Industrial Relations Commission of New South Wales CITATION: The Seamen's Union of Australia, New South Wales Branch (on behalf of Andrew Beer) v Sydney Ferries Corporation [2006] NSWIRComm 1167 APPLICANT Andrew Beer PARTIES: RESPONDENT Sydney Ferries Corporation FILE NUMBER(S): 2400 of 2006 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - Applicant employed as boat crew - incident in wheelhouse on a SuperCat between Applicant and Master of that SuperCat - incident led to Applicant departing SuperCat and not returning - conflicting evidence as to their wheelhouse conversation - Master's incident report - investigation - Applicant's adverse disciplinary history - procedural fairness - summary dismissal - onus on Respondent - onus satisfied - Commission declines to intervene in dismissal decision. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 HEARING DATES: 06/09/06, 05/10/06 DATE OF JUDGMENT: 12/12/2006 APPLICANT Mr P Garrett, union official The Seamen's Union of Australia, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Ms B Carey, solicitor Henry Davis York Lawyers DECISION: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 14 December 2006 Matter No IRC 2400 of 2006 The Seamen's Union of Australia, New South Wales Branch (on behalf of Andrew Beer) and Sydney Ferries Corporation Application by The Seamen's Union of Australia, New South Wales Branch on behalf of its member Andrew Beer re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1167 1 This is an application by Andrew Beer ("the Applicant") for unfair dismissal against Sydney Ferries Corporation ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions before Cambridge C on 15 June 2006. Arising out of a Report Back of 22 June, the matter was set down for a Hearing pursuant to the filing requirements of Practice Direction No.17. 3 The Union had not filed material pursuant to that Practice Direction. Accordingly, the failure to file issue was referred by the Industrial Registrar of New South Wales to a member of the Industrial Relations Commission of New South Wales ("the Commission") for consideration. 4 The member of the Commission, Staff J, listed the file for Hearing Re Practice Direction 17 on 25 July 2006. The Seamen's Union of Australia, New South Wales Branch ("the Union") did not enter an appearance that day. The Respondent was represented by Mr Davison who advised that Mr Garrett of the Union was unable to attend due to ill health. Staff J issued certain directions pertaining to the Union including the filing of an affidavit (or similar documentation) to advance the Union's reason for seeking variation to the original directions for filing of material and the hearing date. 5 The matter came on before Staff J on 1 August 2006. His Honour noted that an affidavit had been filed by Mr Garrett of the Union on 28 July. Mr Garrett appeared and apologised for his previous non attendance and not complying with the Practice Direction, due to his ill health. Mr Davison appeared for the Respondent and reiterated his submission of 25 July 2006 that the parties consented to a variation of the directions made by Cambridge C for the filing of material. Staff J issued new directions and in consequence a new hearing date was set by the Industrial Registrar. 6 Although one day was set aside for the Hearing, a second day was required: 6 September and 5 October. 7 At the Hearing, the Applicant was represented by Mr Garrett, Assistant Secretary of the Union. Mr Garrett called the following witnesses: · Andrew Beer - the Applicant · Matthew Lawrence - General Purpose Hand. The Respondent was represented by Ms Carey, solicitor, who called the following witnesses: · Colin Martin - Master of Sydney Ferries · Graham Heard - Revenue Services Manager. Background 8 The Applicant was employed as a General Purpose Hand (GPH) Cashier from the date of his commencement of employment (28 August 2000), until the date of his dismissal (10 May 2006). 9 The work of GPH Cashier includes collecting revenue from passengers of the Sydney ferries, undertaking general deckhand and wharf-hand work. 10 An incident occurred on the SuperCat (Mary Mackillop) that led to the dismissal of the Applicant. 11 The Applicant was rostered to work on March 11, 2006 on board that SuperCat. 12 The Master, Colin Martin, was rostered to take over control of that SuperCat for the 1745 hrs trip to Watsons Bay from Circular Quay and return. He came on board about ten minutes before departure time for the trip to Watsons Bay and went up to the wheelhouse where he came across the Applicant. 13 A conversation took place between the Master and the Applicant. The content of the conversation is in dispute. Another crew member, the engineer, was present in the wheelhouse at the time but was not called as a witness. 14 The Master alleged that the Applicant intended to stay in the wheelhouse for the trip. The Master instructed him to go downstairs, stay on deck and check passengers' tickets. The Applicant allegedly responded that if he could not stay in the wheelhouse, he would get off the boat. The Master said he repeated his instruction of going downstairs and checking tickets. The Applicant then allegedly responded: "No, I've got to leave my bag somewhere. If I can't leave my bag here, I'm getting off." 15 The Master deposed he had no problem with the Applicant leaving his bag in the wheelhouse. However, the Applicant abruptly picked up his bag and left the wheelhouse. He observed the Applicant head to the gangway area, as if to jump off the boat. 16 The Master said that the line tying the boat to the wharf had already been removed. The Master instructed a crew member, Mr Lambert, to put the line back on as it was dangerous for the Applicant to attempt to leave the boat if it was not tied to the wharf. The line was put back on. 17 The Applicant then jumped off the boat and did not rejoin the SuperCat. 18 The Master contacted the Control Office by radio to advise of the walk-off by the Applicant and sought instructions on what should be done. The SuperCat was now behind schedule. 