Industrial Relations Commission of New South Wales CITATION: Australian Services Union of NSW (on behalf of Maria Anne McNuff and David Patterson) v St Vincent De Paul Society [2007] NSWIRComm 1044 APPLICANTS Australian Services Union of NSW Australian Services Union of NSW (on behalf of Maria Anne McNuff) PARTIES: Australian Services Union of NSW (on behalf of David Patterson) RESPONDENT St Vincent De Paul Society FILE NUMBER(S): 403, 417 and 434 of 2007 CORAM: McLeay C CATCHWORDS: Unfair dismissals - dispute - whether Social and Community Services Employees (State) Award applies - Learning Facilitation Officers - whether terms of Policy and Procedure Manual apply - concerns about manager raised - requirement to put grievance in writing - requirement not reasonable - allegations of misconduct - allegations unfounded - no investigation - respondent conceded award applied - Recommendations of Commission ignored - lack of natural justice - no valid reason for dismissals - dismissals both harsh, unjust and unreasonable - consideration of remedy - whether employment relationship can be maintained - orders made - applicants reinstated LEGISLATION CITED: Industrial Relations Act 1996 Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] 66 AR 371 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 CASES CITED: Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282 Oswald v New South Wales Police Service (1999) 90 IR 42 Little v Commissioner of Police No 2 (2002) 112 IR 212 NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 HEARING DATES: 26/06/07, 27/06/07, 29/06/07, 12/07/07 DATE OF JUDGMENT: 24 July 2007 APPLICANTS Mr A Slevin of counsel Mr P Pasfield, solicitor Slater & Gordon LEGAL REPRESENTATIVES: RESPONDENT Mr A Joseph of counsel Mr P Marchionni, advocate Catholic Commission for Employment Relations DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 24 July 2007 Matter No IRC 403 of 2007 Notification under section 130 by Australian Services Union of NSW of a dispute with St Vincent De Paul Society re termination of employees - Learning and Community Services Team Matter No IRC 417 of 2007 Australian Services Union of NSW (on behalf of Maria Anne McNuff) and St Vincent de Paul Society Application by Australian Services Union of NSW on behalf of its member Maria Anne McNuff re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 434 of 2007 Australian Services Union (on behalf of David Patterson) and St Vincent De Paul Society Application by Australian Services Union on behalf of its member David Patterson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1044 1 A dispute was notified with the St Vincent De Paul Society ("the Society") by the Australian Services Union ("the Union") pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"). The dispute was notified on 4 April 2007, the day on which Ms Maria McNuff was given a letter terminating her employment forthwith and Mr David Patterson was given a letter asking him to provide written submissions as to why his employment should not be terminated the following day. 2 The dispute was listed for conciliation before Commissioner Bishop on 5, 10, 11 and 12 April and for report back on 23 April and 1 May. As stated, Ms McNuff was dismissed on 4 April 2007. Mr Patterson was dismissed on 13 April 2007. Both Ms McNuff and Mr Patterson filed claims for unfair dismissal. On 1 May the Commissioner issued a Certificate of Attempted Conciliation pursuant to s 135. 3 The matters then were reallocated to me for hearing. By agreement between the parties the dispute and the two claims for unfair dismissal were heard concurrently. 4 Both Ms McNuff and Mr Patterson sought reinstatement to their positions as Learning Facilitation Officers pursuant to s 89, together with remuneration and continuity of employment. Arising from the dispute, the Union sought an order that the Social and Community Services Employees (State) Award ("the Award") apply to the work of employees in the Learning and Community Services ("LCS") Team. Further, the Union sought directions that the Society applies the disputes clause in the Award to the grievances of the LCS Team, and that the Society applies its own policies and procedures, as contained in its Human Resources Manual, to members of the LCS Team. Background 5 Both applicants were employed by the St Vincent De Paul Society in the LCS Team. The work of the LCS team is described on the Society's website, in accordance with the evidence of Ms Sally McManus, the Union's Secretary, as follows: Our society in law has a duty to provide learning supports for staff and volunteers. Your team at LCS is dedicated to providing the most professional training in order to ensure that each member, volunteer and employee can carry out their good works with both competence and confidence and in the knowledge that they are operating in compliance with the prevailing laws of the land. The Society, through LCS, has since October 2006 achieved the status of Registered Training Organisation (RTO). This means that we are in a position to deliver nationally recognised training and qualifications through a modest scope of programmes. 6 Ms McNuff and Mr Patterson were employed as Learning Facilitation Officers, Ms McNuff having commenced employment with the respondent on 5 July 2006 and Mr Patterson on 4 August 2003. Mr Patterson's association as a volunteer with the Society extends back to the late 1980s. They both worked as part of a six member team which included Ms Nives Vuchich, Mr John Gresser and Ms Rosalind Phillips. The LCS team was managed and supervised by Mr George Owen who in turn was answerable to Mr John Picot, the Chief Executive Officer of the State Council NSW/ACT of the Society. 7 Evidence in the proceedings was given by both applicants as well as Ms Vuchich and Mr Gresser for the applicants and by Mr Owen and Mr Picot for the respondent. Further evidence was provided by Ms McManus and by Mr Stanley Koulouris, a Union organiser. 8 The issues which culminated in the dismissals appear to have commenced at a planning meeting for the LCS team, called by Mr Owen on 10 January 2007. This was the first ever planning meeting for the team. Mr Owen said his opening remarks were to ask the team how he could better serve them as their manager in 2007. He allowed some time for a brainstorming session to take place prior to the team giving their responses to his question. When Mr Owen returned to the meeting each of the staff present then expressed their concerns about Mr Owen's management style. This part of the meeting lasted about an hour. At the end of the meeting, during which time Mr Owen had listened without comment, he thanked the team for their candour and said that he would take some time to reflect on the issues raised by them. 9 Each of the team members who gave evidence spoke of issues or concerns they had with Mr Owen's management style, giving examples where appropriate. They felt that they had spoken with honesty and candour. Mr Owen's evidence is that he felt he had been "beaten up" at that meeting. He spoke with Mr Picot about the events of the meeting describing Mr Patterson's comments as "an outburst". Chronology 10 On 20 February 2007 Mr Patterson was directed to attend a meeting with Mr Owen about the comments he made on 10 January. Mr Owen asked Mr Patterson to give a commitment to act professionally and desist from further outbursts. Mr Patterson denied that he was guilty of any outbursts, and declined to give the commitment. Mr Patterson requested a further meeting with Mr Picot, the CEO. Mr Patterson attended a meeting with Mr Picot later the same day. Ms McNuff also attended as a support person for Mr Patterson. 