Gianoli v. Fire and Rescue, New South Wales [2013] NSWIRComm 1030

Industrial Relations Commission New South Wales Medium Neutral Citation: Gianoli v. Fire and Rescue, New South Wales [2013] NSWIRComm 1030 Hearing dates: 6 August 2013 Decision date: 06 August 2013 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application pursuant to s.84 dismissed Catchwords: Unfair dismissal - retained firefighter - minimum attendance obligations - award provisions mandatory - attendance necessary to retain skills - failure to meet attendance provisions - competing interests of other employment - award procedure for warnings followed - insufficient improvement after warning - termination not unfair- application dismissed. Legislation Cited: Industrial Relations Act 1996 ss. 84, 85(3), 88 Cases Cited: Bankstown City Council v Paris (1999) 100 IR 363 Category: Principal judgment Parties: Mr R Gianoli Fire and Rescue New South Wales Representation: Mr J Clowes Fishburn Watson, solicitors - applicant Mr M Dolahenty - respondent File Number(s): IRC 55 of 2013

EXTEMPORE DECISION 1In an application which is made pursuant to s 84 of the Industrial Relations Act 1996 ('the Act') - and I note in passing that the application was made out of time but was admitted pursuant to the Commission's discretion under s 85(3) of the Act - the statute prescribes in s 88 a range of matters that are to be considered in dealing with such an application. However, the jurisprudence of the Commission makes it clear that the essential test is the tripartite test of whether the decision to dismiss the employee was harsh, unreasonable or unjust: Bankstown City Council v Paris (1999) 100 IR 363. 2The facts in this matter must be seen, whilst I will come to them in a moment, in the context of the award, that is the Crown Employees Fire and Rescue New South Wales Retained Fire Fighting Staff Award 2011, an award of this Commission which has some unusual, indeed perhaps unique, features. 3The award provides under the rubric 'Attendance requirements at incidents and drills' at clause 28 as follows. 4At subclause 28.1 it speaks of attendance guidelines, but then at 28.1.1.1, provides this: "Employees who by virtue of their primary form of employment are day workers are required to attend a minimum of 50% of all night and weekend calls received by the employees' brigade in any six month period." 5The subclause then provides "Employees who by virtue of their primary form of employment are shift workers are required to attend a minimum of 33% of all calls received by the employees' brigade in any six month period." 6Clause 28.1.2 deals with drills and makes a mandatory provision: "All employees whether day or shift workers are required to attend a minimum of 75% of all regular drills conducted at their brigade in any six month period." 7I pass over 28.2. 28.3 provides the mechanism which is to apply where an employee's attendance falls below the requirements prescribed in the clauses to which I have just gone. That mechanism requires, first of all, a discussion and advice that the employee will be monitored. If in the monitoring period the attendance does not meet the required levels set out already in the clause above, for that three month period, there will be a written notification of a deficiency. The employee then shall, it is mandatory under the award, be given a further three month period to improve his attendance before any further action may be taken. 8At 28.4, not without relevance to the present application, there is a provision that employees who have been notified in terms of 28.3.1, that is the discussion, and 28.3.2, that is the formal review, may make application to the Commissioner for special consideration. I will return to that. 9Of note, 28.5 provides that those requirements to which I have already adverted may be altered by agreement between the Department and the Union. The definitions of shift worker and day worker are set out at 28.6 and 28.7. 10I emphasise again that the award makes it a requirement that employees attend both calls and drills. The evidence of witnesses - and it was uncontested evidence, the evidence of the witnesses for the respondent - was that drills are an essential or 'vital' I think was the word used, part of the obligation of the fire fighter, the retained fire fighter, for a reason. I note that Captain Moran Webb said this in his evidence: "Fire fighters' safety and the safety of the public cannot be ensured without the continuous practical and theoretical operational attendance." 11Chief Superintendent Murgatroyd in his evidence, which was not called into challenge, provided near the end of his affidavit: "It is vital that retained fire fighters are able to perform a minimum attendance at incidents and operational drills to maintain their capability sets required to carry out their respective functions as professional fire fighters." 12Evidence of that kind was touched on elsewhere, but those two examples make the point it seems to me. 13The award itself, on its face, gives drills a greater significance than attendance upon incidents. Clause 28.2 is unequivocal. It requires a significantly higher level of attendance at regular drills than for either call outs as a day worker or call outs as a shift worker; a significantly higher proportion. 14The fact that fire fighters have, it is accepted, other primary employment - and I read the award to read that employment other than under this award is the primary employment to which it refers - does not mean that the work of a retained fire fighter, although it is secondary work to use the term in the award, can be treated in a cavalier way. 15The award allows for the fact that it is secondary employment by providing not as for most employees, "You must attend work at all times", but rather, "You are required to attend a proportion of your obligations as to both call out and as to drill". The award makes an allowance for the fact that employees will have other work because this is their secondary employment, and allows a margin for that in the proportions that it provides within clause 28. It does not however allow a further margin of default. 