Dec 895/00 S Print S8434
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision Print [S6471] and order Print [S6472]
issued by Deputy President Duncan on 26 May 2000
Container Terminals Australia Limited
(C No. 21825 of 2000)
s.170CE application for relief re termination of employment
Phillip Toby
and
Container Terminals Australia Limited
(U No. 20925 of 1999)
JUSTICE BOULTON |
|
SENIOR DEPUTY PRESIDENT MARSH |
|
COMMISSIONER JONES |
SYDNEY, 24 JULY 2000 |
s.45 appeal - Termination of employment.
DECISION
[1] This is an application for leave to appeal by Container Terminals Australia Limited (the Company) against a decision given by Deputy President Duncan on 26 May 2000 [Print S6471]. In the decision, the Deputy President determined that the action by the Company in terminating the employment of Mr Phillip Toby (the Respondent in the appeal) was harsh and unreasonable and ordered that he be reinstated in employment.
[2] In the present matter, there was no contest in relation to the evidence and the findings of fact made by the Deputy President. In the decision, his Honour provides a detailed summary of the witness and documentary evidence presented in the course of proceedings and then sets out various specific findings relating to the evidence and submissions. Those findings are as follows:
"1. Mr Toby was employed by CTAL (or its predecessors) for 18 years to 24 September 1999.
2. Mr Toby, for much of that time, was active in union matters and active as a representative of other employees in industrial and safety matters.
3. Mr Toby did not always comply with procedure for leaving his allocated place of work and that was so whatever the precise procedure - to give advice and get permission or simply to give advice of his intentions.
4. On 11 September 1998 Mr Toby acted contrary to a refusal by CTAL to permit his attendance at a Commission hearing.
5. There was a meeting on 18 September 1998 over the 11 September incident when Mr Toby was told that any failure to behave acceptably would lead to immediate dismissal, a condition which he accepted.
6. On 30 October 1998 a letter was given to Mr Toby which confirmed that Mr Gilfillan:
". . . advised you that there would be no more warnings and any failure by you to comply with your contract of employment in future would result in your immediate dismissal. You acknowledged and accepted this position."
7. On 31 May 1999 Mr Toby left his allocated place of work without permission although he advised his shift foreman but although an interview occurred no action was taken under the undertaking.
8. On 24 August 1999 Mr Toby refused to perform certain clerical duties associated with first aid work but it is not established that he was properly trained for the clerical work and this finding plays no part in my decision.
9. On 26 August Mr Toby entered a meeting to which he was not summonsed and in doing so, left his allocated place of work without permission.
10. The incidents referred to in [8 and 9 were] the subject of an interview on 3 September and led to a further letter of 23 September. An explanation is given and accepted for the delay between but it is found that no other action was taken as a result of the incidents and the interview of 3 September.
11. An issue concerning the operation of RTGs arose at the start of shift on 22 September 1999. Mr Toby convinced operators to resume work but left his allocated workplace without permission or advice to seek talks with management on the issue.
12. On 23 September Mr Toby was spoken to by Mr Gilfillan for not wearing his hard hat in an area where it was required.
13. On the same day employees on site held a meeting which commenced at 11.30am the start of the authorised meal break. It did not conclude at 12 noon, the end of the meal break. It was concerned amongst other things, with the RTG issue.
14. Shortly after noon Mr Toby and Mr Sampson left the meeting and approached Mr Gilfillan and raised the RTG issue. Mr Gilfillan told them he would address the employees at 6.30am the next day. There were subsequent directions to resume work which did not occur until approximately 1.10pm.
15. There is no evidence that CTAL management pointed out to Mr Toby that his position in regard to resuming work was judged different from that of the other employees.
16. The next day, 24 September, Mr Gilfillan did not address the meeting.
17. On the same day at or near the start of the shift Mr Toby became aware that he was to attend a disciplinary meeting that day and was in the meantime stood down with pay.
18. Mr Toby initiated a move to have the employees hold a meeting at the tennis courts, a site habitually used for stop work meetings.
19. The meeting decided not to return to work until either a representative of management or a national union official attended the meeting and Mr Garrett did attend and secured a return to work which did not occur until between 12.15 and 12.30pm.
20. About the same time the disciplinary meeting involving Mr Toby commenced. Those present were Messrs Gilfillan, Adam, Toby and Garrett. What was covered at the meeting was:
· the background or history of Mr Toby's infractions;
· Mr Toby was advised that termination was under consideration and was asked if he had anything to put in his defence.
The interview was interrupted for about an hour while Messrs Gilfillan and Adam considered the matter. On their return Mr Gilfillan advised Mr Toby his employment was terminated.
21. A letter confirming the decision was issued on 27 September. Its terms are set out in paragraph [1] hereof." (Print S6471 para 62)
[3] The termination letter dated 27 September 1999 from the Company to the Respondent is in the following terms:
"Termination of employment
As discussed with you Friday 24th September, we consider your conduct on Wednesday 22nd September and Thursday 23rd September 1999 constitutes a breach of your contract of employment and the Container Terminals Australia Limited (C.T.A.L.) Enterprise Agreement 1999 and as such is unacceptable to C.T.A.L.
In view of the fact that you were given a final warning on 30th October 1998, and a number of subsequent verbal warnings have failed to change your behaviour, your failure to work as directed and in accordance with agreed work practices leaves us with no choice other than to terminate your employment with C.T.A.L. effective immediately.