11 On 21 February Mr Picot called Ms McNuff to his office to discuss the matters raised in the meeting of the previous day and requested that one matter she raised be put in writing to form a personal grievance. Ms McNuff, while not specifically declining to do so, had not responded to that request some two weeks later. She met with Mr Picot on 6 March where she asked that a meeting be held with all members of the LCS team. Mr Picot initially refused the request and again asked that the single issue grievance be put in writing. On 9 March Ms McNuff responded to Mr Picot in an email outlining concerns of the team and Mr Picot insisted that the individuals in the team must each lodge a grievance in writing. 12 Mr Picot sent a letter to Mr Patterson on the same day. He required Mr Patterson to sign the letter and return it to him by the following day. The letter read as follows: I refer to our meeting on 20 February concerning your meeting earlier in the day with your manager, George Owen. In the circumstances I believe it is important to reiterate the Society's expectations of you in the discharge of your work. Specifically you are expected to report to the Manager of the Learning and Community Services Team and work under his direction. In this context you are expected to conduct yourself in a professional and courteous manner in your dealings with your Manager. In the event that you wish to question decisions made by your Manager the appropriate course of action is to raise any matters with the Manager on a one to one basis. It is not appropriate to argue or debate matters with the Manager before other team members. If you have work related grievances the appropriate course of action is to raise these matters directly with your manager in the first instance and in the event you are dissatisfied with the outcome with the Operations Executive Officer. I ask that you sign and return a copy of this letter to confirm these directions are accepted by close of the office Tuesday 13 March 2007. 13 Mr Patterson gave evidence that he signed the letter under duress, after being told that it was not disciplinary in nature but that refusal to comply with the request to sign the letter constituted grounds for dismissal. 14 On 30 March Mr Klepac, the Society's new Operations Executive Officer, sent an email to Ms McNuff stating that grievances need to be in writing and must come from individuals. She was required to meet with Mr Picot and Mr Klepac on 4 April to discuss the individual grievance first mentioned by her on 20 February. Ms McNuff talked to other team members and then sent an email to four of the trustees of the Society stating as follows: Dear John, Raymond, Des and Beverly, The email correspondence below provides a brief summary of issues that the Learning and Community Services team has attempted to have heard and resolved within the Society. Management response has been inadequate, and the serious concerns of the Learning and Community Services team have not been properly heard, let alone resolved. We are asking for a group meeting with management, as this is a collective grievance. Our requests for a group meeting have been rejected by both John Picot and Danny Klepac. We seek your assistance in this matter. Regards, The Learning and Community Services team - David Patterson, John Gresser, Nives Vuchich and Maria McNuff 15 Attached to her email was correspondence from Mr Picot to Ms McNuff of 7 March, where he stated his expectation to receive a written grievance by Thursday 8 February and where he reminded her of certain matters and set out that individuals should raise a grievance in writing to their team manager or to the manager's direct superior. Then followed an email of 9 March from Ms McNuff to Mr Picot reiterating her request for the team to meet with him and Mr Picot's further response to Ms McNuff of 12 March stating that he cannot act on the issue previously raised by her without her providing it to him in writing. He further reiterated his requirement that she deal with Mr Klepac in regard to a complaint from any member of the LCS team. 16 On 4 April Ms McNuff was called to a meeting with Mr Picot and Mr Klepac. Mr Patterson attended as Ms McNuff's support person. Ms McNuff was handed a termination letter which read as follows: On 20 February 2007 you met with me and advised me you had a complaint or grievance concerning George Owen, the manager of the Learning and Community Services Team. I requested that you detail the complaint in writing which you confirmed you would do verbally on 21st February, and again in writing 28th February, and 1st March. I also confirmed the same expectation to you by way of emails on two further occasions being 7th and 12th March. Despite your undertakings and my requests to provide written details of your grievance you have failed to do so. On 30 March 2007 you forwarded an email to Trustees of the Society and generally to the Bathurst Diocesan office of the Society alleging that you had a collective grievance which had not been acted on. On 2 April 2007 you were requested by Danny Klepac to provide written details of your grievance for investigation by 10am today. Later in that afternoon you advised Danny Klepac you would not be attending any interview alone and that you would not be lodging a personal grievance and that you were seeking advice. You have in fact failed to provide any written substantiation of your grievance as requested. I am now advised that at least one of the parties you have alleged supported your "collective grievance" did not in fact have knowledge of the contents of your email. The raising of a grievance is a serious matter which is treated as such by the Society. The failure to detail a grievance in writing whilst alleging the existence of a grievance and publicising that grievance widely throughout the Society is an abuse of process and is unacceptable. All employees of the Society are entitled to dignity and respect and specifically the knowledge that grievances will be addressed in a private and confidential manner and that personal reputations will not be unfairly damaged by unsubstantiated and unsupported allegations. This conduct is unacceptable to the Society and has had serious and disruptive consequences for morale and the efficient operation of the Society's activities. Accordingly I have decided to terminate your employment forthwith. You will receive four weeks salary in lieu of notice as well as your statutory leave entitlements. 17 Although Ms McNuff was upset and Mr Patterson wished to comfort her, he was required to stay in the meeting when she left. He was handed a letter asking him to make any written submissions as to why he should not be terminated, not later than 3pm the following day. 18 The notice of an industrial dispute was filed in the Commission by the Union on the same day. The matter was listed for conciliation before Commissioner Bishop as stated above. On 12 April the Commissioner issued Recommendations including the following: 4. That a decision should not be made by the Society as to the ongoing employment of Mr Patterson immediately but that it should take sufficient time to consider all of the issues that have been raised, and 5. The Society should also conduct a proper investigation of the grievances and speak to other employees of the team in relation to the various issues that have been canvassed. 