Industrial Relations Commission New South Wales Medium Neutral Citation: Dunn v Waverley Council [2013] NSWIRComm 1031 Hearing dates: 14 August 2013 Decision date: 14 August 2013 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application pursuant to s.84 dismissed Catchwords: Unfair dismissal - termination on notice - policy requiring advice of absence from work - repeated breaches of policy - interaction of policy and enterprise agreement - effect of family obligations - interaction of family obligations and obligations to employer - where employee's conduct affects workmates - meaning of harsh unreasonable or unjust - dismissal not unfair - application dismissed. Legislation Cited: Industrial Relations Act 1996 ss. 84, 88. Cases Cited: Bankstown City Council v Paris (1999) 100 IR 363 Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412 National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Category: Principal judgment Parties: Darren Dunn - applicant Waverley Council - respondent Representation: Applicant by his next friend Mr R Doyle Mr M Seck (counsel) - respondent File Number(s): IRC 1104 of 12 EXTEMPORE DECISION 1I form the view that I am required in all conscience to give an extempore decision on transcript in this matter, because the matter has been before the Commission for a long time, and in my view the parties are entitled to know what answer the Commission gives today. 2The Commission has the statutory obligation pursuant to section 162 of the Act to act quickly in matters of this kind, and in pursuit of that obligation I propose to give a decision on the record. It obviously will not be in the level of detail that a written decision would be, but on the other hand a written decision may take some months and I think it is unfair on both the parties to wait that time when, ultimately, I know what the answer is. It is a question of providing that answer, and some proper reasons to the parties before the Commission why that is the answer. 3This is an application pursuant to s.84 of the Act. The matter before this Commission is to address whether the dismissal of Mr Dunn by Waverley Council on 16 October 2012 was harsh, unreasonable or unjust. That is the essential test at law and each of those three elements is required to be considered discretely. Section 88 of the Act to which Mr Seck referred is effectively the checklist of matters to be taken into account in forming the ultimate view of whether a dismissal was harsh, unjust or unreasonable, and no question of remedy can arise under the Act without first an express finding that a dismissal was unfair. 4A man losing his job is a serious matter. In my view an employer is not lightly to take the step of dismissing an employee, and that is why the Commission is here to review such a decision. At the same time the employer has a right at law to dismiss employees for a range of reasons and the fact that losing a job is a very difficult matter for any worker does not mean the employer has not got rights to terminate him in certain appropriate circumstances. 5In this case there was no allegation of misconduct against Mr Dunn. The termination was a termination on notice for continued unsatisfactory performance and that was, specifically, that Mr Dunn had an unsatisfactory attendance pattern and consistently had failed to notify the council when he was required to do so under council policy, a matter to which I will return. 6As the dismissal was not a dismissal for misconduct, the onus of showing the termination unfair - indeed as it would be even if it were for misconduct - falls upon the applicant and, as I indicated earlier in discussion with Mr Doyle, the Commission is bound to make a decision in conformity with the law and consistently with other decisions of the Commission. 7The starting point is the facts and the facts in this matter are not substantially in contest. Where they are in contest I have chosen to accept Mr Dunn's version of the facts. I have done that not because I regard any of the council evidence as false or unsustainable but because, in my view, it is an appropriate course to take in affording fairness to an applicant, perhaps the more so in circumstances where Mr Dunn is represented by his friend Mr Doyle rather than an experienced legal practitioner. Mr Doyle has, as I said during the proceedings, bravely stepped into the breach to try and give Mr Dunn a go, for which he is to be commended. 8The facts then are relevantly this. Mr Dunn has been a longstanding employee. His service is a little short of fifteen years but in my view any employee these days who has been with an employer more than ten years has got a right to be regarded as a longstanding employee, and that has a weight in considering the way he is to be dealt with. 9Mr Dunn has in recent years - and frankly that is all the Commission has concerned itself with - no other disciplinary issues against him save only this question of a poor attendance pattern and of ringing in. Indeed in the performance improvement programme on which Mr Dunn was placed not long before his termination, his supervisor there regarded Mr Dunn as meeting the required standards in every aspect of his performance save this one matter of his attendance and his ringing in. 10Now the facts about that are, to put them candidly, that Mr Dunn has repeatedly, in recent times which as I say is all I care about, taken what can only be regarded as excessive sick leave and carer's leave and he has repeatedly failed to ring in by 5 am. There is just no arguing with those facts on Mr Myers' evidence, which is not controverted. 