16I add too, that the award was one reasonably recently formed by agreement between the union and Fire and Rescue, and was given the sanction of this Commission. It is not an arbitrary imposition dreamed up by somebody remote from the situation, it is the product of the parties who most closely represent the employer and employees who do the work contemplated by the award, having forged this document and put it through the requirements of this Commission. It can be taken, and I do take it, to reflect the fair and proper requirements of the work which is carried out under the award. 17That is the award context which in my view is a necessary precursor to understanding what is to be made of the facts in this application. The evidence of fact was in large part not contested and where it was in large part, it does not affect the outcome of the matter. I accept Mr Gianoli's evidence that as a matter of fact, the first he knew of his termination was on 7 January 2013 and I observe that upon finding that out, he made a string of active representations, indicating his intention to seek reinstatement to his employment, and indeed he referred to the fact that he might make an application to this Commission in those representations to his employer. 18Those representations and that activity were the basis for the discretionary decision I gave earlier today to admit the application out of time. I now freshly consider them again in the context of the application before the Commission under s 84. 19I have referred to the letter of termination which was first seen by Mr Gianoli on 7 January 2013. I now turn to what led to that termination letter. 20On the evidence it is this; in April 2012, Mr Lenthell looked at the employer's record keeping system for attendances and observed that Mr Gianoli had attended twenty seven per cent of calls and forty one per cent of drills in a three month period up to that point. Mr Lenthell spoke to Mr Gianoli on 22 April 2012, told him that in the previous three months, they were the figures of his attendances, told him that this attendance record was well below what was required of fire fighters, and explained to him that while there is the ability of management to support fire fighters with their call attendances, fire fighters must attend seventy five per cent of all drills, thereby in my view, drawing the distinction that the award expressly underlines, and which the evidence from other witnesses has expressly underlined, about the importance of drills in this matter. 21Mr Gianoli was told by Mr Lenthell that his attendances would be monitored for the next three months, that being May, June and July of 2012 and during this time he must meet his attendance requirements, in other words he is given a direction about his obligations to his employer. 22Mr Lenthell asked Mr Gianoli if there was anything management could do to help, and Mr Gianoli made the response, "More hours in the day, or another day in the week". 23So Mr Gianoli was placed on review, and that is the review contemplated by 28.3.1 of the award. Under the review period the position was a little better but still substantially deficient. I will make some remarks shortly about the numbers on which I rely for this purpose. Forty one per cent of calls says the respondent, fifty per cent of drills. 24So on August 12, Captain Moran Webb speaks to Mr Gianoli and noting that there has been a challenge, at least in argument, to the accuracy of the figures given by the respondent, I have drawn these next set of figures from Mr Gianoli's own figures in exhibit 3, and in the next review period, one sees that he attended fifteen out of thirty six calls and four out of seven drills. That is less than fifty per cent of calls and slightly more than fifty per cent of drills, but nowhere near seventy five per cent. There is a substantial deficiency. 25In interview with Captain Moran Webb, Mr Gianoli advised I think perfectly candidly and properly that he had not been able to fulfil his obligations due to his business commitments, and there is no other suggestion, I interpose here, for Mr Gianoli's inability to meet his requirements. Some evidence was advanced that there was a conversation suggesting drills clashed with sport nights, but it was at the tail of the evidentiary hunt and I look more to what was placed in the affidavits in chief by the respondent's witnesses rather than to evidence of that kind in forming the view I form about this matter. 26That was Mr Gianoli's answer, that he had not been able to fulfil his obligations due to business commitments, and I do not doubt the truth of that. I do add that I formed the view that Mr Gianoli is not a shift worker within the meaning of the award, and therefore the requirements on him were fifty per cent of attendances, rather than the lower amount for shift workers, but the drill figure would be the same and in my view it is that which is significant. 27Mr Gianoli gave evidence that he - for reference looking at paragraph 16 of his first affidavit, exhibit 1 - understood when making the affidavit, that "Fire and Rescue was not happy with my attendance during that review period", and he is referring there to the 1 May to 31 July period 2012, "and placed me on a further review between 14 August 2012 and 14 November 2012". The point of that evidence is that he was squarely aware that he was under review during that six month period. 