19 On 13 April Mr Picot again wrote to Mr Patterson confirming the Society's expectations for an ongoing working relationship between himself and the manager of the LCS team, Mr Owen. The expectations were set out as follows: (1) You report to the manager of the Learning and Community Services team and work under his direction. (2) You will conduct yourself in a professional and courteous manner in your dealings with your manager, whilst you can discuss and put an opinion to your manager I do not expect meetings or interaction with your manager to become arguments or debates. Mr Patterson was asked to sign and return a copy of this letter to confirm that the directions were acceptable to him. 20 On the same day Mr Picot wrote to Mr Patterson terminating his employment. The letter read as follows: I refer to my earlier letter dated 4 April 2007 and the material provided by you to the Industrial Relations Commission of New South Wales marked MFI 3 and MFI 9. I have considered the material provided by you in your submission and the entirety of the circumstances concerning this matter. The Society expects employees will work within the reporting lines it has established. In your case your are expected to report and accept direction from the Manager of the Learning and Community Services Team, Mr George Owen. The allocation or alteration of reporting lines are ultimately a matter for the Society's determination. On 12 March 2007 you were requested to provide a written commitment to the following matters: 1. That you would report and work under the direction of your manager; 2. That you would conduct yourself in a professional and courteous manner; 3. That you would not argue or debate matters with your manager; 4. That you would follow the grievance procedure set down by the Society. I sought these commitments from you in writing following your meeting with myself on 20 February 2007 where you raised your objections to a previous request from Mr George Owen. The commitments sought from you in the letter of 12 March 2007 are fair and reasonable and are no less or no more than what would be reasonably expected from any employee in any organization. I had treated your signature to the letter of 12 March 207 as a confirmation of your goodwill in this regard. As I confirmed to you at the time these commitments were not sought as a disciplinary process but in fact to provide a realistic basis for on-going work between yourself and Mr Owen. At all times it was open to you to lodge a written grievance in accordance with the process set out in the letter of 12 March 2007. Regrettably you chose not to avail yourself of that process prior to the suspension of your employment on 4 April 2007. Your submissions and your conduct in support of the email of 30 March 2007 sent by Ms McNuff to various trustees of the Society and to the Bathurst diocesan office general email clearly demonstrate that you do not support the commitments sought in the letter of 12 March 2007 and that you have acted contrary to a direct instruction as to your conduct. It is also apparent from reviewing your submissions that your working relationship with Mr Owen has irretrievably broken down. You should appreciate that the Society can act upon specific complaints and grievances but cannot be expected to superintend relationships that have become unworkable. In the circumstances I have decided to terminate your employment with the Society forthwith. You will receive termination pay in accordance with your contract of employment. 21 The material referred to as MFI 3 and MFI 9 was tendered as evidence in the current proceedings. They were statements of grievances against Mr Owen, prepared by Ms McNuff and Mr Patterson on the suggestion of Bishop C. The Evidence 22 Mr Owen had described Mr Patterson's behaviour at various times as being inappropriate. Ms McNuff described Mr Patterson as a "passionate, sensitive and assertive person" whom she never found to be ill-tempered nor prone to explosions. 23 At the meeting of 10 January Ms McNuff said that Mr Owen had asked for frank and open feedback which was provided by all team members. She said that Mr Patterson was no more or less open and frank than anyone else. Mr Gresser described Mr Patterson at that meeting as being forthright with an honest and open demeanour. Mr Gresser said Mr Patterson did not shout, was not rude and his feedback "could not be considered to be an outburst". Mr Gresser said that Mr Patterson approached the feedback session in the same way as everyone else had, in an atmosphere which was not hostile. Mr Gresser thought that the meeting had been beneficial for all concerned. Mr Gresser denied Mr Owen's comments that Mr Patterson had been threatening or aggressive. Mr Gresser said that Mr Patterson's movements were not jerky as described by Mr Owen, nor had he been angry, nor had his voice or facial expression been hostile. Ms Vuchich said that while Mr Patterson was "passionate, clear and decisive in putting forward his concerns, he did not shout and was not rude". She said that Mr Patterson was forthright and that she did not disagree with what he had said. She said that she felt happy that things were finally being progressed. Mr Patterson also denied that he had been rude or aggressive in any way. 24 When, at the meeting of 20 February, Mr Owen directed Mr Patterson to give a commitment to refrain from outbursts during meetings, Mr Patterson was reluctant to do so, because of the inference that he had been guilty of an outburst. He said that he finally did sign the letter under duress when he was threatened with termination of his employment if he did not do so. 25 Mr Picot gave evidence that he was aware that Mr Patterson had been difficult in his personal behaviour and was prone to explosions due to his poor control of temper. He formed this view based on reports Mr Owen had given him. He referred to a training session for the new information system, GWIS, at which Mr Owen told him that he had asked Mr Patterson to leave the room after an outburst in front of external trainers. In his evidence Mr Owen had described Mr Patterson's frustration at the training process as being a "loss of temper". He agreed that there was no banging of the table or raised voices but there was evident frustration. Other team members present at the training session did not give this view of Mr Patterson's behaviour. Mr Patterson himself said he was frustrated by the quality of the training, and accepted in good faith Mr Owen's suggestion to leave the room. 26 By way of comparison Mr Owen described his own behaviour at meetings with Mr Gresser on 31 July and 1 August 2006 as a "loss of temper". On 31 July, when discussing a personal matter, Mr Gresser reported that Mr Owen cut him off from what he was saying and said they should stop playing with words. Mr Gresser said that Mr Owen became hostile and aggressive in his tone of voice, his language including swearing, and his body language. He said that Mr Owen raised his voice and "simply erupted". Mr Owen said that Mr Gresser's way of thinking was outdated and bigoted and was similar to the thinking behind terrorism. Mr Gresser said that Mr Owen shouted, and stated he had experienced things that Mr Gresser had never experienced. Mr Gresser said that Mr Owen continued in a hostile and aggressive manner. Under cross-examination, Mr Owen agreed with this description of his behaviour but denied that it indicated bullying, saying that it was indicative of a loss of temper. 