11I add that in circumstances where there is not an experienced legal practitioner to cross-examine, I do not draw the inference that I should accept all the evidence that is led by the council simply because it was not contested. I am not proceeding on that basis. I do proceed on this basis, that Mr Myers' evidence seemed to me to be coherent, to be sensible, and not to be coloured with any view against Mr Dunn. Mr Myers struck me as a man who is simply trying to do his job and was probably uncomfortable about having to write down what he had written in his evidence but he did it. 12In any event what Mr Myers' evidence makes clear is that he made it clear to Mr Dunn in words that Mr Dunn had no difficulty understanding, and that nobody would have any difficulty understanding, just words between men on the job that as to his failure to ring in, (a) this was not on and (b) he was going to get, in Mr Myers' words, "seriously pinged" for doing it. 13And the facts are that on the relevant day that led to the termination of his employment unfortunately Mr Dunn did not ring in before five am. 14The facts are that since 2009 Mr Dunn was given three warning letters, each of which I am satisfied was explained to him sufficiently, that he understood at least that he had to report in before five if he was not going to be there at starting time. And those written warnings go hand in hand with Mr Myers' evidence that he spoke to Mr Dunn about this and particularly about ringing in during that period. Mr Myers said that on more than one occasion he said to Mr Dunn, "Mate it's not on" and I have no reason to disbelieve that evidence. 15The facts of the 17th I will come back to but there are further relevant facts in my view, which are that Mr Dunn has difficulties in reading and writing and with understanding detail, particularly officialese type detail. I draw that from what he said and what I saw of him in the witness box. It is not a criticism of Mr Dunn. I accept that Mr Dunn does not remember a lot of what happened at a lot of meetings, I do not criticise him for that. At the same time it is clear enough that the meetings happened and that in them Mr Dunn was told the substance, at least, of what was expected of him by the council. 16Mr Dunn was placed on a performance improvement program and I do not give a great deal of regard to whether he passed or failed the PIP; that is not the test. What is, however, clear is that the performance improvement program was all about attendance and notification. This must have been a matter in the forefront of Mr Dunn's mind in late 2012; if not, it ought to have been. 17I appreciate that Mr Dunn had many distractions. It is not easy being a single parent and it is less easy if people around you are not reliable, I know this. It is not easy getting up at 4 am every weekday to go to work in circumstances where you have got other heavy obligations but other people do it every day, do both these things. In my view an employer has a reasonable right to expect that, within reason, within the bounds of fairness there will be attention to attendance and to ringing in on time. 18That question of rights, the word I have just used, leads me to the enterprise agreement. It was a centrepiece of Mr Doyle's argument in Mr Dunn's case that the enterprise agreement had primacy and that, as Mr Doyle put it in closing, if you use policy to write all round an enterprise agreement, in the end the enterprise agreement has got no room to work in, no room to breathe. That in principle is correct and there is no doubt at all, at law, that the submission Mr Doyle made that the enterprise agreement has primacy is absolutely correct. It is the primary document overriding all others and no policy inconsistent with the enterprise agreement could have been created by council or could have been enforced by council. 19Mr Doyle also put that it was not proper to discipline and dismiss Mr Dunn. It flowed from the submission about the terms in the enterprise agreement, for not ringing in because the enterprise agreement which was the primary document, 'gold' as he put it which I think is a proper way to characterise it, simply did not require ringing in. In putting that submission he contrasted the provisions of the enterprise agreement going to sick leave, which do not make that a requirement of employees, with the provisions going to carer's leave which do make it a requirement binding on employees. 20That might lead to a discussion of whether in fact on the last day of employment Mr Dunn was ringing in for carer's leave and of whether he therefore did have an obligation under the EA. That argument could arise and it probably is factually so, but I have not found it necessary to decide in the course of these proceedings. If I had been required to I would have been obliged to come to the view that there was an obligation on him to ring in on that day under the EA. 21But Mr Doyle's point was that there is a difference between the two, and as the disciplinary record that has got Mr Dunn to where he got to in being terminated was largely based on an assumed obligation to ring in for sick days where that obligation was not to be found in the EA, how can that properly be done? I think he put it that way and I understand that submission. 