Industrial Relations Commission New South Wales Medium Neutral Citation: Dissanayake v State Transit Authority [2016] NSWIRComm 10 Hearing dates: 21 July 2016; 1 and 21 July 2016 (written submissions) Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Tabbaa C; Murphy C Decision: 1. Leave to appeal is granted; 2. The appeal is upheld; 3. The decision and orders of Stanton C of 18 March 2016 are quashed; and 4. The respondent is ordered to pay the appellant 18 weeks' pay at the ordinary rate of pay applicable to the appellant at the time his employment ceased. Catchwords: APPEAL - unfair dismissal proceeding – summary termination of employee for failure to discharge instruction - whether dismissal harsh, unreasonable or unjust – relevant principles as to summary termination – relevance of deliberateness of employee's conduct – relevance of prior act of misconduct to assessment of lawfulness of summary termination and whether dismissal harsh, unreasonable or unjust – errors of law – re-exercise of discretion - summary termination unlawful – relevance of summary termination to whether dismissal harsh, unreasonable or unjust - dismissal based on incorrect assessment of nature and quality of employee's misconduct - dismissal based on inferences unreasonably drawn - dismissal harsh unreasonable and unjust – disproportionate treatment of another employee harsh and unjust - remedy – reinstatement or re-employment not practicable – compensation awarded Legislation Cited: Industrial Relations Act 1996 Cases Cited: Adami v Maison De Luxe Limited (1924) 35 CLR 143 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 Clouston & Co. Ltd. v. Corry [1906] AC 122 Director General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47; (2010) 77 NSWLR 159 Gooley v Westpac Banking Corporation (1995) 59 IR 262 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 ITD Preece v Industrial Court [2008] NSWSC 285; (2008) 177 IR 172 Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101 Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 Sunil Dissanayake and State Transit Authority of New South Wales [2016] NSWIRComm 1010 Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 Category: Principal judgment Parties: Sunil Dissanayake (Appellant) State Transit Authority (Respondent) Representation: Counsel: D D O'Sullivan (Appellant) L Andelman (Respondent) Solicitors: Carroll & O'Dea Lawyers (Appellant) State Transit Authority (Respondent) File Number(s): 2016/107857 Decision under appeal Court or tribunal: Industrial Relations Commission Jurisdiction: Industrial Relations Commission Citation: [2016] NSWIRComm 1010 Date of Decision: 18 March 2016 Before: Stanton C File Number(s): 2016/59082 DECISION 1. This is an application for leave to appeal and, if leave is granted, to appeal a decision of Commissioner Stanton in Sunil Dissanayake and State Transit Authority of New South Wales [2016] NSWIRComm 1010 (18 March 2016) ('the impugned decision') pursuant to s 187(1)(a) of the Industrial Relations Act 1996 ('the Act'). 2. That decision determined that the summary dismissal of the appellant was not a disproportionate response by the respondent in view of the serious breach of vehicle maintenance and safety procedures. 3. The Commissioner, nevertheless, held that, although the dismissal was neither unreasonable nor unjust, it was harsh given the loss of accrued benefits due to the summary dismissal and given the appellant's age and difficulty in obtaining alternative employment. 4. Stanton C awarded the appellant the equivalent of six weeks' ordinary pay at the rate of pay applicable to him at the time his employment ceased, less appropriate taxation, payable within 21 days of the date of the decision. Factual Background 1. The factual background leading to the summary dismissal of the appellant was partly summarised by Stanton C in the impugned decision as follows (at [3] to [5]): [3] Mr Dissanayake's role as a qualified mechanic required him to undertake specific and general maintenance duties on State Transit Buses that operated from the Ryde Depot. Those duties included a requirement to perform certain maintenance and service inspections. [4] Mr Dissanayake's dismissal followed an allegation that on 18 August 2014, he failed to perform a specific work instruction, namely "Securing Road Wheels" which resulted in two wheels falling off a State Transit bus. A further allegation relied upon by State Transit was that on 18 August 2014, when completing an M2 Service Report, Mr Dissanayake recorded "NR", Not Required, in the status box for Item 21 – check wheel nut tension. [5] Mr Dissanayake also claimed he was unaware of a change in procedure that required him to check wheel nut tension. The Allegations 1. This extract from the Commissioner's decision makes clear that the appellant was dismissed after a finding that two allegations levelled against him were made out following an investigation. Those allegations concerned the conduct of the appellant on 18 August 2014 in the discharge of maintenance tasks assigned to him as a mechanic with respect to a bus bearing the designation MO1196. 2. The allegations were conveyed to the appellant by correspondence from Mr Craig Brown, Regional Fleet Manager North/West of the respondent on 7 November 2014. 3. Allegation 1 was expressed as follows: Allegation 1: On 18 of August 2014 you breached section No's 2.3, 2.4.2, 2.4.1(a), 2.4.1 (g), 2.4.1(i), 2.13, 2.18 of the State Transit Code of Conduct and Work Instruction No WI 26.04.40 when you failed to correctly secure the nearside rear road wheels to a State Transit Bus. Particulars of Allegation 1: On 18 August 2014, you were tasked with Ellipse Work Order No 00282680 to carry out an M2 inspection on bus MO1196 (attached). During your inspection you failed to check or secure the road wheels. As a result of particular No 2, on 22 October 2014 at 6.45am the rear nearside wheels (positions 3 and 4) separated from the nearside rear axle hub. Your actions as outlined in particular No 2 were inappropriate, demonstrated a lack of diligence, constitute a failure on your part to carry out your duties and responsibilities to the required competency level of our position and to stay up to date with policy relating to your position. Your actions as outlined in particular No 2 constitute a failure on your part to follow a reasonable and lawful instruction, specifically WI 26.04.40 (attached). Your actions as outlined in particular No 2 resulted in an unnecessary risk to the health and safety of your colleagues and members of the public. 1. (hereafter 'the first allegation'). 1. Allegation 2 was expressed in the following manner: Allegation 2: On 18 August 2014 you breached section No's 2.3, 2.4.1, 2.4.1(a), 2.4.1(g), 2.4.1(i) and 2.18 when you incorrectly made a notation on an M2 Service Item report that the checking of wheel nuts was "Not Applicable" to a State Transit bus. Particulars of Allegation 2: On 18 August 2014, you were tasked with Ellipse Work Order no 00282680 to carry out an M2 inspection on bus MO1196. During your inspection you failed to check or secure the road wheels. When completing the M2 Service Report (Ellipse Work Order 00282680) following your inspection, you recorded "N/A" in the status box for Item 31, Check wheel nut tension (refer WI 26.04.40) Your actions as outlined in particular No 3 were inappropriate, demonstrated a lack of diligence and constitute a failure on your part to carry out your duties and responsibilities to the required competency level of your position, to stay up to date with policy relating to your position and to follow reasonable and lawful instructions. Your actions as outlined in particular No 3 constitute a failure on your part to follow a reasonable and lawful instruction, specifically WI 26.04.51 (attached in completing the M2 Service report). (hereafter 'the second allegation'). 1. The allegations were the subject of an investigation and were found to be proven. 2. We shall briefly consider the terms of each charge against the appellant. 3. The first allegation made the factual assertion (not contested in these proceedings) that during the maintenance inspection of 18 August 2014, the appellant failed to secure the road wheels on a bus (designated MO1196). That failure was said to result in the rear nearside wheels separating from the rear nearside axle hub. Those factual assertions were not contested in these proceedings, although the evidence makes clear that the maintenance task in question was, in fact, performed on 16 August 2014. Nothing in the resolution of this appeal turns on that irregularity and, hence, consistently with the approaches of the parties, we should generally refer to 18 August 2014 with respect to both allegations levelled against, and the conduct of, the appellant as encompassing that true factual position. 4. The specific allegations of misconduct against the appellant were conveyed by paragraphs 4 and 5 of the first allegation (although we acknowledge that paragraph 6 refers to the consequences of the appellant's actions). As will become apparent later in this decision, it is necessary to fix attention upon only one of those allegations, namely, the allegation of disobedience in paragraph 5 of the first allegation. 5. The 'instruction' said to be disobeyed by the appellant was described in paragraph 5 of the allegation as "specifically WI 26.04.40". Paragraph 1 of the allegation refers to the appellant being "tasked with Ellipse work order No. 00282680 to carry out an M2 inspection on bus MO1186". 6. The reference 'Ellipse work order No. 00282680' or 'M2 service report' in the allegations is a reference to a job card which contained a checklist of tasks which a maintenance employee was required to complete for a particular class of maintenance work. Such job cards shall hereinafter be referred to as 'a work order' or 'work orders'. 7. It was not alleged, in the first allegation, that the appellant disobeyed this work order. The word 'specifically' in paragraph 5 of the first allegation, would not seem to affect the conclusion as both the opening words of Mr Brown's letter to the appellant and the preamble to the first allegation refer, with particularity, to work instruction WI 26.04.40 (as does the preamble to findings as to the first allegation in the Notice of Punishment dated 12 December 2014 and signed by Mr Michael Reardon, General Manager, Fleet Operations & Infrastructure of the respondent). Further, in a statement by Mr Ian Satchell, Manager, Fleet Operations of the respondent, introduced into evidence below, the work order was said to be "an example of how" the request to tighten wheel nuts as provided by WI 26.04.40 "is scheduled into the overall maintenance program for buses". 8. The second allegation concerns a failure to complete the aforementioned work order which was described as a 'service report'. This allegation and the ultimate finding alleges a failure to follow instructions in both paragraph 4 and 5. The instruction alleged to be disobeyed in paragraph 4 and 5 is that contained in WI 26.04.51 which is said to be attached, but no record of the document is in evidence in the proceedings. 9. No proposition was contained in the second allegation that the appellant's failures, as described in that allegation, resulted in serious risks to health and safety in the manner of paragraph 6 of the first allegation. It is difficult to see how, standing alone, the conduct described in the second allegation could properly result in summary termination. 10. The findings of the respondent with respect to the allegations were contained in a document, as we previously observed, entitled 'Notice of Punishment'. It was agreed by the parties that this document was received by the appellant on 15 December 2014. 11. By that communication, the appellant was advised he had breached various provisions of the 'State Transit Code of Conduct'. The breach was then particularised in the same terms as the allegations, save for a change in the preamble of the first allegation and a change in the entry the appellant was said to have made in the work order in the second allegation – the finding was that he wrote 'NR' or 'Not Required' rather than 'N/A' or 'Not Applicable'. 12. The punishment recorded on the Notice of Punishment was "Dismissal" but it is common ground, as recorded at the outset of this decision, the dismissal was summary, that is, without notice. Work Instructions and Work Orders 1. It will be clear from our discussion of the allegations that a distinction was drawn by the respondent, for the purposes of regulating maintenance tasks, between work instructions and work orders. There are a number of such documents bearing upon the disposition of the appeal. 2. We have earlier described 'work orders'. These documents are to be distinguished from general work instructions issued to maintenance employees from time to time by the respondent in the form of a bulletin or circular containing instructions of a broader character including safety alerts. These documents shall hereinafter be referred to as a 'work instruction' or 'work instructions'. 3. There are three work instructions which are necessary to consider for the disposition of this appeal. In chronological order, the first such work instruction was designated as "Maintenance Instruction No: WI 26.04.40". This was issued on 14 May 2012 and was the first such work instruction in chronological order which was material to the questions raised on this appeal. It shall hereinafter be described as 'the first work instruction'. 