Industrial Relations Commission of New South Wales CITATION: Griffith City Council v USU (on behalf of O'Hara) [2006] NSWIRComm 233 APPELLANT: Griffith City Council PARTIES: RESPONDENT: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) (on behalf of Shane O'Hara) FILE NUMBER(S): IRC 2655 of 2006 CORAM: Wright J President CATCHWORDS: Stay - Appeal - Appeal against order of reinstatement - Unfair dismissal proceedings - Principles not in issue - Whether stay should be ordered - Terms upon which stay granted - Employee's usual pay - Matters which may be raised on appeal - Stay granted on terms. LEGISLATION CITED: Industrial Relations Act 1996 s84 CASES CITED: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Shane Gregory O'Hara) and Griffith City Council [2006] NSWIRComm 1102 Plummer v Stannard Bros Launch Service Pty Limited (2005) 145 IR 111 HEARING DATES: 11/07/2006 EXTEMPORE JUDGMENT DATE: 07/11/2006 APPELLANT: Mr A Searle of counsel Mr Darren Gardner LEGAL REPRESENTATIVES: Maddocks Lawyers RESPONDENT: Mr G Golledge New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WRIGHT J, President Tuesday 11 July 2006 Matter No IRC 2655 of 2006 GRIFFITH CITY COUNCIL AND NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION (ON BEHALF OF SHANE O'HARA) Application by Griffith City Council for leave to appeal and appeal against a decision of Commissioner Bishop given on 23 June 2006 in Matter No IRC 2917 of 2005 DECISION [2006] NSWIRComm 233 (Ex tempore) 1 On 7 July 2006 Griffith City Council (the appellant) filed an application for leave to appeal and a Notice of Appeal against the decision of Bishop C given on 23 June 2006: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Shane Gregory O'Hara) and Griffith City Council [2006] NSWIRComm 1102. In the documents filed by the appellant a stay of the orders of Bishop C were sought; this was because the Commissioner had included in her orders an order that the reinstatement she granted was to take effect from Monday, 10 July 2006. 2 The appeal was received in chambers on the afternoon of 7 July and, in view of the circumstances of the stay sought, the Commission made the following orders in chambers: 1. Matter listed before the President at 10.15am on Monday 10 July 2006 for hearing of notice of motion and stay application, with one and a half hours allowed for the hearing. 2. Interim stay granted of Bishop C's order 4 of 23 June 2006 pending the above hearing. 3. Appellant (Griffith City Council) to serve on the respondent copies of all documents filed no later than 5pm today. 4. Appellant to file and serve by fax outline of submissions in support of its motion and stay application by 8.30am on Monday 10 July 2006; in the case of the Commission the relevant fax number is 9258 0058. 5. The appellant is directed to also advise the respondent of these orders by 5pm today. 3 The matter then came before the Commission on 10 July when the possibility of settlement of the stay was considered. Because of the possibility of the Commission not being able to complete the hearing the application it was adjourned for further hearing today. 4 At the hearing today the appellant was represented by Mr Searle of Counsel and the respondent union (the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities - the USU) was represented by Mr Golledge. 5 The decision of the Commissioner involved proceedings brought by the USU, the respondent to the appeal, on behalf of its member, Mr Shane Gregory O'Hara, seeking reinstatement of Mr O'Hara in the employ of the appellant. 6 Mr O'Hara had been dismissed from employment with the appellant as a result of a DUI conviction which related to a time when he was driving a vehicle owned by the appellant Council. 7 There are a large degree of common ground as to the factual circumstances of the present matter and it is, therefore, unnecessary to refer to those matters in great detail here. It is sufficient to note that it is clear Mr O'Hara had consumed a great deal of alcohol on the evening before the on-call period in which he worked on the relevant day and, although he seemed to have finished work on the day in question when he was tested by police officers, he, nevertheless, recorded a 0.1 reading on the relevant instrumentation. 8 Mr O'Hara had two earlier disqualifications for DUI. Although neither of those appear to have involved occasions when he was working, it is to be noted that (see paragraph [19] of the Commissioner's decision) on one of those occasions (in 1997) he was issued with a written warning by the appellant Council and demoted to a trade's assistant position for the 18 month period of disqualification; presumably this was because he was not able to perform his normal duties as a plumber with the Council during the period of disqualification. 9 The Commissioner ordered the reinstatement of Mr O'Hara to his former position of plumber on the basis of a final warning in relation to any further DUI convictions. She also ordered that his employment would be taken not to have been broken by the termination of employment on 27 May 2005, although the period between dismissal and reinstatement (a period of some 13 months) was not to be the subject of payment, or to be counted for the purpose of the accrual of leave. It was ordered that reinstatement was dependent upon Mr O'Hara holding a current driver's licence. 10 The Commissioner also expressed some concern about the drinking culture in parts of the Council's activities and that Mr O'Hara (see paragraph [263]) was to seek counselling in relation to his drinking problem. It was noted that the union advocate before the Commissioner had indicated the union's preparedness to relevantly assist him, as would Mr O'Hara's family members who were present during the proceedings. Although no specific finding was made in the Commissioner's decision, the decision seems to indicate that Mr O'Hara, at the relevant time, not only had a drinking problem, but it was such that it amounted to a health problem. It seems that consideration was an important factor in the Commissioner's decision. 