19 The Master observed Mr Lambert walk off the boat and speak to the Applicant. 20 The Control Office advised that there was no other crew member (cashier) available and to proceed with the trip. 21 Mr Lambert boarded the boat and walked into the wheelhouse and conversed with the Master. 22 The Master made out a report into the incident (Ex 22 - Attach CM-C). The key aspect of this report was that he said that the Applicant "refused my instructions". The report also stated that the SuperCat trip was delayed 15 minutes due to the incident. 23 The Applicant received a Notice of Misconduct by courier on April 26, 2006. The letter, dated 24 April 2006, was authored by Michel Maree Hryce, General Manager, Human Resources and Industrial Relations. (Ex 16). 24 The Applicant responded, as invited, to the Notice of Misconduct. He gave his account of the wheelhouse conversation, the thrust of which was that the Master said the Applicant could work on the boat but could not come up to the wheelhouse. The Applicant said he could not work effectively like that as he might need to access his personal bag which contained spare passenger tickets and passenger monies which are kept in the wheelhouse. (The Applicant said that the boat was underway and had just left the wharf. The Master denied that the boat had left the wharf.) The Master allegedly said that the Applicant could not work under that arrangement of being able to access the wheelhouse in order to access his personal bag. The Applicant said that the Master pulled the boat into the wharf and the Applicant alighted. The Master denied that the boat had left the wharf. The Applicant was dismissed by letter of 9 May 2006. The letter was authorised by Michel Maree Hryce. (Ex 18 - Attach 9). The letter cited two instances by which an employee may be dismissed: a) for very serious misconduct; or b) where an employee has already been disciplined for previous misconduct and the employee's conduct has not improved satisfactorily. The dismissal letter does not expressly state which option was the basis for the dismissal. The letter does contain references to the Applicant's work performances, that is, warnings on several occasions for the years 2003, 2005 and 2006. FINAL SUBMISSIONS For the Applicant 25 Mr Garrett put the following, inter alia, in final submissions: a) Mr Beer, the Applicant, did have a history of complaints against him but that did not mean that he should be pre-judged about any other incidents involving him. It was acknowledged that the Applicant had been given a final warning in January 2005. b) The February 2006 incident going to the Respondent's call-in procedure, was challenged. It was correct that the Applicant's mobile phone was turned off (and hence unavailable to be contacted and called-in to work), but his home phone had not been rung by the Respondent in order to contact the Respondent. c) As to the Mary Mackillop incident, that led to the Applicant's dismissal, the evidence showed that there were two sides to the story - the Applicant's and the Master of the Mary Mackillop. The Union doubted that the Master's recollection was 100 per cent correct. d) The Respondent has a disciplinary policy. It states that a notice of misconduct (E1 Notice) lapses if not provided to the employee concerned within five days. That had happened in this case. The Master had not put in his report about the incident until thirteen days after the incident. If the conduct of the Applicant was classified as a demeanour, then, because of the five day rule, the Union submitted that there should be no detriment to the employ of the Applicant. The management could still speak to the Applicant about the incident. e) The person who authorised the dismissal of the Applicant (Ms Hryce) refused to attend these proceedings and give evidence. f) The Applicant sought reinstatement and lost remuneration. For the Respondent 26 Ms Carey put the following, inter alia, in final submissions: a) The Applicant had been summarily dismissed for misconduct. The Applicant's misconduct on the SuperCat and his disciplinary history justified termination. b) The procedure that led to the Applicant's termination was both fair and reasonable. If the Commission found that there was a lack of procedural fairness, that finding in itself did not mean that the dismissal itself was unfair. c) As to the misconduct on board the SuperCat, it was submitted that the Applicant had disregarded the Master's instructions and left the vessel. The Applicant had been instructed to leave the wheelhouse and carry out his duties as a General Purpose Hand. The Applicant's conduct delayed the vessel (in conveying the public from Circular Quay) and meant that the vessel departed without a cashier on board. d) As to procedure, the evidence showed that the Applicant was provided with an opportunity to respond to the complaint about his conduct. The complaint was set out in the standard E1 Notice. The Applicant formally responded to the E1 Notice. His formal response, it was submitted, did not explain his conduct in any real detail other than to say he took exception to the Master's direction to stay out of the wheelhouse. The Applicant was dismissed after considering his response, his disciplinary history and the Master's version of events. e) The disciplinary history, it was submitted, showed that the Applicant consistently exhibited bad behaviour and neglected his duties. Further, it was put that these proceedings showed that he never really accepted reasonable criticism from his employer, but required others to justify themselves to him. f) The disciplinary history showed that he was given warnings (three) and he was advised for each warning that his employment was in jeopardy. Applicant in Reply 27 Mr Garrett in Reply, put the following submissions: a) It was the Master who caused the Applicant not to be working on the SuperCat, when the Master allegedly told the Applicant, "…you're not working on here". b) There was a lack of proper investigation into the incident by the Respondent. (The Commission notes that this submission probably arose from a discussion initiated by the Commission with the Respondent's representative as to whether there had been a proper investigation.) c) There was evidence that the Respondent's disciplinary policy of three warnings before dismissal was only a guide, rather than a strict application of policy. Accordingly, the policy should not be strictly applied to the Applicant. In that regard, the disciplinary history contained a matter going back to the year, 2003, and should now be ignored when assessing the Applicant's conduct. CONSIDERATION 28 The Applicant was dismissed following an investigation into an incident, between himself and Mr Martin (the Master of the Mary Mackillop). The incident took place on 11 March 2006, in the wheelhouse of that SuperCat. 