Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales (on behalf of Darren Shiels) and Linfox Australia Pty Ltd [2009] NSWIRComm 167 APPLICANT Transport Workers' Union of New South Wales (on behalf of Darren Shiels) PARTIES: RESPONDENT Linfox Australia Pty Ltd FILE NUMBER(S): IRC 843 and 877 of 2009 CORAM: Sams DP INDUSTRIAL DISPUTE - dismissal of truck driver - strike action in support of reinstatement - unfair dismissal application - termination of employment with notice - failure to follow lawful and reasonable directions of Management - driver's transfer from Ingleburn to Chullora - flexible hours of work - failure to follow safety procedures - accident in yard - allegations of bullying and victimisation - fatality of driver - effect on dismissed driver - inappropriate emails to Company's owner - concern with health of driver - driver suspended on full pay - medical assessment - clearance to drive - resumed work in gatehouse - agreement to start and finish times - failure to follow direction - whether direction lawful and reasonable. CATCHWORDS: Held; no connection between Management's direction and allegations of bullying - contempt for warnings - no contrition - explanations not accepted - investigation into allegations of bullying and harassment - allegations not sustained - findings not challenged - request for transfer refused - driver didn't like being given direction and preferred to work alone - concession that directions lawful - principles of 'reasonable' - final directions not unreasonable - no reason why driver needed to be on site two hours before start time - driver agreed to directions then did the opposite three times - driver on notice that continued failure to follow directions may lead to dismissal - pattern of behaviour - employee no longer considers himself bound to employment contract - employer may terminate employment - no issues of procedural unfairness - dismissal not harsh, unreasonable or unjust - account taken of past record and driver's personal and economic circumstances - factors do not outweigh driver's conduct - application for relief from unfair dismissal refused - application dismissed and dispute proceedings concluded. LEGISLATION CITED: Industrial Relations Act 1996 Adami v Maison De Luxe Limited (1924) 35 CLR 143 CASES CITED: Anthony v NSW Fresh Food & Ice Company Limited (1846) 45 AR 64 Izdes v LG Bennett & Co Pty Limited t/as Alba Industries (1995) 61 IR 439 HEARING DATES: 8 September 2009; 9 September 2009 DATE OF JUDGMENT: 9 October 2009 APPLICANT Mr O Fagir Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr L D'Apice Linfox Australia Pty Ltd JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 9 October, 2009 Matter No IRC 843 of 2009 Notification under section 130 by Linfox Australia Pty Ltd of a dispute with Transport Workers' Union of New South Wales re industrial action Matter No IRC 877 of 2009 Transport Workers' Union of New South Wales (on behalf of Darren Shiels) and Linfox Australia Pty Ltd Application by Transport Workers' Union of New South Wales on behalf of its member Darren Shiels re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2009] NSWIRComm 167 1 These two matters proceed by way of a referral agreement, pursuant to s 146A of the Industrial Relations Act 1996 ('the Act') between the Transport Workers' Union of New South Wales ('the Union') and Linfox Australia Pty Ltd ('the Company') dated 11 June 2009. Both matters arise following the Company's decision to terminate the employment of Mr Darren Shiels, a Linehaul driver working from the Chullora depot. The first matter - IRC 843 of 2009 - concerned a one hour stoppage of work by the drivers in the depot in support of Mr Shiels' reinstatement. For present purposes, that matter was superseded by a s 84 application - IRC 877 of 2009 - filed by the Union, on Mr Shiels behalf, and which seeks his reinstatement through the relevant provisions of Pt 6 Ch 2 of the Act. The Union and its members agreed that no further industrial action would be taken now that Mr Shiels' claim for reinstatement is properly before the Commission for determination. 2 Mr Shiels was dismissed with four weeks pay in lieu of notice on 9 June 2009. The letter of dismissal was expressed as follows: You will recall our discussion on 25 May 2009, wherein I raised my concerns regarding your unacceptable conduct and behaviour. At that time I advised you that your behaviour would need to significantly improve or your ongoing employment would need to be reviewed. I regret to see that your behaviour has not improved in line with the expectations required. Specifically, since 25 May 2009 you have failed, 3 times, to follow lawful and reasonable requests by Linfox not to be present on site prior to 6:30am for your 7:00am start. Additionally, you have, on least (sic) 2 occasions, remained on site after your finish time after being specifically told and warned that (sic) to finish work and leave the premises at the conclusion of your shift. Therefore, Linfox has taken the decision to terminate your employment. 3 This letter makes plain that Mr Shiels was ultimately dismissed as a result of his failure to follow the Company's direction to him not to be present on site prior to half an hour before his usual start time. However, during the course of the evidence the Company identified a pattern of behaviour from around July 2008 of Mr Shiels' failure to follow other Company procedures and directions. I shall come to discuss this evidence shortly. Mr Shiels' Work History 4 Mr Shiels has been driving trucks for around 20 years. He commenced working with Linfox in July 2005 and in November 2006 he moved from overnight Linehaul to day work in Ingleburn. This change arose when Mr Shiels became the sole carer for his two children (then aged eight and 13 years). Linfox management at Ingleburn agreed to his hours of work being from 8:00am to 6:00pm. In June 2008, Mr Shiels transferred from Ingleburn to Chullora and an agreement was made which allowed Mr Shiels to start work at 9:00am so that he could drop his 9 year old daughter at school. Events from July 2008 5 It would appear that Mr Shiels began experiencing problems at work from July 2008; shortly following his transfer to Chullora. He believed that the local management resented his later start time and gave him menial yard tasks to perform. He said that he was being 'bullied' and 'singled out' by the management team of Mr Eddie Kaufmanis (Warehouse Operations), Mr Darren McDonald (Site Operations Manager) and Mr Greg Kerslake (Supervisor). He complained that rules were created specifically for him in that managers would constantly check up on him and that he was told he was 'too slow'. Mr Shiels received a number of letters concerning his performance and conduct. These were tendered in evidence. 6 Following, is a brief chronology of events from September 2008: 2 September 2008 - Mr Shiels was warned after failing to wear his seatbelt. 15 October 2008 - Four drivers, including Mr Shiels, wrote to the Company requesting a transfer due to alleged bullying and harassment at the Chullora yard. 16 October 2008 - Mr Shiels wrote to the Company requesting his old job back at Ingleburn. He praised the Company for its help when his wife left him, but now complained at the extra costs and time travelling from his home to Chullora. He lived 10 minutes from the Ingleburn yard. 30 October 2008 - Mr Shiels was warned following a meeting to discuss his failure to follow site safety procedures in that he was found to have been: a) reversing a trailer in the yard against flow of traffic on three occasions; b) standing on top of a load on the back of a trailer; and c) failing to comply with a fire warden's instructions. 