4. The first work instruction was entitled "Securing of Road Wheels" and contained the bold heading "INSTRUCTION". Under that heading there were two relevant entries: Re-tensioning of wheel nuts for all vehicles must be carried out following the first completed road shift following any wheel removal. … The wheel nuts should be checked-tightened every 6 to 8 weeks, whether or not the wheels have been slackened. 1. The second work instruction bears the date "23 May 2014" and has the maintenance instruction number "WI 26.04.53". This shall be referred to as 'the second work instruction'. 2. The second work instruction is entitled "Wheel Nut Retainers" and has a sub heading "Fitting Wheel Nut Retainers". The instruction advised that the respondent would fix wheel nut retaining devices (hereafter 'nut lock clips') to its fleet of buses and the procedure by which these devices were to be fitted. 3. The second work instruction contains the following relevant entry: There have been a number of incidences resulting from loose wheel nuts across the bus industry. As a result Transport For NSW (TFNSW) had advised all MBSC contract holders to examine their wheel fitting procedures. In accordance with the TFNSW recommendations, State Transit has carried out a trial of various wheel nut indicators and wheel nut retaining devices available in the market and has decided to introduce two types of wheel nut retaining devices ("RicClip" and "Checklock") across the fleet. Detailed below is the procedure on how to fit these devices to buses. These are to be used to retain wheel nuts on all models of buses for ongoing maintenance and safety assurance. 1. It is common ground that the second work instruction gave no specific instruction as to the tightening of wheel nuts and did not refer to the first work instruction. 2. The third work instruction appeared to be of a different class as it was described as a "Maintenance Alert". However, the parties drew no distinction between this circular and other documents described specifically as work instructions. We shall, therefore, refer to the Alert as a 'work instruction'. The sub-title of the document was "Security of Wheel Nuts" and it bore a "Maintenance Alert No: WI 26.01.34". This document was dated 4 April 2014 and shall hereinafter be described as 'the third work instruction'. 3. The third work instruction contained the following relevant entry "Effective immediately, a wheel nut tension check will be implemented for the M2 and M3 services to be carried out in accordance with WI 26.04.40 (Securing of Wheel Nuts), irrespective of the fitment of wheel nut retaining clips". 4. It is common ground that the appellant had received the first and the second work instruction on or about the time they were issued. The appellant denied that he had received the third work instruction until 3 November 2014. The Commissioner made no contrary finding as to that matter and it was common ground in the proceedings below and before us. 5. There are three work orders relevant to the disposition of this appeal although there is only in evidence, in the actual form of the document, the third work order (in chronological order). This was the work order which the appellant completed in the maintenance he undertook on 18 August 2014. We shall refer to this work order as the 'third work order'. 6. The statement of evidence of Mr Satchell attests that there were two earlier forms of the M2 work order containing different instructions regarding the tensioning of wheel nuts. The first of those chronologically contained the words "re-tension wheel nuts" ('the first work order'). The second in time contained the words "re-tension wheel nuts (if nut lock clips not fitted)" ('the second work order'). The work order the subject of the allegations was, as we have noted, the third in sequence and issued on 4 April 2014. We have, therefore, described it as 'the third work order'. 7. The third work order was said to relate to the "M2 Service" for "Bus No: 1196" and contained a series of items each of which assigned a work task or instruction. The second page contained an entry which is described in the document as "Item 31". 8. Item 31 prescribed the maintenance task: "Check wheel nut tension (Refer: WI 26.04.40)". There are other headings corresponding to that item, namely, "Status"; "Staff No."; "Signature" and "Date". The first of those entries contains a handwritten entry by the appellant which is unclear. It has either the letters "NR" or "NA". The remaining entries were not completed. Notwithstanding that the second allegation reverts from "N/A" to "NR" in these proceedings, there is no dispute in the appeal that the work order was completed by the appellant and that he entered the letters "NA" as meaning 'Not Applicable' (we shall treat the entry in that manner). At the conclusion of the document there is an entry entitled "Office Use Only - Report Review" which was completed by the appellant's supervisor, Mr Hedley. Mr Hedley verified the following: "The vehicle is fit for service", "the service is complete" and "the service report is complete". That entry is undated. 9. Notwithstanding the correspondence of the third work order to the third work instruction, it will be apparent that the third work order contained a reference to the first work instruction. The evidence does not reveal whether the first and second work orders contained any such reference or indeed any reference to work instructions whatsoever. 10. It is a reasonable implication that the first work order corresponded to the first work instruction, the second work order emanated from the second work instruction and the third work order corresponded to the third work instruction. This relationship was indicated by the wording in each work order reflecting that of its corresponding work instruction in chronological sequence. In other words, the work order is amended to reflect the operative work instruction at a point in time. 11. It was not, however, explained in the proceedings why the third work order provided a reference to the first work instruction, notwithstanding the issuing of, by the time of the publication of the third work order, the third work instruction. It may be that the first work instruction gave information as to the method of tensioning of wheel nuts which was relevant. What is clear is that the third instruction had been issued by 18 August 2014 and it specifically dealt with the circumstances where nut lock clips were fitted. It did so in a way which had the effect of amending the first and second work instructions (as we will discuss below). Actions of the Appellant 1. There was no contest in these proceedings as to the following facts: 1. The appellant kept, in his toolbox, a complete list of work instructions issued from time to time and he was required to sign for each work instruction he received; 2. The appellant received the first and second work instructions at or around the time they were issued and he thereafter carried out his maintenance tasks according to those instructions and the corresponding work orders issued; 3. At 18 August 2014 the appellant was not in receipt of the third work instruction; 4. The appellant received the third work order prior to completing the maintenance task on 18 August 2014. He had read that work order by that date; 5. In the maintenance he carried out on 18 August 2014, the appellant did not check or secure the wheel nuts of bus numbered MO1196 in accordance with item 31 of the third work order. Rather, the appellant marked "NA", meaning not applicable, next to that item. Notwithstanding that entry, the appellant's supervisor certified that the service was complete; 6. The appellant's failure to tension the wheel nuts resulted in the wheel nuts and the wheels of bus MO1196 coming loose on 22 October 2014; 7. That occurrence had severe implications for driver and public safety; and 8. The appellant first received the third work instruction on 3 November 2014. From this time, which was prior to when he became aware that he was under investigation for his conduct on 18 August 2014, he performed his work in accordance with the third work instruction. 1. To conclude this summary of non-contested factual matters, we mention a further matter that escaped specific attention in the submissions of the parties. There was no submission or concession that bus MO1196 had nut lock clips fitted to its wheels at the time the appellant performed his maintenance tasks on 18 August 2014. Nor does any witness below directly deal with that issue. However, a finding is available, by necessary implication arising from the submissions of the parties and the evidence (including evidence as to the wheels of the bus coming loose), that nut lock clips were fitted to the wheels of the bus, the subject of the allegations, as at 18 August 2014. 2. There was a question below, which resurfaced on the appeal, as to the appellant's practice in regard to making entries against item 31 in the third work order - "Check wheel nut tension (Refer: WI 26.04.40)". At first instance, the respondent cited eight work orders that the appellant had signed off between 4 and 16 August 2014 (these were appended to the statement made by Mr Ian Satchell). Six of these were versions of the third work order and two were M3 service orders where the relevant instruction appeared at item 37. Across these eight work orders, the instruction was variously marked with "NR", a tick, or a tick and the words "locks on". 3. Despite the appellant having given evidence as to why these entries varied (as discussed below), the Commissioner, at [113] of his decision, stated: Mr Dissinayake could not explain why on occasions he had use "ticks" on the earlier M2 service check list to show that tensioning had been carried out despite the relevant vehicle being fitted with wheel lock nuts. Nor could Mr Dissinayake explain the inconsistency whereby he had placed a tick to indicate tensioning had been completed in circumstances where wheel nuts were no locks had been fitted. 1. On appeal, the respondent submitted that "Mr Dissinayake explained the reasons during the cross-examination in a confusing and deflective manner, blaming other mechanics for making the ticks". However, the respondent made no submission, on appeal, as to the significance of this. Nor did the respondent offer any explanation, alternative to that offered by the appellant, as to why the appellant's entries differed, if the appellant's explanation was not to be believed. 2. Mr D D O'Sullivan of counsel for the appellant, in his submissions on appeal, noted that the appellant had given explanations for why these entries differed. He also cited that there was a degree of miscommunication "between the appellant and Mr [McLean] who was cross-examining the appellant at the time". 3. In the appellant's first affidavit, he identified that it was his practice to "mark the wheel nut tension check with an N/A (not/applicable) on the job card" whenever wheel nut lock clips had been fitted. In his second affidavit the appellant offered an explanation as to why some previous entries that he had made on work orders differed: I have never placed a tick on any work order / job card where it required me to check the tension of the wheel nuts, if retaining clips were fitted to the wheel nuts. I also say that in respect of the table contained at Tab 14 of the Satchell statement: a. Any Work Order / Job Card showing a tick meant that no retaining clips had been fitted to the wheel nuts and that I had checked the tension of the wheel nuts; b. Any Work Order / Job Card showing a NR or N/A meant that retaining clips had been fitted to the wheel nuts; and c. Any Work Order / Job Card showing a tick with the remark 'locks On' were not completed by me, but by another mechanic at the Depot who assisted me with the large order of vehicle inspections on 16 August 2014. I further say that the words 'locks on', together with other parts of those Work Orders / Job Cards, are not in my handwriting. 1. The appellant's evidence in cross-examination conformed with the explanation that he provided in his affidavit dated 13 March 2015 with the exception that the appellant could not recall why a dash appeared at item 37 on an M3 work order that he had completed on 4 August 2014. Any "confusion" present in the responses may be attributed to a lack of clarity in the questions put to the witness during cross-examination, a feature of the cross-examination in toto. 2. The appellant's evidence indicated that it was generally his practice to mark item 31 on a third work order with 'NR' or 'NA', with respect to buses fitted with nut lock clips. No evidence was produced by the respondent which suggested that this was not the general practice of the appellant with regard to marking item 31. Whilst there were instances where the appellant signed off on versions of the third work order where a tick and the words "locks on" had been entered against item 31, it was the appellant's uncontroverted evidence that on those occasions another mechanic had both completed the work associated with item 31 and made the entry against that item. Those instances do not thereby reflect his practice in regard to making entries. 3. In order to complete the relevant factual background, it is necessary to consider evidence bearing upon the appellant's approach to work instructions and work orders vis-à-vis his compliance with the instructions and, in that respect, his understanding of them. The analysis of that factual background will be improved by an encapsulation of the parties' cases as to issues in the appeal critically bearing upon those factual matters. We will, therefore, break from this factual background to provide that capsule of the parties' submissions ahead of a broader summary of their submissions that will follow the conclusion of the analysis of factual matters relevant to the disposition of the appeal. Encapsulation of the parties' submissions 1. We will summarise the submissions of the parties below, but the pith and substance of those submissions, so far as they relate to this background and a contention of the appellant that his summary termination was wrongful (corresponding to one ground of the appeal), may be briefly summarised in the following manner. 