29 The incident began with a conversation between the Applicant and the Master, with the latter alleging that the Applicant refused a lawful instruction to leave the wheelhouse and perform his duties as a General Purpose Hand on deck. The Applicant disputed this claim of the Master and put forward a different version of their wheelhouse conversation. 30 There was another crew member present in the wheelhouse for some or all of the incident. This crew member is an engineer. He was not called as a witness. Ms Carey, in final submissions from the bar table, said that she understood that attempts were made to speak to the engineer but the Respondent was not able to have him provide evidence. The Commission further understands from questioning of Ms Carey that the engineer was not interviewed by the Respondent. 31 Ms Carey said in final submissions that the Respondent carried the onus of demonstrating that the alleged misconduct had occurred, given that the Applicant was summarily dismissed. 32 Another issue was brought into prominence during final submissions by the Commission's questioning of the Respondent's disciplinary policy and whether there had been a lack of procedural fairness visited upon the Applicant. Ms Carey submitted that, even if there had been a lack of procedural fairness, that that in itself did not mean that the dismissal was unfair. The Commission will now deal with the substantive and procedural issues below. SUBSTANTIVE ISSUE The Incident 33 The incident that led to the Applicant's dismissal for misconduct, took place in the wheelhouse of the SuperCat, Mary Mackillop, on 11 March 2006 for the 1745 hrs trip from Circular Quay to Watsons Bay and return. 34 There were four crew on board for that trip: Mr Martin (the Master), the Applicant (as a General Purpose Hand/Cashier), an engineer and Mr Lambert (General Purpose Hand). The last two identified crew members did not give evidence in the proceedings. 35 The Applicant, it seemed, had been working on the Mary Mackillop all day and the 1745 hrs trip was his last for the day. Mr Martin, however, joined the Mary Mackillop for the first time for that 1745 hrs trip. 36 The Applicant and the Master gave differing versions of the conversation between them and which led to the dismissal of the Applicant. The Applicant contended that there were two conversations between them but the Master recollected only one. The Commission finds that it is not relevant for its consideration, as to the number of conversations in the wheelhouse at the start of that trip. 37 Relevantly, the Union pursued a theme during the cross-examination of the Master that he was vague about some of the details surrounding the incident and accordingly his version of the conversation was incorrect. Thus he could not recall the name of the SuperCat in question (Tr 05/10/06 - p5, line 24 to 28); the exact location of the SuperCat at Circular Quay when "the conversation" took place (Tr 05/10/06 - p5, line 29 to 38); and the time duration that the SuperCat was delayed in exiting Circular Quay because of the incident between the Applicant and the Master (Tr 05/10/06 - p15, line 1 to 24). The Commission finds that these matters do not cast doubt on the testimony of the Master as to other matters and in particular, to "the conversation" in the wheelhouse. 38 Further, the fact that the Master could not make precise recall about those matters was explained by him as being due to his not writing out a report about this incident until many days (perhaps up to eighteen days) later. The Union also challenged the Master that, because of this lengthy delay, he would not be able to recall anything about this incident. The Master denied this and responded, in effect, that he remembered "the conversation": that is he remembered asking the Applicant to go downstairs and do his job - but the Applicant jumped off the boat. He said, in effect, it was irrelevant that he could not remember the vessel's name, its registration number or the number of people on board the vessel. (Tr 05/10/06 - p22, line 55 to p23, line 5) The Commission also accepts this explanation from the Master as being a reasonable explanation by him. Further, the Master's demeanour in the witness box and his evidence generally, does not cause the Commission to dismiss this explanation. 39 Returning then to the differing versions of the conversation, the Commission has decided to accept the version put forward by Mr Martin, the Master of the Mary Mackillop for that trip. The Commission does so, having considered all of the evidence, and accepting, on balance, that the Respondent has discharged its onus of proving that the Applicant engaged in the conduct (misconduct) as alleged. The Commission will now set out below those matters that caused the Commission to come to the above decision. The Conflicting Conversations 40 The Master and the Applicant agree that the latter was already present in the wheelhouse when the Master came on board the Mary Mackillop for the first time that day - and went up to the wheelhouse where he met the Applicant. 41 The Master and the Applicant agree that the Applicant had his bag (personal to the Applicant) with him, in the wheelhouse. The bag also serves the purpose of containing monies collected by the Applicant from ferry passengers during the day and spare passenger tickets. 