28Now, I deal with another matter here before I move on and that is an evidentiary question that was raised. It was put to a number of witnesses that the numbers upon which they relied for forming their views were hearsay for reason that they had not calculated themselves from the book but had merely drawn them from the respondent's recording system. Technically of course that is correct. The numbers of attendances were hearsay by the persons who gave the evidence. But nothing was suggested to me, and no evidence was advanced to suggest, that the system was inherently faulty. Nothing was advanced to say - saving only what Mr Gianoli has advanced in his document, upon which I rely in any event - that in any other respect the system would not be accurate. So whilst the evidence was technically hearsay, I have regard to it. However, as I say, where there is any dispute, I rely on Mr Gianoli's numbers. No prejudice arises from the evidence. 29In the period of August to November, Mr Gianoli attended twenty eight per cent of calls and sixty six per cent of drills, and he deals with this himself in his evidence at paragraph 17 of his first affidavit, and says this: "During both review periods" - Mr Gianoli being fully aware that he is under review in those two periods - "I made every effort to attend the call outs and drills of which I was aware. This was sometimes very difficult due to my business activity which regularly took me to Coffs Harbour to assist with the Hoey Moey and to obtain materials for our family home. If I was in Coffs Harbour at the time of a call, I could not make it to Woolgoolga in time." 30I accept that evidence without question, that is clearly perfectly correct and that is a proper reflection of the circumstances in which Mr Gianoli found himself. In any event, for those reasons, he fell well short of the employer's requirements of him which he had been directed to observe, and that sparked the November 26 letter which warned him of a possible termination. As to that, Mr Gianoli says he did not get that letter and did not see it until after he had been terminated. I accept his evidence about that I do not find, as I was asked to find, that he refused to collect it, knowing what it was. I do not find that he deliberately chose to ignore it knowing that it was a letter from his employer. It is curious that Mr Gianoli could have reasonably thought that a registered letter slip - and it was not explained how it came to be in his house, but passing over that - that he saw in November could have been one that was still in existence from May and that he did not at least pick it up and see what the date of it was, but I do not make any finding of wilfulness in regard to that letter. He did not get it, and so he was not made aware in the terms of that letter that his, to use the well worn phrase, job was on the line. The letter is unequivocal, it says it could lead to termination of his services, that is what it means, his job was on the line. He did not see the letter saying that. 31I do say, however, that he was cavalier about this matter. Mr Gianoli knew he had been under review, knew he was under a secondary period of review, knew full well that he had not met his obligations. He says so in his own evidence. As a businessman he knew that registered letters were generally important letters and it is a matter of surprise that he did not at least glance at this slip to see what it was, but I accept as a matter of fact that he did not see it. But the fact that he did not see it and did not know what was in it is in good part therefore of his own making, is in good part because he was cavalier about the registered letter slip and indeed about the possibility of communication from his employer, the respondent. Having said that, I emphasise I do not find it was wilful nor do I find it to have been deliberate. 32Rather, it is a reflection of the fact that Mr Gianoli was and is an extraordinarily busy man, with a number of significant business affairs to attend to. The priority that he gives to those business affairs is entirely a matter for him and entirely a proper matter for him; he has got business obligations to himself, to his family, perhaps to partners, shareholders, I do not know, but the running of a business is a serious and important matter to which the directors are bound to give their proper attention and he cannot be criticised for so doing. The fact that the businesses as it turns out were of a greater priority to him than fulfilling the requirement of his employer to do the work of a fire fighter is not a matter of criticism in any personal sense, it is just a matter of fact. 33So on the evidence it is not able to be said that Mr Gianoli knew at the time that he had a letter from his employer and that he knew at the time that the employer in so many words had told him his job was on the line. However, he must have understood, following unsatisfactory performance in two review periods, that the matter was not over and he must have anticipated that some kind of response, some kind of action would be taken by Fire and Rescue. 34I say again, it is clear that employment by Fire and Rescue is, for retained fire fighters, secondary employment and the retainer is token, but it is employment and the award already allows latitude for persons employed under it, recognising that it is secondary employment. As I think I said before, it is not a licence to go beyond and below the award requirements. 35Mr Gianoli's approach to his employment as a retained fire fighter is set out in his own evidence perfectly clearly at paragraph 18 of his first affidavit, and he says this: "If I was available to attend an incident but didn't think I would make it in time, my practice was to wait five minutes after receiving the call and then phone the station to see whether sufficient fire fighters had responded. I spoke to whoever was on watch duty and asked what the incident was and whether they had enough manpower. If the answer was that no further manpower was needed, I didn't respond further to the call. If the incident was serious and I was advised that further manpower was required, I immediately made my way to the station." 