11 The appellant has provided detailed submissions which are to be read in conjunction with matters set out in the concise affidavit of Ms Linda Christine Richardson, solicitor employed by Maddocks, solicitors for the appellant. Paragraph 7 of that affidavit sets out some material obtained from Mr Ian Mackinlay, Manager - Organisation and Development of the appellant; because of the reliance placed on those factual matters I set them out here: 7.1 Council will be placed in a very difficult position if Mr O'Hara is re-instated. Mr O'Hara's colleagues and supervisors have expressed concern to Mr Mackinlay that Mr O'Hara has been reinstated when there are still concerns over his risk to himself and others. 7.2 Council has no confidence in Mr O'Hara's ability to safely drive Council vehicles or be on-call. This is particularly due to Mr O'Hara's comments during the hearing in which he said that, in his view, he could safely drive with a Blood Alcohol Concentration of 0.1 and the fact that Mr Mackinlay is aware of a number of public disturbance incidents involving alcohol reported in the local press. 7.3 The reinstatement of Mr O'Hara undermines the attempts by Council to change the behaviour of its employees with respect to safety. Council has been attempting to enforce a culture which respects safety and the reinstatement of Mr O'Hara, notwithstanding a requirement that he engages in counselling, make Council look ineffectual and works against its attempts to promote a better work culture. 7.4 The reinstatement of Mr O'Hara, in circumstances where he has been off work since 27 May 2005, and may be terminated if the appeal is successful, will be disruptive for Council and for Mr O'Hara's work colleagues. 7.5 Approximately 4 months ago, Council restructured its operations. Accordingly, Mr O'Hara's former position of "Journeyman Plumber" no longer exists. Most of Council's plumbing work is industrial (rather than domestic) plumbing which involves the fixing of burst water pipes. Council has multi-skilled its labourer workforce to be able to fix water pipes, under the supervision of trained plumbers where this is necessary. 7.6 Mr O'Hara has not participated in any drug or alcohol counselling since his termination on 27 May 2005. The USU have advised Council that Mr O'Hara has made an appointment at an unspecified time. No evidence of any counselling to date or the form of the counselling proposed has been received by Council. 7.7 There has been no medical evidence, or evidence from other appropriately trained professionals, which certifies that Mr O'Hara does not pose a risk when working, driving vehicles or being on-call. 12 The affidavit also indicated (paragraph 8) that the appellant's instructions to its lawyers are that if the stay was granted, it would pay Mr O'Hara the ordinary remuneration he would be entitled to be paid, if reinstated to his former position at Council, less any amount earned by him in any other employment, until the determination of the appeal or further order of the Full Bench. 13 One of the significant issues in the stay application was the basis proposed by Council as to the terms of any stay. In particular, reliance was placed by the USU upon the fact that, in the period immediately prior to the termination of his employment, Mr O'Hara was on an on-call roster for approximately 23 weeks in the previous 12 months and that, at the time of his dismissal, he had been on-call for a continuous period of about six weeks. The standard situation (if one existed) was that Mr O'Hara was intended to be on a one in five roster, that is, it was intended that he be on-call one week out of five. 14 The respondent union vigorously opposes the granting of a stay. It submitted that the Commissioner's decision was correct, and that was a very important and material consideration in considering the question of a stay. Heavy reliance was placed upon the social and personal dislocation that Mr O'Hara had suffered as a result of this dismissal; he had been without employment for approximately 13 months and, if the stay was granted, that inappropriate situation would continue. 15 The union also placed evidence before the Commission that, although he had some 10 months casual employment with the Murrumbidgee Water Authority after his dismissal, Mr O'Hara has had no employment at all for the last three months. It was also noted that he now has a current driver's licence, the 12 months disqualification imposed by the Magistrate at Griffith for the DUI offence having now run its course. The union's evidence also indicated Mr O'Hara had attended one counselling session regarding his alcohol problems and that he has made an appointment to attend another. 16 The relevant principles as the grant of a stay have been the subject of some debate before me, but, as they do not appear to be in doubt or in issue, I do not intend to refer to them in any great detail. It is clear that appropriate weight must be given to the decision appealed from and that the filing of a Notice of Appeal does not, of itself, operate in any way to nullify the weight which should be given to the decision in favour of the respondent to the appeal. However, if there is a real prospect that the appellant's right to appeal would be regarded nugatory if the stay is not granted, that would usually operate in favour of a stay. Nevertheless, I do not find that the granting of a stay in this matter would result in the appeal being nugatory. It seems to me there is a proper basis, however, to grant a stay. 17 I am prepared to accept, without making a finding to that effect, that the appellant has an arguable case on the appeal and that the appeal does raise some difficult and important questions. On the other hand, it should be said that the appeal has some difficulties in that some of the grounds that the appellant