42 The Master made out an incident report of their conversation in the wheelhouse. He said that: "I instructed the cashier Andrew Beer (the Applicant) to remain on deck and not in the wheelhouse for his last trip of the day. He refused my instructions and told me that if he could not stay up in the wheelhouse he would not do the trip, subsequently jumping off the vessel onto the wharf and walking off with his belongings." (Ex 22 - Attach CM-C) 43 The Applicant received correspondence from the Respondent, dated 24 April 2006 and which set out the Master's reporting of the incident. The correspondence, authored by Ms Hryce, sought a response. (Ex 16) 44 The Applicant gave evidence he received the letter on 26 April and responded the same day. (Ex 17) His response breaks the incident up into two conversations in the wheelhouse. Be that as it may, he asserts that in the second conversation the Master said: "I don't think you understood me. You can work on the boat but you're not coming up here (the wheelhouse)". The Applicant said he responded: "I can't work effectively like that. I might need to access my things." The Master allegedly replied: "Well you're not working on here." The Applicant got off the vessel. On the Applicant's version, he is stating that the problem is that he is being denied access to the wheelhouse and hence his bag during the course of the ferry trip. On his version, this denial of access (by the Master) is what caused the Applicant to say: "I can't work effectively like that". The Commission notes that no explanation is given by the Applicant in his April 26 response as to why he needed to access his personal bag. 45 However, it came out during the proceedings that he kept monies from paying passengers from previous trips on that day in his bag. This presumably was for safe-keeping purposes. His evidence was that he might need to access the money in his bag for obtaining change for passengers buying tickets off him, as he was the cashier for the trip. There was no evidence from the Respondent that this was not the correct way of storing or accessing monies taken by a cashier during a day's work. 46 In summary, the critical issue that the Applicant raises as being the issue that brought about his dismissal, is that the Master would not allow him to access his bag (stored in the wheelhouse) during the Circular Quay to Watsons Bay trip and return. And according to the Applicant, this in turn led to the Master, effectively instructing the Applicant, to get off the vessel. This he did and was therefore following the Master's instruction and accordingly his dismissal was unfair. 47 The Master's version in his incident report, is that the Applicant was requested to leave the wheelhouse, help out on deck and check the passengers' tickets. The Applicant allegedly declined and said he would be staying in the wheelhouse and if he could not, then he would get off the vessel. However, according to the Master's version in his witness statement , this stance of "staying in the wheelhouse or else I'll get off the vessel", was shifted by the Applicant. Thus, the Applicant allegedly then said: "No (to going downstairs and checking tickets), I've got to leave my bag somewhere. If I can't leave my bag here, I'm getting off." So, according to the Master's version in his witness statement, the Applicant has now put a different qualification to his getting off the vessel. The Master then deposed in his statement he had no problem with the Applicant leaving his bag in the wheelhouse. However, this was not put to the Applicant at the time. The Master deposed that the Applicant abruptly picked up his bag and left the wheelhouse and the vessel. 48 In summary, the critical issue in the Master's version of their conversation, is the Applicant's bag. On the Master's version, the Applicant's position has shifted from one of staying in the wheelhouse (and arguably disobeying the instruction of the Master to do his deck work), to one of he will carry out his work on deck but he needs to leave his personal bag (containing monies) in the wheelhouse - or otherwise he will get off the boat. 49 On the Master's version, the conversation ends on the Applicant's statement that he has to leave his bag somewhere (assumed to be the wheelhouse) or else he will get off the boat. The Master deposed that he had no problem with the bag being left in the wheelhouse. But this is a reflection to himself. It was not put to the Applicant at the time of their conversation. In any event, the Master deposed that the Applicant "abruptly" picked up his bag and left the boat. Seemingly, the Applicant abruptly picked up his bag and left the vessel before the Master could respond to the Applicant's statement that if he could not leave the bag (in the wheelhouse) he would get off the vessel. 50 The issue then for the Commission is whether the Master instructed the Applicant to leave the vessel (the Applicant's version) or the Applicant abruptly left the vessel (the Master's version). 51 When the two versions are stripped down to their respective basic premises, as in the foregoing paragraph, the Applicant's version raises a common sense question against itself. Thus, why would the Master instruct the Applicant to leave the vessel and bring upon the Master the problem of being one crewman short for the trip from Circular Quay to Watsons Bay and return? And this crewman had the role of cashier. He was to check passengers' tickets and sell tickets to passengers who boarded at stops in between Circular Quay and Watsons Bay. Again, the question is to be asked: why would the Master disadvantage his professional running of the boat by denying himself that type of crewman? 52 The Commission draws attention to evidence that the Applicant would say answers the above issue. The evidence is that the other deckhand was capable of selling tickets. (Tr 06/09/06 - p17, lines 40 to 42) Accordingly the Applicant would say that the Master could and did order him off the vessel and the Master would not be short a cashier. But even so, the Master is still inviting a "Please Explain" from his employer as to why he ordered a crewman off the vessel and left himself one crewman short. 