22To find the answer to that, one looks at the enterprise agreement and one sees at cl 17.5 that the enterprise agreement itself expressly permits policies to be developed about this issue. Now noting the submission from Mr Doyle to which I agree in its fundamental thrust, that if you write policy all round a core document you run the risk of choking it, I intend to look at the facts. 23What actually happened in this case is this. Under cl 17.5 the employer has an ability to develop policies specifically about leave and they must be about leave because 17.5 is contained within cl 17 of the agreement which is the clause going to leave. So I am obliged to come to the view, it is inescapable, that the council had a right to make a policy about leave and enforce it so long as it was not inconsistent with the enterprise agreement. That of course they could not do. 24There is a big difference between any law, or any regulation and in this case the enterprise agreement being silent about something and on the other hand saying it cannot be done. Applying the purposive and contextual approach outlined by the High Court in Lloyds, I cannot on any principle of construction come to the view that the enterprise agreement was inconsistent with the policy that was actually issued. I have seen the November 2011 policy. I can properly infer from the evidence and the text of the warnings, the substance of the policy that was in place before that and it is clear that the policy made it an express requirement on employees to ring in. 25Mr Doyle put the proposition in cross-examination of witnesses, 'Does it apply to everyone?' The inference was of course if it does not, is it fair? I followed that argument and the end result was it applies to a great number of people, not just the garbos, to use that term, it applies to those working in parks and gardens and other areas of that kind. 26But ultimately I was satisfied that even if it were only to apply to waste management areas, that policy would not be unfair because there is a specific work structure involved in waste management. The trucks have to get on the road by a particular time or a number of consequences flow. Runs can be dropped, lateness, traffic; all those matters mean that there is a proper reason for the trucks to get out on time. Therefore there is a proper reason to say, given that runs have to be allocated, loads have to be made up, drop runs have to be catered for, 'you have got to ring in'. I could not find that the policy was inconsistent with the EA nor could the Commission find that it was unfair to have such a policy in the terms that it has been framed. 27What that means is, the council had a lawful policy that it was permitted to have under the enterprise agreement. I accept Mr Doyle's argument that a policy contrary to the enterprise agreement would have to be struck down but I cannot find that this policy was contrary to the EA. I cannot find it was inconsistent with it. So the answer is that there was a lawful policy and Mr Dunn breached it and he breached it in the end having had, as I am satisfied, sufficient advice and warning about what was required of him. 28There is one more thing I wish to address and that is the incident on the morning of the 17th. Mr Dunn gave evidence that he was up and ready to go to work, he received a phone call that he had to go and get his son; he did so. I accept that he did so in a state of mind where he was annoyed because he had been let down again, to use his words, by his former partner about the care of his son. I appreciate that any father has very properly got the care of his son in the front of his mind and he would not be a proper father if he did not. I have to also add to that, though, that although your responsibilities to your son properly come before everything in any given second, they cannot mean that you can forget your obligations to your employer if it is possible to deal with them, and I will come back to that. 29I have said that the Commission has to consider three specific things, whether the decision was harsh, unreasonable or unjust and that that test is most clearly set out in National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441. And the meaning of the words, 'harsh, unreasonable or unjust' has been decided in a long line of cases and it is not necessary to go beyond the ordinary meaning of the words as anybody would understand them. A dismissal can be harsh or unjust or unreasonable or all three: Bankstown City Council v Paris (1999) 100 IR 363. I have considered each of those three heads in assessing the claim that Mr Dunn's dismissal was unfair. 