Industrial Relations Commission of New South Wales CITATION: Jason Cockayne v Hurstville City Council [2009] NSWIRComm 1013 APPLICANT: Jason Cockayne PARTIES: RESPONDENT; Hurstville City Council FILE NUMBER(S): 1411 of 2008 CORAM: Bishop C CATCHWORDS: UNFAIR DISMISSAL - serious misconduct - long serving council employee - unblemished work record - altercation with manager - allegations of intention to physically intimidate and and damage council property - admissions made and subsequently refuted - issues of understanding of allegations and what admissions made - conduct acknowledged inappropriate - reinstatement sought on basis termination too harsh - mitigating factors. HELD - serious misconduct - but penalty of dismissal too harsh - mitigating factors taken into account - nature of admissions made also questioned - some issue as to rigor of process followed - consideration of relevant principles- alternate penalties available under award imposed - reinstatement ordered but with conditions. LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Alexander v Commissioner of Police [2009] NSWIRComm 3 Australian Workers' Union v Transfield Services (Australia) Pty Limited [2008] NSWIRComm 1120 Bankstown City Council v Paris (1999) 93 IR 209 Byrne & Frew v Australian Airlines (1995) 61 IR 32 CCH Australia Limited v Bowen (1998) 79 IR 217 Loty and Holloway v AWU [1971] AR (NSW) 95 Marshall v Sydney Water Corporation [2007] NSWIRComm 1035 CASES CITED: National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440 New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 North v Television Corporation Ltd (1976) 11 ALR 599 Outboard World v Muir (1993) 51 IR 167 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Sams v Contact Point International [2001] NSWIRComm 18 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. HEARING DATES: 27/01/2009, 28/01/2009 DATE OF JUDGMENT: 24 March 2009 APPLICANT: Mr P Coleman of Counsel Solicitors: Carroll & Associates, LEGAL REPRESENTATIVES: RESPONDENT: Mr J Keech, Local Government and Shires Association of New South Wales DECISION: - 82 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 24 March 2009 Matter No IRC 1411 of 2008 Jason Cockayne and Hurstville City Council Application by Jason Cockayne re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2009] NSWIRComm 1013 1 This is an application by Jason Cockayne against Hurstville City Council ("HCC") for a remedy pursuant to s.84 of the Industrial Relations Act 1996. Mr Cockayne was dismissed from his position of Wetland Officer with HCC on the 6 August 2008. He sought reinstatement, re-employment or monetary compensation in lieu thereof. 2 The matter was listed for conciliation and directions before Commissioner Cambridge on the 22 September 2008 at which time conciliation took place. The parties were directed to confer, however no settlement could be reached and on 22 October 2008, directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17 and the file returned to the Registry. 3 The matter was listed for hearing before the Commission as currently constituted on the 27 and 28 January 2009. 4 At the hearing Mr Coleman, of Counsel, appeared on behalf of the applicant and called the following witnesses, who had all filed witness statements: Jason Cockayne - applicant (Exhibits 1 and 2) Vicki Willes - Bushcare Officer Hurstville City Council (Exhibit 4) 5 Mr Keech, from the Local Government and Shires Association, appeared on behalf of Hurstville City Council and called the following witnesses who had all filed witness statements: Michelle Whitehurst - Manager Engineering Services, Hurstville City Council (Exhibit 5) John Scanlon - Parks Maintenance Manager, Hurstville City Council (Exhibits 6 and 7) Rose Crothers - Human Resources Manager, Hurstville City Council (Exhibit 13) Background and Chronology - based on the transcript and the evidence filed. 6 Jason Cockayne is 39 years of age. He commenced with HCC in 1993 in a parks maintenance role when he was 24 years of age and following the completion of a TAFE Horticulture/Bush Regeneration Advanced Certificate. 7 Prior to his termination he was employed by HCC in accordance with the terms and conditions of the Local Government (State) Award 2007, as a Wetland Officer (Bush Regeneration) on Band 2, Level 2, Grade 8 receiving approximately $950.00 per week. He also worked regular overtime on two Saturdays each month. He was also paid overtime on days such as National Tree Day and Clean Up Australia day. 8 Mr Cockayne had an unblemished work record during his 14 years and 9 months of service with HCC. 9 On 24 July 2008 Mr Cockayne was involved in a verbal altercation and physical confrontation with his supervisor John Scanlon concerning the availability of a HCC truck to assist in his work that day. Immediately following that altercation Mr Cockayne returned to the Bush Care office where he proceeded to "smash" an office chair onto the floor, breaking the chair and causing some slight damage to a table in the process. 10 Mr Scanlon sent an email to Ms Crothers concerning the incident (Exhibit 13-A) with an attachment consisting of photographs of the damaged chair and desk. The email gave detail about the incident and indicated inter alia: He went berserk, swearing and approaching me right in my face, trying to intimidate me. He went to push me but just managing to restrain himself when i (sic) quickly advised him not to do that. He then threw the car keys across the yard and stormed out of the depot still swearing and declaring that he "didn't want anything from this #$%& of a place" (with a few expletives added). 11 Ms Crothers asked Mr Scanlon to obtain statements from any witnesses to the incident and three such statements from other HCC employees who saw the incident were obtained (Exhibit 13-C). 12 At Ms Crothers' request, Mr Rob Formica, Acting Workshop Manager, also forwarded an email concerning the incident (Exhibit 13-B). 13 Ms Crothers then met with Ms Whitehurst concerning the process of investigation and sought her assistance. She also met with Mr L. O'Connor, HCC Director - Service Delivery, and the decision was made to suspend Mr Cockayne, pending investigation of the incident. Ms Crothers subsequently advised Mr Cockayne by phone of his suspension due to the seriousness of the incident, the process to be followed and that a meeting would be held the next day. She also contacted the United Services Union (the USU) and advised them of the meeting and Mr Derek Margerison, an Officer of the USU, was subsequently involved in meetings with HCC representing Mr Cockayne. 14 Ms Crothers, in conjunction with Ms Whitehurst and Mr Scanlon, also met with another witness, Mr Trent Walker, and a file note was made by Ms Crothers of the meeting which was signed by Mr Walker (Exhibit 13-D). 15 Mr Cockayne was formally advised of his suspension by HCC letter dated 24 July 2008 (Exhibit 13-E) in which the following five allegations were detailed to be investigated: · Aggressively yelling and swearing at your direct Manager · Intimidating and attempting to physically assault your Manager · Acting in an unsafe manner · Deliberately damaging and destroying Council property · Leaving the workplace without authorisation 16 The third allegation related to contravention of HCC's Occupational Health and Safety Charter (Exhibit 13-F). 17 Ms Crothers and Ms Whitehurst met with Mr Cockayne and Mr Margerison from the USU on Friday, 25 July 2008 at which time the allegations were "stepped through" by Ms Crothers. Mr Cockayne was also informed his actions were witnessed by a number of staff. Mr Cockayne made certain admissions, indicated he was stressed and apologised for his behaviour to Mr Scanlon. He provided a Medical Certificate dated 24 July 2008 from Dr Sebez indicating that he was suffering from post traumatic stress disorder (Exhibit 13-G). As a result of this advice Ms Crothers suspended the meeting to meet further with Mr O'Connor. When the meeting reconvened Mr Cockayne was advised by letter from Mr O'Connor of a further meeting (a Disciplinary Meeting) to be held on 28 July 2008. 18 No decision had been made at this stage in relation to Mr Cockayne's employment. 19 At the Disciplinary Meeting of Monday, 28 July 2008 Mr Cockayne provided HCC with a letter outlining his case in response to the allegations (Exhibit 13-H) together with a letter from 2 residents concerning his alleged unauthorised absence from the workplace following the incident on 24 July (Exhibit 13-I). 20 Ms Crothers advised Mr Cockayne that all of the facts would be provided to Mr O'Connor and an outcome indicated back to him the next day at 9 a.m. She reconfirmed that, as the allegations were serious misconduct, termination of employment might be an option if the allegations were substantiated. 21 Ms Crothers and Ms Whitehurst then met with Mr O'Connor and presented all the information to him, including the medical information provided by Mr Cockayne. Later that day Ms Crothers drafted a further letter to Mr Cockayne that was signed by Mr O'Connor the next day (Exhibit 13-J). 22 Mr O'Connor, Ms Crothers and Ms Whitehurst met with Mr Cockayne and Mr Margerison the next morning (29 July) and Mr O'Connor advised that all the facts had been considered and a decision made that due to the seriousness of the conduct and the fact that the relationship between the employer and employee had broken down, he would recommend to the General Manager that Mr Cockayne's employment be terminated. He was then given a letter (Exhibit 13-J) confirming that. 23 He was further advised that he had until close of business (5 p.m.) Thursday, 31 July 2008, to show cause in writing to the General Manager as to why his employment should not be terminated. If he did not respond within this time a decision would be made based on the available facts. His suspension of pay was to continue until the decision by the General Manager. 24 By letter dated 30 July 2008 (Exhibit1), the USU sought an urgent meeting between Mr Margerison and HCC prior to that deadline, indicating that there were strong mitigating circumstances which should be taken into account by HCC before its final decision was made and seeking access to Mr Cockayne's personal file. At the resulting meeting Mr Margerison sought an extension of time until 4 August for Mr Cockayne to provide the "show cause" letter. The extension was approved in writing by the General Manager (Exhibit 1). 25 Ms Crothers also received letters of support for Mr Cockayne from volunteers (Exhibit13-K). 26 On 5 August Ms Crothers received Mr Cockayne's "show cause" letter (Exhibit 13-L) together with a letter from his treating psychologist sent to his doctor (Exhibit 13-M). Ms Crothers deposed that Mr Cockayne refuted the allegations, after previously admitting to them, and in her view, refused to take responsibility for his own actions. She then presented the facts of the investigation and her recommendation to the General Manager. 27 On 6 August 2008, Ms Crothers and Ms Whitehurst met with the General Manager and went through the case again raising all issues including Mr Cockayne's responses, the witness statements, the medical evidence, the volunteers' support and other relevant material. It was the view that, despite any medical condition found to exist after the event, the behaviour constituted serious misconduct and as such termination of employment should occur. The General Manager then made the decision to terminate Mr Cockayne's employment. 28 On 6 August 2008 the USU also faxed to HCC a letter of support and providing further information to be taken into consideration and seeking that HCC not terminate his employment but that the proper action should be to provide support and counselling to him to address his current illness. 29 Following the meeting with the General Manager, Ms Crothers advised Mr Cockayne by telephone, that due to the seriousness of his actions, they were considered to be serious misconduct and he was to be terminated immediately. The termination was confirmed by letter of 6 August 2008 from the General Manager (Exhibit 1). After listing the five allegations and referring to the investigation the letter went on to say: ............................ Taking into account all the information collected as part of the investigation and subsequent disciplinary meeting including your response to the allegations, I have come to the conclusion that the allegations, except for the allegation that you left the workplace without authorisation, are sustained. Prior to making a final decision in relation to your employment, you were asked to show cause as to why your employment should not be terminated. You responded to this by writing to Council on 5 August 2008. After consideration of all facts it is my decision to terminate your employment as of 6 August 2008. It is Council's view that your actions in relation to the allegations of intimidating and attempting to physically assault your Manager and deliberately damaging and destroying Council property constitute serious and gross misconduct. This is a serious breach of the Council's Code of Conduct and poses significant concerns in relation to Council's obligations to provide a safe working environment to all employees. It is an inherent requirement of your position that you will act in an appropriate and safe manner at all times and it has been found that you grossly breached this requirement. .................................................... 30 Mr Cockayne was paid outstanding wages and accrued annual leave. 31 Mr Cockayne sought reinstatement to his former position. 32 HCC opposed the reinstatement of Mr Cockayne. The position he formerly occupied has not been filled, pending the outcome of this hearing. 33 Since his termination Mr Cockayne had established his own business, "Renegade Bushland Services", primarily involved in gardening and garden maintenance. His clients are drawn from friends and the volunteers. Through the business he had received income totalling $10,504.50 during the period 22 September 2008 to 27 January 2009 ( Exhibit 9) with business related expenses totalling $5701.40 (Exhibit 10) for the same period, resulting in a gross gain of $4803.10. This had assisted him with paying his mortgage. His partner had provided financial assistance with other bills. 34 Mr Cockayne had also made application to Sutherland Shire Council for an advertised position of Bush Regenerator. As at the date of the hearing the closing date for applications for the position had not yet passed, however the application had been acknowledged in writing by that Council (Exhibit 12). The Evidence 35 Mr Cockayne deposed as to his work history and relevant background with HCC from 1993 until his dismissal in August 2008 (Exhibit1). 36 In 1994 he was asked to take on a bush regeneration role as a Ganger supervising three other employees. HCC subsequently expanded its bush regeneration work employing an additional Ganger who also supervised three other staff. 37 In 1999 he accepted responsibility for becoming the co-ordinator of a volunteer program to be established by HCC. This involved Mr Cockayne recruiting and setting up groups and supervising and coordinating groups within the community to carry out bush regeneration required in the local area. This work was in addition to his normal working week. He regularly worked overtime two Saturdays out of every month with the volunteer groups. 38 In 2000 an additional Bush Care Officer was appointed, Ms Vicki Willes, and she performed a similar role with volunteer groups. In 2001 Mr Cockayne became the Wetland Officer and another person was allocated his former role of Bush Care Officer bringing to three the number of Officers involved with volunteers groups and participating in the overtime involved. 39 At that stage they also had the administrative assistance of the HCC Environmental Officer to help with volunteer organising, including National Tree Day, Clean-up Australia Day and various other events participated in by HCC. 40 In addition to organising and supervising volunteers for both Clean-up Australia Day and National Tree Day each year since 1999, Mr Cockayne also gave talks to schools, environmental groups, gardening groups, co-ordinated the Indian Mynor Program and liaised with ethnic communities to encourage their participation in bush care. 41 He sourced materials for projects such as rocks, experts and information etc. This included "literally hundreds of tonnes" of sandstone that had been used on job sites and were available to other work colleagues and contractors at no cost to HCC and saving hundreds to maybe thousands of dollars. 42 He also propagated native plant stock for use in regeneration projects. He had propagated a number of plants which he had intended to use in the 2008 National Tree Day. 43 Mr Cockayne attached to his witness statement various commendations, references and letters of thanks from HCC, various organisations/groups, and volunteers attesting to the work he carried out over the years of his employment with HCC (Exhibit 1-A). 44 Mr Cockayne deposed that as a result of a survey of residents' needs conducted by HCC in 2004 there were plans by HCC to reduce the bush regeneration staff, have them carry out other work and close down sites with a consequential reduction in volunteer numbers and with remaining volunteers going to other sites. He further deposed that during this period the volunteers formed an action group and actively campaigned to stop HCC from carrying out "these cost-cutting measures" and keep the Bushcare Program running. He was then advised by HCC that he would have to obtain grants and look at options for sponsorship. 45 Mr Cockayne deposed that he was left feeling that his position was always under threat. 46 However Mr Scanlon denied that Mr Cockayne's position as Wetlands Officer was reliant on grant applications or funding. 