2. As we have observed, the findings against the appellant which were said to justify summary dismissal concerned, on the one hand, carelessness and a lack of diligence and a failure to exercise a required competency and, on the other, a failure to follow a reasonable and lawful instruction as conveyed by the third work order. However, the respondent's defence of the s 84 application and, more significantly its defence of the appeal, relied upon only one of those findings, namely, the failure to obey a reasonable and lawful instruction, even though there were references in the allegations to breaches of the respondent's code of conduct and safety procedures and passing or non-specific references to the inadequacy of the appellant in approaching his work on 18 August 2014 and its implication for public safety. 3. Ultimately, the joinder of issues in this case as to whether or not summary dismissal was or was not justified was whether, if there was a disobedience of a lawful and reasonable instruction to tension wheel nuts by the appellant, pursuant to a work instruction, as particularised in the allegations or work order (as pressed in the respondent's case before us), did such disobedience warrant the summary termination of the appellant. 4. Ms L Andleman of counsel, who appeared for the respondent, contended that the appellant disobeyed a lawful and reasonable instruction evidenced by the failure to check and secure the wheel nuts and the completing of the third work order by inserting the letters "NA" recorded against item 31. The state of mind of the appellant in that respect was irrelevant. However, it is important to note that the respondent's characterisation of the instruction that was disobeyed differed between its written submissions and its oral submissions. In its written submissions, the alleged misconduct was referred to as the "failure to comply with Work Instruction WI 26.04.40 which required the Appellant to check the tension on the wheel nuts on bus No 1196 and incorrectly notating M2 Service Report as NA". In its oral submissions, item 31 of the work order (referred to as a 'job sheet') was fixed upon as the lawful and reasonable instruction which the appellant disobeyed (this position reflected the respondent's oral submissions before the Commissioner). There the respondent submitted: "The job sheet constituted a direction for him to perform the work. The direction was in clear unambiguous words. The direction was lawful and reasonable and that he failed to follow it". 5. It may be said, as the respondent did, that the third work order referred to the first work instruction, but the reference was not an instruction per se and there were issued, subsequent to the first work instruction, the second and third work instructions. Both were issued before 18 August 2014. As we will discuss later, this shift in the position adopted by the respondent cannot be said to be inconsequential. 6. Counsel for the appellant accepted that the failure to secure the wheel nuts on 18 October 2014 and to record "NA" in the third work order represented an error of judgment but contended that the error was entirely attributable to a genuinely held but mistaken belief that the previous practices by which wheel nuts were not secured when nut lock clips were fitted to wheels of buses remained operational at the time that the appellant completed the maintenance task with respect to bus MO1196 on 18 August 2014. He contended that this conclusion must come from the uncontroverted evidence of the appellant and was matched by the respondent's contention that the state of mind of the appellant was irrelevant. He also contended that, in addition to the appellant's evidence, the mistaken belief of the appellant was proven objectively by the following: 1. The appellant marking [item 31 on] the work order with "NA"; 2. The appellant did not receive the third work instruction until 3 November 2014; 3. After receiving the second work instruction, but before receiving the third work instruction, mechanics did not check the tension on wheel nuts where nut lock clips were fitted (the extent to which this was the practice of mechanics prior to the third work order being issued was contested before the Commissioner); and 4. After the appellant was made aware of work instruction 3, but prior to being aware that he was being investigated, the appellant did tighten wheel nuts whether nut lock clips were fitted or not. The appellant's approach to work instructions and work orders 1. We approach this question in the context of not only the respondent denying the relevance of the appellant's state of mind in discharging his duties on 18 August 2014 but also in circumstances where the Commissioner eschewed, in our view (as we will later discuss), any necessity to form a view about whether the appellant had or had not deliberately flouted his employer's instructions for the purposes of deciding whether or not his summary termination was justified but also in determining whether the dismissal was harsh, unjust or unreasonable (the Commissioner makes a finding that the dismissal was harsh but he does so in the absence of a finding on the issue). The findings here are made in anticipation of our conclusion that the Commissioner, by this approach, erred in law. 2. The appellant gave evidence of his awareness of a change in the respondent's procedure regarding the wheel nut tensioning. This was set out in the appellant's first affidavit at paragraphs 28 to 32: 28. In or around May 2013, the Respondent commenced fitting wheel nut retaining clips ("retaining clips") to the wheel of its buses. These retaining clips were made of metal and were shaped like a figure-8 that could be attached around a pair of affixed wheel nuts. The retaining clips were designed to stop the nuts from moving and unthreading through regular wear and vibration. 29. On approximately 23 May 2013, I received a copy of maintenance instruction WI 26.04.53 from the Respondent, which detailed the process of fitting the retaining clips to the wheel nuts of the Respondents buses ("the May 2013 Maintenance Instruction"). The May 2013 Maintenance Instruction further provided that at each service the mechanic would be required to check that the retaining clips were fitted and replace any retaining clips that were missing. A copy of the May 2013 Maintenance Instruction is annexed to this affidavit and marked "SD06". 30. After the Respondent implemented its new system of fitting retaining clips to the wheel nuts of its buses, the Respondent did not require its mechanics to check the tension of wheel nuts. I note that this change was not set out anywhere within the May 2013 Maintenance Instruction, but to the best of my recollection, was set out within the job cards issued after May 2013, with words to the effect of: "Check wheel nut tension (if wheel nut locks not fitted)". Unfortunately, I do not have copies of any of the job cards issued after May 2013 which contained these words. 31. Following May 2013, I ceased checking the tension of the wheel nuts during services whenever retaining clips had been fitted. Further, whenever I was performed a service on a bus with retaining clips fitted, I would mark the wheel nut tension check with an N/A (not applicable) on the job card. 32. At no time was my practice of marking my job cards with N/A ever called into question by my supervisor, Mr Stuart Hadley, or by the Respondent's Workshop manager, Mr Greg Mills). As noted above, I engaged in this practice consistently from May 2013 to November 2014. 1. It was not directly put to the appellant in cross-examination that he had received the third work instruction prior to 18 August 2014 (it should be noted that an attempt to do so was abandoned by the representative for the respondent after he confused the first and the third work instructions). He was, however, cross-examined as to when he became aware of the change to the third work order and why he did not follow the instruction given in the third work order. The relevant parts of his evidence in these respects will be extracted below. 2. The cross-examination of the appellant as to when he became aware of the change to the third work order was as follows: Q. How – when did you first notice that the wording on the work order had changed?A. Hmm Q. When? A. I don't remember Q. You don't remember A. No, no Q ---when the wording changed A. No. Q. Would it have been a fortnight before this or two months or— A. No. Be long time. Maybe three or four months ago. Q. Could. I don't remember exactly. Maybe May or something. Maybe May Something. O'Sullivan: Can we just stop? Q. Sorry, Mr Dissanayake, the question was can you recall when the wording on the work order changed? A. I didn't mean what you're asking me. … 1. After further questioning, the appellant reverted to the position that he did not remember when the wording of the work order had changed to that contained in the third work order. The cross-examination then continued: Q. If I suggested to you that the work order wording changed in April? A. Yes. Q. What would you say to that? A. From the day I did the same thing. I did follow the earlier instruction what we got. Because of the reason when we change any work instruction new procedure we have to – the management supplied the document to us and we have to sign the document and we have to follow the instruction what they were given. 1. In cross-examination, the appellant gave the following responses when cross-examined as to why he did not follow the instruction contained in the third work order on 18 August 2014: Q. Could you read out what item 31 is, what the maintenance activity is, please? A. "check wheel nut tension", Within bracket, "refer WI.26.04.40", close the bracket. Q. Now, on that day did you check the wheel nut tension? A. No. Q. But that's not what the maintenance activity says, does it? It clearly says "check wheel nut tension" A. Mmm. Q. It doesn't talk about whether there's wheel locks, the nut locks are there or not does it? A. Yes. The reason I put not applicable for this one, before the work job sheet previously on this one according to my knowledge there is work sheet wheel nut tension it to be done if wheel nut lock not fitted. Q. Okay. A. I did follow the earlier instruction till this one. That's the practice I have been done because I didn't get any message from the management what is this one. This is the one before the wheel nut locks put in the wheels. This is the first. The work instruction procedure by the State Transit's department, that's why I just still did follow the wheel nut not- not fit. 1. In his last response in the passage extracted above, the appellant identified his understanding that the instruction contained at item 31 of the third work order was the out-dated instruction contained in the first work order. 2. The appellant was then questioned as to why he did not follow the first work instruction which was specifically referred to in item 31 of the third work order: Q. And up to item 31 A. Yes. Q. It talks and says "check wheel nut tension", in brackets, "refer to WI.26.04.40" A. Yes. Q. Did you have a copy of that at the time? A. Yes. 1. It is clear that the representative of the respondent was here referring to whether the appellant received a copy of the first work order when it was issued. The questioning continued. Q. Why did you not follow the instructions in there, in the work instruction? A. Still the same thing I have to say. I just follow the work instruction one that ST management given to me day by day. The new work instruction they give to us I do follow the work instruction what I got it. Okay? Because that 26.04.40 doesn't mean anywhere if the wheel nut lock fitted what we have to do. And other things, if the wheel nut lock is fitted too hard to do the wheel nut checking, therefore I think they have been made some special tool but we didn't receive any tools at all with the Ryde depot. … Q. You're saying there's no instruction in 26.04.40? A. Yes. We got the instructions for 26.04.40 but doesn't have anything to – on this work sheet instruction what we have to do the – if the wheel nut lock fitted to the wheels. Q. It doesn't exclude you from not carrying out the tension check, does it? A. No. 1. It seems, by that line of questioning, that the appellant was to interpret the third work order as reflecting a reinstatement of the instruction in the first work instruction, notwithstanding that, by then, the third work instruction was operational and specifically addressed the question as to whether wheel nuts were to be tensioned if nut lock clips were fitted. That anomaly in the respondent's case persisted into its submissions on the appeal and is significant to our disposition of the matter. 2. The third work instruction, after its issue, must be construed as the operative and dominant instruction as to whether wheel nuts were to be tightened where nut lock clips were in use from its date of issue. That must be so because the first work instruction, and its counterpart work order (the first work order), were ignorant of the use of nut lock clips that arrived later in time. The third work instruction directly countermands the second work instruction if that instruction is read, as it properly should be, with the second work order. The result is that the appellant was required to interpret the third work order as having the effect of overriding or supplanting the earlier work orders and work instructions without the benefit of the counterpart work instruction. The words "Refer: WI 26.04.40" in the third work instruction only added to the confusion. 