27 On 1 August, Mr Owen agreed that he had told Mr Gresser he was extremely disappointed with him and that Mr Gresser had treated him poorly. This followed a personal non-work related request made to him the previous day. Mr Owen agreed that he then said that he had some points for Mr Gresser to consider and that if Mr Gresser took the points on board "we would not have to go down the disciplinary path". Mr Owen agreed that he had told Mr Gresser to spend less time on the telephone, that he needed to re-evaluate his sense of humour, that if he was to spend any more time on a particular project he would need Mr Owen's permission before working with a particular employee again and that Mr Owen had "zero expectations" of Mr Gresser, doubting his ability to deliver programmes. Mr Owen further agreed that since that time his demeanour towards Mr Gresser had varied and had at times been curt, short, confrontational and dismissive. While agreeing that the behaviour outlined reflected a loss of temper he denied that any of it had been bullying. 28 Mr Gresser had reported the incidents of 31 July and 1 August in a written report to Mr Picot on 6 September 2006. Shortly thereafter the evidence is that Mr Picot discussed the matter with Mr Owen who then offered an apology to Mr Gresser. Following the apology Mr Gresser reported that Mr Owen's behaviour towards him improved. 29 When referred to the Society's Human Resources Policy and Procedures Manual, Mr Owen agreed that his behaviour fitted the definition of bullying contained in the Manual. However, he felt that the Society's definition was inadequate and that his own understanding of bullying was that bullying was a reflection of behaviour that was more systematic and not of a one off incident. Mr Owen also said that the Society does not currently run any courses on bullying but that he had been invited by the Society to design a course on bullying. Specifically, he agreed that his conduct "falls within the imperfect definition in the HR manual". 30 Stephen John Picot is the Chief Executive Officer of the Society, reporting to the Trustees Council of NSW. The Trustees Council is the elected leadership of the Society comprising representatives of the 11 dioceses in NSW, Vice Presidents and the President Mr John O'Neill. Mr O'Neill and Mr Raymond James, Vice President responsible for Finance and Human Resources, maintain offices at the Lewisham buildings of the Society where the LCS team is located. Mr Picot described the purpose of the provision of training services as furthering the mission of the Society, which is the development of personal faith through service to the poor and disadvantaged in the community. 31 Following the staff planning meeting of 10 January 2007, Mr Owen had discussed his feelings about that meeting with Mr Picot. Prior to that time Mr Picot said that he had only received one complaint regarding the conduct of Mr Owen from a member of the LCS team, that being from John Gresser in September 2006. Mr Picot said that he had been aware that Mr Patterson had been "difficult in his personal behaviour and was prone to explosions due to his poor control of temper". He came to this conclusion because of reports he had received from Mr Owen. The first of these was about an outburst by Mr Patterson during a training session for GWIS. The second was an outburst from Mr Patterson when he had been late for a scheduled meeting with Mr Owen in 2006. Mr Picot acknowledged that he had not discussed either of these allegations with Mr Patterson. 32 When Mr Owen reported the aftermath of the team meeting to Mr Picot he included such words as "David tore into me". Mr Picot formed the view that Mr Patterson had upset Mr Owen. Again, he did not discuss the allegations with Mr Patterson, nor with any other member of the LCS team. He agreed that Mr Owen should ask Mr Patterson to make a commitment to conduct himself in a proper and respectful manner in his meetings with his manager. This led to the meetings as described earlier. 33 In essence, Mr Picot's evidence was that he supported Mr Owen unconditionally and that he took no steps to investigate anything that was reported to him. He accepted Mr Owen's versions of events because of his previous experience working with him. He did not concern himself with Mr Gresser's earlier complaint about Mr Owen because he was satisfied it had been resolved. When Mr Patterson and Ms McNuff provided statements via the Commission proceedings before Commissioner Bishop, Mr Picot talked with Mr Owen and again accepted his version of events. 34 On 2 April Mr Picot met with the President O'Neill and Vice President James. Together they formed the view that Ms McNuff's action in sending the email of 30 March was inappropriate. They also resolved that Ms McNuff's employment should be terminated if she failed to lodge a grievance in writing by 4 April. Mr Picot said that he was of the view that Ms McNuff's complaint should be regarded as vexatious if she failed to lodge the grievance in writing. However, he did not provide this information to Ms McNuff. 35 On 4 April Mr Picot called Ms McNuff into his office and, because she had not provided a written grievance, he handed her a letter of termination as set out above. He required her to collect her personal items and leave the building. Ms McNuff had been given notice of that meeting but that notice included no warning of termination. She had been accompanied by Mr Patterson as a support person. When the meeting finished Mr Patterson was not allowed to leave with her. Rather he was required to remain for a meeting without notice with Mr Picot. It was at that meeting that Mr Patterson was given a letter requiring him to give notice why his employment should not be terminated. In the meanwhile, Commissioner Bishop issued Recommendations which included that the termination not be effected and that an investigation take place. Mr Picot's evidence was that he was aware of the Recommendations and still declined to conduct an investigation. On the following day he terminated Mr Patterson's employment. 36 Mr Picot's evidence was that he did not consult the Society's Human Resources Policy and Procedures Manual at any time throughout the events leading to the termination of the employment of Ms McNuff and Mr Patterson. He said that he looked at the Manual on the day prior to giving evidence in the case. 37 During his evidence Mr Picot conceded that the Social and Community Services Employees (State) Award applied to the work of members of the LCS team. He had not applied the provisions of clause 48, Grievance and Dispute Settling Procedure, because he had believed at the time that the Award did not apply to the members of the LCS team. Consideration 38 In the Society's Human Resources Policy and Procedure Manual there is a heading "How Does the Society Deal with Workplace Bullying?" It states: The Society is committed to providing the highest quality care to those we serve, and ensuring a safe and healthy place of work for our volunteers and employees. The Society will not condone any form of workplace bullying and managers will take immediate action upon receipt of a complaint or on becoming aware of such activities in the work place. 