53 On the Applicant's version, the reason why he was ordered off the vessel was because the Master would not agree to the Applicant being able to access his bag during the trip and which was to be left in the wheelhouse. (The Applicant agreed, under cross-examination, that the issue was not about being able to leave the bag in the wheelhouse as the Master had not said he could not leave his bag there. (Tr 06/09/06 - p15, line 55 to 57)) 54 The reason advanced by the Applicant as to why he may need to access his bag is to obtain passenger tickets or change. He said that the tickets and change could not be carried on your person all the time. (Tr 06/09/06 - p16, line 42 to 46) But again, why would the Master prevent the Applicant, or any cashier, from accessing their bag in order to obtain tickets for boarding passengers or to obtain change for purchased tickets? If the Master prevented the cashier from making ticket sales, then presumably the Master would be inviting a "Please Explain" from his employer. 55 Even if the Applicant relied upon the evidence (as already discussed above) that the other deckhand could carry out ticket sales, and hence the Master could do without the Applicant (and knowingly took that decision), then the Master would still be inviting a "Please Explain" from his employer. Why would the Master intentionally put himself in that predicament of explaining why he decided to run the SuperCat one crewman short? 56 Further, he would have to explain why he brought this predicament upon himself with only a short time frame left before picking up passengers at Circular Quay for the 1745 hrs trip to Watsons Bay and return. The Master boarded the vessel and was in the wheelhouse only ten minutes before departure. (Tr 06/09/06 - p 15, line 33 to 39) 57 The above scenario (that the Master decided to travel one crewman short and took that decision just before picking up the Circular Quay passengers) would create another burden for the Master because such a scenario, if true, also resulted in the SuperCat exiting Circular Quay late. The delay factor was in dispute. The Master thought it was fifteen minutes but there was contrary evidence that the delay was nine minutes. (Tr 05/10/06 - p15, line 1 to 12) Even if the Commission accepts that there was only a nine minute delay, why would the Master take a decision that causes him to be late in picking up passengers and invite a "Please Explain" from his employer. 58 It seems to the Commission that the Applicant's version that he was ordered off the vessel by the Master is improbable because the Master would be inviting a "Please Explain" from his employer for running the vessel one crewman short and being late in picking up passengers. 59 In coming to the view that it was improbable that the Master ordered the Applicant off the vessel, the Commission also considered evidence about crews of vessels being able to access the wheelhouse. The Applicant said, in re-examination, that the restroom (for himself, and by inference other crew members) is in the wheelhouse; this was where he had his cup of tea, a drink or a break from passengers; and it was part of his workplace. (Tr 06/09/04 - p 24, line 57 to p 25, line 6) This claim by the Applicant was not tested on the Master of the vessel (who gave his evidence later in time) and accordingly, is taken to be a correct statement. That being the case, and in particular that the restroom is in the wheelhouse, how could the Master prevent the Applicant from accessing the restroom - and hence the wheelhouse - and hence, as well, accessing the Applicant's personal bag? 60 The Master was asked if he restricted the Applicant from the wheelhouse. He responded that he does not restrict any deck hand (including specific reference to cashier) from coming into the wheelhouse. He acknowledged in the same response that deckhands need a break (from their work inferred). (Tr 05/10/06 - p 11, line 1 to 6) This response confirms the Applicant's evidence that the wheelhouse is a place for breaks by the crew. That being so, why would the Master deny the Applicant from entering the wheelhouse to access spare passenger tickets or change? And the time required for the Applicant to carry out that task would be of lesser duration than taking a break. That observation merely prompts the above question again: why would the Master deny the Applicant from entering the wheelhouse to access spare passenger tickets or change? This question on this point reinforces the Commission's view that it is not probable that the Master ordered the Applicant off the vessel over the issue of access to the Applicant's personal bag. 61 The Commission also considered the plausibility of the Applicant's version from a personality or past conflict between the two persons in question - in order to accept the Applicant's version that he was ordered off the SuperCat. That is, the Commission considered whether the Master had a bias against the Applicant. 62 There was evidence about their working relationship in the past and of a prior conflict. 63 The Master deposed he had worked with the Applicant on about three different occasions over the past four years. (Ex 22 - para 7) He deposed he had faced difficulties with the Applicant. (Ex 22 - para 12) On one occasion, approximately two years ago, the Master said that the Applicant was lounging around the wheelhouse on each trip, rather than carrying out his duties. He spoke to the Applicant about doing his job properly - that is, checking the tickets. The Master said that the Applicant eventually left the wheelhouse, but reluctantly. (Ex 22 - paras 12 to 14 inclusive). 64 This claim in the Master's affidavit was made/filed after the Applicant had put on a Right of Reply. The Right of Reply was not a statement put on by the Applicant but rather one put on by the Union on his behalf. (Ex 19) This claim by the Master was not put to the Applicant by the Union, during evidence-in-chief, for comment by the Applicant. 