36And he says in paragraph 19: "The nature of my business interests, made my attendance very hit and miss in the sense that sometimes there would be days I was available but there were no calls and sometimes there were days on which I was not available, such as when I was in Coffs Harbour, and there were multiple calls." and he gives examples of those. 37I do not draw any adverse inference from the use of the phrase 'hit and miss'. I think it is a perfectly candid admission from Mr Gianoli of the factual circumstances of his attendance, and I do not regard it as a flippant or inappropriate comment to make. It simply reflects the true facts of the situation. But that evidence all taken together, essentially means this, Mr Gianoli treated himself and no doubt because he is a busy man with very significant business interests to which he had to give regard, as being in respect to being on call, having the ability to hang off and see if he really was needed. He regarded himself essentially as being excused if a number of other people had turned up, not having waited fifteen minutes, to see if he was really needed and if others had turned up and filled the positions required, then he regarded himself as excused and that may have been a perfectly sensible and proper approach to his overall portfolio of interests, but we are looking here at his obligations to his employer, and one particular employer. 38Again, on the facts, that approach to his attendance translated also into drills and one can see how that would be given his obligations as set out in paragraph 3 of his first affidavit, but the factual situation was that his attendance to drills and to call outs was throughout the period, below what the employer had required of him. That is a matter of fact. It leads to the inference that because he had not attended throughout that whole period anywhere near the number of drills that were required - given that I accept the evidence of the respondent's officers who say that drills are an essential element in maintaining skills - the inference that his skills were not at the level that the employer required of him, or had the potential not to be at that required level. The maintenance of those skills is after all the express purpose of the drills. 39I accept the proposition advanced by Mr Clowes in the context of some able and well considered submissions, that an experienced fire fighter with fifteen years on the clock is not in the same position regarding skills as a novice, but that submission does not overcome the fact that the award requires of all fighters, and I impute to the award that it requires it for a good reason, and I think correctly so impute, to attend seventy five per cent of drills, whether novice or twenty years in, under whatever rank. 40So there is a failure to abide by the award requirements and more concretely, failure to abide by the employer's direction to abide by those award requirements. 41Now, Mr Clowes made the further submission, and again it is a properly considered submission, that the award does not mandate dismissal in those circumstances. That clearly is correct; of course it does not. It allows it. A different matter, but it allows it and what the award provides is that if there is a failure to attend, and that persists, it becomes a disciplinary matter, 'further action' is the term used in the award. That means that termination is certainly not mandated, that is to say it is not a kneejerk reaction if someone who does not meet their requirements must be terminated or is to be terminated, but a decision can be made to terminate and in this case was made to terminate in the face of a period stretching over nine months in the end in which there was a significant shortfall in attendance. 42Further, on the basis of the interviews which both Captain Webb and Commander Lenthell had with Mr Gianoli, there is no suggestion that he had any ability to really improve or change his position. Mr Gianoli's answer was - and it is not a flippant or silly answer - "If you want to do something for me, give me more days in the week and more hours in the day." I understand that sort of answer from a person who is extraordinarily busy. However, it could not give any confidence in the respondent that his circumstances would turn around. Certainly that was not something that Mr Gianoli said, and indeed, importantly, he says to the Commission in his sworn evidence that he gave it his best shot during the periods under review, but still was not able to meet the employer's requirements. 43In my view, there was a proper basis to come to the decision to dismiss Mr Gianoli from the Service. That basis was that over the period I have indicated, he did not meet the employer's requirements which were not just in the award, but as I say expressly directed to him at the latest in April 2012 by Mr Lenthell. 44One comes then to how the termination was effected. I have already said that I accept that Mr Gianoli did not see the November letter saying in terms that termination was a possibility. And I accept too that in none of the interviews that were conducted, and this is abundantly clear from the evidence both written and oral, was it said to him in terms, "Your job is on the line", and that failure to make that clear in terms is not uncommonly thought to be a reason, that a dismissal lacks procedural fairness. 