2 February 2009 - Mr Shiels received a first written warning after he failed to follow the correct coupling procedures resulting in damage to a prime mover ('taillight incident'). He was stood down and drug and alcohol tested. 3 April 2009 - Mr Shiels walked off the job claiming he was stressed after being victimised by Mr McDonald. The Company proposed a neutral mediator between Management and Mr Shiels - Mr Nick Leon. Mr Shiels returned to work on 8 April, but during the day he refused to take calls as to his whereabouts while on the road. This was contrary to procedure. The Company was concerned not to 'push it' in case he went off stressed again. 16 April 2009 - Mr Leon met with Mr Shiels and the Union delegate about the bullying and victimisation allegations. 21 April 2009 - A driver in the yard, Mr Craig Eager, was fatally injured in a road accident. The Company arranged for counselling with the other drivers on the following day. 27 April 2009 - As a result of the counselling sessions, the Counsellor, Ms Michelle Rowett, considered that it would be unwise to allow Mr Shiels to drive a truck without medical clearance. 25 and 27 April 2009 - Mr Shiels sent two emails to Mr Lindsay Fox containing unacceptable language and inappropriate comments. 7 May 2009 - Mr Shiels attended an appointment with Dr Morsingh who recommended clearance by a psychiatrist. 20 May 2009 - Mr Shiels was reviewed by a psychiatrist, Dr Jose Menendez who declared him psychiatrically fit to return to truck driving. 25 May 2009 - Mr Shiels returned to work and was placed in the gatehouse. He agreed to a start time of 7:00am and given one week's transition. 1 June 2009 - Mr Shiels was instructed to start work at 7:00am and finish at 3:30pm. 4 June 2009 - Mr Shiels was given a warning letter indicating he had arrived before 5:00am on three occasions after having agreed he would not do so. 9 June 2009 - A meeting was held with the Union Co Delegate, Mr Eric Pickering, Mr Shiels, Mr Paul Caunt and Mr McDonald in which Mr Shiels was told of his dismissal. THE EVIDENCE List of Witnesses Mr Darren Shiels - Driver Mr John Alfred Waltis - Driver; Union delegate Mr Paul Caunt - Branch Manager, Rail, Road and Sea Mr Nick Leon - Workplace Relations Advisor for Northern Region The Taillight Incident 7 The applicant gave inconsistent evidence about this incident. In his written statement he said he had made a mistake by misjudging the height when he wound down the equipment, because he was flustered by Mr Kaufmanis watching him. However, in oral evidence, Mr Shiels said this wasn't an accident. Later, Mr Shiels denied that he had not followed the correct procedure and described the warning as 'ridiculous'. In re-examination, he explained in detail what had occurred. He was referred to the TWU / Linfox Agreement 2007 and the provision concerning employee duties which states: 3.1.1 Every employee must at all times: (a) Preform his/her duties with due care and diligence (b) Comply with reasonable and lawful instructions of management (c) Not engage in inappropriate behaviour; and (d) Comply with company policies, procedures and rules in operation at the time. 8 Mr John Waltis has had 15 years experience as a delegate representing Linfox drivers. He had worked with Mr Shiels at Ingleburn and at Chullora since June 2008. Mr Waltis said that during monthly meetings with Mr Caunt and Mr McDonald they would bring up issues concerning Mr Shiels at every meeting and he had told them that they should stop picking on him. During one meeting, Mr McDonald had said that he was going to micro manage Mr Shiels out of the business. Mr Waltis said that he could not believe that the taillight incident was regarded as a major incident and that Mr Shiels was drug tested as a result. He said that Mr Caunt and Mr D'Apice were also disbelieving about the results of the incident and that Mr Shiels had even been stood down. Mr Waltis understood that Mr Shiels would receive a formal warning, as would the managers. Mr Waltis deposed that not every accident results in drug and alcohol testing and such a minor incident would be considered very insignificant. He added that drivers aren't always stood down following an incident. 9 In cross-examination, Mr Waltis disputed that it was company policy for all accidents, misses or near misses to require a random drug and alcohol test. He gave an example of where he had hit a parked car last October, causing $3,000 damage, and he was not drug and alcohol tested. Mr Waltis agreed that if the coupling and uncoupling procedure was followed correctly, no damage would be caused. 10 Mr Paul Caunt deposed that he originally understood the accident was more serious than it was. Nevertheless, he had instructed Mr McDonald to have Mr Shiels drug and alcohol tested and stood down while the incident was investigated. Later that day, Mr Waltis rang him and said 'you've got to be kidding'. Mr Caunt rang Mr McDonald to get more information and later he told Mr Waltis he would investigate the incident and meet the drivers the next day. Mr Caunt subsequently learnt that Mr Shiels had not followed the coupling and uncoupling procedure. The next day he met with Mr Shiels, Mr Waltis, Mr Pickering and Mr McDonald. Mr Shiels was told he would receive a written warning which Mr Waltis was not happy about. 11 In further evidence in chief, Mr Caunt said that Company policy requires every motor vehicle accident to be followed up by a drug and alcohol test. Mr Caunt said he was actually reprimanded for not following the policy last December and since then every incident requires a mandatory drug and alcohol test. There is no discretion. 12 Mr Caunt said that Mr Waltis had requested Mr Shiels be put back on the road. However, he wished to wait for the New Year and agreed to the request in January 2009. However the next month he was told by Mr Dave Hardy, Mr Shiels direct supervisor, that Mr Shiels would not answer the phone when out on the road. A blanket text message was sent to all drivers reminding them of their responsibilities to always be contactable. Another complaint was made in March about Mr Shiels not answering the phone. When Mr Caunt approached Mr Shiels about the matter he had said 'I just want to come to work and be left alone... I don't ever want to speak to Darren McDonald again'. Mr Caunt said that this was not possible as he (Mr Shiels) had already been accommodated and he was not treated any differently to any other Linehaul driver. Not wearing a seatbelt 13 Mr Shiels deposed that it was not always practical to wear a seatbelt in the yard when you may be moving 20 containers and getting in and out of your truck every four or five minutes. Mr Shiels could not recall being spoken to about not wearing a seatbelt. However, he accepted that every driver had been reminded about it by text message. 