39 It is abundantly clear from the evidence that the Society had received complaints of workplace bullying in regard to Mr Owen's behaviour. The written report in September 2006 from Mr Gresser to Mr Picot set out behaviour that can only be described as bullying, regardless of Mr Owen's denial that such a description is apt. Further the verbal grievance put to Mr Picot by Ms McNuff on 20 February 2007 also described bullying behaviour on Mr Owen's part. According to its own procedures the Society was obliged to deal with these things. It was not obliged to insist on grievances being made individually or in writing. The fact is that the grievance had been presented. 40 The Manual also states that staff lodging a grievance should ensure that they provide evidence or facts to support their grievance and be prepared to provide additional information and assistance to management in the investigation and resolution of the claim. However Ms McNuff was not asked to provide additional information but simply to put what she had previously said in writing. The direction to put her grievance in writing is not consistent with the Society's procedures. 41 The above-quoted extract from the Manual clearly sets out the obligation on Mr Picot to take immediate action. While the nature of the action required may not be immediately apparent, the Manual refers to the Society's grievance procedure and then states: Managers will ensure that the principles of procedural fairness and natural justice are applied to all investigations, and all parties will have the opportunity to put forward their point of view. Privacy and confidentiality are assured. 42 Mr Owen also had reported to Mr Picot that he had felt beaten up by his team at the planning meeting on 10 January. According to the definition of bullying that talks about isolating workers from normal work interaction, it could be said that the team bullied Mr Owen. Mr Owen did not make such a complaint and in fact insisted that bullying needs to be systematic, so it follows that he would deny that any bullying took place at the planning meeting. Further, the team had responded to his request for feedback so that he could serve them better during 2007. Mr Picot however was aware of Mr Owen's response to that meeting and was required, in accordance with the policies, to "take immediate action" once he became aware of the situation, if he believed that Mr Owen had been bullied by the LCS team. 43 What followed essentially was an exercise of the employees jointly responding to what they thought were unjust circumstances. 44 Ms McNuff felt that it was unreasonable to put her grievance in writing as an individual. Her feeling was based on (1) her belief that a previous employee had been threatened when they had a put a personal grievance in writing and (2) her knowledge that the Society's Human Resources policy did not require grievances to be individual or to be made in writing. She felt that she would put her employment at risk if she did so. 45 Ms McNuff's letter of termination referred to the request to put her grievance in writing and stated that the failure to do so was an abuse of process and is unacceptable. 46 The letter of dismissal also referred to an email to trustees of the Society and generally to the Bathurst Diocesan office of the Society alleging that she had collective grievances that were not being acted upon. The email in fact was addressed to four trustees of the Society. One of those trustees had an email address which may have gone to the Diocesan office generally. In my view this is an error of the Society not of Ms McNuff. 47 Ms McNuff's failure to put her grievance in writing while alleging the existence of a grievance and publicising that grievance "widely throughout the Society" was considered to be conduct unacceptable to the Society and was provided as the reason for her dismissal. As stated I believe the dissemination was an error caused by the Society's making available the particular email address for the Trustee rather than a confidential email address. In fact, Mr Picot in cross-examination conceded that the email would have gone to only one person who had control of that particular email address in the Bathurst office. 48 The existence of the grievance was known within the team because of the discussion on 10 January. The discussion was initiated by Mr Owen who was the subject of the grievance. To publicise the grievance to trustees cannot be considered an indiscretion when the matters had been raised initially with Mr Owen and then with Mr Picot and on his advice to Mr Klepac - none of which resulted in a satisfactory outcome. Concerns about confidentiality had initially been raised by Ms McNuff in March 2007 following her discussion on 21 February with Mr Picot. 49 The background to the email is that, at the meeting of 20 February which Ms McNuff had attended as a support person for Mr Patterson, she raised concerns about Mr Owen. The following day Mr Picot called Ms McNuff to his office and expressed concern about the grievance she had raised about Mr Owen and asked her to put it in writing. She said that it was only one of a number of grievances that the whole team had against Mr Owen and expressed concern that Mr Patterson had been "picked on" when all of the team members had given feedback to Mr Owen about his management of the team at the meeting on 10 January. Mr Picot then insisted that he only wanted one issue written up, that is the issue about Mr Owen shredding an email with the word 'stress' on it. According to Ms McNuff's evidence Mr Picot said that he could only investigate the matter if it was in writing. Ms McNuff further expressed concern that Mr Picot's tone and body language was quite aggressive and that she felt intimidated by him. Mr Picot asked Ms McNuff to keep the meeting confidential. 50 On 6 March when Ms McNuff again met with Mr Picot as requested, he raised the issue that she was causing anxiety and distress to others because of her delay in documenting the grievance. It was at this time that Ms McNuff questioned how that could occur when she had kept the matter confidential in accordance with his request. She said that Mr Picot replied stating at first that Mr Owen was anxious and distressed, then that each person in the team was anxious and distressed, and then that he himself was experiencing anxiety and distress. 51 In my view it was appropriate to question Mr Picot's comments in light of the confidentiality of the discussion between himself and Ms McNuff. The issues raised at the planning meeting of 10 January were known amongst the entire team, but his only request for a written grievance was in regard to one isolated incident where Ms McNuff said that she had given a report saying that her workload was causing stress and that Mr Owen said he did not want to see any document with the word 'stress' in it and that he shredded the document in front of her during the meeting. In his evidence Mr Owen said he did not specifically remember but he could not deny shredding the document. 52 The allegation that Ms McNuff publicised the grievance widely throughout the Society is unsubstantiated. The requirement to detail a grievance in writing is, in my view, an unreasonable one. While it is well established that an employee can be terminated for not doing what they are asked to do, in this case there are special circumstances about the reasonableness of what was required. Failing to detail a grievance in writing when it had already been stated in specific detail to the Chief Executive Officer is not a reason to terminate a person's employment. 