47 Mr Cockayne subsequently obtained three grants worth some $80,000 with the assistance of the HCC Environmental Officer, Julie McInnes. He deposed that the time involved in compiling grant applications increased his workload significantly and he received very little help from management. Whilst his job description said he should "assist" with the pursuit of grants he maintained that he was in fact fully responsible for their preparation. During this time the numbers of volunteers also increased. New procedures put in place by the Federal Government in 2007/2008 for obtaining grant applications also involved a lot more work. 48 Mr Cockayne also deposed that in 2004 (Australia Day) during a scuba diving trip, a co-worker and close friend passed away in his arms after having difficulties during the dive. He took two weeks' compassionate leave from HCC but was never counselled nor did HCC offer any counselling. That tragic event had continued to trouble him and created stress in his life to the present time. 49 However he acknowledged that HCC had given him two weeks leave and that compassionate leave usually applied to the loss of relatives/partner and was only of two days duration. Mr Cockayne wasn't sure whether it was taken out of his sick leave, that would be known by management. He acknowledged that they were aware of the reason he needed the leave. 50 When he was asked to agree that the granting of the two weeks leave, when he was not actually entitled to it, was a way that Council was supporting him, he responded that he was given two weeks leave, saw his Manager once and was pretty much left to his own doing. Upon returning to work he was still in grief and guilty about what had happened and, even though there were friends supporting him, he felt the majority of management just turned their back on him. 51 He was reminded that during the meeting with Ms Crothers on 25 July when this issue was raised, he had told her that he visited the Chaplain at the time. He acknowledged that this was the Chaplain at Council and that this visit occurred during work time. 52 Mr Scanlon deposed that he was aware of this event as well, as the person concerned was also a friend and co-worker of his and had commenced at HCC on the same day as Mr Scanlon. 53 In 2006/2007 Mr Scanlon became his supervisor. Mr Cockayne deposed that initially Mr Scanlon came to see the work that the volunteers were doing but after a period of time "seemingly became disinterested" and only came down once a month to see them. He also subsequently indicated that he was no longer interested in grant applications. 54 Mr Scanlon maintained he had become Mr Cockayne's supervisor in late 2004. He would come and see the volunteers on as regular a basis as his schedule allowed, he was also required to visit the other parks' staff. 55 Mr Scanlon deposed that he did not agree that he was not interested in grant applications. He had communicated to Bushcare and Wetland Officers that if they recognised areas for improvement that went outside the current maintenance budget and planning that they would need to seek additional funding for these works. He also suggested that if they felt their core duties were falling behind and they were unable to keep on top of their work that it was acceptable to him if they did not seek funding for the next round of offers. He did not discourage them from applying for grants or told them they could not apply. 56 In 2007 the Environmental Officer who had provided administrative assistance to Mr Cockayne in the making of grant applications left HCC. He deposed that he was subsequently unable to obtain any support for the making of grant applications due to there not being any staff available to assist him. 57 This was refuted by Mr Scanlon who deposed that this submission was never put to him. 58 Ms Willes also deposed that the Environmental Officer was a major organiser for Tree Planting Day and a support person and adviser for completing grant applications. 59 By the time of the incident on 24 July 2008 there were two grant applications that Mr Cockayne had been finalising for submission. He had to do this work as well as preparing for National Tree Day on the up coming Sunday 27 July 2008. 60 Sometime in July 2008 he had had a conversation with Mr Scanlon asking him if someone could be found to assist him with the grant applications but he was told there was no one available to help him and he would just have to do the best he could. 61 Mr Cockayne deposed that this period also coincided with the 10th anniversary of his brother's death. This was always a stressful time for him. Each year he would usually organise a holiday after National Tree Day. This particular year he had booked a holiday in Brisbane. He had previously spoken to Mr Scanlan about it but had not put in his leave form but had been told by him it would be okay. 62 Mr Cockayne deposed that he was also suffering from a severe cough that week and had visited his Doctor who had told him he should take time off. However he couldn't because he had a deadline for the grant applications and also he had to organise for National Tree day. 63 Ms Willes deposed that she directly witnessed the increased stress Mr Cockayne was under earlier that week confirming that he had come into work at the beginning of the week sick with a "terrible cold". She went on to say that he had been "dragging himself" in to work for a number of days and felt he couldn't have any time off as he had to complete a number of grant applications by Friday 25 July and organise National Tree Day for Sunday 27th July, in addition to attending to all his other duties involving the volunteers etc. 64 Ms Willes deposed that it was an "unusual set of circumstances" in that she was absent on leave on the 24 July as well as the end of that week and the other Bushcare Officer was also absent on leave at the end of that week. She said that at this time there was no other Council employee going to help Jason and he expressed to her that he was feeling very stressed and unwell and probably shouldn't be there but he had to do the National Tree Day and had to complete the grant applications. Before going on leave on Tuesday 22, she did learn that there was a worker from the mowing crew going to go to National Tree Day to lend some assistance. 65 Mr Cockayne deposed that he had always needed a truck to carry out his duties but that the position of Wetland Officer did not come with a vehicle. There was no other way he could carry out his work as he needed to carry tarps, tools, weeds, rubbish etc. to and from the various sites. He also needed a truck every day as it also assisted the volunteers as they then didn't have to double handle weeds. 66 Mr Scanlon disputed that Mr Cockayne needed a truck to perform his duties. He said hat he was provided with an on-site work van and when resources or materials were required, HCC had a truck service that was able to go and assist Mr Cockayne. That had been standard practice for as long as Mr Scanlon could recall. Mr Scanlon had made available a small truck when he had his volunteer groups on and when it was not required by other staff. Other Parks' staff were scheduling their work to access the truck on Thursdays when Mr Cockayne did not have volunteer groups. Mr Cockayne was aware of this practice. 67 Mr Cockayne acknowledged that there was a caravan at the site for storage of equipment but without a vehicle he would have to wheelbarrow tools and necessary stuff down to the ponds where he usually met the volunteers. It became too physically hard to be able to do that two days a week. It also left the volunteers unsupervised for that time. He asked for a truck for Tuesdays and Wednesdays which was provided by HCC if one was available. 68 On the 23 July Mr Cockayne deposed that he had asked Mr Scanlon if he could have the truck made available for the next day as he had a lot of work to do. He was told it could be made available until 9 a.m. and after that he could move his stuff into another vehicle and take that to do his work. 69 Mr Scanlon deposed that in this conversation he had advised Mr Cockayne that another employee Mr Matthew Walker had requested the truck. Mr Cockayne had asked if he could come in at 6 a.m. as he had rubbish to pick up. Mr Scanlon told him to come in at his normal time and that Matt could have the truck after morning tea. He then advised Mr Walker of this. 70 On the morning of 24 July Mr Cockayne deposed that he carried out some work and came back to return the truck at 9 a.m.. He was in a "mad rush" at the time as he had to move the load that was in the truck into another truck. When he had finished moving all the material from one truck into the other, he deposed that the following exchange took place between himself and Mr Scanlon: John: "Oh you can have the truck now!" Jason: (In a loud voice) "You could have told me that before!" John: "I've left a message on your phone. Why didn't you check your phone?" Jason: "You know how much work I've got to do, why didn't you f***ing tell me earlier" John: "With that attitude, you'll never get the truck!" Jason: "You can have your f***ing truck!" 71 Mr Cockayne deposed that he then slammed the door, threw the keys towards Mr Scanlon and they landed a couple of metres away from him. The following exchange then took place: John: "Right, you'll never get the truck again!" 72 Mr Cockayne then walked towards Mr Scanlon and said in an "angry voice" Jason: "You know how much work I've got... why don't you f***ing help me" John: "You touch me, it's your job" 73 Mr Cockayne deposed that Mr Scanlon repeated himself and that was when Mr Cockayne walked away from him. He maintained that at no stage did he attempt to physically assault Mr Scanlon nor did he contemplate doing so. He did not try to intimidate him. He doesn't intimidate or cause harm to anyone as that was not in his character. 74 Mr Cockayne then went into the Bushcare office, picked up an office chair and smashed it on the floor. The corner of the table was slightly damaged ("a slight crack on the corner") as he picked up the chair and it hit the floor. He never had any intention of damaging property of HCC. The office was empty at the time and he would not have gone in if there had been anyone there. He later apologised to the person who occupied the desk. 75 He maintained that the furniture in the office was made up of an old chair and a second hand table. His evidence was that he had originally found the chair down the back next to the HCC garbage bins. Usually if the workers found something that was not worthwhile to be thrown out it was left at the side of the bins for someone else to use. They needed another chair so he had taken it for use in the Bushcare Office. 76 As Mr Cockayne still needed to obtain another signature from a volunteer regarding the grant application, he then left the depot, went home to "cool off" then went to Riverwood to obtain the signature and then returned to the Depot. A letter from the volunteers in question confirming this, was subsequently forwarded to HCC (Exhibit 13 - I). 77 Mr Scanlon deposed that on the morning of 24 July he received a text message at 8.54 a.m. from Matthew Walker saying that he no longer required the truck due to weather conditions. He deposed that the following exchange then took place: John: Matt doesn't need the truck any more. You can still use it . Jason: (yelling and walking towards me) you could have fucking told me that before! John: I've only just received the text message. Jason: (Coming towards me until he had his face up against me. His hands were clenched into fists and he was acting in a very aggressive and intimidating manner.) You know how much work I've got to do, why didn't you f***ing tell me earlier?! John: (hands in my pockets) Calm down. Jason raised both hands and moved to push me in the chest. I believed that he was going to physically assault me. John: I wouldn't do that, you'll lose your job. Jason then made comments to escalate the situation. He then walked off back towards the truck. He slammed the truck door and threw the keys in the direction away from me. Jason: (yelling) You can have your f***ing truck. I don't want anything from this c***of a place! Then he slammed the door of the utility vehicle. John: Keep that up and you'll never get the truck again! 78 Mr Scanlon went back to the store to speak to Mr Rob Formica about the incident and whilst doing this he heard a very loud bang coming from the Bushcare office. He went towards the office and saw Mr Cockayne come out quickly and leave the depot. He then walked into the office and saw the broken chair and damaged table. 79 Mr Scanlon deposed that after witnessing the damage done to the office he thought that it was a matter that needed reporting to Human Resources. Using the work digital camera he took photos of the damage, attaching them to the email he subsequently sent to Ms Crothers. 80 Mr Scanlon said that in relation to the incident he felt threatened by Mr Cockayne's actions at the time and felt intimidated. He was shocked at his response to the whole situation and bewildered that his reaction was what it was. 81 Mr Scanlon also has a part-time second job (with approval of HCC) working as a Doorman at a licensed Bowling Club on Monday and Friday nights which he has held for some ten years. In that role he had been involved in incidents where violence had occurred. They had external contractors working inside the club as security guards and it was their responsibility to remove patrons from the club. Mr Scanlon assisted as required. It was not his responsibility to evict intoxicated patrons, that was the external contractors. 82 He acknowledged that he was able to be firm and knew how to be firm with difficult people and could handle himself if necessary however he would like to think it would not escalate into that situation. 83 Mr Scanlon agreed that it had appeared straight away that what he was saying to Mr Cockayne made him angry. 84 He acknowledged that he had a pretty busy job, with National Tree Day coming up, which was a big event for him and involved a lot of organisation. He also acknowledged the role Mr Cockayne played in the grant applications. But they were applications that he'd applied for previously and been granted and being so, considered that obviously once you knew what you are doing it was a little easier each time. Mr Scanlon's involvement was in reading over and approving the work. His only input was figures that had to be provided to Mr Cockayne when Council's contributions would change. 85 It had not previously occurred to him that Mr Cockayne might have been stressed. Although it became apparent to him pretty quickly. 86 Mr Scanlon believed that Mr Cockayne was about to push him or strike him and that he had an intention to do so. It was this perception that when Mr Cockayne unclenched his hands and opened them, that he began to think about at least pushing him. He never did, he stopped. He was in the motion of doing so. 87 Mr Scanlon's hands were in his pockets. He didn't feel the need to take his hands out of his pockets and that was not because he didn't feel threatened by any sort of physical assault, but because, through his training at the Bowling Club, he had been taught that hands in your pockets or not having your hands up in an attacking or defensive manner was a great way to try and diffuse an aggressive situation. He also told him to calm down. 88 He had not had any official training, just word-of-mouth. When he did the RSA (Responsible Service of Alcohol) there was some training on how to deal with aggressive and violent people. 89 He acknowledged that he wouldn't just stand there while someone prepared to strike him but he was maintaining a safe distance and Jason kept coming forward and he started moving back when he realised what he was doing. 90 Mr Scanlon said it all happened very quickly but in hindsight he didn't see that he could have handled it any differently at the time. 91 Mr Scanlon acknowledged that if the incident had stopped with the shouting and the bad language and Mr Cockayne had just gone about his activities, there might not have been a report. However he wasn't given the opportunity to think that because of the incident with the damage. 92 The Commission directed questions at Mr Scanlon concerning the extent to which he had authority to give warnings or reprimands about behaviour and what was the usual process. 93 In response, Mr Scanlon indicated that he had the authority to give warnings or reprimands to the employees he supervised. When he issued a verbal warning to an employee he recorded that in his diary. Such warnings did not have to be automatically referred on up to management. When it got to the stage where it became a written warning that would need to be referred up and Human Resources become involved. In the incident involving Mr Cockayne he would have had the ability to issue a warning or the ability to refer it up for further disciplinary action. 94 However Mr Scanlon also indicated that he probably would have referred it up due to the aggressiveness of the incident. 95 His immediate intention was to diffuse the situation by allowing Mr Cockayne to leave the depot which he thought he had done. He hadn't even thought about what to do in the situation. He went back to complete the transaction he was making at the store where he first was when the incident occurred. That was when he heard the bang and realised that damage had been done. Once he saw the damage he had to report it straightaway. 96 Mr Scanlon's evidence was that he believed that the table had been thrown out shortly after the incident because it was too dangerous to operate with computers and other things on it. The structural integrity of the desk was compromised and he felt it could collapse at any time. He had no role in ensuring or authorising anyone to remove the desk. 97 He acknowledged that photographs tendered (Exhibits 8a and 8b) would indicate the desk was still in use in the Bushcare office. The desk was not the desk of staff he was responsible for. The room was basically divided into two, his staff were on one side and that desk was on the other side and was another Manager's responsibility. 