14 Mr Caunt observed Mr Shiels on 29 August 2008 not wearing his seatbelt. He spoke directly to him and told him it was Company policy. Mr Shiels offered no reason for not wearing his seatbelt. Two days later Mr Caunt observed him again in the yard not wearing his seatbelt. This time he instructed Mr Kerslake to give Mr Shiels a warning letter. Driving contrary to flow of traffic 15 Mr Shiels described this incident as 'childish'. He said it wasn't possible to drive forward when the yard was full of trailers and containers. There was no where to go. He described the warning he received as 'garbage'. Nevertheless, he acknowledged receiving the letter and accepted he had not followed procedures. Emails to Mr Fox 16 Mr Shiels explained that this incident occurred soon after the death in a road accident of Mr Eager. Mr Shiels said he was very upset by Mr Eager's death and, although he was offered counselling and time off, he couldn't sleep and was feeling very angry and upset. He agreed he sent two emails to Mr Fox in which he used bad language to describe his managers and how they ran the yard. He said the next day he was embarrassed by what he had done and told his delegate he was sorry and he hadn't meant it, but he was under a lot of stress at the time. 17 Mr Waltis referred to the counselling after Mr Eager's death which was undertaken by Michelle Rowett. He believed Ms Rowett had a depressing approach to the counselling sessions. He believed that it was Mr Pickering, not Mr Shiels, who attempted to lighten the session by referring to wombats being killed on the road at night. 18 Mr Waltis said that on Monday, 27 April 2009, Mr Shiels approached him and told him that he had stuffed up and had wrote to Lindsay (Mr Fox) to say that Craig's death was the fault of the managers. Mr Waltis was called to see Mr Caunt. When he tried to explain to Mr Caunt how Mr Shiels felt, Mr Caunt had said, 'This prick had made it personal and its personal now'. Later Mr Waltis was told that Mr Shiels could not return to work until he saw a psychiatrist. Medical Assessment and Return to Work 19 About this time, the applicant was referred to a psychologist, Dr Raymond Morsingh on the recommendation of the counsellor, because he had said something about wombats being killed and appeared to have not been coping with Mr Eager's death. He was then referred by his General Practitioner (GP) Dr Van Vu to a psychiatrist, Dr Jose Menendez. Mr Shiels said that Dr Menendez told him that while he didn't have a mental illness, he was under a lot of pressure, including bullying in the workplace, and that he should be transferred. Dr Menendez confirmed that he was psychiatrically fit to return to work. Dr Vu conveyed this advice to the Company and said he believed Mr Shiels should be moved to another yard and undertake counselling (which he did). Mr Waltis deposed that when he asked about Mr Shiels' medical clearance, Mr McDonald said he didn't care about the clearance. Mr Kaufmanis had said 'we don't feel comfortable letting him drive' and Mr Caunt had agreed. Mr Waltis later learnt Mr Shiels was to be placed in the gatehouse. 20 Mr Caunt said that after the fatality, the Company offered counselling to all its employees and managers. The counsellor, Ms Rowett, had expressed concerns about Mr Shiels. She said he didn't seem right, wasn't coping well with the situation and made references to seeing wombats and running over them. After Mr Caunt obtained further advice from Mr Leon, Mr Shiels was offered additional time off until he could be medically assessed. 21 The emails to Mr Fox followed shortly after. Mr Caunt said he was extremely upset about what he believed was a personal attack on himself and that he was being blamed for the driver's death. Mr Caunt discussed the emails with Mr Waltis who had assured him that he did not support them and that he would speak to Mr Shiels. 22 In cross-examination, Mr Caunt agreed that in the emails to Mr Fox, Mr Shiels had not named him directly. However, as he had referred to managers and supervisors, he couldn't have been referring to anyone else. Mr Caunt strongly denied Mr Waltis' version of what he said in the conversation. Mr Caunt's reply to Mr Waltis was 'I cannot understand why he has made it personal'. 23 When Mr Shiels was cleared to return to work, Mr Caunt met with Mr Leon and Mr D'Apice. It was agreed that temporary alternative duties would be offered to Mr Shiels to allow for greater supervision, given his propensity not to follow reasonable instructions. As Mr Shiels did not hold a forklift licence, it was decided to place him in the gatehouse with a 7:00am start. It was agreed that if Mr Shiels demonstrated a willingness to accept reasonable directions, then he could resume truck driving. This was confirmed when Mr D'Apice told Mr Shiels of the arrangements at a meeting involving the Union on 25 May 2009. 24 In cross-examination, Mr Caunt claimed that he had no view about the counsellor's concern with Mr Shiels' state of mind. He had not sent Mr Shiels to a psychologist but had simply sought advice and outside assistance. Under the chain of responsibility, Mr Caunt said he had a duty to stand Mr Shiels down on full pay. Mr Caunt said Mr Shiels was placed in the gatehouse because Management needed time to find him suitable duties, away from the pressure he said he was under. The intention was to have him there for four to five weeks so he could be closely managed and for him to demonstrate that he would follow directions. 25 Mr Caunt agreed that two drivers were now based at Ingleburn. However, this was because they lived at Bowral and it was not appropriate for them to drive to and from Chullora every day. 26 In re-examination, Mr Caunt explained that it wasn't unusual for drivers to be utilised in the gatehouse after returning to work following workplace injuries. It was a position available for remedial purposes and Mr Shiels had not been 'singled out' in that regard. Mr Caunt wanted to give him a go, with a clean slate and see if he would follow instructions. 27 Mr Nick Leon attended the site the day after the fatality and arranged for the counsellor to be in attendance. Time off was offered and Mr Shiels took it up. After follow up counselling on 27 April, Ms Rowett advised Mr Leon that she was concerned with Mr Shiels' behaviour and comments and said that, in her opinion, it would be unwise to allow Mr Shiels to drive a truck without a medical clearance. Mr Shiels was stood down on full pay during which the email issue arose. Mr Shiels attended the medical appointment with Dr Morsingh on 7 May and he recommended he not return to work without written clearance from a psychiatrist. Mr Shiels was advised and obtained a referral from his GP, Dr Vu to see Dr Menendez, which he did on 20 May. Dr Menendez cleared him psychiatrically fit to drive his truck. On 21 May, Mr Caunt, Mr D'Apice and Mr Leon had met to discuss Mr Shiels' return to work. Mr Leon confirmed that on 25 May, in a meeting with Mr Shiels, and the Union, Mr D'Apice had warned him about the emails and advised him that Linfox expected him to follow reasonable and lawful instructions and if he continued to ignore such instructions he would be terminated. Further, Mr D'Apice had said that if he could demonstrate that he would follow instructions, he would be allowed to resume truck driving. 28 Mr Leon said that while he did not see the GP's report he understood that he had recommended that Mr Shiels be transferred to another site, if that was possible. This suggestion was to assist Mr Shiels' perceptions of Mr McDonald. The Company did consider transferring him; however, the gatehouse role was initially decided on for two reasons - to manage his conduct and give him an opportunity to demonstrate he could return to truck driving and to see if other duties could be identified. 29 Mr Leon agreed that by placing Mr Shiels in the gatehouse he would actually have more contact with Mr McDonald. However, he said that that issue had been investigated and resolved. 