53 Mr Picot's approach to Ms McNuff - requiring her grievance to be put in writing - contrasts with his approach to Mr Owen and to the Society's HR Manual. According the Mr Joseph's submission, the Manual does not stop anyone from requiring that a grievance be put in writing. However, it does set out in considerable detail the procedures to be followed. The inference from documents included in the Manual, submitted Mr Slevin, is that grievances can be from a person or from persons, and may be submitted verbally. In addition, the Manual provides the rationale behind the procedures and policy, based on the legislative requirements and the Society's philosophy. 54 As for Mr Patterson, his letter of termination states the expectation that employees will work within the reporting lines established by the Society. There was nothing in the evidence to suggest that Mr Patterson did otherwise. There is evidence that he asked to report directly to Ms Vuchich who was considered to be second in charge of the LCS team. That is not an unreasonable request. However it was denied and Mr Patterson continued to report directly to Mr Owen. That should have been the end of the matter. 55 The letter of termination said that Mr Patterson was requested to provide a written commitment to four matters. These matters were not set out as four matters in earlier correspondence. One of those four was "that you would follow the grievance procedure set down by the Society". In fact he did so. It was the management of the Society that did not follow its own grievance procedure. 56 The letter refers to the commitments being sought in writing. Mr Patterson did not sign and return a copy of the letter of 13 April as required. He gave evidence that he believed there was nothing wrong with the letter itself but that he believed it would be used against him. He agreed that he had been warned that failure to sign the letter could result in the termination of his employment but he said that he felt that his employment would be terminated whether or not he signed the document. I cannot see any sound reason for him to be required to sign the letter of 13 April when only one month earlier he had signed a very similar letter. 57 Mr Picot's belief that Mr Patterson had not kept to his earlier commitment had been based on his part in the email of 30 March. However, two other employees had an equal part with Mr Patterson in that email, without any disciplinary action. Ms Vuchich may not have seen the email before it was sent but she gave evidence that she supported Ms McNuff in sending it and was content with its contents, as was Mr Gresser. In deciding not to accept Ms McNuff's statement that she had acted on behalf of the team, Mr Picot incorrectly focussed on the fact that Ms Vuchich had not physically sighted the email. 58 The letter of termination said that Mr Patterson's signature on the earlier letter had been accepted as a confirmation of his goodwill. It was said in the letter of termination that his conduct in support of the email of 30 March sent by Ms McNuff to various trustees of the Society and to the Bathurst Diocesan office clearly demonstrated he did not support the commitment sought in the March letter and that he had acted contrary to a direct instruction. I fail to see that Mr Patterson acted differently to Ms Vuchich and Mr Gresser in this regard. Their loyalty and commitment to their manager and the Society was not questioned. 59 The letter of termination also referred to the working relationship between Mr Owen and Mr Patterson. The concerns that Mr Patterson initially raised were in response to Mr Owen's request. The concerns that he then put in writing about Mr Owen were in response to the Commission proceedings when, according to the evidence, both Ms McNuff and Mr Patterson were requested to put their grievances in writing. It is inappropriate that people be dismissed for attending to matters that arise during the conciliation process. The working relationship may have broken down but, if so, that is not wholly the fault of Mr Patterson. Throughout his evidence Mr Patterson insisted that he could work alongside Mr Owen again and that he continued to respect him, although he had lost some of the respect that he previously had. He felt that the issues needed to be worked through and that certain behaviour needed to change. He said that his concerns about Mr Owen were not directed at him personally, only at his behaviour. 60 There were a number of issues of dispute between the parties. For example Mr Owen was concerned about Mr Patterson not showing him appropriate respect in turning up for a meeting 20 minutes late. Mr Patterson's recollection of the particular meeting was that he had arrived on time but that some time into the meeting Mr Owen suddenly had a change of mood and verbally attacked him over his lateness. There was evidence that Mr Patterson was generally a very punctual person and was not known for being late. The particular meeting occurred in April 2006. Mr Owen's concern was that when he raised the issue of punctuality Mr Patterson slammed the palms of his hands on the table and said in a loud and menacing voice "okay bring it on - you're coming on like the big manager…all superior". Mr Owen said that his hands were trembling and that his nose commenced bleeding. Mr Patterson agreed that he did slam the palms of his hands on the table and talked in a loud voice. He said that "bring it on" referred to the issues and he agreed that Mr Owen's behaviour changed and that his nose commenced bleeding as it did from time to time. He then agreed that he calmed down and shook hands. Mr Patterson later referred to this as the one time when he had lost his temper during the period of his employment. Mr Owen said that he found that his attitude to Mr Patterson was changed by this incident. Although he did not deal with it as a disciplinary matter he became more reticent and cautious. 61 Another issue between the parties was in regard to a camera which was provided as a bonus with a purchase made by the Society. Mr Patterson claimed that Mr Owen took this as his own. Mr Patterson thought this was inappropriate. In his defence Mr Owen gave evidence that he had taken the camera on a work trip intending to take photographs of participants to the service but that the camera was stolen. The theft was reported to the police at the time and then to the CEO of the Society. 62 Ms McNuff gave evidence in regard to the Society's accreditation as a registered training organisation. She used her substantial expertise in this area to expedite the Society's application and felt that Mr Owen was ignorant of some of the issues required. She felt that her work was not sufficiently acknowledged. Mr Owen provided evidence that he had specifically acknowledged the work of Ms McNuff and the administrator Ms Phillips in preparing the required material in a report to the State Council of the Society. 63 In my view, these particular issues are incidental, as are a number of other issues between the parties, when compared with the larger issues dealt with in this decision. 64 The Grievance Committee required by the Society as set out in the Human Resources Manual did not exist. The role of the Grievance Committee is to ensure a fair hearing, and includes a reference to mediation where the aggrieved person(s) approve. 65 Mr Picot's disregard for the Society's policies and procedures meant that he breached those procedures to such a degree that both the dismissals were unfair. In conceding that the award applies it is inherent that he has also breached the procedures set out in the award. It is not sufficient to claim that he acted on advice. Any such advice that he may have been given appears unsound. 