45I have already indicated and I say again, in this context that the fact that Mr Gianoli did not know that his job was on the line is in good part due to his approach to the letter, or to the registered letter slip which he saw but effectively disregarded, or on his evidence at its highest, thought was something else. 46I do not accept the submission from Mr Clowes that registered post was the least likely way to convey a document of this importance to Mr Gianoli. Registered post is used for documents of importance, I can take judicial knowledge of that because the community recognises, both at the level of senders and receivers of documents, that registered post is a deliberately chosen means of conveying important documents. 47Fire and Rescue, subject to one thing to which I will return, were entitled to think that writing to Mr Gianoli was the correct form for such a serious document, to convey such serious information. It would not have been proper to ring him and tell him the contents of that letter, nor am I convinced that it would have been proper to send him an email. Having regard to the contents of that letter, I observed that there were email exchanges after the termination, whether the employer had Mr Gianoli's address before I do not know. I do not assume that they did not have it, but in any event I do not regard that as a proper form for a letter of that importance. 48Nor do I accept that posting the letter in the ordinary way - despite an ingenious submission by Mr Clowes - would have been a better means than conveying it by registered post. I have not found a deliberate refusal to see that letter, but I do find a cavalier disregard in the assumption that Mr Gianoli made about the letter, in the context that he knew very well that he was at the end of the second period of review at that time. 49No reply was had by Fire and Rescue to that letter. Fire and Rescue then having sent a letter which was effectively a show cause letter, a letter saying in practical terms "What do you want to say to us about this; your employment is on the line", get no reply and they do not ring him and say, "Look we sent you this pretty serious letter in which we made it clear to you your job was at risk, you haven't troubled to reply to it, is there anything you want to say or do you have no reply?" That is surprising and a matter for some thought. There is not a shred of evidence or any inference that could be drawn from any of the evidence in this matter of any animosity held by the respondent towards Mr Gianoli. He says nothing of the kind and no one else has either. So it cannot be that it was a deliberate decision to refuse to contact Mr Gianoli out of malice or out of anything of that kind. 50It appears that a protocol was followed, and woodenly followed, through the steps without more. That is, although the words I have chosen are perhaps harsh, the effect of the evidence that Mr Clowes elicited in cross examination from witnesses, they simply followed the protocol without more. 51Now, I accept the submission which was developed in discussion between the Bench and advocates, that procedural fairness may be relevant to a termination if it had the capacity to affect the outcome. I think without turning again to the authorities that is a short but fair summation of the jurisprudence of this Commission and the courts above it. 52It was put on Mr Gianoli's behalf in this context, 'Well, had he known he would have changed his ways', and they are my words, it was put more elegantly but that was the effect of the submission made by Mr Clowes. And the second submission that was made in this context of procedural fairness was that Mr Gianoli was not told about the fact that he could seek special consideration as per clause 28.4 of the award to which I have already adverted. 53These are proper submissions which warrant consideration. As to the first of them, I accept there is force in the submission advanced on behalf of Mr Gianoli that there is a substantial difference between being told that you are under review, and having what was colourfully called, a gun to the head. I accept that there is a substantial difference between a long time employee being told "You're under review" and even "You're under review again and we direct you to do better" and being told in terms, "You're going to lose your job". 54Nevertheless I see that even under review, there was not nearly sufficient improvement in the attendance. There was still a significant shortfall. So if Mr Gianoli did not, despite his best efforts as he tells us, have a capacity to meet the standard required of him by his employer when he knew he was under review, for a period of six months, it is difficult to see that he could have, given that panoply of business interests that are set out in paragraph 3 and which on his own perfectly candid open evidence, prevented him from meeting those obligations during the previous nine months, it is hard to see that it could in any event have improved. 55In this context I note the evidence in paragraph 3 of Mr Gianoli's affidavit that the business which he said in another part of the affidavit took a good deal of his time, the Woolgoolga Tyre and Auto business, was not closed until January 2013. 56Accordingly, I do not find that the lack of seeing the letter, to which in part I have to attitude Mr Gianoli's own decisions about how he deals with his priorities and his correspondence, had the capacity to change the outcome of this matter. 57The second matter is the question of special consideration. It is abundantly clear on the evidence that in terms at least and even referentially it seems to me, Mr Gianoli was not told, "You may, now that you're in the situation of review, either the first or second period contemplated by the two subclauses of 28.3, make an application to the Commissioner of special consideration". He did not know that. I do not expect necessarily of employees that they will know the award word for word, although many do, but I do not impute that knowledge to him and he was not told of it. The award does not say what the scope of the special consideration would be but it is clearly a consideration that would be given to employees in circumstances where there might be a shortfall in their attendance. That is why it is positioned in the award precisely in clause 28. 