65 The Master was called as a witness. During evidence-in-chief, he was taken to paragraph 12 of his statement and asked to describe his relationship with the Applicant generally. The Master responded that the Applicant had blatantly refused to do his job (as cashier). (Tr 05/10/06 - p 2 line 52 to p 3 line 6) Importantly, this piece of evidence-in-chief has put the Union on notice that this issue going to the Applicant's work ethic needs to be addressed in cross-examination. It needs to be because it is of a similar type of complaint by the Respondent as to why the Applicant was dismissed. 66 The Union questioned the Master about his piece of evidence - that is, the claim that the Applicant lounged around the wheelhouse rather than carrying out his duties. The Union's approach to discrediting this evidence went to showing that the Master was vague in his recollection of the claim and this vagueness went to the credibility of the Master's evidence. Thus the Master could not recall the date of the lounging-around incident of two years prior; the Master could not recall the name of the SuperCat upon which the incident occurred; and could not name the crew on board the vessel at the time. 67 Arising out of an objection by Ms Carey to this line of questioning, Mr Garrett for the Union explained that his questioning went to establishing the vagueness of the evidence of the Master about the incident or "indeed whether the incident happened at all." The Commission raised with Mr Garrett that if the last comment (see quote above) was to be pursued then that had to be put to the witness. The Union did not pursue that line of questioning but took the line that the Master's evidence was vague about the incident - and by inference that the Commission should place no weight or little weight on this incident of two years prior. (Tr 05/10/06 - p 4, line 46 to p 6, line 4) 68 As already observed elsewhere by the Commission, the fact that the Master could not remember the date, the vessel name or the crew pertaining to an incident two years ago, does not lessen the weight of the claim. It is reasonable that the Master could not remember these details given that he had not recorded the incident. Further, the demeanour of this witness and the evidence given by him generally, does not cause the Commission to lessen the weight of his claim that on a prior occasion, the Master had spoken to the Applicant about "lounging around" in the wheelhouse and thus not performing his cashier duties. The significance of this observation by the Commission, is that a finding is made that the Applicant engaged in similar conduct two years prior for which he was later dismissed. Disciplinary History 69 The Respondent's termination letter itemised the Applicant's disciplinary history. Although not stated expressly in that letter, the Respondent relied upon that disciplinary history to support the termination. (Ex 18 - Attach 7) 70 The termination letter refers to the following history: (a) On 15 May 2003 you were issued with a formal warning and advised that if your conduct is not satisfactory in the future, a more severe punishment may be imposed. Details of the misconduct was as follows: "On Sunday 16 March 2003 you were rude and unhelpful to a passenger whilst carrying out your duties as a cashier at Manly Wharf. You refused to offer assistance when asked by passenger for cost of Daytripper and threw change back at passenger." (b) On 5 August 2003 you were issued with a final warning and advised that a further breach of this kind will result in dismissal. Details of the misconduct was as follows: "On Sunday 11 May 2003 you were on the telephone while a passenger was waiting to be served. You then asked the passenger to move to another window and closed your blind." (c) On 17 January 2005 you were issued with a final warning for unacceptable work behaviour. Details of the misconduct was as follows: On Sunday 2 January 2005 at approximately 0830 am you were directed by the Revenue Supervisor at Circular Quay to be available on 'standby', in the Sydney Ferries Information Office, ready for cashier duties on the backup Rivercat vessel as per your rostered shift. At approximately 0930am you were required to perform cashier duties on the backup Rivercat vessel. You were unavailable to perform these duties as you could not be found in the Sydney Ferries' Information Office nor could you be contacted on your mobile phone, you also did not respond to a page by the Controlling Officer at Jetty 3. You did not report to the Revenue Supervisor at any time, either in person or by phone, to advise of your absence from the designated waiting area. You did not return to the Circular Quay Revenue Room until approximately 1030am, by which time another employee had already been contacted to cover the remainder of your rostered shift as your whereabouts and future availability were unknown. (d) On 30 March 2006 you were issued with a final warning for unacceptable work behaviour. Details of the misconduct were as follows: On Friday 3 February 2006 you were un-contactable for a "call in" shift. The Revenue Services Supervisor made calls to the contact number (number stated but censored by the Commission) at fifteen minute intervals from 9:00am to 9:30am without success, all calls went to message bank. A call was also made to your home number at 9:30am without success. No calls were received from you in reply during the day mentioned above." 71 That disciplinary history shows that the Applicant was issued with a formal warning on 15 May 2003; a final warning on 5 August 2003; a final warning on 17 January 2005; and a final warning on 30 March 2006. 