30 Mr Leon said that the GP also recommended ongoing counselling and he understood Mr Shiels attended one session which the Company paid for. Mr Leon said that the issue of the medical clearance had nothing to do with Mr Shiels' ongoing conduct issues which arose concurrently and were addressed by Mr McDonald. 31 Mr Leon agreed that Mr Shiels had been treated differently. His personal circumstances had been accommodated and there was concern how Mr Shiels might react to being closely managed as a result of the ongoing conduct issues. He said Mr Shiels did not take kindly to being directed and he didn't appreciate Management's desire to closely supervise him. He just wanted to be left alone to drive his truck. Starting Time Instruction 32 When Mr Shiels was cleared to return to work after being stood down he was not transferred to another yard. Rather, he was instructed to report to the gatehouse and to commence work at 7:00am. Mr Shiels said he was depressed at not being able to drive trucks and felt that he was being bullied. Mr Shiels said he didn't like his morning routine being disrupted again as he preferred arriving for work around 5:00am when less traffic was on the road. He said that when he arrived early he would get a coffee and read a newspaper till 7:00am. The Company agreed to pay him from 5:30am for a week until 1 June when he was directed to commence work at 7:00am. 33 Mr Shiels said when he received letters confirming his new start times he would 'just throw them in the bin'. He regarded them as 'immature' and 'childish'. He agreed he had been told to turn up for work no earlier than 30 minutes before start time. He was asked if there was a particular reason why he needed to be on site two hours before start time (eg. car pooling or family arrangements) and said he just wanted to beat the traffic. 34 Mr Shiels said that he was available if a driver failed to turn up and he was always flexible. He denied that he 'gave and took' when it suited him. Mr Shiels couldn't recall if he had been told that when he returned to work he wouldn't be driving straight away. He regarded the whole thing as 'stupid'. Mr Shiels said he could not recall being told he was being given one more opportunity to comply with the Company's instructions. He agreed that he was told that after a period of three or four weeks, if he could demonstrate he could follow instructions, there would be no reason why he wouldn't be restored to driving duties. He said 'if people are acting very imature (sic) and childish and I don't think they've got the power to do what they want to people'. 35 Mr Waltis said he had received a phone call from Mr Caunt in which he was told that he didn't want Mr Shiels coming in to work early because he was a liability. Mr Waltis didn't understand what the problem was as he had only seen Mr Shiels in the lunchroom prior to commencing work. In fact, he himself arrived at work around 5:30am for a 7:00am start as it was his habit and he would relax, have a chat and a coffee before commencing driving at 7:00am. In cross-examination, Mr Waltis said that he came in early with permission of the Company and if he had Union business to deal with he could come in early and be paid for the time from 6:00am. However, he had come to work for 18 years at 5:30am and had never been challenged about it. 36 On 27 May 2009, Mr Caunt was made aware that Mr Shiels was finishing at 4:00pm and 4:30pm, despite his normal finish time being 3:30pm and that he was claiming wages for the extra time. Mr Caunt said that as Mr Shiels continued to ignore his requests about his start and finish times, he had issued him a letter reaffirming the arrangements. Mr Shiels continued to start before 5:00am on three occasions in the week of 1 June 2009. 37 Mr Caunt said he had asked Mr Shiels if there was any reason why he was arriving so early and he replied, 'because of the traffic'. Mr Caunt said he should arrive no earlier than 6:30am because the fewer people on site the less of a liability the Company had from a safety perspective. There was simply no need for employees to be on site far in advance of their agreed start time. 38 Mr Caunt said Mr Shiels again arrived prior to 5:00am on the next and following day. A warning letter was issued. On 9 June, Mr Caunt convened the termination meeting. He strongly denied Mr Shiels' version of the conversation that he was dismissed for poor performance and for being too slow. He had clearly stated the reason as Mr Shiels' failure to follow lawful direction. Mr Caunt denied Mr Shiels was given an old truck to drive which meant he was slower. The truck was only six years old and perfectly roadworthy and reliable. 39 In cross-examination, Mr Caunt was queried as to what liability the Company had if Mr Shiels was sitting in the lunchroom? Mr Caunt said that someone had burnt their hand on a hot water heater and someone actually fell off a stool in the kitchen in a depot in Melbourne. Mr Caunt agreed certain drivers turn up early by agreement, especially Union delegates. The Linehaul drivers come in early because they drive to Melbourne, Brisbane and Adelaide. Mr Shiels had not given a reason why he needed to be on site two hours before his start time. Mr Caunt said that he had considered Mr Shiels' overall record of employment before dismissing him. 40 In re-examination, Mr Caunt said that on three occasions he had warned Mr Shiels about starting early and each time Mr Shiels had agreed he would not do so. Mr Caunt said that if Mr Shiels was involved in a car pooling arrangement that would have been considered by the Company. Claims of bullying and harassment 41 Mr Shiels said that in February 2009 he had a meeting with Mr Leon, in the company of Mr Waltis, about how he was being victimised and bullied by Management. Mr Leon had agreed to investigate his concerns. Mr Shiels said that other drivers also wanted a transfer out of Chullora because of bullying. Mr Shiels agreed that Mr Leon had investigated his claims. Mr Shiels said he was a good driver and had been able to get on with people. However, he felt picked on from the start. Nevertheless, he recognised that the Company had been good to him when he had to adjust to being a single parent. He had always tried to do the best thing by them and would like to keep working there. 42 Mr Waltis said that he had first received complaints of bullying from Mr Shiels about a week and a half after his starting at Chullora. He had complained of doing menial work, like sweeping the floor and had been given an old Mack Truck to drive, which was slower than the other trucks. Mr Waltis said that Mr McDonald had once complained about Mr Shiels being slow. Mr Waltis said that soon after he began working at Chullora, four drivers had asked for a transfer, citing management's bullying tactics for wanting to leave. Mr McDonald had been furious and had said, "this idiot, 'Dizzy' (Mr Shiels) has conned the blokes into signing a letter asking for a transfer'. Mr Waltis had said that 'that doesn't sound right'. Mr McDonald said to him 'If they don't like the place buy the SMH and have a long hard look at the job ads', and he then went to the drivers and they had told him Mr McDonald had been ranting and raving and telling them they could 'fuck off' if they didn't like working for him. Mr Waltis organised a meeting with Mr Caunt during which Mr McDonald denied what he had said to him. Mr Waltis said the drivers' complaints subsided after this. 43 Mr Waltis gave evidence of the meeting with Mr Leon in February 2009. He deposed that Mr Leon agreed that Mr McDonald had a 'people skills' problem and he would investigate the allegation of bullying. He had reassured Mr Shiels he was a good driver and he wasn't going to be sacked. Mr Waltis felt things improved for Mr Shiels from this point, until the driver fatality. 