3. The appellant was also cross-examined as to the clarity of the wording of the instruction on the third work order: Q. –do you agree that the instruction on the work order is very clear, "check wheel nut tension"? A. Yes. 1. It can be noted that the respondent was not putting the proposition to the appellant that the wording of the third work instruction was clear as the appellant did not have, as we have noted, that work instruction as at 18 August 2014. 2. The appellant also, under cross-examination gave evidence as to the practice of mechanics at the Ryde Depot: Q. By the mechanics. Can you ever recall seeing one of the other mechanics carrying out an M – when they're carrying out an M2 service re-tensioning or checking the tension of wheel nuts on buses? A. Never. I never heard in any mechanic does the wheel nut check in the Ryde depot if the wheel nut lock is there. Q. Are you saying that the other mechanics didn't do the check or you've just never seen them do the check? A. I never seen first. Q. Okay A. But the thing is I can say they do put the tick on. They don't do the job. They don't do check the wheel nut check if they're retaining the wheel nut locks there but they do put the tick on the job sheet. 1. On the basis of the appellant's evidence, as supported by the earlier mentioned undisputed facts as to his actions, the following conclusions may be drawn from this evidence: 1. The appellant understood that the function of work orders was to direct the tasks that were to be completed as part of a service; 2. The appellant knew at 18 August 2014 that the third work order contained the words "Check wheel nut tension (Refer: WI.26.04.40)". This conclusion may be drawn not only from the appellant's evidence in cross-examination but also from evidence he gave as to why he did not follow the instruction contained in the third work order. However, his statement was that he did not follow that instruction because he thought the wording at item 31 was the out-dated instruction contained in the first work order and that he thought the second work instruction still operated. There is no challenge to that evidence in the appeal and it conforms with the remainder of our findings below; 3. The appellant agreed that the instruction "Check wheel nut tension (refer: WI.26.04.40)" contained in the third work order was "clear". It was not put to him, in that context, just how he understood the reference to the first work instruction. Further, it was not put to the appellant that those words should have conveyed an understanding that the first work instruction was, in fact, operational on 18 August 2014. In any event, it is not clear why the respondent would advance such a proposition when the work instruction that was, in fact, operational at the time of the maintenance conducted on 18 August 2014 was the third work instruction, which had obviously been issued to clarify instructions as to the tensioning of wheel nuts when nut lock clips were fitted having regard to the second work instruction; 4. The appellant was not in receipt of the third work instruction and had not received, in that respect, a work instruction that specifically addressed the procedure for tightening wheel nuts where nut lock clips were fitted to wheels by 18 August 2014; 5. In practice, the appellant invariably gave effect to the changes in work procedure when he was in receipt of amended work instructions including those in the third work instruction; and 6. The entry "NA" was not demonstrative of a deliberate flouting of the employer's instructions but rather a reflection of the appellant's misunderstanding of the work instructions operating on 18 August 2014. It also demonstrates that there was no lack of frankness in the appellant conveying to the employer what his understanding of the correct procedure was in a way that would have provided the opportunity for corrections by his supervisor if his course of conduct was deemed to be inappropriate. The evidence of the appellant's prior entries is not indicative of a lack of frankness in this respect. 1. Upon the basis of those conclusions and the undisputed facts earlier referred to, it can be concluded the appellant had a genuinely held but mistaken view of the work procedure his employer had dictated regarding the tensioning of wheel nuts where nut lock clips were fitted when he undertook the maintenance task on bus MO1196 on 18 August 2014. The appellant had consistently followed all work instructions when he was in receipt of such instructions. The response to the third work order, vis-à-vis the tightening of wheel nuts when nut lock clips were fitted, may, therefore, be viewed as unusual. 2. Given that the appellant had received the third order but not the third work instruction by 18 August 2014, it is not surprising the appellant may have encountered some uncertainty as to the true nature of his instructions regarding the tightening of wheel nuts where nut lock clips were fitted. That uncertainty was aggravated by the terms of the third work order which made reference to the first work instruction. In this sense, the procedure adopted by the appellant of entering "NA" on the third work order is explicable by his understanding (although mistaken) of the work instructions in this respect. 3. There is no proper basis, in our view, to treat the appellant's actions on 18 August 2014 as a defiance of the obligations imposed by the third work order simpliciter. Rather, the evidence only permits a finding of a genuinely held but mistaken belief as to what his employer required him to do in the case of maintenance of buses fitted with nut lock clips to its wheels after the issue of the third work order (and the non-issue, to the appellant, of the third work instruction). 4. This is not to suggest that the appellant's actions were anything other than erroneous and perhaps careless in that he did not query that which was an obvious anomaly between the third work order and the second work instruction. However, when considered in all the circumstances and the evidence as to his intentions (that was not challenged on appeal), none of these factors, as we have found, warrants a conclusion that he deliberately refused to obey his employer's reasonable and lawful instructions. 5. Further, that error of judgment was contributed to by the respondent not ensuring that the third work instruction was provided to the appellant, particularly as that instruction obviously had, as its purpose, to clarify the work procedures for tensioning wheel nuts having regard to the physical change introduced by the fitting of nut lock clips and the procedural uncertainty created by the operation of the first and second work instructions. 6. As we have noted in the earlier summary of the appellant's submissions (and the elaboration of those submissions which follows), the appellant submitted the Commissioner should have, in applying the correct test as to summary dismissal, made a positive finding as to whether the appellant consciously or wilfully disobeyed the instruction at item 31 of the third work order (that submission was consistent with the appellant's submissions below). 7. The Commissioner made no findings as to whether the conduct of the appellant constituted deliberate disobedience (or for that matter whether it was careless disregard) of questions of fact discussed in [70] above except to find at [107] of his decision that "the language of the [third] work order provides a very clear and unambiguous instruction to motor mechanics". This confirms that which we will later discuss, namely, the Commissioner did not think it necessary to consider whether the appellant had deliberately disobeyed the instructions or, from an objective viewpoint, the appellant's comprehension of the instructions vis-à-vis the tensioning of wheel nuts where nut lock clips were fitted because of his erroneous view of the applicable law and principle as to whether such considerations should be taken into account. Additionally, the Commissioner did not consider how the respondent's own procedures (or failure of procedure) may have contributed to the appellant's failure to perform the maintenance tasks on 18 August 2014 in accordance with the third work order. The conclusion should have been reached, consistent with the findings we have reached above, that the appellant had not deliberately disobeyed his employer but rather that his conduct was occasioned by an error of judgment. That conclusion should have then been considered in regard to the question as to whether the summary termination was lawful and whether the dismissal was harsh, unreasonable or unjust. The Amended Appeal 1. In the amended application for leave to appeal and appeal filed 26 April 2016, the appellant stipulated that the following questions were raised by the appeal: 1. Whether the Commissioner erred in finding that the decision of the Respondent to summarily dismiss the Appellant on 12 December 2014 for serious misconduct was not unjust or unreasonable. 2. Whether the Commissioner erred in finding that reinstatement was impracticable, together with the failure to order reinstatement and associated orders for continuity of service and remuneration. 1. The grounds for the appeal are as follows: 1. That in finding that the Appellant's conduct between August 2014 and October 2014 was 'below expectations' (at paragraph 107 of the Judgment), the Commissioner erred in not finding that the updated work instruction was, or was likely to have been provided to him; 2. That in finding that the language of the M2 work instruction provides a very clear and unambiguous instruction to motor mechanics (at paragraph 107 of the Judgment), the Commissioner erred in not taking into account the similar language contained in previous M2 work instructions, the practical effect of which were significantly different; 3. That the Commissioner erred in finding that the majority of motor mechanics employed at the Respondent's Ryde depot complied with the instruction to check the tension of the wheel nuts on the Respondent's buses (at paragraph 108 of the Judgment), in circumstances where insufficient evidence was produced by the Respondent to that effect; 4. That the Commissioner erred in concluding that the Appellant ought to have been aware of the required service obligations as they were clearly set out in the M2 work instruction (at paragraph 115 of the Judgement). See item 2 above; 5. That the Commissioner erred in finding that the Appellant should have sought clarification as to the meaning of the M2 work instruction if he was unsure of the meaning of the work instruction (at paragraph 116 of the Judgment). See item 1 above; 6. That the Commissioner erred in finding that the Respondent's decision to summarily dismiss the Appellant was not a disproportionate response when having regard to the Appellant's service, work history and the disciplinary action of Mr Hedley and Perera (at paragraphs 117 and 127 of the Judgment); 7. That the Commissioner erred in failing to apply the proper test in relation to summary dismissals; and 8. That the delay between the date of the hearing (9 June 2015) and the date of judgment (18 March 2016) affected, or was liable to affect, the Commissioner's assessment of the creditability of the witnesses in the proceedings at first instance. 1. It should be noted that the eighth ground of the appeal was abandoned by the appellant during oral submissions. 2. The relief claimed by the appellant in the notice of appeal was that the Commissioner's decision be quashed and that the Full Bench substitute, in its place, a finding that the dismissal was harsh, unjust and unreasonable. The appellant sought a remedy of reinstatement to his former position with orders for continuity of employment and back-pay. However, some further observations need to be made about the relief sought by the appellant arising from the case he advanced on the appeal. 3. No submission was made as to why the Full Bench should, if the appeal were upheld, order the reinstatement of the appellant beyond the identification that this was the primary remedy available under the Act. Neither the grounds of the appeal nor the submissions of the appellant sought to impeach the Commissioner's finding as to why reinstatement was impracticable. 4. Further, in oral submissions the appellant initially submitted that he did not challenge the aspect of the Commissioner's decision where it was found that the dismissal was harsh. This position was clarified later in the hearing where the appellant submitted: "if the ultimate decision is the dismissal was only harsh, then there is no appeal against the quantum of six weeks in those circumstances". 