98 It had been Ms Willes' evidence that the table was still in use in the Bushcare office and she was recalled to give further evidence to confirm the provenance of the photographs tendered (Exhibits 8a and 8b). She had taken them on the 21 and 22 January 2009 respectively. 99 It was also Ms Willes' evidence that following her return to work from the leave on Monday 28 July, she had had a discussion with Mr Scanlon about the incident on 24 July and he made a comment that the actual altercation really didn't worry him, it was mainly the damage to the furniture that occurred. 100 Mr Scanlon said that what he told Ms Willes was that the reason he reported that on to HR was the "destruction of council property". 101 Events concerning the investigative and disciplinary process concerning Mr Cockayne then unfolded as summarised in the Background and Chronology above. 102 Mr Cockayne agreed that at the meeting on 25 July he was advised that witnesses thought he had hit Mr Scanlon. He agreed that that allegation was not put to him but he had seen the statements from the witnesses that said they believed that he had pushed Mr Scanlon. 103 He did not agree that his behaviour at the time of the incident could be seen to be either intimidating or aggressive. He agreed that it was "very out of character". 104 He also acknowledged that he was aware of the expectation of how he should act as a council employee, however at that stage he wasn't thinking about how he should act. He went on to say - "I just blew my top. There was no call for acting that way deliberately, I just did a dummy spit and I lost it and I was very sorry for doing that. It was a culmination of a lot of things that were happening during that week. I think being sick all week was probably a major thing of it, but it was also my brother's anniversary was coming up. It all came to a point where I went through the last couple of years and I put in my thoughts that the best thing to do is have in the back of my mind that I get this work done, I go on holidays. Now, I had already organised a holiday to go on and I think that I just kept fighting and fighting to get through the week. I just took too much on, I think." 105 Ms Willes was on leave on the 24 July and did not return to work until the following Monday 28 July, although she found out about Mr Cockayne's suspension on Friday 25 July, when she sent him a text about assisting him on the Sunday. 106 She subsequently spoke to both Mr Scanlon and Ms Crothers expressing the view that she hoped the good things he had done for the Bushcare program would be taken into consideration when the incident was reviewed. She was very upset about what had happened. She also sought a meeting with the General Manager to discuss the stress he had been under. The meeting was agreed to, however she later decided to submit a letter of support as she felt this would be a more appropriate. By the time she had completed and handed the letter in she was told the decision had already been made to dismiss Mr Cockayne. 107 Ms Willes's evidence generally supported the work that Mr Cockayne had carried out for and at HCC and the good relationship he had with the volunteers. 108 Ms Whitehurst had only assumed responsibility for Parks and Recreation in July 2008. Whilst she was aware of Mr Cockayne and his role in the bushcare and wetland areas, she had not actually met him prior to the incident of 24 July. Mr Scanlon had also not reported to her prior to this time. 109 She generally confirmed her role in the investigative and disciplinary process and what occurred as outlined in the Background and Chronology above. 110 Ms Whitehurst was familiar with HCC's OH&S Charter and considered that in the incident of 24 July Mr Cockayne breached the "tone" of the Charter of working in a safe environment with fellow employees, colleagues and supervisors. 111 In particular, she believed the incident of breaking the chair and the desk, as well as the intimidation of a Manager, breached that part of the Charter which stated "we provide, maintain and improve a safe and healthy environment through vigilance and care." Those aspects were foremost in her mind. She did not accept what Mr Cockayne told HCC about having no intention to intimidate. 112 She considered that damaging Council property was a serious offence, either by employees or residents or people in the area, so they took that quite seriously. Breaking a chair and the desk in someone's work area or workstation, obviously made that an environment that you couldn't work in. She was aware that there was no one in the office at the time and that no one was in physical danger in the office. 113 Ms Whitehurst confirmed that the views finally formed as a result of the investigative process, and the decision made to terminate Mr Cockayne were based on the breach of the OH&S Charter and the breakdown in the employment relationship. 114 Ms Crothers could not say whether either of the two separate components of the 24 July incident was of more influence in the decision to suspend Mr Cockayne because the final decision was made by the Director of Service Delivery. She simply presented all the facts and information that they had at that stage in relation to the threatening behaviour and the fact that that there had been damage to Council property as well. 115 It had been Mr Scanlon who had indicated that he felt there was "threatening behaviour" and a "perceived threat of physical violence" and that was information that she conveyed to Mr O'Connor. Whilst Mr Scanlon indicated he wasn't physically pushed, he said he felt threatened. 116 She acknowledged that it was apparent, right from the beginning of the process, that there was no physical contact between Mr Cockayne and Mr Scanlon. 117 Ms Crothers gave details of the meeting with she and Ms Whitehurst held with Mr Cockayne and Mr Margerison on 25 July. He was told that he could take annual leave whilst he was on suspension and he requested to do this. He was offered the employee assistance program if he wished. She advised that this was an investigation and he was given an opportunity to respond as part of that investigation. The process to be followed subsequently was also indicated, as was the confidentiality of the process. 118 Ms Crothers said that she "stepped through" each of the allegations (as detailed in the letter of suspension) and the facts which had been collected as part of the investigation including summary witness statements. She indicated to him that his actions were observed by numerous staff and that other witnesses thought they saw him push Mr Scanlon. Mr Cockayne advised that he did not touch Mr Scanlon and Ms Crothers indicated to him that this was confirmed by Mr Scanlon but only after he had warned him not to. 119 Ms Crothers deposed that Mr Cockayne admitted to everything that she presented to him at the meeting, indicated that he was stressed and apologised for behaving like that towards Mr Scanlon. He acknowledged that Mr Scanlon was supportive of him, but saw him as a Council representative and took his frustration out on him. 120 She acknowledged that Mr Cockayne admitted to aggressively yelling and swearing at his direct supervisor without hesitation and that there was no attempt to other than freely admit to this allegation. 121 In relation to the second allegation, she indicated that Mr Cockayne questioned the wording and what was clarified to him was the fact that it was reported by several witnesses that at first they thought that he had physically touched Mr Scanlon. This allegation was the fact that HCC felt that there was an "intent" to do it. What was reported was Mr Cockayne physically moving towards and right up against Mr Scanlon and actually raising his arms as if he was to physically touch him and it was only through Mr Scanlon's intervention that he actually stopped that. 122 Whilst she acknowledged the difference between attempting to physically assault and possibly having an intention to do so that wasn't carried out, she wasn't sure whether Mr Scanlon would have understood that at the time when the incident occurred. 123 Ms Crothers also agreed that if Mr Cockayne had really wanted to physically assault Mr Scanlon that he could have done so but said that "obviously the facts collected was that it was observed that he stopped, because Mr Scanlon had to intervene to warn him not to do that and that he felt - the communication to me was that he felt that doing that actually stopped a physical contact". 124 However she indicated that whilst she agreed that Mr Cockayne didn't attempt to physically assault, "there was a real threat obviously". 125 Ms Crothers also agreed that intimidation was a subjective concept. She ultimately acknowledged that whilst Mr Cockayne had admitted to the behaviour, she didn't think he categorically said that he was intentionally wanting to intimidate Mr Scanlon but he admitted he was extremely upset and that he was in John Scanlon's face. She went on to say that she "could not recall specifically that he actually specifically denied it. He throughout the investigation he's generally admitted to it, acknowledged his actions and also apologised for his actions". 126 Ms Crothers acknowledged that Mr Cockayne subsequently indicated that in his written response. 127 Ms Crothers indicated that she didn't believe Mr Cockayne. Taking into account all facts collected, based on the balance of probabilities, she felt that there was an attempt to physically harm or intimidate Mr Scanlon. 128 As far as the third allegation was concerned (the breach of the OH&S Charter) there was no particular part of the Charter that she identified as being breached. Rather it was the principles enunciated in the Charter of the expectation that employees adopt safe work practices, conforming to all procedures and instructions and being aware of safety principles at all times, thus preventing incidents. 129 She considered that both the behaviour, as well as the issue of damage to Council property, were breaches. Part of the Charter was about providing people with a safe work environment. There was damage to Council equipment and obviously behaviour that was unsafe. "It was still unsafe and obviously serious and inappropriate behaviour even though there was no one else there. She went on to say "who's to say it doesn't happen again when someone actually is present in the office." She said that there was a risk that if it happened once, then it could happen again 130 Ms Crothers did not agree that Mr Cockayne denied "deliberately" damaging and destroying HCC property. Whilst she agreed he admitted to smashing the chair, breaking it and doing some damage to the desk, in her view "he acknowledged, admitted and apologised. So in other words he's picked up the chair and damaged the chair and the desk. So as far as Council was concerned, it was a deliberate act, he chose to act in that manner". 131 She did not agree that there was a difference or distinction between deliberately picking up the chair and smashing it to the floor, which was freely admitted to, and deliberately trying to do damage to property. 132 Ms Crothers did not view the chair or the desk, she only saw the photographs taken by Mr Scanlon. 133 Ms Crothers considered that, regardless of whether there was any intent or not by a party, it was "the action, the outcome, the behaviour, the consequences that were taken into account", in taking the appropriate steps in considering whether there had been a breach of the OH&S Charter. 134 Even if there was negligence on the part of an employee then HCC would be liable and that was of a concern. 135 Ms Crothers said that HCC had widespread prevention programs in regards to expectations of staff, that whenever they had incidents they expected them to be reported immediately. They then obviously remedied them and put controls in place to ensure those things didn't happen again. 136 Ms Crothers agreed that the fifth allegation (leaving the workplace without authorisation) was investigated and dismissed. 137 During the meeting Mr Cockayne also told her that his actions were out of character and that he was stressed due the loss of a friend and co-worker four years ago. He felt that HCC did not provide him with support, although he mentioned that he spoke to the Chaplain at the time. Ms Crothers deposed that this was HCC's previous employee assistance provider. He then provided a doctor's note from Dr Sebez indicating that he had a post traumatic stress disorder dated 24 July 2008. 138 Ms Crother's deposed that to her knowledge this was the first time that HCC was aware of any stress related issue and the meeting was suspended for about half an hour to enable her to consult with Mr O'Connor. Following that suspension she provided Mr Cockayne with a letter requiring his attendance at a further meeting on 28 July. 139 At the 28 July meeting Ms Crothers deposed that Mr Cockayne provided a letter from the two volunteers indicating that he had visited them for 10 minutes and as such was working and did not leave the workplace without authorisation (Exhibit 13-I). On five separate occasions (four by Ms Crothers and one by Mr Margerison) he was asked if he wanted to run through the allegations again but he declined saying his letter would cover it and he would get "muddled up" if he tried to say anything. 140 However when she received Mr Cockayne's reply to show cause (Exhibit 13-L) on 5 August she deposed that in the response he refuted all the allegations after previously admitting to them. It was her view that he refused to take responsibility for his own actions. 141 Ms Crothers, in oral evidence indicated that throughout the process Mr Cockayne had, as far as HCC was concerned, admitted to allegations of the intimidating and threatening behaviour and obviously damaging Council property. Then in his letter of show cause why his employment shouldn't be terminated, he indicated on the second last paragraph of the first page "I refute all allegations that have been stated and I feel the whole situation has been blown out of all proportion". She said that as far as HCC was concerned, he was not taking responsibility for his actions, the actions that he admitted throughout the process that had undertaken. 142 She understood the words, "I refute all allegations", to mean that he was withdrawing all the admissions he had made. She considered that he was changing his mind and trying to deny the seriousness of his actions and also not take responsibility for them, so from her perspective he didn't seem to understand the seriousness of his actions. 143 As part of all the facts that were provided to the General Manager, she highlighted that he was now refuting the allegations. It was just one of the facts that were provided and was not necessarily what tipped it over. 144 Ms Crothers was present in all HCC meetings where the incident was discussed and matters considered. She basically collected the facts and presented them to Mr O'Connor and he made the decision in relation to the next stage of recommending termination to the General Manager. 145 During the first stage of the process with Mr O'Connor, there was a discussion in relation to the seriousness of the incident and some advice was sought from the LGSA in relation to the seriousness and appropriate action. All appropriate and possible outcomes were considered, whether it be warnings or whether it was appropriate that it was a termination. All the possible outcomes were discussed but the final decision was with Mr O"Connor and he obviously considered the facts and made that the final decision. She was unable to say from his perspective how he came to that position, but he did so after consultation with her. 146 Ms Crothers said that Mr O'Connor was also aware of how long Mr Cockayne had been with HCC and his record. That was part of the facts that were provided to him. His history with HCC and his length of employment was discussed but the seriousness of the nature of the incident could not be ignored. 147 It was her recommendation that because of the nature of the incident and the seriousness of it, then termination of employment could be seriously considered. However Ms Crothers was not involved in the final meeting when Mr O'Connor took his recommendation to the General Manager. 148 Mr Cockayne was seeking reinstatement to HCC as he thoroughly enjoyed the work he did in bush care regeneration and also enjoyed working with the volunteers with whom he had developed strong relationships that HCC management never really understood. 149 In seeking reinstatement he also believed that there were options in this area which could include limited time spent at the Depot. In the past, as Wetlands Officer, there was no need to go to the Depot that often and he only did so to secure a vehicle to make his job easier and complete grant applications. HCC had truck drivers who serviced outdoor staff and this would be the preferred option. He could do the grant applications at home or in the library. There were also a number of Managers within HCC that could be his immediate Manager if Mr Scanlon did not want to manage him any longer. 150 All he ever wanted to do was supervise the volunteers and continue in his position managing the wetlands, which he was very passionate about, believing he still had much to offer. 151 It was Mr Scanlon's evidence that he considered that it was not possible to work with Mr Cockayne again. He would have concerns for his health and safety and the health and safety of his co-workers and the volunteers if he was to be reinstated. In particular he would be concerned with either himself or other members of staff working with him on a one-on-one basis or in an isolated setting. He also believed that he had a duty of care to protect the staff and volunteers from that sort of behaviour. 