58It is true that Mr Gianoli was asked by Mr Lenthell, at least, how Fire and Rescue could accommodate him given the difficulties he had with his other interests. His answer was, and as I said, I do not take any of his answers to be flippant or lightweight, I think they are an honest reflection of his true situation, that he needed more time provided to him. In other words it was not a question of him showing an inclination to modify his other interests. As I say that is entirely understandable, given that they are significant and valuable business interests. 59But in that situation, although one does not know precisely what that special consideration might be - it is at Commissioner level so there is a wide discretion for its exercise - it is difficult to see how it could have included any substantial, if any, exemption for the requirements for drills at least. I say that given the importance of drills to the maintenance of the skills that a fire fighter is required to have on the uncontested evidence. 60That leads me to the view that whilst Mr Gianoli ought to have been told, in my view, that special consideration was an option open to him, I cannot see that it could have affected the factual outcome in this matter if he had been told. That is because I cannot see that it would have led to him being excused drills to the extent that he absented himself from them during the time under review. 61I have had regard to the very vigorous activity undertaken by Mr Gianoli after his termination. It is put to me that that is the work of a man who wants his job back. Clearly that is right and I accept that. A dismissed employee's reasons for wanting their job back may be complex. In Mr Gianoli's case, I infer with respect to him that it is not for the money, I accept that he wants to do the work. And there are other circumstances surrounding a termination; no one welcomes being terminated, it is a blow to pride, a blow to status in some circumstances and it deprives you of the liberty to do something you want to do. 62The difficulty that I find with that, although I read it in Mr Gianoli's favour, is that ultimately what the evidence has proved is that he wants to do the work on his terms, even when he is told and directed by the employer that those terms are not acceptable. 63Ultimately that choice to give greater priority to other interests than his employment led to the termination. Despite the fact that the procedure adopted was, in my view, pedestrian, by which I mean that it simply followed protocol through without more, it was not procedurally unfair. And despite skilful submissions advanced by Mr Clowes on Mr Gianoli's behalf, this substantive issue is ultimately the crux of this matter; Mr Gianoli's allocation of priorities. 64I accept that Mr Gianoli now says he will attend to the requirements of the job, but he was not able to do it before. His business situation is, although somewhat different following the disposal of a business which cost him time, still one which requires him to be significantly outside the Woolgoolga area on a number of days of the week. So therefore Mr Gianoli wished and still wishes to carry out the work of a firefighter on terms that suit him, on his own terms. I do not doubt the sincerity of his wish to do the work, but an employer is not obliged to accept an employee who wishes to perform work, where a certain standard is mandated by particularly an award, at less than that mandated standard over a consistent period of time. 65I am obliged in assessing this dismissal, about which complaint has been made that it is unfair under the Act, under each of the three elements of the tripartite test of harsh, unreasonable and unjust, and I do so. In my view the termination of Mr Gianoli was lawful and that in practical terms means that it was just. It was in my view reasonable given that the requirement against which he was judged is not an arbitrary requirement imposed by an employer unrealistically of which he fell short but a requirement in the award which is ultimately a document of this Commission and as I have said, forged by agreement between the parties who know most about the work. So a consistent shortfall of that requirement is a reasonable basis for termination of the employee's employment who does fall short. And the termination was not harsh in my view, because the decision to dismiss was a proportionate response to an employee. 66The work of a retained firefighter is employment. It is secondary employment but it is employment. It is not 'good works', to use the term advanced for the respondent, I think justly. An employer even in secondary employment has the right to insist that an employee observe its directions, and in this case, no doubt for good reason, Mr Gianoli was not able to do that. 67None of this is a personal criticism of Mr Gianoli. I accept that he has obligations which test his time severely, but it is simply that if one wants to keep a job, one has to do that which is required of you by the employer. In this case Mr Gianoli with the best will in the world was not able to do that. The employer put him on review, advised him that his performance was unsatisfactory in this regard, gave him a further review, and at the end of this time terminated his employment. 68As I have found that the termination of the employment was neither harsh, nor unreasonable, nor unjust, it follows that the application is dismissed, and I will so order. Orders 1. The Order that I make in this matter is that the application pursuant to s.84 is dismissed. PETER NEWALL 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. Decision last updated: 19 June 2014