5. THE APPELLANT'S SUBMISSIONS 6. The central ground on which the appeal was argued (and defended) was ground 7. The appellant's submissions in regard to that ground can be summarised as follows: 1. The Commissioner applied the incorrect test for determining whether the summary dismissal of the appellant was lawful; 2. The correct test for summary dismissal is that summary dismissal will be justified when there has been repudiation of the contract of employment. That test requires consideration of whether the appellant has consciously or wilfully disobeyed a direction from his employer (reliance was placed on the principles set out by Sams DP in Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101 at [177]); 3. There was a contest below as to whether the summary dismissal of the appellant was lawful. The Commissioner failed to make a finding as to whether the contract of employment was repudiated and no finding was made as to whether the appellant consciously or wilfully disobeyed the instruction contained in the third work order. In fact, he erroneously determined that no determination of that kind was necessary; 4. An application of the correct test would have required the Commissioner to make a finding as to whether or not the appellant was aware on 18 August 2014 that it was a requirement of his work to check the tension of the wheel nuts where nut lock clips were fitted in accordance with WI 26.04.40; 5. On the objective evidence before the Commissioner, it could not be concluded that the appellant intentionally or wilfully disobeyed a direction from his employer (the evidence relied on by the appellant was identified above at [55]). Rather, the evidence indicated that the appellant "was of the understanding that he was following the lawful and reasonable directions of the employer, as mistaken as that may ultimately be". That understanding was that he was following the correct procedure by not tensioning wheel nuts where nut lock clips were in use. Accordingly, there was no wilful disobedience present in the conduct of the appellant that constituted the conduct/repudiation required to warrant summary dismissal; and 6. In the circumstances, there was no misconduct warranting summary dismissal. 1. The appellant proceeded to make a more expansive submission which impacted on questions relating to summary dismissal that fell outside the parameters of ground 7 of the appeal, however, no objection was made by the respondent to that submission (the issue also related to whether the Commissioner had made an incorrect finding that the dismissal of the appellant was not unreasonable or unjust). That submission was: In circumstances where the employer's conduct contributed to the appellant's mistaken belief that he was obeying the instructions of his employer, the dismissal of the appellant was harsh, unjust and unreasonable. The failure of the respondent to provide the appellant with the third work instruction was identified as conduct contributing to the mistaken belief of the appellant. 2. In regard to ground six of the appeal, the appellant submitted that dismissal was unjust and/or unreasonable when taking into account the treatment of Mr Hedley, the appellant's supervisor, which the Commissioner failed to consider. The Commissioner should have had regard to the inequitable treatment of the appellant, but did not. 3. The appellant made no submissions regarding a previous notice of punishment issued to the appellant by the respondent on 2 July 2013, which concerned a failure of the appellant to "operate and perform duties to the required competency level". 4. THE RESPONDENT'S SUBMISSIONS 5. The respondent's submissions in regard to ground 7 of the appeal can be summarised as follows : 1. The Commissioner applied the correct test to determine whether the dismissal was harsh, unjust or unreasonable as to summary dismissal; 2. In applying the correct test for summary dismissal, the Commissioner did not need to consider the state of mind of the appellant and determine whether there was a lack of wilfulness or deliberateness in the appellant's conduct; 3. The appellant disobeyed a reasonable and lawful direction from his employer. The appellant admitted that the instruction was clear and unambiguous and that he understood the instruction. His failure to comply with such a direction constituted repudiatory conduct and justified his summary termination. It was therefore irrelevant whether the appellant was provided with the third work order by the respondent; 4. The appellant was on a final written warning in regard to a previous safety breach. That warning was "sufficiently recent and sufficiently linked to the issue for which he was terminated". In circumstances where the appellant was on a final written warning in regard to a previous safety breach and the appellant admitted his failure to follow the relevant instruction, there was no requirement for the Commissioner to consider the state of mind of the appellant in determining whether summary dismissal was lawful; and 5. The finding made by the Commissioner that summary dismissal was warranted was open to him on the evidence. 1. Regarding ground 6 of the appeal, it was submitted that the Commissioner gave consideration to the issue of proportionality as to the gravity of the misconduct, albeit on the limited evidence before him, in relation to the punishment given to the appellant's supervisor and another mechanic as well as the punishment given to the appellant following a separate incident. consideration Ground 7 as expanded in submissions 1. We shall commence our consideration by examining the ground of the appeal which the parties, by the conduct of their cases on the appeal, made central to the disposition of this appeal. That was ground 7 (see [79] above) as expanded in the submissions of the appellant (see [85] above). We note that other grounds did have some intersection with the arguments developed as to the expanded version of ground 7 such as grounds 1, 2, 3, 4 and 5. 2. It was not suggested by either party that the determination of whether the summary dismissal was wrongful would be determinative of the question of whether the dismissal was harsh, unjust or unreasonable for the purposes of s 84 of the Act. We consider that that approach was correct and consistent with the authority of the Full Bench in Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 ('Budlong') at [15]. The jurisdictional foundation for the making of any order under Pt 6 of Ch 2 of the Act is a finding that a dismissal of an employee was harsh, unreasonable or unjust. 3. Nonetheless, the question as to whether the summary dismissal of the appellant was wrongful constituted a relevant factor in the determination as to whether the dismissal was harsh, unjust or unreasonable. The Full Bench in Budlong aptly described the relevant proposition in this respect as (at [87]): To put it another way, if the employer is able to show that it was justified in summarily dismissing the employee, the onus falls on the employee to show that, nonetheless, the dismissal was harsh, unreasonable or unjust. If, on the other hand, the employee's conduct did not justify summary dismissal in law that would be "a very compelling consideration for restoring the employment relationship otherwise unlawfully severed": Pastrycooks at 84. 1. In Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 at [63], the Full Bench applied Budlong and, in consequence, determined that, in a case such as the present where the lawfulness of a summary dismissal was central, a procedure should be adopted in the determination of unfair dismissal applications (or an appeal from a decision in such a matter) by which the Commission should first consider whether the appellant's conduct was a breach of the contract of employment and, secondly, whether the breach was of a serious nature involving a repudiation of the essential obligations under the contract or actual conduct that was repugnant to the relationship of employer or employee. (The reversal of Casari in Director General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47; (2010) 77 NSWLR 159 did not affect that part of the decision of the Full Bench.) 2. The Commissioner was cognisant of the obligation to reach a determination as to whether the summary termination of the appellant was lawful in determining whether the dismissal was unreasonable, unjust and harsh. He effectively found that the respondent had properly reached a conclusion that the appellant should be summarily dismissed and that the dismissal was not unreasonable or unjust. He then concluded that, notwithstanding that the summary termination was lawful, the dismissal was, nonetheless, harsh because of the consequences of the summary termination upon the appellant having regard to factors such as his length of service. 3. Whilst the Commissioner occasionally mentions that those conclusions are warranted because the appellant was in breach of service obligations, workplace procedures or workplace health and safety policies, there can be no doubt in our view that the conclusion he reached as to summary termination was based squarely upon his conclusion that the appellant had disobeyed a reasonable and lawful instruction, namely, the instruction as to wheel nut tension in the work order instruction. 4. The appellant contended that the Commissioner applied the wrong legal principles in concluding that the summary termination of the appellant was lawful. 5. The Commissioner did devote some attention to relevant principles in [96] to [104] of his decision. However, the discussion concerned principles governing whether a dismissal was harsh, unreasonable or unjust. The principles relied upon by the Commissioner as to summary termination appear to be found in [121] to [124] of the decision. Here, the Commissioner states that employees must obey all lawful commands that fall within the scope of their duties and that are reasonable including all matters connected with the job performed by the employee. He proffered that the respondent must have "an ability to remove from the workplace someone who has seriously breached or undermined policies designed to ensure a safe system of work". Finally, he contemplates that summary dismissal for serious misconduct must not occur before a full and proper investigation. 6. After the Commissioner reached the conclusion that the dismissal of the appellant was neither unreasonable nor unjust but was harsh, he turned to consider remedy. In doing so, however, he reached a conclusion which also gives an insight into his reasoning as to whether the summary termination of the appellant was justified in all the circumstances. This conclusion may be reached because the Commissioner's observations in this respect are found under the heading "Was the dismissal of the respondent harsh?" and because, even though the observations were placed after the beginning of a discussion as to remedy, they squarely go to an assessment as to whether or not the conduct of the appellant constituted serious misconduct. 7. In [143] of the Commissioner's decision he states that findings as to whether the appellant's conduct constituted a deliberate act or carelessness did "not deter" a finding that the conduct was serious misconduct. It is tolerably clear that the expression 'does not deter' is a statement by the Commissioner that he does not consider the questions as to whether the conduct was deliberate or careless were relevant factors to be taken into account in assessing whether there was or was not serious misconduct. This assessment of the Commissioner's decision is amply confirmed by the central findings as to misconduct he reached earlier in his decision when dealing with the question as to whether the dismissal of the appellant was unreasonable or unjust. Those passages may be found in [117], [127] and [130] of his decision. What is evident from that process of reading was that on no account does the Commissioner have regard to whether or not the conduct of the appellant represented a deliberate flaunting of the instruction given to him by his employer under his contract of employment. 8. This conclusion is also reinforced by the submissions of the respondent on the appeal who sought to defend the Commissioner's reasoning in this respect by submitting that the state of mind of the appellant was irrelevant to the determination of whether or not summary termination was justified in the circumstances of this matter. We will return to this consideration but, in substance, what the respondent submitted was that there was a clear instruction given to the appellant via a work order and it was immaterial that he acted on the erroneous but genuine belief that the instruction did not apply to the work he was performing on 18 August 2014. In the respondent's submission it mattered little that he had not received the April 2014 instruction or misunderstood the effect of the May 2013 instruction. 9. What, then, are the relevant principles as to the right of an employer to summarily dismiss an employee? 10. In Casari the Full Bench indicated that Budlong will "apply" but indicated that the Full Bench "expressly accept[ed] what Gillard J said in Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117" ('Rankin'). The determination of whether summary dismissal was justified was discussed in Budlong in the following passage at [90]: To satisfy the Commission that it was justified in summarily dismissing the appellant, the respondent must show that the appellant breached a term of his contract of employment and that that breach was such as to indicate a rejection or repudiation of the contract: see North v Television Corp Ltd at 609. In applying the common law principles to the facts of the case in North, Smithers and Evatt JJ cited with approval the following comments of Lord Evershed MR in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289: Since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service … I … think … that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and … therefore … the disobedience must at least have the quality that it is "wilful"; it does (in other words) connote a deliberate flouting of the essential contractual conditions. 