66 Even in circumstances where Mr Picot wrongly believed that neither set of procedures ought to have applied at the time, the usual standards of natural justice were ignored. Specifically, · no other members of the team were invited to talk to Mr Picot about the events of the meeting of 10 January, · the fact that Mr Owen invited comments from all staff on that day was not taken into account, · the previous report from Mr Gresser about Mr Owen's behaviour was not followed up, · Mr Owen's description of a loss of temper by Mr Patterson at a training day was accepted, incorrectly, as comparative with Mr Owen's own loss of temper in front of Mr Gresser, · the specific allegations that coloured Mr Picot's view of the information provided to him by Mr Owen were not put to Ms McNuff or Mr Patterson, · the purpose behind the letters to Mr Patterson were not explained in the way that was clearly in Mr Picot's mind, · Ms McNuff was not warned that termination of her employment was an option, · the Recommendation of the Commission in regards to an investigation was not acted upon, · a different standard was required of Ms McNuff, namely, putting her grievance in writing, than was required of Mr Owen when he made his earlier complaint about Mr Patterson, · at no time prior was any complaint received about the work done by the LCS team, but this was not taken into account in determining to terminate the employment of two members of the team, · Ms McNuff's request that the team be heard jointly were ignored, · an assumption was made about the wide dissemination of Ms McNuff's email, without any evidence to back up that assumption, and · there was an overreaction to what was considered 'threats' that the matter be taken further when it is always reasonable that matters be taken further (in this case, in accordance with the Society's procedures set out in its Human Resources Manual). 67 The reasons given for Mr Patterson's dismissal included his unwillingness to sign a letter, which purported to seek his willingness to work under the direction of Mr Owen. He had given a similar commitment a month earlier. The reason he was asked for the second commitment was that Mr Picot believed that he had unilaterally decided to replace Ms McNuff at a training session. The evidence was that this was not so. He had made an offer to replace her and made further enquiries, but had done nothing to activate it when Mr Owen said that he would replace Ms McNuff himself. Mr Picot also believed Mr Patterson had acted against directions by supporting the email sent by Ms McNuff. 68 In Blyth Chemicals Limited v Bushnell (1993) 49 CLR 66 it was said (at 81): Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ( Boston Deep Sea Fishing and Ice Co. v. Ansell (1); English and Australian Copper Co. v. Johnson (1) ; Shepherd v. Felt and Textiles of Australia Ltd. 2)) . But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. 69 In the current matter, it was not Mr Patterson's conduct which caused the breakdown of confidence. I find it was unreasonable in all the circumstances to require Mr Patterson to sign the letter. He had signed a letter a month earlier, and had done nothing to require the second, essentially the same, commitment. An investigation of Mr Owen's complaints against Mr Patterson would have revealed as much. 70 Part 6 - Unfair Dismissals incorporates the following at section 88: In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (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, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 71 It is abundantly clear on the evidence provided in these proceedings that the reasons given to both Ms McNuff and Mr Patterson did not have a basis in fact and that no proper opportunity was given to either of them to make out a defence or give an explanation for the conduct relied upon for the termination of their employment. 72 In Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] 66 AR 371 it was said (at 374): In my view, the question of whether the conduct of an employee amounts to conduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline. 73 Mr Joseph submitted that, in accordance with the acknowledged standard, the instant dismissals of Ms McNuff and Mr Patterson were justified. The Society regarded their behaviour as deliberate and wilful, striking at an essential element in their employment contract. 74 I do not agree with Mr Joseph. The email was sent to the Trustees of the Society in an attempt to take the team members' grievances to the next level, when the grievance had not been resolved at earlier stages. It was not an act of disobedience. It was not wilful. Refusing to put her grievance in writing was not a refusal to follow a reasonable and lawful instruction; the instruction was not reasonable. Ms McNuff soon learned that putting grievances in writing, as suggested by Bishop C, was indeed used to dismiss Mr Patterson, so her fears were not unfounded. The letter Mr Patterson refused to sign was based on his employer's belief of his wilful misconduct, as set out in the correspondence of 4 April - supporting Ms McNuff's email and unilaterally arranging to do work without consultation with Mr Owen. There is no wilfulness or disobedience in the first of these matters; the second has no basis in fact. 75 The respondent conceded that the dismissals were, in effect, summary dismissals, although payment in lieu of notice was paid, in accordance with the Society's usual practice. The onus was therefore on the respondent to prove its case. It has not done so. Remedy 76 Consistent with the disregard for natural justice in dealing with the issues that arose on 10 January and thereafter, I am pressed to consider the primary remedy of reinstatement. 77 The witnesses for the respondent both say that the relationships have irrevocably broken down. Both Ms McNuff and Mr Patterson state that they have not, and that they are each willing to return to work for the Society in a team managed by Mr Owen. 78 In considering whether or not reinstatement is impracticable, the submissions of both Mr Slevin and Mr Joseph are pertinent. 79 Mr Slevin submitted that in these proceedings evidence has been led by the Respondent about the breakdown of relationship between Mr Owen and the Applicants. That breakdown is said by Mr Owen to be caused by the complaints recorded in the documents prepared in the conciliation process. 80 Referring to the respondent's reluctance to reinstate an employee after dismissal, Mr Slevin cited the comments of the Full Court of the Industrial Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. The reasoning of the Industrial Relations Court of Australia has been adopted a number of times by the Full Bench of this Commission, for example in Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282 at 342, Oswald v New South Wales Police Service (1999) 90 IR 42 at 68 and Little v Commissioner of Police No 2 (2002) 112 IR 212 at [91], said Mr Slevin. 81 Mr Joseph also cited the Perkins v Grace Worldwide (Aust) Pty Limited decision, citing a lengthier extract than that quoted by Mr Slevin. Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable case: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part V1A of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for any employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 82 In the case of Mr Patterson, it is hard to imagine a more complete, trenchant or personal criticism of a person than the series of grievances about Mr Owen, submitted Mr Joseph. Any suggestion that Mr Patterson 'likes' Mr Owen or wants to help him as a manager ought be considered in the context of his diatribe. Further, Mr Joseph submitted that Ms McNuff's criticism of Mr Owen, said to be only on a professional basis and intended to help him, is the most personal and aggressive criticism imaginable, apart perhaps from Mr Patterson's. 83 Also relevant is the often quoted passage from Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody." 84 Mr Slevin submitted that the claim should also be considered in light of the following facts: 1. Mr Owen was able to work with the applicants following the meeting on 10 January 2007 up to 4 April 2007 when Ms McNuff was dismissed and Mr Patterson suspended on pay. 2. The documents setting out their complaints were prepared in conciliation proceedings in the interests of resolving an industrial dispute. 3. The applicants have stated that their complaints were not personal criticism, rather that they were professional and were all matters that could be worked through. 4. The other two members of the team who are still working with Mr Owen joined in the complaints. He submitted that the respondent's claims concerning the ongoing relationship should not preclude the applicants from the primary remedy of reinstatement. 85 There is no doubt that a return to work may be very difficult considering the damage done to personal relationships within the organisation which go beyond 'some friction and doubts'. There are likely to be difficulties for all members of the LCS team, not least for Mr Owen. Trust and confidence are, indeed, essential elements of the working relationship. However I do not share Mr Joseph's interpretation of those comments, particularly given the context in which they were first raised, and the context in which they were reduced to writing. I do not believe that the damage to working relationships is irrevocable. 86 In particular, I believe that the people involved are capable of re-establishing the working relationships. I was impressed with the integrity of all of the witnesses in the case. I believe that the working environment at the Society is indeed a supportive one where, if the goals applied to the clients of the organisation can be applied to its employees, the goodwill, support and caring will provide for the healing that is necessary. Ms McNuff and Mr Patterson have also shown commitment to the goals of the Society, not least in terms of Mr Patterson's lengthy commitment to voluntary work prior to his employment. Again, I expect that their goodwill can be applied to their employers and managers, as it was to the clients of the Society. 87 It may well be that at this stage some further conciliation or some external mediation is required to assist in dealing with some of the issues, in accordance with what is written in the Introduction to the Society's Manual. Indeed some of the issues may have been resolved in part by the airing that they received both in writing and in oral evidence during these proceedings. But there may be more and that is a matter for the Society and its employees, in the first instance. 88 Ms McNuff in her evidence set out attempts made to obtain other work. She has so far been unsuccessful. Likewise Mr Patterson has attempted to obtain other work, that is consistent with his experience and his ethical standards. Neither has received any significant employment related income since the time of their dismissals. Conclusion 89 In considering the evidence in this matter I have not referred above to every incident or issue between the parties. Doubtless there are two sides to every story. The difficulty is that in most cases only one side was listened to prior to the decisions to terminate Ms McNuff's and Mr Patterson's employment. I include in this comment Mr Patterson's presumptions about Mr Owen where, because the matters would not be subject to full and frank discussion, hurt feelings on both sides remained to cause a loss of respect and level of distrust. 90 Nonetheless I was impressed throughout the proceedings with the honesty and integrity of each one of the witnesses. Each in his or her own way did what he or she thought was best in the circumstances. There was reference in the evidence to a request for mediation and in this case I expect that an experienced external mediator could have effected a very different outcome. 91 The events and feelings related in the evidence in these proceedings cause me to be mindful of the following piece of practical philosophy from Immanuel Kant: It is our duty to seek our perfection and the happiness of others, rather than seeking our own happiness and the perfection of others. 92 I find that the dismissals of Ms McNuff and Mr Patterson were harsh, unjust and unreasonable. They should have never occurred. The principles of natural justice were almost totally disregarded in the handling of their grievances and the termination of their employment. There was no valid reason for the dismissal either of Ms McNuff or of Mr Patterson. There was no procedural fairness. 93 The industrial dispute heard concurrently with the claims for unfair dismissal related to award coverage and the appropriate use of the disputes and grievance handling procedures in the Award and in the Society's own Human Resources Manual. In light of the concession made during the proceedings that the Social and Community Services Employees (State) Award applies to members of the Learning and Community Services team, no orders or directions should be required in that regard. However, for ultimate caution, I include the order as sought by the Union in this regard. In doing so, I note Mr Joseph's submissions regarding management prerogative. I agree that not all issues raised are appropriate for dealing with in this way. 94 Accordingly I make the following orders, pursuant to s89 and s136 of the Act. ORDERS I order: 1. That the Society of St Vincent de Paul reinstates Ms Maria McNuff to the position of Learning Facilitation Officer in the Learning and Community Services team. 2. That the Society pays to Ms McNuff an amount equivalent to that which she would have earned but for being dismissed, up to the date of her reinstatement. 3. That the employment of Ms McNuff is taken not to be broken by the dismissal. 4. That the Society of St Vincent de Paul reinstates Mr David Patterson to the position of Learning Facilitation Officer in the Learning and Community Services team. 5. That the Society pays to Mr Patterson an amount equivalent to that which he would have earned but for being dismissed up to the date of his reinstatement. 6. That the employment of Mr Patterson is taken not to be broken by the dismissal. 7. That the Orders set out in 1, 2, 4 and 5 above take effect within 21 days of the date of this Decision, being 24 July 2007. 8. That the Society applies the grievance procedure in the Social and Community Services Employees (State) Award and proceed to deal with the grievances of the Learning and Community Services team in accordance with the procedures set down in the Society's Human Resources Policy and Procedure Manual. 9. Matters no IRC 417 and 434 of 2007 are hereby concluded. In matter no IRC 403 of 2007, leave is granted to either party to seek to have the matter re-listed at short notice for the purpose of conciliation, within two months of today's date. If no such request is received, the file will be closed at that time. 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.