152 Ms Crothers indicated that she had come to the view that the employment relationship had broken down due the seriousness of the incident that occurred on the 24th and "obviously that Council felt they couldn't tolerate an employee intimidating or attempting to threaten, physically assault a fellow employee." 153 She also indicated that HCC took into account the working relationship that may have continued with Mr Scanlon and Mr Cockayne. Mr Scanlon had indicated that it would not be comfortable working in the same environment as Mr Cockayne who would be reporting to him and that would be unable to be changed. 154 Ms Crothers was unable to say from an operational perspective whether HCC had considered looking at an alternate position that could be worked by Mr Cockayne. It may have been something that Mr O'Connor took into account from an operational perspective. However it was observed that Mr Cockayne worked in fairly isolated areas and that Mr Scanlon would have had contact with him and he was the Manager of that area. There didn't seem to be another alternative reporting path. She was also aware that at the moment there was no alternate position available that would be suitable, given Mr Cockayne's skills and abilities. 155 Mr Cockayne briefly deposed (and Mr Scanlon deposed in reply) as to an out of work altercation which occurred between the two of them in a social context in the late 1990s that did not impact on their work relationship. Submissions on Behalf of the Applicant 156 Mr Coleman, for Mr Cockayne, submitted that as far as the events that occurred on the 24 July 2008 were concerned, there was not a great deal of difference between the version put to the Commission by Mr Cockayne and that put by Mr Scanlon. There were a few differences in detail but in substance they were pretty much the same. 157 However it was the interpretation that was put on those non-disputed facts that was central to HCC's decision-making process and its consideration of those matters and thus to these proceedings. 158 It was submitted that in essence Mr Cockayne lost his temper and there were two aspects as to how that manifested itself. 159 The first aspect was the altercation with Mr Scanlon and the important aspects of that, about which there was no dispute, was that he did shout at his Manager and he did use what would generally be regarded as abusive language. However that had to be seen in the context of two grown men. There was no physical contact between the two men. Mr Scanlon's evidence was that he believed it might have been the intention of Mr Cockayne to have some sort of physical contact but Mr Cockayne said he never had such an intention and he made no attempt to make physical contact. 160 It was emphasised that this was a crucial issue because one of the allegations made by HCC against Mr Cockayne was that there was an attempt to make physical contact and physically assault Mr Scanlon. 161 It submitted that the evidence made it clear that there was no such attempt. Mr Scanlon said he stood there with his hands in his pockets and moved away and moved back as the applicant moved worked. Even on Mr Scanlon's evidence if Mr Cockayne had wanted to attempt to make physical contact with him he could have done so. That did not occur. 162 It was therefore submitted that there was no physical contact, no intention and no attempt to do so. 163 The second aspect of the incident was what occurred in the office. There were no witnesses other than Mr Cockayne and the physical evidence of what happened and what resulted. Mr Cockayne had admitted frankly and consistently from the beginning and right through the investigative process and to this Commission that he picked up the chair and "smashed it" to the floor in anger. The chair broke with photographs showing it in a number of pieces. In the process there was some minor damage done to the best. 164 Mr Cockayne gave evidence as to the history of the chair and how he had rescued it from the rubbish and taken it to the office, an office he uses rarely being mainly out in the field. 165 Whilst there was some uncertainty about the origins of the chair the Commission did not need to resolve that issue. It was submitted that it did not matter whether it was HCC property, Mr Cockayne did break it in a fit of rage but no one was put in danger by that and no significant consequences flowed from it. Importantly Mr Cockayne's evidence, which was not really challenged, was that he certainly had an intention to pick up the chair and throw it to the floor, but he had no intention to actually break the chair. There was the difference. The allegation put to him was that of intentionally breaking the chair, however he had consistently denied such an intention. 166 In relation to the desk, it was clearly HCC property and there was some damage. That was submitted by Mr Cockayne from the beginning. Importantly the evidence overwhelmingly demonstrated that the desk is still usable and there was only minor damage done to it 167 Mr Scanlon's original evidence related to his genuine belief that the desk had been removed due to it being unusable. The evidence of Ms Willes, made clear by the photographs, established that the desk is still there to this day, being used and no detriment has been suffered from that small amount of damage. It was to Mr Scanlon's credit, when this further evidence was put to him, that he was prepared to admit that he had wrong. 168 It was submitted that it was clear from the evidence that there was no occupational health and safety issue arising from the small amount of damage done to the desk and its continued use. Mr Cockayne again gave evidence that he had no intention to damage the desk and this was really unchallenged. 169 It was conceded that the conduct of Mr Cockayne was inappropriate in the workplace. He recognised this almost straight away in admitting what he'd done and apologising to those concerned. It was submitted that this was to his credit. 170 Once the report had been made by Mr Scanlon HCC was obliged to investigate that, which was what occurred with five allegations being made. Following investigation of the five allegations, the allegation concerning improperly leaving the workplace was not sustained. 171 Mr Coleman pointed out that a decision was taken at a very early stage to suspend Mr Cockayne without pay, which was available to HCC under the Local Government (State) Award 2007 and if the charges were not sustained then the Award provided that there be payment of that time. However it was also available under the Award to conduct an investigation without any suspension but HCC took the most severe course available to it having taken a preliminary view that the matter was serious. The investigation followed a number of logical steps but seemed to be predicated on the assumption that this matter was very serious and, influenced by the fact of the early suspension, it was almost self-fulfilling that it would lead to termination. 172 Mr Coleman then dealt with the five specific allegations against Mr Cockayne as contained in the letter of suspension of 25 July. 173 Aggressively yelling and swearing at your direct Manager This was agreed and there was no dispute about that. 174 Intimidating and attempting to physically assault your Manager That was disputed and denied. There was no attempt to assault, there was no assault and there was no intention to assault. 175 Mr Coleman submitted that intimidation is a subjective analysis of the objective facts. The term and the concept of intimidation implied something in the nature of duress. That is, wanting something from someone else, who was not going to give it, and intimidating then into making some sort of concession. A hypothetical example was given of an employee in the workplace trying to intimidate their supervisor to get approval for annual leave or some sort of decision in their favour. 176 The incident involving Mr Cockayne had no element of that nature in it. It was, in substance and totality, Mr Cockayne "letting off steam", albeit inappropriately, as was conceded. He did not want to achieve any results from Mr Scanlon by his conduct, he was just displaying his anger. This was why he denied either intimidating or intending to intimidate Mr Scanlon. 177 It was also submitted that the responses to HCC in Mr Cockayne's show cause letter (Exhibit 13-L) were entirely consistent with his evidence to the Commission even after cross examination. 178 Further the Commission has had the benefit of seeing both men in the witness box. Mr Scanlon agreed he was a "well built man, he's fairly robust". It was submitted that he was not the sort of person that would be easily intimidated or frightened by the sort of conduct that he endured that day. Additionally he worked (with HCC permission) as a Doorman in a registered club where he had to deal with difficult and potentially aggressive people on a regular basis. 179 Mr Coleman also drew the Commission's attention to the evidence of Ms Willes as to her subsequent conversation with Mr Scanlon where he told her that he wasn't particularly concerned about the altercation, and more concerned with the damage to property. That attitude was reflected in his own statement relating what happened where he said "after witnessing the damage done to the office, I thought that this was a matter that needed to be reported to human resources". The implication from his own words confirm what he told Ms Willes that it was the damage that was his concern not what had happened a few minutes before. 180 It was submitted that that made it quite clear that Mr Scanlon wasn't intimidated and wasn't a person who would have been easily intimidated. 181 Acting in an unsafe manner This allegation was "fleshed out" in the respondent's evidence. In relation to that evidence it was difficult to see a link between Mr Cockayne's conduct and the OH&S Charter or what was every employee's obligations under occupational health and safety legislation. Occupational health and safety is an important part of any workplace and every employer and employee is obliged to take it seriously. 182 It was submitted that Mr Cockayne's actions on 24 July did not interfere with or even touch on that obligation or was a breach of it. Whilst it was inappropriate conduct from a number of points of view, it was not from a safety point of view. 183 Deliberately damaging and destroying Council property There had been a clear admission all along that there was damage done to HCC property but a denial that it was deliberately damaged in the sense that there was an intention to break the chair or damage the desk. 184 Leaving the workplace without authorisation This was not pressed by HCC in the termination letter and there was no need to deal with this allegation further. 185 Mr Coleman also submitted that whilst it had been conceded from the beginning that Mr Cockayne's conduct was inappropriate there were mitigating factors that needed to be a taken into account in explaining that conduct. 186 Firstly there was clear evidence that he had a bad cold, or cough as he called it, and did seek medical advice earlier in the week, which was to take time off work. He felt he couldn't because of the pressing need to complete the tasks that urgently required attention. 187 The second element that contributed to the distress he suffered that day was the grant application that was due and involved a considerable amount of work as well as the organisation for National Tree Day which was only a few days away. 188 It was submitted that Mr Cockayne had a genuine belief that he wasn't getting support and help from other employees in these tasks that he had to do. Whether that was factually justified or not it was his belief and very present on his mind on the day. 189 Thirdly there was the evidence as to stresses in his personal life arising from the 10th anniversary of his brother's death that was approaching, an anniversary which he marks by a private ceremony on National Tree Day which coincides with his brother's death. It was submitted that this was a very significant time for him and was weighing heavily on his mind. 190 He also gave evidence as to unresolved issues concerning the death of his friend and colleague some years before. 191 There was also the evidence of the psychologist that was provided to the Council at the time (Exhibit 13-M). 192 The Commission was asked to take these mitigating factors into account. 193 It was submitted that it was difficult to know whether HCC had taken these factors into account, as the ultimate decision maker, the General Manager, did not give evidence before the Commission. There was evidence as to the recommendations made by the Human Resources Manager and Ms Whitehurst, but it was difficult to know at all what weight was given to those factors. 194 It was also submitted that it was to Mr Cockayne's credit that he made admissions straight away and expressed his regret and said he was sorry. 195 As to his response in the show cause letter, that appeared to have been a document prepared by his Union at the time, and the words "I refute all allegations", this was apparently interpreted by the Human Resources Manager as a withdrawal of his admissions. It was submitted that it could have been better expressed because he certainly at no time attempted to withdraw or wanted to withdraw his admissions to the bare facts of the altercation or the damage done. 196 Mr Coleman submitted that it was "regrettable" if this interpretation had occurred from those words but again it was difficult to know that because there was no evidence from the two decision-makers as to what impact that this interpretation had, if any, on the decision to dismiss. There was only the evidence of Ms Whitehurst and the letter of termination. Ms Whitehurst related that "after detailed discussions it was our opinion" so it could be assumed that that involved the decision maker himself. 197 It was also submitted that it was never put to Mr Cockayne that there was an irretrievable breakdown of the employment relationship and he was never given an opportunity to answer that allegation. The only evidence in relation to an irretrievable breakdown was Mr Scanlon saying he would find it uncomfortable to continue to work with Mr Cockayne, with the Human Resources Manager also saying this second-hand. 198 It was submitted that that evidence did not make out any type of breakdown in the relationship, especially when no efforts had been made to see if that was in fact the case other than a bare assumption. There was no attempt to see if the two men could get together and sort out any possible discomfort. In any event discomfort itself, even if it was continual, if that was the reason for the termination, would result in a lot of terminations because often a relationship is not comfortable but it exists and works. 199 Mr Coleman reminded the Commission of the affidavit evidence of Mr Cockayne and Mr Scanlon as to the event in the late 1990s where there was an incident between the two. This occurred prior to Mr Scanlon becoming Mr Cockayne's supervisor. They were able to sort out the differences that resulted from that altercation and that caused no apparent problem in their working relationship. It was submitted that that indicated that a short supervised meeting between the two men, or else just between the two of them, would have been able to sort out any discomfort. 200 It submitted that whilst Mr Cockayne was dismissed for serious misconduct with no notice given or paid, any wrongdoing did not amount to serious misconduct justifying summary termination. This was available to an employer only in very rare circumstances, for example if indeed there had been an assault, particularly a serious one, that would justify a summary termination. The circumstances of two "outdoor" employees, with one being shouted at in the yard, did not constitute serious misconduct. Neither did, in all the circumstances, the damage to property because there were just no serious repercussions. 201 To justify summary termination one turns to the common law and essentially in it involves a manifestation by one party to the contract of employment that they no longer intend to be bound by that contract. It was submitted that that was not made out on the evidence and at the least it was maintained that Mr Cockayne was entitled to notice. 202 Being dismissed for serious misconduct, in the case the case of a long serving public sector employee working for HCC for 14 years and 9 months, will significantly impact on his ability to find other work. He worked in a confined field principally located within other councils and to have on his record, dismissal for serious misconduct, would certainly hinder his ability to obtain work with any employer. That was particularly unfair and added to the unfairness of the termination. It was submitted that that was not justified at law. 203 The Commission was asked to take into account the following: · Mr Cockayne's 14 years and 9 service, his good, clear record and effective work in his chosen field as well as the evidence of the volunteers which indicated he was popular, well liked and effective in his job. · Additionally he had the support of a workmate who was prepared to come and give evidence in these proceedings which was unusual and to her credit. · The incident was a one-off event. · There were mitigating circumstances and no serious consequences flowed from it. 204 It was submitted that in all the circumstances the dismissal was unfair and having regard to the terms of the act, the termination met each of the three tests, of being "harsh, unreasonable or unjust" both individually and collectively. The principal term relied on and stressed was "harsh". The punishment had to fit the crime. The repercussions that resulted from the wrongdoing basically didn't fit the punishment in this matter. 