1. In Rankin, Gillard J observed that a breach of the contract of employment by an employee may entitle an employer to terminate the agreement without notice (at [238]). We respectfully agree with her Honour's assessment and her further observation, in reliance upon Clouston & Co. Ltd. v. Corry [1906] AC 122 (at 129), that there is no rule of law that defines the degree of misconduct which would justify dismissal without notice: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 83. Whether a breach of contract is sufficient to meet the legal conditions for summary termination rests primarily on the construction of the contract: Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [55]. 2. In a passage of a judgment of Gillard J in Rankin (at [250]), recently cited with approval by the NSW Court of Appeal in Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 at [90] to [92] (per Macfarlan JA), Gillard J concluded that the conduct of an employee may justify summary termination where the employee has conducted himself in such a way as to demonstrate a repudiation of the contract: at [51]. It is useful to extract that passage from the judgment in Willis, as follows: [250] The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature. 1. Her Honour then proceeds to identify a second class of conduct by an employee warranting summary termination, namely, where that conduct is repugnant to the employment relationship (at [255]). Her Honour drew particular attention, in that respect, to the judgment in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 AII ER 285 ('Laws'). 2. The onus of proof rests upon the respondent to establish that it had the right to terminate the employee. 3. Whether a distinction of the kind drawn by Gillard J is any longer appropriate in the light of Koompahtoo Council is unnecessary for us to decide in the circumstances of this matter. It is plain that the relevant legal principles allow for either form of conduct to justify summary termination, most likely as part of a consideration as to whether there is a repudiation of the contract. 4. Those considerations necessarily lead to a consideration as to 'disobedience' in the employment context and the observations of the Full Bench in Budlong at [89] that the test of serious and wilful misconduct "was not a test found in common law authorities dealing with summary termination". We do not consider that, by this statement, the Full Bench was excluding the deliberateness or wilfulness of disobedience of a lawful and reasonable instruction from the evaluation of whether summary termination is justified as a repudiation of the contract of employment. 5. A consideration of wilfulness or deliberateness of a disobedience of the lawful and reasonable order giving rise to a justification for summary termination should not be understood as establishing some separate test or principle governing the circumstances in which an employee may be dismissed without notice but, rather, involves the consideration of those elements or factors in order to determine whether the conduct was, objectively, repudiatory in nature and, therefore, giving rise to a proper basis for summary termination. 6. We refer, in this respect, to often cited passages from Adami v Maison De Luxe Limited (1924) 35 CLR 143 at 151 to 153 and Laws at 700 and 701. 7. Acting Chief Justice Isaacs in Adami (at 151 to 153) stated as follows: … One commanding circumstance is to ascertain the subject matter as a totality of which it is predicated that it must be wilful. Here the subject matter is not "disobedience," but "disobedience of a lawful order." It is the whole compound expression that must be "wilful," and not the one word "disobedience" adding a proviso "if the order be lawful." It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of valuable accruing rights, together with some degradation - altogether a severe penalty - is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased "wilful disobedience of a lawful order." That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance. Once the element of "wilfulness" is introduced for the purpose of the summary rescission by one party of the whole contractual relation, with penal results on the other, then, as the "wilfulness" is the attitude of the employee, so far as it is conveyed by words or acts to the employer, the subject must be looked at from a new standpoint. "Wilfully" does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty. … Any conduct on the part of either inconsistent with the maintenance of the relation created amounts to a renunciation, and the other has a right to terminate it. An order that is not so clearly implied or expressed as to be free from doubt has been left so by the act of both parties. A refusal to comply with it, if the employee, regarded as a reasonable man with knowledge of all the circumstances, may reasonably and does honestly contest it, is not, if respectfully communicated, a wilful disobedience of a lawful order, which by reason only of "wilfulness" entitles the employer to penalize the employee. The employee is there, to the knowledge of his employer, only acting in defence of his supposed rights - that is his only intention and purpose. He is not wilfully insubordinate. Other grounds may justify a rescission, as, for instance, the importance of the refusal apart from wilfulness or its effect on the general condition of the employer's business. That, however, concerns the second ground alleged here. … 1. In Laws, Lord Evershed MR (with whom Lord Jenkins and Willmer LJ agree) stated (at 700 to 701), as follows: To my mind, the proper conclusion to be drawn from the passages I have cited and the cases to which we have been referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that the question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally. In the passages which I have read, it will be remembered there is a statement "…there is no fixed rule of law defining the degree of misconduct which will justify dismissal." That statement is derived from the judgment of the Privy Council delivered by Lord James of Hereford in the case to which Mr. Stewart referred of Clouston & Co. Ltd. v. Corry. I will read a rather larger passage which provides the context. Lord James said: "Now the sufficiency of the justification depended upon "the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal." In the present case, the judge, in the course of his judgment, said: "It is clear and sound law that to justify dismissal for one act of disobedience or misconduct it has to be of a grave and serious nature"; and, later he concluded, in the plaintiff's favour, that what she had done, or not done, on June 20 was not sufficiently grave to justify dismissal. With all respect to the judge, I think that his proposition is not justified in the form in which he stated it. I think it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. 1. It follows that a question that must be asked in assessing whether an employee was guilty of serious misconduct warranting summary termination for disobedience is not only what actions or omissions constituted that conduct but the mental processes relative to them: Gooley v Westpac Banking Corporation (1995) 59 IR 262 at 269. This conclusion is reached for two reasons. First, the state of mind of the appellant may bear upon the degree or seriousness of the misconduct. Secondly, and as defined in Adami (at 152), whilst wilfulness does not necessarily connote anything criminal or immoral, it does imply some deliberate design or purpose to derogate from duty. 2. This is not to dispute that an employee may be guilty of serious misconduct for gross negligence or acts of recklessness having regard to, for example, the codes of conduct of an employer or safety procedures, but this is not a case which turns upon that consideration, as pleaded in this appeal. 3. Some simple illustrations of this proposition by analogy may suffice. In Gooley it was alleged that the appellant had disclosed a confidential document contrary to the code of conduct of the respondent but it was held by Wilcox CJ that the appellant "did not send the information to Mr Davidson knowing or believing that it was confidential; and that, at most, he was guilty of an error of judgment that could not properly be described as 'serious misconduct'" (at [279]). 4. More directly, in reliance upon Gooley, Gillard J in Rankin, held that, as a general proposition, a finding that disobedience will justify summary termination requires "something more than ill-advised conduct or omission to act, as a result of any error of judgment" (at [264]). 5. In Rankin, it was found that the appellant did breach his contract of employment by failing to carefully and diligently perform his duties with respect to the cost of a project and to comply with the approval rules of his employer (at [278]). It was found that an excuse that he did not turn his mind to the question was to no avail as it was his duty to carry out the cost analysis (at [306] and [307]). 6. However, it was found that the appellant did not know that the cost would substantially exceed the approval and did not seek to deceive or mislead senior management when reporting. It was found "he did not breach the terms of his contract knowingly, wilfully and with any intention to deceive or mislead his supervisors" (at [315]). 7. An application of those principles to the Commissioner's reasoning process demonstrates two fundamental errors in assessing whether the appellant's conduct justified summary termination. First, the Commissioner applied the wrong test to the consideration of whether the summary termination was lawful by putting out of account, in answering that question, and the subsidiary question as to repudiation, whether the failure of the appellant to discharge his maintenance tasks vis-à-vis the tightening of wheel nuts (where nut lock clips were fitted) on 18 August 2014 was a deliberate flouting of his contract of employment. Secondly, in consequence of that error the Commissioner failed to have regard to relevant matters of evidence (or factors) demonstrating, objectively, that the behaviour of the appellant was, rather, an error of judgment, ill-advised conduct or carelessness (it was not suggested at any stage that the appellant was engaged in any wanton or abject carelessness). 8. As an assessment of whether summary termination was wrongful has a bearing, in and of itself, upon the question raised by Pt 6 of Ch 2 of the Act, namely, whether the dismissal was harsh, unreasonable or unjust, it follows that the Commissioner's errors with respect to his assessment of the wrongfulness of summary termination of the appellant materially impacted his findings as to the application of that statutory test. 9. However, there is more to this consideration because, independent of the question as to whether the summary dismissal was lawful, the factors underpinning our consideration of error in that respect are also directly relevant to the three adjectives governing that test. That is so because those considerations go to the nature and quality of any misconduct and the reasonableness or justness of the dismissal (as well as the question of harshness). A misapprehension as to the nature and quality (including severity) of the appellant's actions giving rise to a decision to dismiss necessarily undermines the veracity of any finding as to whether the dismissal was harsh, unreasonable or unjust and also constitutes error. The factors of which we speak, in this latter respect, will receive greater elaboration in our later discussion of whether the dismissal was harsh, unreasonable or unjust and, thus, it is unnecessary to rehearse the consideration of those factors here, but there is a substantial difference in the gravity of any misconduct based upon a deliberate disobedience of a lawful and reasonable instruction and an error of judgment based upon a genuinely held belief which was not irrational given failures in the employer's own procedures (see further our discussion at [142] to [145] below). The appellant's previous act of misconduct 1. Those conclusions follow, irrespective of whether the actions of the appellant constituted a single act of disobedience or not, because the essential error was to fail to take into account factors necessary to appreciate whether the employee had repudiated his contract of employment as that concept is understood in the authorities earlier discussed and because that error included a failure to properly assess the nature and quality of any misconduct by putting out of account factors necessary to properly make such an assessment. That said, we do consider that, to the extent that the appellant's conduct can be assessed as disobedience, his conduct on 18 August 2014 should properly be considered as a single act (albeit mitigated in the manner discussed above) because we do not consider the prior conduct which gave rise to a warning from his employer, for the purposes of considering the lawfulness of the summary termination, to be sufficiently related in nature to the purported act of disobedience on 18 August 2014. 2. The Commissioner, at [127], and the respondent referred to the appellant's prior act of misconduct in justifying the summary termination of the appellant. That prior punishment was located in a Notice of Punishment issued to the appellant on 2 July 2013 ('the 2013 Notice of Punishment'). It was found that, on 6 June 2013, the appellant had "failed to operate and perform duties to required competency level of [his] position resulting in said vehicle travelling uncontrolled and damaging said vehicle and depot infrastructure". The appellant, in that instance, had failed to check the pressure in a brake prior to moving a bus he was working on, resulting in the bus running, out of control, into a garage door. The punishment issued to the appellant, as outlined in the 2013 Notice of Punishment, was: 1. Suspension without pay for a period of four weeks (already served during investigation period). 