44 In cross-examination, Mr Waltis agreed that he had not witnessed any bullying or victimisation, but had been told about it by Mr Shiels and others. However, he did witness Mr Shiels being required to sit in a chair in front of the supervisor's room, until he was given work to do, while other employees could sit in the meal room. 45 Mr Waltis agreed that Mr Leon had investigated the allegations, but he had only asked people in the office about it and not the drivers or storemen. Mr Waltis agreed that he was aware of Mr Shiels not following instructions and that when he returned to work after being stood down, he had been given yard duties. He recalled Mr D'Apice as saying, 'Look we can't put him in a truck. We'll put him in the gatehouse for a fortnight or so and see how he goes'. 46 Mr Caunt said that he received a letter on 15 October 2008, from four drivers, including Mr Shiels, requesting a transfer. Mr Caunt told Mr McDonald to inform the drivers to put their request in the correct format. Mr Caunt said he was approached by Mr Waltis who apologised for the letter and told him not to worry about it. Mr Caunt subsequently received Mr Shiels' letter (see par 6). Mr Caunt told Mr Waltis that Mr Shiels' request could not be accommodated because the Ingleburn yard was closing down. Mr Caunt referred to a meeting regarding victimisation and bullying in which he agreed that Company policy demanded it would not be tolerated. At the meeting, Mr McDonald denied having told the drivers to 'fuck off' and 'get another job'. 47 Mr Caunt said he had been interviewed by Mr Leon about the victimisation and bullying allegations. Mr Leon had later advised that he could find no evidence of bullying or harassment, but he would monitor the situation for the next three weeks. He further advised that all contact between Mr McDonald and Mr Shiels should be done in a formal setting with file notes and all warnings documented. Mr Caunt confirmed this arrangement with Mr McDonald. 48 In cross-examination, Mr Caunt said he had asked Mr Leon to come in as a neutral person to see if there was an 'issue in play'. It was common for him to seek such advice. He agreed he used the words, 'it may get messy' because Mr Shiels was alleged to have sworn at management staff and walked out, and he needed advice on how to handle the situation. 49 Mr Caunt denied that he was dismissive of Mr Shiels' request for a transfer back to Ingleburn. Everyone had been informed and briefed that Ingleburn was closing down, notices were put on the board and everyone had moved. 50 Mr Leon confirmed he attended a meeting on site on 2 April with the Union delegates, Mr Caunt and Mr McDonald. The final point of the meeting was that the delegate raised the issue of Mr Shiels being victimised by Mr McDonald and had requested he have no contact with site Management. This was not an acceptable alternative. However, it was agreed the situation would be monitored. After further incidents in April, Mr Leon had a meeting with Mr Shiels and Mr Waltis on 16 April 2009. Mr Shiels believed he was being singled out and harassed by Mr McDonald, that Management was calling him too often and he just wanted to be left alone. Mr Leon explained the importance of being contactable. Mr Shiels also raised the 'taillight incident' and said it had been 'blown out of all proportions'. Mr Leon told him it had been investigated and appropriate action taken. Mr Leon believed that the correct processes were being followed, but he suggested a more formal setting if Mr McDonald had a problem with Mr Shiels' work performance. They agreed to meet again in three or four weeks. 51 In further examination in chief, Mr Leon said that he had only interviewed Mr Shiels, Mr McDonald and Mr Caunt because the complaint only concerned those direct parties. Mr Leon said that he could find no evidence of bullying or harassment. Rather, he believed that every time Mr McDonald approached Mr Shiels to manage his performance or counsel him, Mr Shiels believed it was bullying and harassment. He advised Mr Shiels of his findings and that in future a more formal setting would be put in place when issues were raised. Mr Shiels and the delegate accepted the position and it was to be left for three or four weeks. Follow up didn't happen because of the intervening fatality and the emails to Mr Fox. 52 In cross-examination, Mr Leon said he understood that Mr Shiels felt he was being treated differently to other employees. Mr Leon couldn't comment on his earlier behaviour at other sites, only what he was asked to investigate at Chullora. Mr Leon regarded all of Management's actions as being appropriate. SUBMISSIONS For the Union 53 Mr O Fagir, noted that there was no issue in this case of alleged poor performance and the sole basis for Mr Shiels' dismissal was his alleged failure to follow the reasonable and lawful directions of Management. Mr Fagir agreed that while the directions may have been lawful they were not, in all the circumstances, reasonable. Mr Fagir submitted that while the two issues of not wearing a seatbelt and driving against the flow of traffic in the yard, were safety issues, the evidence disclosed that, as to the seatbelt, everyone had been doing it and a general warning had been issued, and in respect to the traffic flow matter, Mr Shiels had explained the difficulties of moving in the congested yard. In both cases, the Company issued a warning, but there was no suggestion Mr Shiels' employment would be terminated. The issue leading to dismissal - arriving early for work contrary to direction - may have been lawful and the employer may well be entitled to direct its employees to attend at a certain time, but such a prerogative can't be exercised capriciously or arbitrarily. Mr Fagir said the reasons Mr Caunt gave for the direction, that Mr Shiels might be injured in the lunchroom, was just ridiculous. He chose not to suggest other reasons, but referred to Mr Shiels being a liability while on site. This really demonstrated Mr Caunt's and Mr McDonald's attitude that they would run the business the way they saw fit and that they had an issue with Mr Shiels as an employee which manifested itself in a number of ways. Mr Fagir noted that having been a model employee for many years, all of a sudden, Mr Shiels had a host of conduct issues and letters written to him. 54 Mr Fagir acknowledged that the Company had accommodated Mr Shiels' family circumstances, both in 2006 and 2008, and Mr Caunt had at least been involved in the move from Ingleburn to Chullora. However, Mr Fagir submitted that, from his experience, Linfox senior management were very reasonable, but this wasn't always reflected down the line to site level. Mr Fagir traced the sequence of events from July 2005 to June 2008 where no issue arose, to the series of incidents post June 2008 when Mr Shiels arrived at Chullora. After being medically cleared to drive his truck, his GP even recommended the Company consider moving him away from Chullora and the source of his stress - Mr McDonald. After coming back to work, the spotlight was back on him in a situation which was even more difficult than before. Mr Fagir said that this was unfair to Mr Shiels. 