205 Mr Colman relied on the Australian Workers' Union v Transfield Services (Australia) Pty Limited [2008] NSWIRComm 1120 in which Connor C, cited with approval Pacific Power v Crump (1993) 48 IR 296 at p 302 ... "the ultimate sanction of termination was too severe a penalty...". It was submitted that those words were apposite to this case. There was wrongdoing, but termination was too severe a result. Connor C also relevantly cited Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231 in relation to intervention to order reinstatement because mitigating circumstances or past conduct had shown termination to be too harsh a consequence. 206 The Commission was also referred to the provisions of the Local Government (State) Award 2007 concerning disciplinary procedures (clause 31) that provided for a three stage process for serious misconduct, which it was conceded did not have to be followed. It was submitted that there did not appear to have been much consideration, if any, to the Award procedures with again, no knowledge about the decision-makers thinking. 207 It was submitted that the wrongdoing that was admitted to would probably have been better dealt with by a first warning pursuant to the Award disciplinary procedure, combined with a meeting between the two men to resolve any difficulties that emerged in the relationship because of the altercation. In reaching the decision to dismiss there was an assumption by HCC that there was this irretrievable breakdown and the evidence didn't get anywhere near to such a degree. 208 It was submitted that the Commission had had the opportunity of observing both men in the witness box. They appeared to be relatively mature men and fairly reasonable in their approach to things and they demonstrated an ability to almost certainly put any downside to this altercation behind them. 209 Finally it was submitted that s.89, provided that the principal remedy was reinstatement, with compensation a secondary remedy only if reinstatement was not practicable. In this case reinstatement was clearly practicable and appropriate for a number of reasons as follows: · Mr Cockayne's 14 years and 9 months of blemish free service demonstrating his character. · He had a good record. · His job was his career, which he started at age 24 after obtaining TAFE qualifications. · He had dedicated and built his life around his job and there were limited job opportunities elsewhere. · HCC is a relatively large public sector organisation. There was no evidence of precise numbers but there was evidence of the hierarchy of the organisation which demonstrated it was a large one. It would be able to cope with an order for reinstatement. · The clear impression given by the evidence was that there wouldn't be any ongoing difficulty in the relationship between Mr Scanlon and the applicant. · Mr Scanlon reported the incident, he wasn't the decision maker. There were no hard feelings from Mr Cockayne towards Mr Scanlon who appeared to be a reasonable person, fairly mature in his outlook and fairly tough and practical. He said if there was a reinstatement order he would feel uncomfortable but that was as high as it got. · Discomfort wasn't sufficient to put up a barrier or make reinstatement impracticable. The evidence was the applicant worked principally away from the depot and there was very limited direct supervision. · The grant applications were done by the applicant pretty much on his own and it was read over or approved by Mr Scanlon so there was little day-to-day contact. 210 In relation to the issue of the test of practicality of reinstatement reliance was placed on CCH Australia Limited v Bowen (1998) 79 IR 217 which in turn cited with approval Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. Submissions on behalf of the Respondent 211 Mr Keech expanded on the written submissions filed on behalf of HCC (Exhibit 14) and in doing so submitted that the termination of Mr Cockayne was not harsh, unjust or unreasonable. 212 He acknowledged that in situations where misconduct results in the termination of an employee's employment, the onus of proof rests on the employer to prove, on the balance of probabilities, that the facts existed to support its decision. 213 Mr Keech summarised the evidence concerning the background to the altercation on 24 July concerning the use of a HCC truck and the altercation between Mr Cockayne and Mr Scanlon including outlining the relevant actions that took place between the two men. 214 It was pointed out that Mr Cockayne, through Counsel, had referred to the incident as consisting of swearing and yelling at his Manager before entering into an office and breaking a chair and the desk. He had denied any other allegation including intimidating his Manager or threatening to assault his Manager. It was important to remember that those allegations were later refuted in whole. Whilst Mr Coleman had referred to that as a "misinterpretation" of the words by Ms Crothers, the Commission was asked to consider the words actually used, namely.. "I refute all allegations that have been stated and I feel the whole situation has been blown out of proportion", and give them the plain and ordinary meaning that Ms Crothers did at the time, and during her evidence. That was that all five allegations that had been put to him had been denied when he had previously admitted to them. 215 Ms Crothers received statements from Mr Scanlon and witnesses, which verified that, in their opinion, Mr Cockayne appeared to intimidate and threaten to assault or in some instances actually assaulted his Manager. 216 In relation to the desk, it was not in dispute that it was in good condition prior to the incident and that subsequently there was substantial damage by Mr Cockayne. There was no indication as to the history of the desk after that date and although evidence had been put forward that the desk was still in use, there may be a question as to whether it was fit for current use. However there should be no doubt that the damage done to the desk was significant and was considered so by all parties involved at the time and that had been admitted to by the applicant. 217 It was submitted that the Commission should not be led into considering what may or may not have happened and what effect it may have had on the employment relationship if only part of the incident had occurred, and whether or not Mr Scanlon would have reported it if it had ended after the interaction with Mr Cockayne. It was important to note that Mr Scanlon did not concede this. 218 When considering the two incidents together they constituted serious misconduct. 219 In reply to the submission made by Mr Coleman on the issue of intimidation as having the purpose of being done by one person in order to get something from another person, Mr Keech indicated that that was one purpose for intimidation. Another reason was to make someone feel a certain way. 220 It was submitted that it was Mr Cockayne's intention to put fear or stress or some other element into Mr Scanlon. This was supported by Mr Cockayne's evidence that he was stressed and felt he was letting out his frustration from the work he needed to achieve in the next few days. It was his intention to distress Mr Scanlon, possibly put fear into him and by doing so alleviate the stress and concern that he had. He said that by acting this way towards his Manager he felt better. 221 There was evidence to show that Mr Scanlon was intimidated by the actions of Mr Cockayne, and he continued to assert under cross-examination that he felt threatened and intimidated. He had also rejected the comments that were made to Ms Willes, putting those comments into a context. 222 It had been submitted by Mr Coleman that Mr Scanlon was not a person who would be intimidated easily. He was described as being robust and a person who might be confronting violence in his other employment. He was also described as a credible witness. However Mr Scanlon said he felt intimidated and would be concerned not only for his own safety but the safety and well-being of those he worked with and that reported to him if Mr Cockayne's employment continued. 223 It was submitted that this admission of Mr Scanlon's feelings showed the extent to which Mr Cockayne went in his conduct and went to the heart of the seriousness of this matter. 224 Mr Cockayne indicated that he was particularly stressed at the time of the incident and in justification referred to it as occurring around the same time as the anniversary of his brother's death, working with National Tree Day and completing grant applications. On his own admission he had not raised issues in relation to stress with HCC and only sought treatment for it after the incident. He had given evidence that he has been involved with National Tree Day since 1999 and that his brother died 10 years ago. It was submitted that the strains placed on him personally because of these circumstances were not unique and by his own admission he had not acted in this way before despite the same set of circumstances occurring on a yearly basis. 225 It was submitted that he should not rely on these reasons as an excuse of that behaviour. Ms Crothers' evidence was that Mr Cockayne saw the behaviour as a way to strike out at HCC resulting from his opinion that his role was not valued and the work he had was creating that stress. 226 Mr Cockayne gave evidence about being passionate about his work at HCC and a range of activities surrounding the volunteer work he undertook which by his submission was not part of the requirements of his job. It was submitted that it was through that workload that distress arose. It was not so much stress that HCC was putting on him, but stress he was putting himself under because of his interest in the work he did. 227 In relation to the grant applications, the evidence of Ms Willes and Mr Scanlon was that whilst receiving grant funding was beneficial, welcome and encouraged, the role of Wetland Officer did not rely upon obtaining grant applications. In a similar role Ms Willes had only averaged the completion of one application a year with no evidence as to whether any of those were successful. 228 Reliance was placed on Marshall v Sydney Water Corporation [2007] NSWIRComm 1035, which concerned an issue as to whether an employer should take into account evidence regarding the cause of an employee's psychotic episode, where the employee was seeking reinstatement on the basis that his actions were involuntary and out of character. 229 Mr Cockayne had referred to the incident as a fit of rage and therefore there was a correlation with that fit of rage to Marshall. Mr Cockayne made the same claims as to why he should be reinstated. 230 However HCC had an obligation under the Occupational Health And Safety Act 2000, to ensure that it provided a safe workplace for all of its employees and also its volunteer workforce. It was Mr Scanlon's evidence that he was not only concerned about his own health and safety if required to work with Mr Cockayne again but also the health and safety of his staff and the volunteers. 231 It was submitted that it had been established through the evidence of Mr Cockayne that he had not acted in this way before therefore it could not be argued that HCC had acted harshly on this occasion, where it had tolerated it on other occasions see Australian Workers' Union v Transfield. 232 It also submitted that during the course of the investigation Mr Cockayne provided medical information as a way of demonstrating that he was not in a proper state of mind. This was the first time such medical issues had been raised. It was important to note that no evidence had been brought to suggest that he had a medical condition or to demonstrate that HCC did anything other than fully consider his position in its entirety. The medical evidence had been put on by HCC in Ms Crothers' Affidavit to show the extent to which they thoroughly considered Mr Cockayne's position when terminating his employment. 233 Mr Keech pointed out that in the medical evidence filed, at no stage did Mr Cockayne say that this would not happen again. He had never said he could give an assurance that incidents such as this will not happen again. This was a genuine concern on the part of HCC, based on the medical evidence which says that action needs to be taken to prevent things like this happening again. There was no guarantee for HCC that a fit of rage would not occur again and the same situation might occur when the office was full of people or there were others in the vicinity and were in danger. 234 Submissions had been made on behalf of Mr Cockayne that it was not a deliberate breaking of the property, however if one was to accept that then there was nothing to say that the same fit of rage could not occur in the future. 235 It was submitted that there was a real risk to occupational health and safety in reinstating Mr Cockayne or having him continue his employment. Those issues were not taken into consideration in the submissions made on his behalf. 236 Mr Keech further submitted that HCC conducted an investigation where procedural fairness was afforded to Mr Cockayne. All aspects of his actions were properly considered and all information presented in his defence was taken into account. When it was subsequently found that the allegations against Mr Cockayne were sustained and the behaviour constituted serious misconduct, he was provided with an opportunity to show cause as to why his employment should not be terminated, to which he responded. 237 The various steps taken in the investigation and the relevant evidence about those steps were summarised by Mr Keech. 238 HCC had acted quickly and diligently to ensure that the most procedural fairness possible was afforded to Mr Cockayne and his submissions in relation to the conduct were appropriately considered prior to the making of a final decision. 239 The seriousness of Mr Cockayne's actions mitigated against any benefit that would otherwise have existed when considering his length of service and satisfactory employment history. His lengthy service of 14 years was outweighed by the severity and seriousness of the misconduct. He deliberately destroyed and damaged HCC property and threatened to physically assault his Manager. This all occurred over a reasonable and lawful direction issue to Mr Cockayne where his Manager was attempting to provide additional tools that were not required to perform the work. In such a situation the actions of Mr Cockayne greatly outweighed the lengthy service and carried little weight in view of the serious misconduct. 240 It was submitted that this was consistent with current case law. 241 It was submitted that the termination of Mr Cockayne was not harsh, unjust or unreasonable, however if the Commission found that that was not the case it was the position of HCC that reinstatement was not possible in this instance. 242 This position arose from the witness statements of Mr Cockayne's co-workers and his Manager's evidence in relation to his inability to work with Mr Cockayne. 243 Further, reinstatement would seriously compromise HCC's obligations under the OHS Act and create an unfair and onerous obligation on HCC. In particular HCC would not have any certainty that another "psychotic episode", either similar to this one or worse, would occur in the near future. If Mr Cockayne was reinstated HCC would have difficulty complying with its obligations under the OHS Act. 244 It was also submitted that there was a real loss of trust and confidence in the employment relationship. Mr Keech also relied on CCH v Bowen and in turn on Perkins v Grace Worldwide. 245 In reply to the submissions of Mr Coleman concerning CCH and Perkins, the Commission was reminded that the focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable with the Full Bench holding that trust and confidence were necessary ingredients in any employment relationship. 246 When considering the facts in this matter there was no evidence to suggest that the breakdown between the parties was anything that other than irretrievable. Mr Cockayne had not said he would be able to work in the same capacity he had prior with Mr Scanlon. His evidence was actually to the contrary and the Commission had been taken to that. It was stressed that the applicant had not put forward any evidence to indicate that the relationship may be repaired. It was the position of HCC through the evidence of Mr Scanlon and the admissions of Mr Cockayne that the only alternative employment would be where he spent limited time at the Depot, that the trust and confidence within the relationship had deteriorated to a point were it may not continue. 247 Mr Keech also rebutted the submissions made about the issue of "discomfort" pointing out that Mr Scanlon's evidence showed that much more than discomfort was involved. He had given evidence to say that he had dealt with difficult people in other employment yet had said under oath that he had genuine concerns about his well-being and the well-being of those around him. 248 In conclusion it was submitted that Mr Cockayne was afforded procedural fairness, including the representation of his Union. It was found that he had breached his obligations to provide a safe working environment and that the employment relationship had deteriorated to a point where it could no longer continue. Despite his years of otherwise good service his actions warranted termination. The termination was not harsh and came about as a result of a thorough investigation regarding conduct that was found, on the balance of probabilities, to have occurred. 249 For the reasons outlined on behalf of HCC it was submitted that the application should be dismissed. Submissions on behalf of the Applicant in Reply 250 Mr Coleman submitted that the evidence was very nebulous as to the extent to which there had been an irretrievable breakdown of the employment relationship and whether that was a factor in the decision-making process. The decision makers were not called as witnesses. Further it was never put to Mr Cockayne that there was a breakdown in the relationship. This was never a reason that was formulated into the allegations of charges made. 251 This was a denial of procedural fairness. Whilst that didn't play a significant role in the ultimate decision-making, which concerned whether there was misconduct or wrongdoing to justify termination, Mr Cockayne may well have hypothetically said he didn't see any problem in having an ongoing working relationship with Mr Scanlon. As had been previously submitted, the totality of the evidence suggested that that would be likely and still possible. 