72 The Union contested the final warning of 30 March 2006. In doing so, it sought to delete that warning from the Applicant's file. The Union, of course, challenged the SuperCat incident. The Union's strategy sought the outcome that only three warnings remained on file. The significance of this strategy is that the Respondent's disciplinary policy states that: "Employees should not expect more than three official discussions and three formal warnings or other punishments for similar or different forms of misconduct before they are dismissed." (Ex 24 - p 8) 73 The final warning, that was challenged by the Union, went to the "call-in" incident of 3 February 2006. The Applicant had been uncontactable for a "call-in" shift on that day. The Incident Report (Ex 18 - Attach 1) showed that his mobile phone had been called at 9.00 am, 9.15 am and 9.30 am; - all calls went to message bank. His home telephone had also been called at 9.30 am. All phone attempts to contact the Applicant had been without success. 74 An E1 Notice was sent to the Applicant - dated 3 February 2006. (Ex 18 - Attach 2) This sought a response to the above "call-in" allegations. 75 The Applicant responded in writing advising that his mobile phone was off and charging. His home line was busy when he was called at 9.30 am. 76 The Applicant was given a final warning of unacceptable work behaviour for not complying with the Code of Conduct. (Ex 15) 77 The Union challenged the giving of this final warning on the basis that the Applicant had not breached the Code of Conduct. Thus, it was his evidence that the Respondent was required to ring two phone numbers when contacting an employee for a "call-in" shift. That is, if the employee did not respond to a given phone number, then another phone number was immediately called. The Applicant's understanding was that the Respondent would phone both numbers at 0 minutes, 15 minutes and 30 minutes. (Ex 18 - paras 8 to 19) Mr Lawrence, union delegate, deposed to the same understanding: that is, if an employee did not respond to one phone number, then another phone number was immediately called. (Ex 20 - paras 15 to 21) 78 Mr Heard, Revenue Services Manager, for the Respondent, gave a contrary view of the "call-in" procedure. His understanding was that only one phone number is called at zero minutes, 15 minutes and 30 minutes. As it was, he said, the Applicant's mobile phone number was called at those intervals and, in addition, his home phone number was rung at the 30 minute interval - all to no avail. He said that this procedure by the Respondent was more than sufficient. (Tr 05/10/06 - p.45, line 25 to p.46, line 14) Clearly there is a conflict in the evidence as to the correct "call-in" procedure requirements. 79 The Applicant's defence is that his mobile phone was not on because it was charging. Despite not having his mobile on, he said the "call-in" procedure required that he then be called on a second phone number immediately - in this instance his home phone - and if this had been done he would have answered the "call-in" requirement at the 0 minutes and 15 minutes intervals. The Commission notes that the Applicant agreed he could charge his mobile phone and leave it turned on at the same time. (Tr 06/09/06 - p.13, line 45 to 58) 80 The Commission does not need to resolve this conflict as to which procedure applies. If the Union's submission on the point is correct, then that would mean that the warning for the "call-in" incident is to be expunged from the Applicant's record. And that would mean that the Applicant had only three warnings and not four warnings on his record. The importance of this for the Union is its submission that an employee can have three warnings on their record without being dismissed. But the problem for the Union is that the Commission has found that the Respondent has made out its case for the dismissal of the Applicant on the "fourth warning", as it were - that is, the SuperCat Wheel-house incident. 81 The other problem for the Commission, in terms of accepting the Union's submission as to the proper application of the "call-in" procedure, is the failure by the Applicant to act upon the placing of a fourth-warning on his record for the "call-in" incident. The fourth warning was placed on his record on 30 March 2006. He did not challenge that finding. He deposed that there was a failure by the Respondent to have a follow up meeting with him as to his response to the Notice of Misconduct - before the Respondent decided to issue a final warning. But given that the Applicant then had four warnings on his record - and arguably the Respondent could have dismissed him instead because of his warning accumulations - then why did the Applicant and the Union not agitate then against the alleged lack of procedural fairness and the mis-application of the "call-in" policy by the Respondent? 82 The foregoing consideration of the Union's submission that the Commission should find that the Applicant only had three and not four warnings before the SuperCat incident took place, was predicated on the basis that there was a Disciplinary Policy in place. For the record, the Respondent disputed this and said that the Disciplinary Policy applied to bus drivers and not employees of the Respondent. It was not necessary for the Commission to determine that issue. Suffice to say, the Commission considered the Union's case from their point of view that the Disciplinary Policy did apply - but the Commission found that even if the Disciplinary Policy was applicable, it was of no assistance in the Union's submission that there had been an unfair dismissal. 83 There was an alternate submission from the Union based on the Respondent's claim that the Disciplinary Policy did not apply. As the three warnings criterion did not apply, then the disciplinary history of the Applicant should be treated differently. That is, there was an "old" formal warning from May 2003 and it should be removed from consideration of the Applicant's disciplinary history. The Commission rejects that submission. No evidence was put forward by the Union as to why that formal warning should be classified as "old". PROCEDURAL ISSUE Procedural Fairness 84 The Union made a submission that there was a lack of procedural fairness because of a lack of proper investigation into the SuperCat wheel-house incident. 