55 Mr Fagir's primary submission was that the direction not to arrive early was not reasonable, because it was arbitrary and capricious. In the alternative, if the direction was found to be lawful and reasonable, then it was not a valid reason because dismissal was disproportionate to the gravity of the conduct and harsh, because of the consequences for Mr Shiels' personal circumstances. 56 Mr Fagir put that this was not a case where reinstatement would be appropriate, and if the Commission found the dismissal to be unfair, the parties might be directed to discuss placing Mr Shiels somewhere, other than Chullora. If there was further disagreement, the parties could bring the matter back to the Commission. For the Company 57 Mr L D'Apice submitted that there is a connection between performance and not following Management's directions. 58 Mr D'Apice said that it was usual practice, where one employee is found to be not complying with a safety requirement, for all other employees to be given a general reminder of their responsibilities. 59 As to coming in early, Mr Waltis had permission to do so, primarily to conduct Union business. Mr Shiels had been expressly directed not to do so and had agreed not to do so. The Company had been more than accommodating in respect to Mr Shiels' hours of work. 60 Mr D'Apice agreed there was a period when things settled down, but that was because Mr Shiels was on five weeks leave. 61 Mr D'Apice said the evidence was not that Mr Shiels was being unfairly and differently treated, but that he was being managed following various warnings which have not been disputed, save for the taillight incident. Even Mr Waltis had accepted that if the correct procedure was followed, there would be no damage to the vehicle. Mr Shiels regarded most lawful and reasonable instructions from his employer as 'childish' and 'immature'. His conduct demonstrated an intention not to be bound by his employment contract. He wanted to act alone. 62 Mr D'Apice submitted that the transport industry requires fundamental minimum safety standards and an ability for the employer to give, and the employee to comply, with all lawful and reasonable directions. 63 As to the bullying allegation, Mr D'Apice said the evidence was uncontested that the complaint was investigated by an appropriate person, the findings were supported and accepted by Mr Shiels and the Union. 64 Mr D'Apice said Mr Shiels' dismissal was not harsh, unreasonable or unjust. Mr Shiels refused to acknowledge his obligation to accept reasonable and lawful directions. He preferred to work alone and unsupervised. He was given every opportunity to correct his behaviour, and he even agreed he would do so - yet he still defied the direction not to attend the site before 6:30am. Mr D'Apice said that Mr Shiels' termination will not harm his prospects of gaining future employment, as he held a B double truck licence. In reply 65 Mr Fagir made the following points: · Mr Waltis' arrangement for an early start applied whether he was on Union business or not; · the Company did not act on the GP's report to transfer Mr Shiels to another site; · there was no formal acceptance by the Union of Mr Leon's findings of no evidence of bullying or victimisation. There must have been some concern, because formalised counselling was recommended; and · Mr Shiels was entitled to convey his view to Mr Fox. His words may have been unfortunate, but must be seen in the context of his distress at losing a work colleague and having been just stood down. It was a particularly unique and difficult period for Mr Shiels. CONSIDERATION 66 I begin my consideration of this matter by quoting the answer to the last question given in Mr Leon's evidence, as I believe it best sums up Mr Shiels' attitude to working at Chullora: A. Mr Shiels didn't take kindly to being directed to do things. Mr McDonald was managing his performance which involved closer management of the processes and Mr Shiels didn't appreciate that. Mr Shiels wanted to be left alone to drive his truck. 67 Mr Fagir submitted that because Mr Shiels had no conduct or performance issues until he was transferred to Chullora, that this demonstrated it was Mr McDonald, and perhaps to a lesser extent Mr Caunt, who had treated him differently to other employees and Mr Shiels was perfectly entitled to believe that he was being bullied and victimised. Mr Fagir further submitted that Management's lawful directions to Mr Shiels, most notably the last direction that he not arrive for work before 6:30am, was not reasonable because it was arbitrary and capricious. In any event, Mr Shiels' dismissal was 'unjust' because it was disproportionate to the gravity of his conduct and 'harsh' because of its consequences for Mr Shiels' personal and economic circumstances. 68 For the reasons I shall now develop, I do not consider Mr Fagir's connection between Management's directions and Mr Shiels' belief that he was being bullied and victimised, can be sustained. There is little doubt that Mr Shiels regarded all of the warning letters and memoranda from Management with disdain, if not contempt. He variously described these missives as 'rubbish', 'childish', and 'immature' and said he would just throw them in the garbage bin. He even accused Mr D'Apice, during cross-examination, of being childish for even raising the issues. Moreover, he failed to comply with the last direction, not once, but three times, notwithstanding he had agreed he would comply. Mr Shiels, if nothing else, was decidedly frank and perfectly honest in his evidence. While frankness and honesty are traits usually to be admired, particularly when one is giving sworn evidence, Mr Shiels' obvious contempt for Management direction did little to advance his case for reinstatement or re-employment. He displayed no contrition (except perhaps in respect to the emails to Mr Fox) or any acknowledgement that he had an obligation to comply with the lawful and reasonable directions of his employer and with the specific terms of his workplace agreement. Moreover, the tenor of his evidence gives me no comfort that he has learnt anything from the experience and that such conduct would almost invariably be repeated, if he didn't agree with Management's directions. 69 While this assessment might sound somewhat harsh, particularly as I have some sympathy for Mr Shiels' personal circumstances, I believe the real underlying motive for Mr Shiels' disregard for Management (and thus refusal to accept reasonable direction), derives from his inability to accept the transfer from Ingleburn to Chullora and his long standing desire to work closer to where he lives. This, to me, is the underlying theme running throughout his case. Within a few months of being transferred and knowing full well the Ingleburn site was to close, he requested a transfer back. There was some suggestion that he enlisted the support of others to go back by claiming bullying and harassment at the Chullora yard. When that didn't work, he relied on what had worked in the past - an appeal to the Company on family and personal grounds. This too was refused for obvious reasons - there was no job for him to back to. From this point, it seems to me that the bullying and victimisation allegations became the basis for requests through, firstly, his Union and later through his GP that the only way to remove the alleged stressors in his life