252 Mr Coleman also rejected the reliance placed on Marshall pointing out that it was fundamental in this jurisdiction that each case had to be determined on its own facts and circumstances. There was no evidence at all of any psychiatric illness in Mr Cockayne's case. There was the Psychologist's report and a preliminary diagnosis by the Psychologist but nothing in the nature of psychosis. It was entirely inappropriate to use that term in this case. 253 In relation to the reliance placed by Mr Keech on the fear of HCC that a similar episode might occur again, that was unfounded when proper regard was had to the evidence. Mr Cockayne didn't say in the witness box that he promised it would never happen again. He could have done that but didn't. What he had done is relied on his 14 years and 9 months of clear service when nothing of this nature had occurred, a one-off episode that was explained by mitigating circumstances. He immediately acknowledged and apologised for the incident. It was submitted that implied in the apology was an assurance that it won't happen again. Reference was also made to the evidence of the Psychologist concerning ongoing counselling. 254 It was submitted that the Commission had had the opportunity to see Mr Cockayne in the witness box and make its own assessment as to his character. A fair assessment would lead to the view that what had happened on 24 July was "one off" and very unlikely to happen again. That also covered the occupational health and safety aspects relied on by HCC because there could be no genuine or real concern that this would happen again. Consideration 255 I have very carefully considered the evidence and the submissions of the parties in this matter and indeed thought long and hard about the Orders I propose to make in this matter. That consideration has followed the usual course taken in relation to making a final determination in any decision concerning an unfair dismissal application. This involves weighing up opposing factors/issues from both sides. A course which generally results, during the first stages of that process, in the metaphorical scales tipping first one way then the next until they eventually tip to a final and irreversible position either for or against an applicant. 256 I have also had the opportunity of observing the general demeanour of the witnesses and in particular that of Mr Cockayne and Mr Scanlon. Both gave their evidence in an honest and forthright manner. I was impressed with both men. This will be relevantly commented on further below. 257 Mr Coleman has rightly identified the main issue for consideration in this matter as to whether or not termination of Mr Cockayne by HCC as a response to his conduct on 24 July 2008 was too harsh a penalty, taking all relevant circumstances into account, including the seriousness of the conduct. 258 It was submitted that whilst Mr Cockayne's conduct on that day was "inappropriate" it did not amount to serious misconduct warranting summary dismissal and to that extent the termination was "unfair". 259 Mr Keech has rightly acknowledged that the onus is on HCC to establish that misconduct has taken place. 260 Whilst neither party took the Commission to the appropriate authorities in relation to the evidentiary onus, the principle is well established and has been consistently applied in numerous decisions of this Commission 261 The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007} NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus. 262 In Prior, after upholding the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 through an unbroken line of authorities to Budlong v NCR Australia [2006] NSWIRComm 288, the Full Bench went on to state: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. 263 However, in misconduct cases, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise the Commission must also consider whether the termination was harsh or unjust or unreasonable, or any combination thereof, per s.88 of the Act. Here however, the evidentiary onus moves back to an applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 264 The Commission must therefore firstly consider whether the misconduct as alleged did occur and if so whether it was of sufficient seriousness, in all the circumstances, to warrant termination, either on a summary basis or with notice. In considering the concept of misconduct the following cases have been of assistance. 265 In Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371, a decision which has also been consistently applied, Cook J said at 374: ..... the question of whether the conduct of an employee amounts to misconduct 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 lawful commands of the employer and the right of the employer to enforce discipline....... 266 In North v Television Corporation Ltd (1976) 11 ALR 599, what Smithers and Evatt JJ said at 608-609 is also relevant: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct but not regarded as grounds for termination. In such a situation it is reasonable to interpret that the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. 267 In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP at para. 218 summarised the issues for consideration in misconduct cases by positing four questions: 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justify summary dismissal? 3. Did the conduct constitute a fundamental and wilful repudiation of the contract? 4. Were mitigating factors taken into account? 268 This leads the Commission back to the events of 24 July and consideration of what occurred between Mr Cockayne and Mr Scanlon, based on the evidence. 269 There are some differences, but not significant ones, between the two accounts of the two men involved as to the actual verbal exchange (which in my view neither men have given in complete and total word for word detail) and the physical actions that took place. 270 After carefully considering the evidence it is my view that Mr Cockayne essentially totally lost his temper and yelled at Mr Scanlon and used abusive language, including swearing, in what could certainly readily be perceived as being so angry as to be aggressive. He also physically advanced towards Mr Scanlon resulting in Mr Scanlon having to move back in the face of that advance. It appears that Mr Scanlon believed that Mr Cockayne was about to raise his arms and possibly make physical contact with him by pushing him and that this was threatening and intimidating and he only ceased completing and carrying out that action because Mr Scanlon told him it would be his job if he did so (or words to that effect or certainly words that conveyed that consequence). 271 Other employees witnessed the incident and also thought that Mr Cockayne either did or was going to push/make contact with Mr Scanlon in some way. 272 Mr Scanlon reacted appropriately to the situation by keeping his hands in his pockets so as not to offer any sort of provocation. This was a technique for dealing with potentially difficult situations that he had picked up through his part-time secondary job as a Doorman in a Bowling Club working two night shifts a week. A job in which it is clear that, whilst he indicated that there were Security Guards to deal with ejecting customers as necessary, Mr Scanlon would also have had occasion to deal with difficult members of the public seeking access to the Club. 273 Mr Scanlon also quite appropriately issued a firm direction/warning to Mr Cockayne about physically making contact with him in any way and the consequences of such an action. 274 Mr Scanlon made it clear subsequently that the other employees were wrong in their belief and that no physical contact took place. 275 I have to say at this point that I do not accept the assertion made by Mr Cockayne, as contained in his 28 July letter to HCC (Exhibit 13-H), that Mr Scanlon "did not act in a manner to subdue the situation and egged me on to lose my temper." 276 It is quite apparent that Mr Scanlon had no idea how overloaded workwise Mr Cockayne was at that particular time, nor did he have any idea of the stresses that he said he was under. In the face of Mr Cockayne's explosive and unexpected outburst, I consider that in all the circumstances Mr Scanlon did act appropriately. The situation could have got very easily out of hand. 277 For his part Mr Cockayne denies that he had any intention to either physically assault or intimidate Mr Scanlon. In any event Mr Cockayne did not make any physical contact with Mr Scanlon, complying with Mr Scanlon's direction/warning. A matter I find is to Mr Cockayne's credit and will be commented on further below. I tend to agree with Mr Coleman that if Mr Cockayne had in fact been so minded as to physically assault Mr Scanlon he would have indeed done so. 278 After carefully considering all the evidence as to what occurred, I am of the firm view that there was no intention on Mr Cockayne's part to physically assault or intimidate Mr Scanlon, however much his actions may have been perceived as being such by Mr Scanlon and any other employees witnessing the incident. 279 I do not accept the submission of Mr Keech that what Mr Cockayne was seeking to do was to put to fear into Mr Scanlon. That would seek to elevate what occurred to a level I consider quite unfounded and ridiculous. Mr Cockayne was simply extremely angry and frustrated and vented that anger and frustration at Mr Scanlon, but in a totally inappropriate manner. 280 Similarly, I just cannot agree with Mr Keech's attempts to draw parallels with Marshall and characterise what happened as a "psychotic episode". That is also unfounded and ridiculous. 281 I agree that Mr Cockayne, as Mr Coleman put it, simply "lost it", lost his temper out of frustration and stress and certainly overreacted in a totally inappropriate and unacceptable way to Mr Scanlon who had told him that he could now have the truck because the other employee no longer required it. 282 Mr Cockayne's temper/anger outburst also saw him slam the truck door and throw its keys across the ground. 283 Mr Scanlon was clearly shocked/taken aback/concerned as to what had just happened with Mr Cockayne. However I note that once Mr Cockayne left the immediate vicinity, Mr Scanlon said he went back to carrying on the task he had been engaged in prior to the incident. He was not so concerned, at that stage, as to pick up the phone and immediately report the incident to anyone in higher authority. Indeed Mr Scanlon acknowledged that the matter might not have gone beyond the authority he had as a Manager to deal with disciplinary issues (verbal warnings/file notes etc) but for the subsequent action of Mr Cockayne in damaging the chair and desk. Although he qualified that by saying that due to the aggressiveness of what occurred he might have referred it up. 284 Similarly, in considering the subsequent damage that Mr Cockayne caused to the chair and desk in the office, I accept the evidence of Mr Cockayne. I do not consider that Mr Cockayne had any intention to damage the chair and desk. He certainly deliberately picked up the chair and threw it or "smashed" it (Mr Coleman's term) to the floor but I seriously doubt that it was with the intention of breaking the chair. 285 The damage to the desk/chair was clearly the result of Mr Cockayne's actions. That does not establish that that was the intention of the action - it was simply the result. In the same way as tossing a book onto a table might cause it to slide across and knock some valuable and breakable object off the table and smash on the floor. It does not follow that it was intended to break the object in question by that action. 286 Again, in my view, this was a reaction on the part of Mr Cockayne, albeit totally inappropriate and unacceptable, but a reaction borne of anger and frustration rather than malice and deliberation. 287 I also agree with Mr Coleman that it is the interpretation of the actions of Mr Cockayne that have resulted in the adverse findings made by HCC against Mr Cockayne. 288 Additionally there is the interpretation that has been formed by HCC that Mr Cockayne has rebutted, through his show cause letter (Exhibit 13-L), the admissions they consider that he had formerly made in relation to the allegations. And indeed this raises the issue of the belief that HCC formed that Mr Cockayne had in fact admitted to all the allegations put to him in the two meetings held. 289 It seems to me that this in itself (alleged admissions made to an intention to physically assault/intimidate/damage and then rebutted) has counted heavily against Mr Cockayne in HCC's consideration of penalty and thus cancelled out any consideration that would otherwise have been given to his excellent work record and service on behalf of HCC. 290 The Commission is not assisted by the fact that neither of the two most significant decision makers was called to give evidence, namely Mr O'Connor and Mr Lampe, the General Manager. 291 Also there is just no evidence as to exactly what admissions Mr Cockayne did make, in what terms or indeed whether he actually understood just what the allegations meant and just what he was admitting to. Ms Crothers seemed to acknowledge that Mr Cockayne may not have understood the difference between "attempting to physically assault" and "intending to assault". She also acknowledged that he "generally admitted to it acknowledged his actions and apologised for his actions". 292 The apparently general nature of any admission causes me a very great deal of concern and leads me to seriously question just what understanding Mr Cockayne had about precisely what he was ultimately being accused of, the critical nub of which was an intention to physically assault and intimidate and an intention cause damage to property. There is no doubt that he admitted to an altercation taking place with yelling and swearing and apologised for that, but I do seriously question just to what extent that can be said to be an admission of the entirety of the allegations as put by HCC. 293 Neither side called the other person present, Mr Margerison from the USU, who was representing Mr Cockayne's interests and who may have been able to shed some light on this issue. 294 Further the Commission has not been assisted by the fact that, somewhat unusually in my view, it does not appear that detailed notes/minutes were kept of the various meetings between Ms Crothers etc. and Mr Cockayne which could (and in normal disciplinary procedures would) have been made available to an employee and their representative to check as to accuracy/ amendment/addition etc. If such notes/minutes were kept there was no reference to such in the evidence or during the hearing. 295 I suggest that had appropriate and detailed minutes/notes of the disciplinary meetings held been made, then any misinterpretation that appears to have resulted from what Ms Crothers believes Mr Cockayne said/meant and whether he did in fact say/intend to convey that understanding may have been either avoided or established beyond doubt. 296 If there was some misunderstanding/misinterpretation, Mr Cockayne also did not have any opportunity of clarifying what he meant in the light of the views HCC had formed and acted upon. 297 I consider that it was most unusual that such minutes/notes were not kept and subsequently made available to Mr Cockayne's and his Union representative. I strongly recommend that such procedure be followed in the future even if, of necessity, that means the investigative/disciplinary process will take longer. 298 Frequently such minutes/notes are tendered in unfair dismissal proceedings, often by both sides and with the corrections an applicant believes should have been made. The Commission is then usually faced with alternate versions, which in itself is somewhat unhelpful, but it does invariably crystallize those exact responses that can have created confusion/misunderstanding or can confirm in fact what one side or other has fervently maintained. Such documentation has always proved of assistance and indeed on some occasions has been crucial to enabling a determination to be made either in favour of an applicant or a respondent. 299 This does not automatically mean that ordinarily this was such a flaw in the procedure so as to raise a serious issue of procedural unfairness. But in this matter it does mean that, in my view, the procedure followed did not properly allow the decision makers to be fully informed, beyond doubt, of firstly, that Mr Cockayne understood the allegations that were being made and just what they meant and secondly, exactly what Mr Cockayne had admitted to and acknowledged and therefore whether, as a result, termination was warranted. To that extent the process was unfair. 300 This has also created difficulty for the Commission in being able to form a conclusion about what admissions were in fact made and therefore the true significance of the subsequent rebuttal made by Mr Cockayne. 301 For example, the contention that Mr Cockayne admitted to all the allegations in the initial and indeed the second interview. I just don't accept that that is logical. It flies in the face of what Mr Cockayne says in the letter he gave to Ms Crothers on Monday 28 July (in conjunction with the second meeting) explaining his actions. Whilst he admits to the yelling/swearing and the damage done, nowhere does he admit to any intention to intimidate/threaten/assault/destroy/damage. He also does not admit to being aggressive. Although clearly his actions and behaviour could be considered as such. 302 That is also consistent with what he told his treating Psychologist as set out in her report of 31 July which followed her initial consultation of 29 July (Exhibit 13-M). This would have been a chronology of events/information etc., that would obviously have been conveyed to her by Mr Cockayne. The second consultation looks to have involved the administration of the psychological tests referred to in the report. 