wishes to put forward in the appeal are problematic. A number of those matters which are set out in the paragraphs earlier cited, relate to a reorganisation of Council, which appears to have been occurring during the course of the proceedings, but was not the subject of any evidence before the Commissioner. In Plummer v Stannard Bros Launch Service Pty Limited (2005) 145 IR 111 the Full Bench said: In view of the conclusion we have reached on the relief appropriate on appeal, it is not strictly necessary for us to determine whether the circumstances of the reorganisation of the respondent employer would, of itself, have made an order for reinstatement of the appellant impracticable for the purposes of s89(5) of the Industrial Relations Act . However, in view of the issue being raised and strenuously pressed, we consider that it is appropriate to deal with it. There are two reasons why, if it had been relevant, we would not have considered that this material would have provided a factual basis to find that it was impracticable to reinstate the appellant. The first reason relates to the timing of the placing of the evidence before the Commission. Without reciting the chronology in detail it is clear that there was sufficient time between the decision being reserved, the reorganisation taking place and the decision being given, for an application to be made by the respondent to re-open the proceedings to place the further evidence before the Commissioner. To make a finding in the respondent's case on the basis of the additional evidence on appeal would be tantamount to permitting the respondent to put forward a different case on appeal to that mounted at first instance. 18 Although that passage may be, strictly speaking, obiter dicta, nevertheless, it does represent a considered decision by the Full Bench of the Commission on an important matter. It may well be that some of the matters relied upon by the Council will thus face some hurdles in being successful on appeal, in light of the approach in Plummer v Stannard Bros. 19 The concerns expressed by the union as to the social and personal dislocation suffered by Mr O'Hara are, in my view, very important. Nevertheless, they do have another complexion to them, as argued by the appellant Council; that is, if one accepts that Mr O'Hara has been placed in a highly difficult personal situation by 13 months off work, the Council argues that it would not be in his interests for him to be reinstated for a short period if, at the conclusion of the proceedings, the appellant's appeal was upheld and he, therefore, had to leave the employment. It seems to me that those submissions require careful consideration. I am very sympathetic to Mr O'Hara's situation, but I do not consider it is either in his interests, or that of the appellant Council, to create a situation where it may be possible, if it transpired that Council's appeal was successful, that Mr O'Hara did return to work for only a very short time. Although there is the real possibility that Council's appeal may be successful, it is also quite possible it would be unsuccessful. In those circumstances, the prudent course seems to be to grant the stay. 20 The next issue relates to the terms upon which the stay is to be granted and I have already noted the terms which Council has put forward as the basis a stay should be granted. It seems to me, in principle, the approach by Council is correct, but what has loomed large in the various submissions on this issue is the on-call situation and that concerning Mr O'Hara prior to his dismissal and the impact of that on his usual pay. 21 The Commissioner's decision (see paragraph [7]) records that, at the time of the termination of his employment, Mr O'Hara earned $780 per week and received an additional $150 per week whenever on-call. The appellant says, in view of reorganisation, if he did return to work he would not receive the on-call allowance; however, as indicated earlier, that part of the Council's submission may have to face for its acceptance in the appeal the Full Bench decision in Plummer v Stannard Bros. 22 It seems to me, accepting the approach of Council in principle, the next question is: what, in a practical sense, should be regarded as Mr O'Hara's normal or usual pay for the purpose of imposing the relevant conditions on the granting of a stay? I consider that the matters that should be given appropriate weight are the significant periods of on-call that were assigned to Mr O'Hara in the 12 months prior to the termination of his employment, but also, the reorganisation which has resulted in the practical abolition of on-call. I make this last observation purely for the purpose of the stay application, notwithstanding that, in the appeal itself, the reorganisation may have to be considered in light of the approach in Plummer v Stannard Bros. 23 In those circumstances, I consider that Mr O'Hara's normal or usual pay for the purpose of the granting of the stay should be his ordinary weekly hours plus 40 per cent of the on-call allowance. If there has been no adjustments in the rate of pay set out in the Commissioner's decision, that would represent a rate of pay of $780 plus 40 per cent of $150; that is $840 per week. I, therefore, grant a stay on that basis. 24 The appellant has leave, if it wishes to do so, to take out a formal order to that effect. That, however, may not be necessary, unless there be some dispute as to the matter. 25 I also order that the stay be granted on the basis of a stay of order 4 as set out in the Commissioner's decision. It seems that is the only order that requires to be stayed. If the parties, upon consideration, consider a stay of any other order is necessary, they should contact my Associate so any appropriate adjustment may be made in chambers. The stay will be operative from 10 July 2006. ____________ 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. 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