was to transfer him to another site. Indeed, that remains the position of the Union in this case. 70 That is not to say that I don't believe Mr Shiels genuinely felt he was being bullied and victimised. However, in my view, as I will later discuss, there was no reasonable basis for him to have come to that view, particularly given the level of support and flexibility (which he appreciated) that the Company had earlier shown towards his personal and family circumstances. This leads me to consider in more detail Mr Fagir's submissions that Mr Shiels was being victimised and bullied by Management and / or the directions of Management were a manifestation of this victimisation which, while being lawful, were not reasonable. Allegations of bullying and victimisation 71 Soon after the allegations of bullying and victimisation were raised, Management took steps to bring in an independent neutral, Mr Leon. Mr Leon interviewed Mr Shiels, Mr McDonald and Mr Caunt. He concluded that there was no evidence of bullying or victimisation and Mr McDonald and Mr Caunt were simply attempting to manage a series of issues. I think it instructive that these issues were not all raised by them (Mr Hardy and Mr Lloyd Mills for example) leading to the obvious question that if Mr McDonald or Mr Caunt were really set on a campaign to get rid of Mr Shiels, then why was it other superiors who had raised the issues? It just happened to be that Mr McDonald was the Manager directly responsible for managing these issues. 72 There was no evidence that the Union or Mr Shiels objected to Mr Leon conducting the investigation, nor the manner he went about conducting it. Similarly, there is no evidence that the Union or Mr Shiels protested when Mr Leon found no evidence to sustain the allegations. In these circumstances, and having regard for the evidence of Mr Leon, I am satisfied that the Company adopted a sensible and appropriate response to Mr Shiel's allegations. I am further satisfied that Mr Leon's findings were correct and that Mr Shiels' real complaint was that he didn't like being given direction or being managed as to how he was to perform his duties. He wanted to drive his truck without any interference by Management and be left alone. 73 I am fortified to these conclusions by the fact that when Mr Shiels actually put his request for a transfer on 18 October 2008, he made no mention of the bullying and victimisation allegations, but cited time and cost issues with the move to Chullora. The Union submitted that despite being medically cleared to drive trucks by a psychiatrist, the Company ignored both the clearance and the GP's recommendations that Mr Shiels be transferred to another site. This, it was argued, was further evidence of Mr Shiels being victimised or being treated differently. In my view, that submission must be rejected. It was the Company's evidence that the placing of Mr Shiels in the gatehouse was designed to give him an opportunity to be more closely managed and to demonstrate he could comply with directions and, that if he did so, he would be able to return to driving trucks. Mr Waltis agreed that Mr D'Apice said words to that effect in the meeting on 25 May 2009. I accept that evidence and consider, in the circumstances, that it was entirely appropriate to do so. It is not as if this was an explanation thought up to cover the Company's tracks for the purposes of these proceedings; but rather the evidence disclosed Mr Shiels and the Union were told precisely why this was necessary as a temporary measure on 25 May 2009. Moreover, it would also appear that neither the Union, nor Mr Shiels, protested at these arrangements at the time. I am at a loss to understand why Mr Shiels would almost immediately thereafter fail to comply with the Company's directions about not being on site before 6:30am, knowing full well the gatehouse was a temporary arrangement and he only needed to demonstrate compliance with directions for a few weeks, for it to end, and he be allowed to resume truck driving. Were the Management's directions lawful and reasonable? 74 It has been a long held principle that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer. A failure to do so, or as in this case, a repeated failure to do so, may constitute a repudiation of the contract and lead to the employer dismissing the employee. In Adami v Maison De Luxe Limited (1924) 35 CLR 143, Isaacs ACJ said at pg 153: I state first the relevant principle, which, indeed, has already been indicated. It is incontestable that any conduct of an employee which is not merely inconsistent with some particular obligation involved, and possibly not striking at the root of the matter, but which is inconsistent with the relation established, is a just cause for the employer's termination of that relation. Habitual neglect or a definite refusal of a general kind to pursue the employer's lawful policy of business would afford such justification. In the same case, Gavan , Duffy and Starke JJ said at Page 155 to 156: Now it may well be — and the cases and the books suggest the conclusion — that where it is a condition of the contract that the servant shall obey all lawful orders of the master, then a wilful or deliberate and intentional disobedience of any of those orders is tantamount to a refusal to be bound by the terms of the contract, entitling the other party to treat it as at an end, and to dismiss the servant ( Turner v Mason ( 1); Pease and Latter's Law of Contract, 1st ed.., p. 218). But it is unnecessary to pursue this topic, and therefore most undesirable that this court should say anything to weaken the authority of Turner v Mason, for acts of the plaintiff here did amount to a distinct refusal to be bound by the terms of his contract, and his failure to obey instructions was such as to go to the foundation and root of the whole contract between the parties. The result is that the plaintiff was rightly dismissed in point of law, and the jury should have been so directed. 75 In Anthony v NSW Fresh Food & Ice Company Limited (1846) 45 AR 64, Ferguson J, after noting the common law obligation resting on an employee to obey lawful orders of his employer, said this at pg 73: It is to be noted, however, that while this may be the position at common law, the obligation, if any, arises in the case now under consideration pursuant to the terms of the Ice Cream Manufacturers (State) Award. This award governs employment in an industry dealing with a perishable commodity and, like other awards, it confers benefits and imposes obligations upon employers and employees and all persons engaged in industry are bound under statutory authority by its terms. I also observe, that in this case, the obligation on Linfox's employees to 'comply with reasonable and lawful instructions of management' is an express term of the collective workplace agreement between the Union and the Company. 76 More recently, in Izdes v LG Bennett & Co Pty Limited t/as Alba Industries (1995) 61 IR 439, Beazley J said at p 451: In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct. In Clouston and Co Ltd v Corry [1906] AC 122, Lord James of Hereford stated at 129: "There is no fixed rule of law defining the degree of misconduct which will justify dismissal." In Laws v London Chronicle (Indicator) Newspapers (Ltd) [1959] 1 WLR 698, Lord Evershed MR (Jenkins and Willmer LJJ agreeing) stated at 700: "The question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service." In Pastrycooks Employees v Gartrell White (No 3 ) Hungerford J in reviewing these, and other authorities, stated (at 74): "Permeating all of those earlier cases on this aspect of the law was the concept that the act of misconduct or of disobedience had to strike at the fundamental aspect of the relationship of employer-employee so as to make it plain that the conduct complained of was such that the non-offending party may properly conclude that the offending party no longer intended to be bound by the provisions of the employment contract. In other words, so it seems to me, the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future". 