303 I just do not find it credible that Mr Cockayne would have made the admissions that HCC thinks he made, notwithstanding that that is based on what both Ms Crothers and Ms Whitehurst believe. This was a serious misunderstanding that could have been rectified by the keeping of a proper record of the meetings in question and seeking subsequent confirmation of that as an accurate record of what Mr Cockayne said in response to Ms Crothers "stepping through" the allegations. If that had been done then I am certain Mr Cockayne would have indicated that that was not what he meant to say or that he only made certain admissions as to his actions. 304 It is clear from the evidence that Mr Cockayne's recollection of precisely what was said in those meetings is quite wanting. Indeed he has been unable to provide much detail other than he had several meetings over the short period involved. That is reflected by the state he was clearly in at the time. 305 I should also point out Mr O'Connor's 28 July letter to Mr Cockayne (Exhibit 13-J) concerning the disciplinary meeting held that day, said in part, as follows: ................................................................................... The Disciplinary Meeting was held as a result of an investigation where you admitted to serious misconduct (emphasis added) specifically your (sic) were: · Aggressively yelling and swearing at your direct Manager · Intimidating and attempting to physically assaulted your Manager · Acting in an unsafe manner and as such breaching the Occupational Health and Safety Charter which you read and signed on 19/10/07 (attached) · Deliberately damaging and destroying Council property · Leaving the workplace without authorisation When questioned on Friday 25 July 2008 as part of the investigation you admitted to the above actions considered serious misconduct. During the Disciplinary Meeting held Monday 28 July 2008, all information regarding the investigation was presented to you & you were provided with an opportunity of reply in which you submitted an a letter outlining your case (emphasis added). You were afforded with an opportunity to respond and raise any additional information considered relevant to the above-mentioned matter. As a result, we have determined that the allegations are substantiated and because of the serious nature of your misconduct we are recommending to the General Manager termination of your employment. You are hereby provided with until close of business (5 pm), Thursday 31 July 2008 to show cause in writing to the General Manager as to why your employment should not be terminated. Should you not respond within this time, a decision will be made with all available facts. .............................. 306 For a start, this letter still retains the allegation about leaving the workplace without authorisation, notwithstanding the explanation provided by Mr Cockayne which appears to have been subsequently accepted by HCC (upon confirmation by the residents concerned) and as such that allegation was not included in his letter of termination. 307 Further, the claim that Mr Cockayne had "admitted to the above actions" is totally at odds, as I indicated above, with what he specifically says in the letter he provided to Ms Crothers which is referred to by Mr O'Connor. 308 Mr Cockayne's letter (Exhibit 13-H), after opening with an apology to Mr Scanlon for any stress caused and acknowledging that his actions were inappropriate, sets out his response under various headings, as follows: Yelling and Swearing ................................... I feel I was not being aggressive rather letting out frustration from the workload that I needed to achieve in the next two days. I feel that while yelling at John he did not act in a manner to subdue the situation and egged me on to lose my temper (emphasis added). Attempted Physical Assault At no stage did I attempt to physically assault John . While he may have felt intimidated I did not try to intimidate him . I don't intimidate or cause harm to anyone, it is not in my character and many of my volunteers will vouch for this (emphasis added). Acting in a (sic) unsafe manner I don't feel I was acting in an unsafe manner because no one was in any danger of being injured in any way and I didn't set out to cause harm to anyone (emphasis added)............................... Damaging Council property I did not deliberately damage the chair or the desk but rather was in a state of stress on by the incident, I had no intentions of doing damage to any Council property . The office was empty at the time and I would not have gone in the office if there was anyone in there (emphasis added)...................... Leaving the workplace It has been misconstrued about me leaving the depot unauthorised as I needed to get another signature for the Riverwood grant application. I was still acting as an employee with regards to my duties (emphasis added)................................................ Mr Cockayne then went on to explain what had occurred and why and including that he had never been told that he needed permission to leave the depot to do his job. Stress related areas or incidents Mr Cockayne raised workload issues and OH&S issues concerning the placement of the desk in the office in question. 309 Based on this letter, and the confirmation of the events as he saw them as he related to his Psychologist, the only admissions Mr Cockayne would have logically made were: · that an incident took place, and the cause of the incident, · that he yelled at Mr Scanlon, · that he damaged Council property but not deliberately, · that he understood his actions were inappropriate. · that he apologised (with the implication being he had something to apologise for) 310 Given the content and tone of Mr O'Connor's letter it is no wonder that in Mr Cockayne's subsequent show cause letter (Exhibit 13-L) he then says: "I refute all allegations that had been stated and I feel the whole situation has been blown out of proportion. I feel that John Scanlon should have handled the situation more professionally and that I was never offered any assistance to calm the situation". 311 That statement is not explained or elaborated on further and the rest of the letter is concerned with his work history/efforts for HCC/stresses etc. 312 I consider that any employee in a similar position would have expressed similar views and in as forceful a manner. 313 Mr Coleman is quite correct when he says that Mr Cockayne's show cause letter is not inconsistent with what he says Mr Cockayne had maintained right from the beginning. 314 It should also be emphasised that Mr Cockayne's show cause letter was to be in response to the allegations contained in this letter of Mr O'Connor. 315 I should hasten to add that the Commission does not agree with Mr Cockayne's attempt to apportion some blame or degree of responsibility (almost on an equal basis) to Mr Scanlon for the incident that occurred as Mr Cockayne expressed in some form in both of his letters. That attempt is regrettable, reflects quite poorly on Mr Cockayne and certainly would indicate a failure to completely accept appropriate responsibility for what took place. What happened with the truck was unfortunate but Mr Cockayne's loss of temper and how that was expressed was, I say again, totally inappropriate and unacceptable. 316 The only area where the Commission considers some responsibility lay with Mr Scanlon is that, as Mr Cockayne's supervisor and given Mr Scanlon's position, he should have been more aware of what was going on in the bush care area and been alert to overall workload issues such as the forthcoming National Tree Day and what may have been the extent of HCC's participation in that event and whether that participation was on an official or unofficial basis and the implications of such for Mr Cockayne and other bush care staff. The fact that the two Bush Care Officers were also off on leave on that Thursday and the Friday would have exacerbated the workload situation as being available to provide assistance. It leads one to wonder and ask whether there was any sort of co-ordination or work planning between the workers involved in that area of work. If there wasn't, there should have been. 317 In my view, a good and efficient manager should be aware of what is going on with regards to workload of those he/she manages and should be mindful if any particular employee appears to have taken on too much (or more than is expected/required, especially work related matters carried on out of work hours), particularly off their own bat. This may impact on an employee's ability to carry out their designated duties effectively. It then becomes an issue of more effective time management or prioritising of tasks/duties. 318 It is abundantly apparent to me that Mr Cockayne was overloaded at work that week. Some of that, but just how much is difficult to assess, was caused by his own enthusiasm and dedication to his work. An enthusiasm and dedication that went far beyond that normally found in a wages staff' employee in local government I have to suggest. 319 This will be the subject of further comment below. It is of particular relevance when considering Mr Cockayne's quite exemplary and commendable work history. 320 There is also no doubt that Mr Cockayne was under a great deal of stress and pressure that particular day. Apart from the evidence about his workload and what he wanted and needed to do that Thursday, there is also the evidence as to the personal stresses he felt that he was under. 321 I accept that HCC were not to know in any way that Mr Cockayne had the personal issues that he has raised in his evidence and how they were impacting on him. 322 I also accept that at the time of the events concerning the co-worker in 2004 HCC certainly extended more than was required by way of the leave it allowed to Mr Cockayne. A fact which Mr Cockayne needs to appreciate. 323 Everyone, at some time or other in their lives, has had to deal with the loss and grief and consequences flowing from the death of close relatives/colleagues/friends. Each of us deals with that in our own personal way. An employer cannot be expected to read minds and hearts and know that there are serious personal issues causing stress that may have adverse consequences in the workplace, unless an employee tells the employer so. Most people keep such matters private, sometimes even from those closest to them. Also a person may not appreciate just how stressed they are about such issues until some event/occurrence takes place that becomes the last straw/causes flashbacks (such as hearing an ambulance siren or being spoken to in a certain way by a supervisor/co-worker) and tips matters over. 324 This appears to have been the case with Mr Cockayne but he has to appreciate that his employer can only assist him if they are aware he has a problem. 325 However I also note that, based on the 5 August 2008 letter of support from the USU (Exhibit 1) to the General Manager, that the 10th anniversary of the death of Mr Cockayne's brother (that he commemorated each National Tree Day with the planting of a tree) actually occurred on 24 July 2008. Making this event perhaps of more immediate distress/stress that day than simply the fact that it was to be commemorated on the up-coming Sunday in the way planned. It is not clear, again for reasons of not having the decision makers present nor notes/minutes of meetings, to what extent that actually was articulated in that detail. It was not raised by Mr Cockayne in his letter of 28 July (Exhibit 13-H) nor was it referred to in his show cause letter. I would have thought that this anniversary would have impacted more on Mr Cockayne that particular day than indeed the death of his co-worker four years previously (notwithstanding the circumstances of that death). 326 It is unclear whether HCC was aware of that anniversary during its decision making process. 327 In relation to the issue of OH&S and the alleged breach of the Charter, (which is expressed in somewhat general terms), Mr Cockayne clearly breached that in my view. Safety in the workplace just does not only concern working with others. It also clearly means each individual employee ensuring he/she works safely for their own personal safety. Smashing a chair to the floor in an office is not a safe work practice on any consideration. Just because there was no other employee around does not mean a serious safety issue was not raised by Mr Cockayne's actions. 328 But again, what needs to be considered in the overall context of all the allegations is whether that breach of the OH&S Charter was of such seriousness so as to warrant termination. 329 Whilst clearly HCC were concerned, quite properly, to send a message to its employees that breaches of the OH&S Charter were viewed seriously, in the overall circumstances of this matter, particularly his previous exemplary record, I consider that termination was too harsh a penalty. 330 I also consider that the Charter is somewhat too general in its terms and could benefit from some increased specificity and detail. This may in fact be already and more appropriately dealt with in an OH&S Policy and Procedures document of HCC. However any such document was not in evidence before the Commission. 331 I also do not consider that HCC gave appropriate consideration to Mr Cockayne's work record at HCC over his 14 years and 9 months service. 332 As I indicated above, that record goes beyond being simply unblemished from a disciplinary point of view and satisfactory as to work performance, it is the work history of an exemplary and dedicated employee who has contributed way above and beyond what is normally expected from an employee. A contribution not only to the employer but to the wider community (that has been recognised and acknowledged as can be seen from the attachments to Exhibit 1) which can only have served to enhance HCC. 333 I appreciate that the view that is often taken (as I have in other matters) in relation to lengthy and unblemished service, is that there is a consequently higher expectation by an employer of such an employee knowing the right thing to do and of strict adherence to workplace policies and procedures. 334 I also note that Mr Cockayne has acknowledged that he needs appropriate assistance in that he has undertaken anger management and stress control therapy. He is also prepared to undertake any further training that HCC considers necessary (Exhibit 13-L). 335 The decision of Connor C in AWU v Transfield is more relevant for consideration than Marshall. Although that matter concerned a threatened dismissal it also involved a confrontation between employees (with a metal bar being thrown), a very serious safety breach. Connor C also considered the appropriate authorities on seriousness of the conduct and whether it struck at the heart of the contract of employment. The employee concerned had much lengthier service than Mr Cockayne, with no formal warnings but some counselling over safety issues. Connor C indicated that the conduct, whilst "wrong", appeared "atypical", and taking into account his length of service and record and the absence of intention, ordered reinstatement (but with loss of pay). 336 There are similar considerations that can be applied in this matter. 337 I also note the recent decision of the President, Boland J in Alexander v Commissioner of Police [2009] NSWIRComm 3. In this matter a Probationary Constable was dismissed for failing to follow basic policing procedures thereby placing persons in potential danger and was subsequently untruthful about his conduct. Notwithstanding the issues of loss of trust/confidence and the high standard of integrity required, as raised by the Commissioner for Police, Boland P, in judging the competing considerations and applying the statutory test, took a variety of mitigating factors into account and found that the penalty was too severe, the dismissal was unreasonable and ordered reinstatement to the former position (but again with loss of pay). 338 Included in the mitigating factors taken into account was that it was out of character for Mr Alexander to lie and that he was aware of the gravity of his conduct and genuinely remorseful. 339 Similar matters that I have taken into account in this matter. 340 This leads me back to the four questions posited by Sams DP in Natoli. 