2. A regression in grade to that of ERT LVL 3 as from 3rd July 2013 until 31st December 2013. 3. A Final Warning, in that any future breach by yourself of State Transit Code of Conduct or policies may result in the termination of your employment. 1. That prior instance of misconduct can be differentiated from the charge of disobedience that has been levelled at the appellant in relation to his conduct on 18 August 2014, from which these proceedings arise. The appellant's conduct on 2 July 2013 was clearly an act characterised as 'incompetence' and reflected a degree of carelessness in relation to his work on that day. However, as has been discussed above, the respondent relied in this appeal, and below, upon a finding of disobedience of a lawful and reasonable order to justify its dismissal of the appellant, not a finding of incompetence or carelessness (notwithstanding that there may have been elements of carelessness in the appellant's failure to check that he was following the correct procedure as to tightening wheel nuts where nut lock clips were fitted after the third work order came into use). 2. More significantly, if attention is directed to the nature and quality of misconduct the concepts of disobedience and carelessness are quite different. A refusal to obey a reasonable and lawful instruction denotes an unwillingness to receive and/or act upon such instructions. Whereas an act of incompetence arising from carelessness denotes lack of diligence in completing one's work. Putting aside particularly heinous acts of carelessness, misconduct of that kind is generally of a lesser gravity. 3. A series of acts of misconduct by an employee may culminate to evince an intention to repudiate their contract of employment. However, in the present case the two acts of misconduct relied upon do not operate in concert in the sense that they evince an intention to either be bound or not bound by the contract of employment. 4. Therefore, for the purposes of determining whether the summary termination is lawful, the prior finding of misconduct against the appellant is of little relevance. Ground 6 of the appeal 1. We also consider there is substance to ground 6 of the appeal insofar as it concerns the issue of proportionality. It is tolerably clear that the Commissioner did not consider the penalty imposed upon the appellant to be disproportionate to that imposed upon his supervisor, not only because, as he states at [127], the appellant's circumstances could be differentiated due to the prior warning he had received and his lack of contrition but also because of his assessment of the nature and quality of any misconduct committed by the appellant vis-à-vis disobedience. It may be implied from the Commissioner's decision that he considered the nature and quality of the appellant's misconduct to be of such a serious character as to distinguish it from the mere carelessness of his supervisor in checking the third work order. That again underlines the vice found in the Commissioner's decision in omitting any consideration of why or how the appellant came to not follow the requirements of the third work order on 18 August 2014. Conclusions re errors 1. It follows that the Commissioner's decision was attended by errors of law and principle. Leave should be granted to deal with those errors and in our view the appeal must be upheld. Re-exercise of power and discretion 1. Attention must then turn to what the Full Bench should do in these circumstances. Under s 192(1)(a) of the Act, the Full Bench has the power to substitute its own decision for that of a Commissioner: ITD Preece v Industrial Court [2008] NSWSC 285; (2008) 177 IR 172 at [41] (per Spigelman CJ). It was submitted by the appellant that the Full Bench should undertake such a procedure. The respondent made no submissions as to what course should be taken if the impugned decision was found to contain errors of law. We consider the approach contended for by the appellant to be the appropriate course in these circumstances. Was the dismissal of the appellant harsh, unreasonable or unjust? 1. We will now turn to deal with the question of whether summary termination was lawful as a discrete but relevant consideration as to whether the dismissal of the appellant was harsh, unreasonable or unjust. 2. We have concluded that the summary termination of the appellant was unlawful for the following reasons: 1. The appellant failed to discharge an instruction contained within the third work order on 18 August 2014. Strictly speaking, that failure constituted a breach of an express or implied term in the appellant's contract of employment, namely, that the appellant must follow lawful and reasonable instructions issued to him by the respondent. 2. The respondent's case centred upon the appellant's disobedience of a lawful and reasonable order constituting the repudiatory conduct that would warrant summary dismissal irrespective of the wilfulness of the act of disobedience or whether it constituted an act arising from carelessness or mistaken judgment. The respondent's decision to summarily dismiss the appellant was, therefore, based on an incorrect legal premise as to the repudiatory nature of the conduct required to warrant a summary termination. 3. The appellant's conduct in failing to discharge the instruction he was tasked with on 18 August 2014 cannot be properly understood as conduct evincing an intention to repudiate his contract of employment because the objective circumstances surrounding that conduct support the conclusion that the appellant's failure was not a wilful or deliberate act of disobedience. The failure of the appellant was not a result of him determining that he would not follow the requirements of the third work order in defiance of his employer's directions but a decision to so act because of what he erroneously considered constituted those directions. His conduct represented an error of judgment or ill-conceived conduct. 4. Irrespective of being a single or further act of disobedience, the appellant's conduct did not constitute a flouting of the essential conditions of the contract of employment. His actions fall well short of the repudiatory conduct discussed in the authorities as would justify summary termination. As we found, however, the appellant's conduct on 18 August 2014 should properly be treated as a single act of misconduct for the purposes of determining the lawfulness of his summary termination. Thus, it can be concluded, with even stronger force, that the appellant's conduct did not constitute a repudiation of his contract of employment. 1. In the circumstances of this matter, the conclusion set out above, in our view, properly constitutes a basis for concluding that the dismissal was harsh, unreasonable or unjust. That is because the respondent sought to sustain its defence of the appeal entirely upon a foundation of the appellant's disobedience of a lawful and reasonable instruction. Having reached that point, it remains important to apply the general principles associated with the answer to this question in the light of the factors more broadly bearing upon the issue arising from the earlier analysis in this judgment. Principles as to harsh, unreasonable or unjust 1. A recent illustration of the relevant principles in that regard can be found in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at [18 to 21]. We will adopt the principles as set out by the Full Bench there and, for convenience, extract them below: [18] We adopt the statement of principles in Vouden and Kaplan and, for convenience, shall set out the relevant passages of those judgments in order to reiterate some basic principles in this respect. [19] In Kaplan, the Full Bench stated (at [27] to [29]): 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. [20] The judgment in Vouden distilled the relevant principles as to the tripartite factors in the context of proceedings under s 181D of the Police Act 1990.However, the principles stated in [480] of that judgment are directly applicable to proceedings under s 84 of the Act. We extract those principles below as follows: Even though Lawrance (No1) concerned an application for review grounded solely on the basis that the removal was harsh, that decision nonetheless stated the relevant principles governing the adjudication of applications in the present matter (relying on tripartite factors). The relevant paragraphs from the decision are set out below: 19 The task of the Commission in undertaking a review under s 181E (1) is now well established as being constituted by the Commission making "a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted": Hosemans v Commissioner of Police (No 2) (2005) 138 IR 159 at [134] ('Hosemans No 2'). As earlier noted, Div 1C of Pt 9 requires the Commission, in the review, to consider whether the removal of the applicant police officer is "harsh, unreasonable or unjust". As noted in Collins at [61], the removal of a police officer may be either harsh, unreasonable or unjust "or a combination of all three". 20 In this case, the confinement of the grounds for review by the applicant require only a determination as to whether the removal was harsh; a process that involves mixed issues of fact and law: Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325 at [4]; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 at [82]; Dobbie at [18] and [40], Johnston at [25] and Evans at [1]. 21 Distinguishing between what may be harsh, unreasonable or unjust may be sometimes elusive or involve a degree of circularity, but it is necessary for the Commission to state explicitly the basis upon which it makes a determination in a review undertaken under s 181E (1): Collins at [61] and see Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. Thus, the Commission must state explicitly which, if any, of the grounds pursued by the applicant under s 181E(1) are found to be made out. (In this case there is a single ground.) 22 The High Court of Australia discussed the distinction between the concepts of harsh, unreasonable or unjust in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ stated (in the context of an award provision): ... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 23 The fundamental exposition of principle as to what may constitute 'harshness' in the removal of a police officer for the purposes of s 181E (1) is found in the decision of Watson J (made in the context of an unfair dismissal claim) in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233. In Little No 2 (at [70]) the Full Bench stated, in this respect, as follows: In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (See also Department of Health v Kaplan [2010] NSWIRComm 65 at [29] ('Kaplan').) 24 The concepts of the 'severity' of the dismissal and 'too harsh a consequence' in Metropolitan Meat Industry Board naturally bring with them the notion that the assessment of harshness involves, in part, an evaluation of the gravity of any misconduct giving rise to the removal: Collins at [37] and Brennan at [70]. Thus, the question of proportionality arises (see Byrne at 465 and 467, Evans at [7] and Kaplan at [28]). Further, in the case of an application based on harshness, the Commission must take into account whether there were any mitigating circumstances (see Little No 2 at [70] and [71]). 25. Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F (3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36]). [21] In Fraser (No 1) at [210], reference was also made to Vouden at [610]. That paragraph in Vouden does mix particular considerations arising under the Police Act with those presently under consideration but also incorporates general statements of principle relevant to proceedings under s 84. As to the question of harshness, it will be convenient to extract that paragraph and some earlier paragraphs which contextualise the observations in [610]. We therefore take in extracts from Vouden at [606] to [610] as follows: [606] It is against this background and the findings earlier made in this decision as to the seriousness of the applicant's misconduct that an overall assessment as to 'harshness' must be undertaken by the Commission. [607] As earlier mentioned, that consideration requires an evaluation as to whether the removal of the applicant was harsh because of his personal and economic circumstances or because it was disproportionate to the gravity of the misconduct (in itself or when examined in the light of the personal and economic circumstances of the applicant). [608] I have earlier discussed the applicant's personal and economic circumstances and the consequences of his removal. He joined the Police Force as a late career change. … [609] The applicant's past good service record and references attesting to his personal character, work ethic and performance, as earlier found, are also factors which contribute (in favour of the applicant) to an assessment of whether his removal was harsh. [610] Those conclusions do not necessarily result, however, in a finding that the removal was harsh. They must be balanced or weighed against earlier findings as to the seriousness of the applicant's conduct and public interest considerations arising under s 181F(3)(b). The nature and quality of any misconduct 1. On the evidence in these proceedings, the true nature of the appellant's misconduct is that he failed to discharge an instruction conveyed by a work order because he erroneously acted upon the second work instruction (when understood in the light of its change to the first work instruction and when read in conjunction with the second work order) with respect to nut lock clips upon the genuinely held belief that the second work instruction operated on 18 August 2014, notwithstanding a third work order which gave a contrary indication, and did so carelessly by failing to inquire about an apparent anomaly between the contents of the third work order and his understanding of the extant work instructions. The manner in which he made an entry into the third work order is not demonstrative of some aggravation of his conduct in that respect but, as we have noted, was illustrative (together with other factors discussed earlier) of a genuinely held but mistaken view. 2. However, the questions raised in this appeal do not revolve around the question of carelessness. The respondent eschewed any reliance upon that allegation in sustaining the decision below (noting that the Commissioner did not rely on misconduct of that nature), reducing its characterisation of the misconduct to disobedience simpliciter, thereby misjudging that it would sustain the decision below upon that basis. As discussed above (at [124] to [125]), that characterisation of the appellant's conduct on 18 August 2014 distinguishes it from the previous finding of misconduct against the appellant relating to his conduct on 6 June 2013, which may be characterised as 'incompetence' or arising from an act of carelessness. The distinction drawn reduces the degree to which those acts can be seen as reflecting a pattern of conduct on behalf of the appellant. No submissions were made by the respondent as to the gravity of any carelessness. 