77 Mr Fagir properly conceded that all of the directions issued to Mr Shiels were lawful. However, he submitted that the final direction, which precipitated Mr Shiels' dismissal, was unreasonable in that it was arbitrary and capricious. 78 In my view, the direction of Management that Mr Shiels not attend for work any earlier than 6:30am was not unreasonable. I make this finding having regard for the following context in which the direction was given: a) It seems to me to be perfectly understandable that Management would not want employees on site two hours before the commencement of work, except if there was a legitimate reason for doing so. While the explanation given by Mr Caunt might appear to be trivial, or as Mr Fagir said 'just ridiculous ', I agree that there are real and obvious safety obligations on the employer in having employees on site, at any time, let alone compounding its obligations in having employees on site, and not usefully engaged, when there is no reason for them to be there. Management's concerns were exacerbated, I believe, in that Mr Shiels had already demonstrated a less than strict adherence to safety policies and procedures; b) Had Mr Shiels offered a sensible or practical reason why he needed to be on site two hours before start time, the Company would have considered it. The fact that the Company had already displayed a willingness to accommodate Mr Shiels' family circumstances, demonstrates this was no phoney or gratuitous offer; c) While I accept Mr Shiels' explanation that he was a creature of habit and he simply read a paper and had a coffee as he had been doing for years, this cannot absolve him of his obligation to comply with the employer's lawful and reasonable directions. In any event, if he really couldn't change his habits, then it begs the question as to why he needed to be on site at all? He could have easily continued his habit of arriving early, have his coffee and read the paper offsite. Obviously, the Company would be powerless to prevent him from doing so; d) It beggars belief that an employee with recent warnings about complying with reasonable directions and being closely managed would leave himself so vulnerable to criticism, by continuing to ignore Management directions. I simply don't understand it. It is even more inexplicable in circumstances where Mr Shiels actually agreed he would comply and then did the complete opposite, not once, but three times. In my opinion, this conduct constituted a wilful disobedience of a lawful and reasonable direction; e) It was very obvious that Mr Shiels had been put on notice that continued inappropriate conduct would result in his employment being terminated. He was expressly warned his ongoing employment was in jeopardy in letters dated 30 October 2008, 2 February 2009 and 25 May 2009. Notwithstanding that these letters may have ended up in the garbage bin, there can be no doubt that the Company had placed him on notice concerning any further incidents and fulfilled its obligations in that regard (see s 88(c) of the Act). 79 Of course, when viewed in isolation, the final incident might not be held to be a sufficient basis for terminating Mr Shiels' employment. The same might be said about each of the other examples of failing to comply with the Company's safety policies and procedures and the emails to Mr Fox. Indeed, as I understood Mr Fagir's submission, he did not quibble with the warnings given to Mr Shiels over safety issues. However, that really doesn't advance the matter towards favouring Mr Shiels' re-employment. There must surely be a point where an employee's continued failure to follow lawful and reasonable directions, without explanation or contrition, leads to the inevitable conclusion that the employee no longer considers himself bound to the terms of his employment contract and it is open for the employer to terminate the employee's employment. This is the thrust of the authorities I earlier referred to. In my opinion, that point was reached in this case and, unfortunately, Mr Shiels was the architect of his own destiny. 80 Before leaving these matters, I would make some observations about the taillight incident, and the emails to Mr Fox. Firstly, Mr Shiels regarded being drug and alcohol tested and stood down over such a small issue as being further evidence of him being bullied and harassed. The evidence of Mr Caunt, which was not disputed, is that since December 2008, the Company's policy must be strictly enforced, irrespective of the seriousness of the accident, miss or near miss. The Company followed that policy and, in my view, there can be no basis for advancing a proposition that it represented further harassment of Mr Shiels. 81 Secondly, as to the emails, I accept that Mr Shiels was, at the time, very distressed over his colleague's death and having just been stood down. I further accept that he was remorseful for having sent the emails and regretted what he had done. The emails, nevertheless, demonstrate a frame of mind in which Mr Shiels believed that all his problems, and those of the workplace generally, were the fault of Management at the yard. This was a misplaced perception and one which I consider Management was entitled to take great offence to. Nevertheless, I do not consider that this incident resulted in the bullying and harassment of Mr Shiels. It was simply coincidental that the email incident occurred concurrently with the handling of Mr Shiels' ongoing attitudinal problem with being directed by Management. 82 Mr Fagir put no submissions as to whether the procedure leading to Mr Shiels dismissal was unfair. I accept that no procedural unfairness issues arose in this case and it may be accepted that the Company has fulfilled its statutory and industrial obligations in that regard. Further, I note that Mr Shiels was not summarily dismissed, but dismissed with four weeks pay in lieu of notice. 83 In deciding this matter, I have taken into account Mr Shiels' personal and economic circumstances and note that he holds a high level class of truck licence. I have also considered Mr Shiels' length of service with the Company (around four years) and what appears to have been an employment record prior to July 2008 without any adverse issues of performance or conduct. Nevertheless, I am satisfied that the recent pattern of failing to follow the reasonable and lawful directions of his employer outweighs any positive considerations which fall in Mr Shiels' favour. For all the forgoing reasons, I am unable to conclude that Mr Shiels' dismissal was harsh, unjust or unreasonable within the meaning of Pt 6 Ch 2 of the Act. 84 Accordingly, application IRC 877 of 2009, being an application for relief from unfair dismissal, is dismissed. It follows that the s 130 dispute proceedings in IRC 843 of 2009 are also concluded. Peter J Sams, AM Deputy President 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.