30I have considered whether it was unjust. I have already determined that the dismissal was carried out according to law and in practical terms that leads me to the conclusion that it cannot be said to be unjust. I have formed the view that it was proper for council to have a policy about ringing in for the cleansing area because so much turned on it, a lot turned on it, it affected other employees, it affected the council's money. I am more concerned about the affect on the other employees frankly, but it had a real effect. It was not just an arbitrary rule without a purpose, it was there for a proper reason. I cannot find that it was unreasonable to dismiss Mr Dunn on the basis that he repeatedly breached that policy because the policy was permissible and he had been told in no uncertain terms that what he was doing was not acceptable from council's viewpoint. 31I have said that the failure to ring in had a consequence on his workmates. I have noticed and I appreciate that his workmates have largely rallied behind him and put their names to a petition saying that they would welcome him back on council. I accept that and I have taken it into account. It does not mean that it was okay though for them all to be put to be doing unpaid work from time to time because Mr Dunn did not ring in. 32And when we look at the circumstances of the 17th, I accept all of Mr Dunn's evidence about what happened on that day and I accept that, as I said, he put his obligation to his son first. The problem lies in this though; nothing was said to me by Mr Dunn to say "Look I couldn't physically have rung at five to 5 or at ten to 5 that morning" in circumstances where he had been told in pretty clear English, pretty recently that he had to do that or his job was on the line. He really did have to do that. 33I do not say he had to go to work on the day, I certainly do not say he did not have to pick up his son, none of that, but I do say he had to ring up and he had to ring up on time. If it was the first time it ever happened in his whole employment life then you would not dismiss him for that. But in circumstances where it was one of a long line of such occasions, and Mr Dunn knew very well what was required of him, because he had been told by people like Mr Myers - I do not mean someone from personnel, I mean someone who did, from Mr Dunn's prospective, some proper work - in simple terms "it's not on". He had to understand it was not on and it was not good enough, frankly, not to call in on that day when he knew that so much turned on it. 34For that reason when I look at the assessment of whether the decision was harsh, there is only one other aspect that I can consider and I asked some hard questions of counsel for the employer about this. Mr Dunn had the difficulties I have indicated, he had difficulty in reading and writing and indeed understanding matters, and that necessarily meant council must have had regard to this. It presents him with difficulty in finding further work. If you are going to dismiss a man from his job you have got to think about, in my view, what is going to happen to him when you have dismissed him; that has got to be part of your reasoning. I tested counsel for the respondent about this matter and ultimately I was satisfied that council did take it into account. Indeed when I look over the papers it seems to me that somebody who was not recognised as having Mr Dunn's difficulty might have been treated more harshly and more quickly than Mr Dunn in fact was. 35I cannot see that Mr Dunn was treated in a way that did not make allowance for his difficulties. I accept it was not easy for Mr Dunn to conform with what he was asked to do at all times. I accept he had serious parental responsibilities and if the dismissal was just for taking too much carer's leave I might have come to a different view. But with the best will in the world it is not possible for me to say that doing the very specific thing that he had been told not to do on a string of occasions, having been told it was serious, having been told his job was on the line, that Mr Dunn's conduct was acceptable to the point where a decision to dismiss on that basis was harsh. 36I heard Mr Dunn say in his evidence he did not appreciate the severity of the situation until the whole house fell on his head. I accept that he did not really believe he was going to get sacked until he was sacked, but I have got to say I accept that council did all they had to do to make it clear to Mr Dunn that his job was at risk, his job was at serious risk if he did not ring in when he had to ring in. 37And as I say Mr Dunn was not asked to jump through an extraordinarily onerous hoop, he was not asked to turn up when he was meant to be looking after his son, he was not asked to do something a man could not do. He was only asked to ring in and that I think, given the consequences of what happens when you do not ring in which I have accepted on the evidence, was something the employer reasonably could ask him to do. If he did not do it when he was told to do it in the factual circumstances I have gone to, I cannot find that it was harsh to dismiss Mr Dunn on notice. 38I frankly regret, and it might be apparent from the manner in which I have given this decision, that nothing can be done to assist Mr Dunn. I have sympathy for his situation now and I wish it were otherwise, but I have got to decide cases according to law and according to precedent. I cannot find in this case that the dismissal was harsh, unreasonable or unjust and accordingly I am obliged to dismiss the application and I do so. Orders 1. The application 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