the close of his career. 350 The important question of the primary remedy of reinstatement or re-employment claimed by Mr Veney has had to be considered by me with unusual care, even though I have arrived at a finding that Mr Veney must take some significant responsibility for both his suspension and his later dismissal because of his own actions and lack of action. The contributory factor has weighed heavily when deciding that, even if his own provocative conduct and his failure to exercise his right to plead on 18th September, 2006, were not so important, there is still the issue of his behaviour both before and after dismissal which must count against a practical re-establishment of the relationship, which I have separately assessed on the question of remedy. 351 I have preferred Mr Kruse's evidence that the applicant, after his dismissal, offered a distasteful threat to gain sponsorship from forces unfriendly to the union movement and that he made derogatory comments as to the "brand of unionism" in a job application to Woollahra Council. Both instances were a significant barrier to restoration, especially when combined with the ample evidence that the applicant was found not to be a team player throughout his career and the applicant's denials of this did not suffice against several clear indicators of being difficult to manage. Mr Donley, who would be his supervisor, was uncomfortable with a reinstatement. This problem became readily apparent, especially with the changes to skills assessment and training proposed to counter the seismic shift in the industrial relations scene through the WorkChoices legislation, which threatened the union's viability. 352 Whilst Mr Harris had left the union shortly after the applicant's dismissal, there were several senior officers involved in his disciplinary process, who would have to contend with Mr Veney's return. He was found to be too much in denial on a variety of occasions and reinstatement might well lead him to believe that he could continue in a challenging manner to any attempt at supervision, although to adopt Ms Nomchong's description of him being likely to consider himself as "bullet proof", overlooks that it is unlikely that anyone having been dismissed once, would relish a return trip. Related to this aspect, he was found to be unwilling or unable to recognise his defiant conduct when he provoked his own suspension and unreasonably declined the opportunity to convince the Executive not to dismiss him in favour of a dubious tactic of delay. 353 Also relevant to the question of practicality is that the position occupied by Mr Veney of organiser is a strategic position within the union with an increasing rate of interaction with dispute litigation and, combined with the greater risks for union activities under Federal legislation of 2006, including substantial fines, the question arises as to whether the union should not be able to ensure greater control over the conduct of its organisers. 354 The decision of His Honour, Mr Justice Sheldon in the landmark case of Loty and Holloway Vs Australian Workers Union, 1971 AR @95 is relevant to this point. Although there have been many more recent authorities generally to draw upon on the question of practicality of reinstatement, the comments of His Honour upon the role of the industrial officer, (a position occupied by Mr Loty) spring to mind as being apposite to Mr Veney's role of organiser. There at page 109 His Honour commenced: "Industrial representation in many instances is not a matter of speaking from a textbook or a prepared brief. Particularly in conciliation proceedings, where usually no legal representation is used, problems may arise instantly which can be best handled by an advocate whose ear is sympathetically turned to current union policies. The whole job requires close collaboration and mutual confidence between the representative and those controlling the union and it is plain that in these respects the present executive is entitled to decide that Mr Rutherford is more suitable than Mr Loty." 355 The Commission has had regard to the alternate arguments launched by Mr Moorhouse, referring as he asked me to do to caselaw, especially Perkins Vs Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186, where the important logic was applied of normally being able to overcome difficulties, often of the employer's own making, in the restoration of work relationships. The decision of the Full Bench of this Commission in Youssef and Western Sydney Area Health Service in Matter No IRC 1097 of 2002 was also amongst the cases in the area of practicality of reinstatement and whilst that decision and others referred to by Mr Moorhouse offer good reasons for putting aside the predictable objections of employers to reinstatement, the case at hand throws up distinguishing factors. 356 In this case the Commission has been less than confident in the practicality of restoring Mr Veney to his place in the union without undue risk. 357 Accordingly, monetary compensation is appropriate and this should reflect the factors earlier stated pertaining to what might be colloquially called the contributory negligence of the applicant in his own dismissal and going to the degree of unfairness, which, apart from being consistent with the need to measure what compensation is due, is also in line with Section 88 Subsection (f), which requires the Commission to take into account, "such other matters as the Commission considers relevant". 358 The Commission has noted the details of Mr Veney's remuneration package outlined in Mr Moorhouse's final submissions, along with the brief reply by Ms Nomchong to the effect that the Commission has no jurisdiction to make an order under Section 89(6) in the absence of proper evidence as to all aspects of his remuneration. 359 In fact, there is really only insufficient evidence of the benefit to him in respect to the private use of the motor vehicle issued to him, which was apparently a Ford Falcon and Mr Moorhouse asked the Commission to adopt a figure of $3,000 p.a. as a conservative estimate of the value of the benefit to him, and taking account of the fact that he had the use of the vehicle to and from his place of work. 360 I have been concerned to ensure that a just level of remuneration is applied to the Orders I make under Section 89(6), especially given the time and cost involved in the pursuit of evidence in respect of a broad range of topics throughout this case. I have therefore traversed several of the cases as to the calculation of remuneration, beginning with the one referred to me on the point by Mr Moorhouse of Fightvision Pty Ltd Vs. Onisforou and others; Tszyu Vs Fightvision Pty Ltd and Another [1999] NSW CA 323 which held, inter alia: "In the assessment of contractual and tortuous damages based on future hypothetical events, there should not be a finding on the balance of probabilities leading to those events being treated as certain. However, to say that it is more probable than not that something less than that for which the plaintiff contends would have occurred may be a way of allowing for improbables, and therefore be permissible." 361 The assessment of the private use component in the decisions of both the Federal and State Commissions has not infrequently required estimations not founded upon strict record keeping, with the decision given on the basis that the Commission is competent to adopt such figures. The estimate of 10% with a resulting weekly figure of $58 is considered safe and when added to his base rate of $1,162 p.w., plus 9% employer contribution to superannuation, which is $105 p.w. confirms $1,325 p.w. as the fairest basis for orders by the Commission, as claimed by Mr Moorhouse. O R D E R S 362 The respondent, the United Services Union, otherwise known and registered as the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union, is to pay to the applicant in these proceedings in Matter No. IRC 3135 of 2006 an amount equivalent to twenty (20) weeks pay at the rate of $1,325 per week, calculated to be $26,500. Payment is to be made within twenty-one (21) days of this decision. J.P. Murphy Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.