3. Further, an accurate assessment of the nature and quality of the appellant's misconduct must recognise the contribution of the respondent to the appellant's miscomprehension as to the nature of the instruction he was charged with and, thus, his failure to discharge that instruction (as discussed above at [72]). This is an extenuating factor. 4. Upon these considerations, it is apparent that the severity of the appellant's misconduct was, at its highest, moderate (and well below, as we have found, any conduct warranting summary termination). 5. The treatment of Mr Hedley 6. It is convenient at this juncture to consider the treatment of the appellant's supervisor, Mr Hedley, arising from a related incident of misconduct, as that consideration will bear upon the conclusions drawn as to whether the dismissal of the appellant was harsh, unjust or unreasonable. The issue of disproportionate treatment of Mr Hedley was raised in ground 6 of the appeal and addressed in the appellant's submissions. 7. Mr Hedley occupied the position of Leading Hand at the Ryde Depot and was, as part of his employment, required to sign off on the appellant's work order. On or about 18 August 2014, Mr Hedley signed off on the work order completed by the appellant despite the words "NA" being entered against item 31. In a Notice of Punishment dated 24 November 2014 (hereafter the 'Hedley Notice of Punishment'), it was identified that Mr Hedley "incorrectly recorded that the bus was fit for service, the service was completed, and the service report was completed". It was further noted that as a result of his conduct, "the nearside wheels (positions 3 and 4) separated from the nearside rear axle hub" of bus MO1196 on 18 August 2014. As a result of this misconduct, Mr Hedley received the following punishment that was outlined in the Hedley Notice of Punishment: Suspension from duty without pay from 12.00pm on 7 November 2014 up to and including 11 November 2014 (resumed 10:30am on 12 November 2014). FINAL WARNING that any further breach of State Transit policy may result in dismissal. 1. Notwithstanding that Mr Hedley was not, unlike the appellant, on a warning for prior misconduct, the inequity between the treatment of Mr Hedley and the appellant is striking when two considerations are taken into account. First, Mr Hedley occupied a position of seniority to the appellant and, it can be reasonably surmised, held a greater degree of responsibility. Secondly, when the true nature and character of the appellant's conduct (as described above) is taken into account, it is difficult to reach a conclusion that Mr Hedley's conduct was of a lesser gravity to that of the appellant. There was no evidence in the proceedings suggesting that Mr Hedley's misconduct resulted from any misapprehension as to the procedures of the respondent at the time of his misconduct, as there was in the case of the appellant. Was the appellant's dismissal harsh? 1. The considerations relevant to determining whether the dismissal of the appellant was harsh are as follows: 1. The nature and quality of the appellant's misconduct was, when properly construed, of a low to moderate gravity (as discussed above). 2. The severe punishment given to the appellant was based upon an erroneous conclusion, on behalf of the respondent, that the gravity of the appellant's misconduct was of a far greater severity. The penalty imposed by the respondent was disproportionate to the actual misconduct of the appellant. 3. The dismissal of the appellant, particularly in the penalty imposed, deprived him of significant benefits and diminished his prospects of securing equivalent employment in the future. The appellant's age is relevant in that respect. 4. The disproportionately small penalty given to the appellant's supervisor, Mr Hedley, for misconduct that, in all the circumstances, was of no lesser gravity than the appellant's, is indicative that the penalty given to the appellant was unduly harsh. 5. The appellant had a lengthy period of service. 6. The fact that the appellant was on a 'Final Warning' for a prior incident of misconduct (as found by the respondent) gives minor support to the proposition that the dismissal of the appellant was a proportionate response when consideration is given to the distinctly different character of the earlier instance of misconduct and the penalty was primarily predicated upon a finding of deliberate disobedience. 1. The summary dismissal of the appellant was clearly disproportionate to his misconduct. That observation alone is enough to sustain a finding that the dismissal was harsh within the meaning given to that term in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 (at 465 per McHugh and Gummow JJ) ('Byrne'). The additional factors discussed in the previous paragraph serve only to further buttress that conclusion and underline the degree of harshness present in this case. Was the appellant's dismissal unreasonable? 1. The dismissal of the appellant was unreasonable, within the meaning of that term given in Byrne, because it was predicated upon a conclusion as to the severity of the appellant's misconduct that could not have been reasonably drawn, had proper regard been given to the objective circumstances surrounding the appellant's failure to discharge the instruction contained at item 31 of the third work order. 2. These objective circumstances only support the conclusion that the appellant's failure to discharge that instruction was due to a mistaken but genuine belief as to the respondent's procedures vis-à-vis the tensioning of wheel nuts where nut lock clips were in use. There is a further consideration in this respect. There is no basis to doubt that the respondent's contention below and here, that nothing more was required to warrant summary termination than proof of a failure to follow an instruction, was instrumental in its decision to dismiss and the matters it was prepared to take into account in reaching that conclusion. That conclusion makes the respondent's investigation and decision to dismiss unreasonable. 3. Notwithstanding the Commissioner's finding at [128] of his decision that "a proper investigation was undertaken and the opportunity given to Mr Dissanayake to respond to the allegations was adequate", the respondent clearly failed to have a proper regard to the circumstances that gave rise to the appellant's failure to discharge the instruction at item 31 of the third work order on 18 August 2014 based on the factors identified in the previous paragraph. That failure supports the conclusion that the dismissal of the appellant was unreasonable. Was the appellant's dismissal unjust? 1. The dismissal of the appellant was also unjust within the meaning of that term considered in Byrne. It was unjust for the respondent to attribute the full blame to the appellant for his failure to discharge the instruction at item 31 of the third work order on 18 August 2014 when, in actuality, the conduct of the respondent contributed to that failure by creating a gap in instructions capable of resulting in misapprehension and misunderstanding. 2. Additionally, it is appropriate under this heading to consider the inequity in the treatment of the appellant and Mr Hedley. The significantly more severe punishment given to the appellant for misconduct that should not be considered more grave or serious than the misconduct of Mr Hedley, is indicative of unfairness in the treatment of the appellant. Findings as to the statutory test 1. On the considerations above, we find that the dismissal of the appellant was harsh, unreasonable and unjust within the meaning of s 84 of the Act. Remedies 1. Notwithstanding the foregoing findings, determining the appropriate remedy is not a straightforward task, given the manner in which the appellant approached the proceedings. 2. Despite the remedy of reinstatement being sought in the notice of appeal, the appellant modified his position as to remedies during the course of hearing of the appeal by claiming that, if a finding was not made that the dismissal was unjust or unreasonable, then he would not challenge the Commissioner's finding as to harshness nor the remedy given. The appellant did not traverse, in any significant way, whether the Commissioner was in error in finding that reinstatement or re-employment was impracticable. 3. We received no substantive submissions from either the appellant or the respondent as to the appropriate remedy, should the appellant succeed and, in particular, we received no submissions in that respect as to: 1. The significance that should be given to the appellant's prior act of misconduct and the warning issued to him; 2. The significance, if any, of the appellant's attitude to his wrongdoing as found by the Commissioner, noting that the regard given to this by the Commissioner was in the context of his erroneous failure to make proper inquiries as to how the anomaly in the instructions received by the appellant should be resolved; and 3. Ultimately, the practicability of reinstatement or re-employment. 1. On balance, and notwithstanding some misgivings, we consider that, on the case presented by the appellant, we should find that it is not practicable to reinstate the appellant in his former position or to order re-employment in another position that the employer has available for the following reasons: 1. Whilst the primary remedy under the Act is reinstatement, the Commissioner found that the reinstatement of the appellant would be impracticable; 2. That conclusion must not be given undue weight because it rested upon an application of the wrong principles as to the lawfulness of summary termination and an incorrect finding as to whether the dismissal was harsh, unreasonable or unjust, the Commissioner having erroneously failed to consider the deliberateness of the appellant's conduct (and related relevant considerations); 3. The Commissioner's conclusions did, however, rest upon conclusions as to other factual matters bearing upon the question of impracticality about which we have received no contrary submissions; 4. To the extent that the appellant did press for the remedy of reinstatement or re-employment, he did so very mildly; 5. There are proper bases to find impracticability with respect to reinstatement or re-employment on the evidence; 6. Primary amongst those factors was the appellant's conduct on 6 June 2013 and 18 August 2014 which reflected two errors of judgment in the appellant's performance of his work which had serious consequences. These factors must weigh against a conclusion that reinstatement or re-employment is practicable. 7. Further, notwithstanding that the respondent substantially overestimated the nature and quality of the appellant's misconduct, the appellant did not recognise the contribution of his own lack of diligence to his failure to follow the instruction he was tasked with at item 31 of the third work order on 18 August 2014, which diminishes the prospect that a working relationship can be successfully restored. 1. We do, however, consider that the award of compensation by the Commissioner was manifestly inadequate, particularly given our findings that the dismissal was harsh, unreasonable and unjust. 2. We think that the appropriate compensation, having regard to our finding as to why the dismissal was harsh, unreasonable and unjust, the wrongfulness of the appellant's summary termination (with its consequential adverse economic and reputational implications for the appellant) and the age and length of service of the appellant, would be compensation of 18 weeks' pay. Orders 1. In all the circumstances we order: 1. Leave to appeal is granted; 2. The appeal is upheld; 3. The decision and orders of Stanton C of 18 March 2016 are quashed; and 4. The respondent is ordered to pay the appellant 18 weeks' pay at the ordinary rate of pay applicable to the appellant at the time his employment ceased. ********** 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: 02 September 2016