85 The investigation into the SuperCat incident took the form of: a) The Applicant received a Notice of Misconduct by courier on 26 April 2006. The Applicant responded in writing on the same date. b) Ms Hryce, General Manager of Human Resources and Industrial Relations considered the Applicant's response and decided that his services should be terminated. c) On 9 May 2006, there was a meeting at which the Applicant was terminated. 86 The foregoing investigatory process was the subject of discussion during final submissions. The Commission became aware that Ms Hryce did not attend the termination meeting. Nor did Ms Hryce appear as a witness and subject herself to cross-examination on her decision to dismiss the Applicant. Mr Heard, Revenue Services Manager attended the meeting and also gave evidence in the proceedings. 87 It seems that the purpose of the meeting was to advise the Applicant of the decision to terminate his services. He was not offered the opportunity to make any further submission in his defence. It seems to the Commission that there was a need to have the Applicant speak further on the wheel-house incident. This is so because of the Respondent's view that the Applicant had not fundamentally denied the allegations made against him. This was the view deposed by Mr Heard. (Ex 23 - para 47) His view was based on his reading of the Applicant's response to the Notice of Misconduct. If it is correct that the Applicant did not fundamentally deny the allegations about the wheel-house incident, then why is that so? Is it because the Applicant could not deny the allegations? Or is it because the Applicant panicked and did not properly consider his response? The latter scenario is possible. The panic could be caused by his knowing that he already had four warnings (and other adverse commentary) on his personal file. It was also the case that the Applicant responded on the same day that he received the Notice of Misconduct. That is, arguably he did not take time to consider his response and as to whether that response addressed what was being asked of him. 88 In any event, the Commission does not accept Mr Heard's account "that Mr Beer (the Applicant) did not fundamentally deny the allegations against him…" (Ex 22 - para 47). The allegation against the Applicant was that he had refused the Master's instruction to exit the wheelhouse and remain on deck. The allegation continued that the Applicant said if he could not remain in the wheelhouse, he would leave the SuperCat and he did. (Ex 23 - Attach GH29). The Applicant's response to the foregoing is that he was ordered off the SuperCat by the Master who said: "Well you're not working on here", in reply to the Applicant's previous statement to the Master, words to the effect: "I agree to work on deck as you require but I might need to come into the wheelhouse during the trip in order to access my things in my personal bag." (Ex 23 - Attach 31). 89 On the Applicant's response he is not refusing to carry out the Master's instruction but rather he will carry out that instruction provided he can access his personal things in his personal bag. It can not be said that the Applicant's response does not fundamentally deny the Master's allegation. Elsewhere in this Decision, the Commission stripped down the Master's allegation and the Applicant's response to one of whether the Master instructed the Applicant to leave the vessel (the Applicant's version) or the Applicant abruptly left the vessel (the Master's version). These versions are diametrically opposed and are based on a reading of the Master's incident report and the Applicant's response. 90 The starting point for the Applicant's dismissal was "the conversation" in the SuperCat. His dismissal was decided by Ms Hryce on paperwork, that is on the two versions of what happened that day in the wheelhouse - and which two versions the Commission has found to be diametrically opposed. 91 The Applicant was summarily dismissed and "Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; ..." Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 at 229. 92 In this case, there was not a full and extensive investigation. The diametrically opposed versions were not investigated. 93 The proceedings before the Commission also brought out a difference in the version given by the Master in his incident report to that of his affidavit. The incident report had the Applicant stating that if he could not stay in the wheelhouse he would leave the vessel. But the Master's affidavit (which reported the incident in first person conversational style) had the Applicant putting a different qualification (being able to access his personal things) to his getting off the vessel (see para 47 above). This qualification was not known to the investigator(s) of this incident because there was not a full and extensive investigation. 94 In the case of misconduct (as this was), there needs to be a full and extensive investigation. The appropriate course would have been for a face to face interview with the Master and the Applicant and putting to the Applicant any adverse findings (or possible findings) for his response. This would have been a wiser course of action in order for the Respondent to reject any claim of denial of procedural fairness - and denial to such an extent as to overturn the Respondent's decision to terminate the Applicant's services. 95 The Commission has formed the view that the procedural flaw in the investigatory process by the Respondent is not such as to overturn the Respondent's decision to terminate the Applicant's services. CONCLUSION 96 The Commission has before it an unfair dismissal application by the Union on behalf of Andrew Beer, a former employee of the Sydney Ferries Corporation. 97 Having considered all of the evidence, surrounding both the substantive and procedural issues in this case, the Commission has decided not to intervene in the Respondent's decision to terminate the services of Andrew Beer. A Macdonald 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.