341 In considering the first two questions together and after having carefully considered the evidence and submissions, I have come to the view that the actions of Mr Cockayne on 24 July 2008 did constitute misconduct but were of a seriousness at the lower end of the scale. As such, given all the circumstances, his actions did not warrant termination but did warrant alternate penalties provided for under the Award. The circumstances that I have considered relevant are as follows: · His conduct that day was clearly "atypical" and out of character, · There is no evidence that anything even remotely of this nature had ever happened before or that Mr Cockayne had ever so much as raised his voice at anyone at HCC, · The incident involved a totally inappropriate loss of temper, · There was no intention to physically assault (nor any such assault) or intimidate, · Mr Cockayne obeyed the instruction/warning of Mr Scanlon, · The damage to the chair/desk was a safety breach but there was no intention to deliberately cause damage, · The desk is still in the office and apparently in use, · Mr Cockayne's workload and personal stress, · Mr Cockayne's length of service and his unblemished record. · Mr Cockayne's dedication and commitment to his job as evidenced by the work he carried out beyond what was required of the position, · The whole issue of the level of Mr Cockayne's understanding of the allegations and just what admissions he did make, · The misinterpretation by HCC that consequently arose. · Mr Cockayne acknowledged his actions were inappropriate and apologised for them. 342 In turning to the third question posited by Sams DP, after considering the evidence and submissions, I have come to the view that the conduct of Mr Cockayne on 24 July did not constitute a fundamental and wilful repudiation of the contract. I have formed this view based on the following: · Mr Cockayne essentially lost his temper and vented his anger at Mr Scanlon, it was an instantaneous reaction to what Mr Scanlon had just told him about the truck rather than any deliberate seeking out of Mr Scanlon over some earlier in time event. · He did respond positively to the instruction/warning given by Mr Scanlon not to make physical contact, · There was no intention to physically assault or intimidate Mr Scanlon, · There was no intention to cause damage to HCC property, · He carried on with completing the task of finalising the grant application that was due for submission the next day. Not the action of an employee who was seeking to turn his back on or repudiate his contract of employment, · He did acknowledge that he yelled and swore at Mr Scanlon, acted inappropriately and apologised, 343 In answering the fourth question about whether or not any mitigating circumstances were taken into account, I have to say that it is quite unclear to what extent the mitigating circumstances raised by Mr Cockayne were taken into account by the HCC decision makers. During evidence and submissions it was certainly indicated that his lengthy service was not sufficient to offset the seriousness of the conduct. It is quite unclear just to what extent any other mitigating circumstances might have been also taken into account. 344 I have certainly taken those mitigating circumstances in arriving at the view I have formed that in all the circumstances termination was too harsh a penalty. Those circumstances are interwoven with those matters already traversed in consideration of the first three questions above. However in addition I have taken the following into account: · The incident was clearly out of character · Mr Cockayne's lengthy and unblemished work record which went far beyond what would be normally expected of a council employee, · Mr Cockayne's workload and the absence of the Bush Care Officers who may have been able to provide some assistance, · The personal stresses he was under, · The work he carried out with the volunteers for many years with no problems. · Mr Cockayne's illness that week. · His acknowledgement of his inappropriate conduct and apology. · The nature of his chosen vocation and training is such that alternate employment opportunities are clearly limited. 345 I cannot stress enough that these are mitigating circumstances that should be taken into account when assessing whether or not the penalty imposed by HCC was appropriate. They should not be seen by Mr Cockayne as excusing conduct that was totally unwarranted and totally inappropriate in the workplace. 346 I do not believe the incident would have occurred at all were it not for the particular circumstances that surrounded Mr Cockayne that day. It is also quite apparent that if circumstances had unfolded with Mr Scanlon being able to advise Mr Cockayne that he could now have the truck (and this had occurred prior to him going to the effort of moving the load in the truck, which he had been using earlier that morning, into the other smaller HCC truck, then the incident just would not have occurred. This was the small thing that was the tipping point. However I again emphasise that it does not excuse the behaviour of Mr Cockayne in any way it merely highlights the stresses that produced an incident that otherwise would not have taken place. 347 Whilst HCC has discharged the onus on it to establish that serious misconduct took place, I do not consider, in the all the circumstances as outlined above, including the view that I have expressed that the seriousness of the misconduct was at the lower end of the scale, that termination was the appropriate penalty. 348 Under Part D, Penalties, of Clause 31, Disciplinary Procedures, of the Local Government (State) Award 2007, HCC had the option of suspending without pay for a lengthier (but specified) period (or demoting to a lower rate of pay) and placing a written warning on his file. 349 In my view, these were more appropriate penalties in all the circumstances and essentially that is what will be provided for in the Orders I propose to make in this matter. 350 I would have taken an entirely different view had there been any deliberate intention on Mr Cockayne's part and he had he not been under the stresses that he was clearly under that day. 351 In relation to procedural fairness, Byrne & Anor v Australian Airlines has also been relied on in numerous decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antonakopoulos v State Bank (1999) 91 IR 385. 352 The investigative procedures followed by HCC overall were appropriate and fair. However those procedures were hampered and flawed, in my view, by the absence of proper minutes/notes being taken at the first two meeting with Mr Cockayne and Mr Margerison and the failure to then provide such minutes/notes to them for verification. This is generally a standard part of disciplinary/investigative procedures in the public/local government and perhaps to a lesser extent in the private sector (usually dependent on the size of the employer). 353 In my view this did not allow for there to be a proper and informed decision to be made or a decision that could have been arrived at beyond doubt. 354 The expression "harsh, unjust or unreasonable", was also considered in Byrne (also at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 355 The meaning of those individual terms was been considered in detail in Sams v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations. 356 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 357 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 358 In considering the appropriate responses to the four questions posited by Sams DP in Natoli above, I have summarised the reasons I have found that termination was too harsh in all the circumstances and I rely on those reasons in relation to the first limb of the tripartite test and thus will not repeat them. 359 It also would seem to me that it would logically follow that if a termination is considered too harsh a penalty in all the circumstances that have been taken into account by the Commission, then such a termination is also unjust. 360 The failure by HCC to properly take into account the mitigating circumstances when considering an appropriate penalty would also seem to me to be unreasonable as a consequence. 361 Any mitigating circumstances that were raised appear to have been totally cancelled out by HCC's view that Mr Cockayne had in fact admitted to the very serious allegations made (including having an intention to physically assault etc.,) and that he then sought to subsequently refute those admissions. 362 The decision HCC then made was understandable and even reasonable when viewed in that context. 363 That makes the issue of just what admissions Mr Cockayne did make and his understanding of the allegations and just what he was admitting to, so critical to the determination of this matter. 364 This inevitably leads me to the view that in relation to the terms unjust and unreasonable, it is also relevant to consider that the flaw that has been identified in the disciplinary/investigative process supports, in part, a conclusion that the termination of Mr Cockayne was also unjust and unreasonable. 365 Having found that that in all the circumstances termination was too harsh a penalty, the Commission must now turn to the exercise of discretion required to determine the appropriate remedy. 366 Mr Cockayne has sought reinstatement. That is the primary remedy available under the Act. 367 As at the date of the hearing Mr Cockayne's former position of Wetland Officer had not been filled by HCC pending the outcome of these proceedings. 368 Reinstatement however was opposed by HCC on the basis of a loss of confidence in Mr Cockayne and a fear that there is no guarantee that a similar incident will not take place in the future. Mr Scanlon also said he now had fear of Mr Cockayne if he returned. 369 I have to say that I did find Mr Scanlon to be a robust and confident person and I really do have difficulty in accepting that he would be fearful if Mr Cockayne returned to work. 370 It is also relevant to consider the evidence of Ms Willes, his co-worker in the Bush Care area who supported Mr Cockayne even to the extent of being prepared to write to the General Manager and come to this Commission to give evidence on his behalf. I accept that as some indication of the ability of Mr Cockayne to be able to return to the group within which he worked at HCC. 371 I also note that it is clear (from documentation attached to both Exhibit 1 and Exhibit 13-K) that he has the continued support of a number of the volunteers who had direct contact in working with him and will be required to work with him on a regular basis. 372 On the issue of the remedy sought by Mr Cockayne of reinstatement and the issue of the practicability of restoring the employer/employee relationship, both advocates relied on Perkins v Grace Worldwide as cited in CCH v Bowen. However they obviously placed emphasis on different sections of the following paragraphs as cited in CCH at 217-218: "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 is the 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 an 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." (Emphasis as added by the Full Bench has been deleted and replaced with the emphasis added as relevant to the respective submissions). 373 In considering the practicability of reinstatement I have been guided by the principles enunciated in cases such as Perkins as well as, Loty and Holloway v AWU [1971] AR (NSW) 95. In the latter case it should be remembered that was Ms Holloway that was reinstated notwithstanding her problematic relationship with and actions towards the AWU Officers concerned. Issues which far exceed any perceived difficulty in this matter. 374 I have to say that I can see no compelling barrier to the return of Mr Cockayne to his former position and I do not consider that reinstatement is impracticable. In coming to that view I have taken into account the following: · Mr Cockayne's unblemished disciplinary record, · His conduct that day was out of character, · There is no evidence of any prior issues in the workplace between Mr Cockayne and Mr Scanlon, · He mainly works away from the Depot, · There is very little day to day contact between Mr Cockayne and Mr Scanlon, · He has acknowledged his conduct was inappropriate and apologised, · He has undertaken anger management and stress therapy counselling, · He has indicated a preparedness to undertake any further training HCC considers necessary, · There is little likelihood in the Commission's view of any such incident occurring in the future,. · The earlier out of work incident between the two men referred to in written evidence did not have any adverse impact on the working relationship. · The evidence of Ms Willes, · The correspondence from volunteers, 375 There will always be some strain involved in restoring an employment relationship, that is inevitable. I do not consider that an insurmountable hurdle. 376 However the Commission intends to attach conditions to that reinstatement to make clear to Mr Cockayne and to other employees at HCC that a penalty has been imposed on Mr Cockayne as a consequence of his totally inappropriate and unacceptable conduct during the incident on 24 July 2008. 377 It is appreciated that HCC did not address the Commission on what conditions, if any, should be attached to any reinstatement order. They simply opposed reinstatement. Mr Coleman raised the issue of a first warning being the appropriate remedy and Mr Cockayne in his show cause letter indicated he would be prepared to attend any training HCC considered necessary. 378 However, I do not consider that merely a first warning is sufficient. Notwithstanding the mitigating factors that have been taken into account in relation to the harshness of the penalty of termination, it was still totally inappropriate and unacceptable conduct and as such warrants a greater penalty in the form of a first and final warning. 379 I would most certainly envisage appropriate counselling of Mr Cockayne taking place. There may also be a requirement that HCC make an assessment as to whether the anger management and stress therapy that has been undertaken by Mr Cockayne is sufficient or further training is required, for example in anger management as well as in OH& S. 380 Mr Cockayne should also make a formal and unconditional written apology to Mr Scanlon for his outburst and behaviour on 24 July 2008 and give a clear and unequivocal undertaking that such behaviour will not occur again. 381 I also consider that Mr Cockayne should relinquish the work involved in the grants process, at least in the short term. It has been made clear that his position and its continuance is not dependent on the acquisition of such grants. 382 Mr Cockayne also needs to re-examine his work commitments in relation to such days as National Tree Day and Clean-up Australia Day and if it is a HCC requirement that he be involved, then Mr Scanlon should ensure the allocation of appropriate time, resources and assistance to enable such involvement to take place. 383 Whilst I intend to order the reinstatement of Mr Cockayne effective from the date of his termination with service not to have been broken, the issue of whether not it is appropriate for Mr Cockayne to receive any payment for the period of time since that date has been somewhat more difficult to determine. 384 Mr Cockayne was summarily dismissed effective 6 August 2008 and paid up until that day. A period of some 33 weeks or seven a half months have elapsed since that date. 385 Mr Cockayne has training and skills that mean employment opportunities in the private sector are limited, however he has sought alternate employment, the outcome of which was not known as at the date of the hearing. He has made reasonable attempts to mitigate his economic loss by establishing his own small business. In the period 22 September 2008 to 27 January 2009 he had a gross gain of income over expenditure of $4803.10. 386 Mr Cockayne's weekly rate of pay whilst working for HCC was approximately $950 per week. He also worked regular overtime each month. 387 As I indicated above HCC had the option under the Award of suspension for a specified period without pay. It is obviously impossible to speculate as to what period of suspension might have been imposed had HCC taken that course of action. 388 To reinstate Mr Cockayne from the date of this decision, when the Commission has found termination was too harsh a penalty and considers a first and final warning and a suspension without pay or demotion (if that were practicable) would have been more appropriate, would have the effect of substituting a 33 week suspension for the termination, which I consider too harsh in all the circumstances. However there should be some substantial penalty imposed. 389 In endeavouring to approach this issue in a fair and reasonable way for all concerned I have therefore determined that effectively no more than a four-month or 16 week period of suspension would be appropriate and that Mr Cockayne should be paid back pay for a period of 17 weeks (being 33 weeks less 16 weeks) less any income gained after business expenditure is deducted. 390 The period of non-payment for 16 weeks will not count for the purposes of accrual of long service leave but will not break the service. The issue of whether such period should count as service for accrual purposes for annual leave and sick leave should follow whatever would normally apply in accordance with the Award and existing HCC practice where a suspension without pay was imposed. 391 The Industrial Relations Commission therefore orders; 1. Pursuant to s89(1) of the Industrial Relations Act 1996, the respondent, Hurstville City Council, shall reinstate the applicant, Jason Cockayne, to his former position of Wetland Officer on terms no less favourable to those which would have applied had the applicant not been dismissed on 6 August 2008. 2. The reinstatement of the applicant shall be effected no later than 14 days from today's date. 3. Pursuant to s89 (3), (6) and (8) of the Industrial Relations Act 1996, the respondent, Hurstville City Council shall pay to the applicant an amount equivalent to 17 weeks of the weekly rate of pay applicable as at the date of termination less any gross income earned in any alternate business. 4. Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's period of service shall be treated as not to have been broken by the dismissal but the period of the 16 week non-payment will not be counted as service for the purposes' of long service leave. 5. Pursuant to s89(8) of the Industrial Relations Act 1996, the following conditions shall apply to the reinstatement of the applicant: i. Mr Cockayne is to provide a written apology to Mr Scanlon for his behaviour on 24 July 2008. ii. A first and final warning is to be placed on Mr Cockayne's file. iii. Mr Cockayne is to provide evidence of his attendance/participation in an anger management course/counselling. iv. Mr Cockayne is to attend such further training as is deemed appropriate by Hurstville City Council, and that is reasonable. 6. These orders shall take effect on and from 24 March 2009. 392 Leave is reserved to either side to seek to have this matter re-listed with respect to the conditions attached to these orders should there be any dispute as to their interpretation (or any necessary calculation). Such leave should be exercised within the next 21 days. 393 This matter is concluded. Elizabeth Bishop 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.