Accordingly, I confirm that your employment with C.T.A.L. is terminated effective Friday 24th September 1999. You will be paid your entitlements up until that date." (Exhibit CT1 p.124)
[4] The Deputy President considered the relevant statutory provisions and the evidence and submissions presented by the parties and reached the conclusion that the termination of the Respondent's employment was harsh and unreasonable:
"Having considered the matters in s.170CG(3) in total and bearing in mind that the purpose of the legislation [see s.170CA(1)] is to ensure a fair go all round for both parties I find that the termination was harsh and unreasonable. Harsh because of the matters discussed under s.170CG(3)(e) and unreasonable because of the matters discussed under s.170CG(3)(b) and (c) and the conclusion reached under s.170CG(3)(a)." (Print S6471 para 79)
[5] The Deputy President then considered what remedy should be awarded. It was decided that reinstatement was appropriate, although there was concern about the warnings previously given to the Respondent and that an order of reinstatement might be regarded as an endorsement by the Commission of the Respondent's conduct. In deciding upon reinstatement the Deputy President said that he was:
"influenced by the undertaking offered both by Mr Toby and by Mr Crawshaw on behalf of his client that, on reinstatement, Mr Toby would immediately and `for ever' cease to play any role in the union or on the safety committee. The significance of this is high as I am satisfied that it was in these roles that Mr Toby came to fail to comply with the directions and requirements. Nowhere is there any suggestion that his transgressions occurred as an ordinary worker. It is only on the basis of this undertaking that I consider reinstatement appropriate." (Print S6471 para 82)
[6] The Deputy President ordered that the Respondent's continuity of employment be maintained. However his Honour refused to make any order in respect of the remuneration lost in the period between the termination and reinstatement so "that there be no doubt that the Commission does not condone the behaviour of Mr Toby" (Print S6471 para 83).
[7] In the appeal proceedings, no issue was taken in regard to the findings of fact made by the Deputy President. However the Company sought to challenge the conclusions reached by the Deputy President based on those findings. In particular, the challenge was directed at the conclusions that the termination of the Respondent's employment was harsh and unreasonable and that it was appropriate to make an order for reinstatement.
[8] It was submitted by the Company that the Deputy President fell into error in concluding that the termination was harsh and unreasonable. It was said that the conclusions were not open on the facts as found and that in reaching the conclusions the Deputy President misconstrued the provisions of the Workplace Relations Act 1996 (the Act). In this regard it was said that there was error of law and jurisdictional error which should be corrected by the appeal bench: see Warren v Coombes (1979) 142 CLR 531, at 551-552.
[9] In particular, it was submitted by the Company that the Deputy President erred in concluding that there was no valid reason for the termination as referred to in s.170CG(3)(a) of the Act. Although it was found that the Respondent disobeyed lawful and reasonable directions of the employer and that the behaviour complained of did occur, the Deputy President concluded that the penalty of termination was inappropriate and therefore that there was no valid reason for termination. In so deciding the Deputy President had regard to a range of matters which were considered relevant pursuant to s.170CG(3)(e), including "the impact of the termination on Mr Toby in the circumstances of his length of service", that "dismissal for misconduct is disproportionate to the offence" and that "management was selective in its reliance on the undertaking" referred to in the letter of 30 October 1998, namely that there would be no more warnings and any failure to comply with the contract of employment in future would result in immediate dismissal.
[10] It was submitted by the Company that the validity of a reason for termination must be evaluated independently of the question of whether the termination was harsh, unjust or unreasonable. In other words the issue of whether there is a valid reason for termination is different from the issue of whether some other element/s might make the termination of employment unfair.
[11] Subsection 170CG(3) sets out a range of matters which the Commission is required to have regard to in determining whether a termination was harsh, unjust or unreasonable. The subsection provides:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
[12] Paragraph 170CG(3)(a) refers to "a valid reason for termination" and makes it clear that the reason must be valid in the context of the employee's capacity or conduct or based on the operational requirements of the employer's business. It has been suggested that a valid reason would be one that is "sound, defensible or well founded" and that a reason which is "capricious, spiteful or prejudiced" could not amount to a valid reason: see Selvachandran v Peterson Plastics (1995) 62 IR 371, at 373 per Northrop J.
[13] In his decision, the Deputy President referred to a passage in the judgement of Moore J. in Edwards v Giudice (1999) 169 ALR 89. In the passage, his Honour considers the need for the Commission to determine whether the conduct complained about occurred as a step in resolving whether there was a valid reason for termination. His Honour said:
"Paragraph (a) speaks of "whether there was a valid reason ... related to the ... conduct of the employee". The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.
The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason." (at 92)
[14] The Deputy President relied upon part of this passage in finding that there was no valid reason for the termination. His Honour concluded that the behaviour of the Respondent complained about did occur but that the penalty of termination was inappropriate. His Honour said:
"A review of the findings will show that having considered the evidence I conclude that the behaviour complained of did occur. For reasons which I develop under s.170CG(3)(e) I conclude that the penalty of termination was inappropriate. In the phrase used by Moore J:
`...it did occur but did not justify termination'.
I therefore find that there was no valid reason for termination." (Print S6471 para 66)
[15] In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice v Hepburn (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct...": see Walton v Mermaid (1996) 142 ALR 681, at 685.
[16] In the present matter we have come to the conclusion that the Deputy President erred in the approach adopted to the consideration of whether there was a valid reason for termination as referred to in s.170CG(3)(a). On the undisputed evidence before the Commission there clearly was a valid reason for termination, namely the conduct of the Respondent over a period of time which led to the warnings about dismissal and which culminated in the events of 22 and 23 September 1999. This conduct clearly went beyond "a trivial misdemeanour" as was in contemplation in the passage in Moore J.'s judgement quoted above. It is a separate issue whether in all of the circumstances of a case, and notwithstanding a finding that there was a valid reason for termination of employment, the Commission might come to the conclusion that the termination was harsh, unjust or unreasonable. The determination of that issue involves the exercise of judgement and discretion by the Commission member concerned having regard to the matters referred to in paras (a)-(e) of s.170CG(3) and the findings made in relation to those matters.
[17] We have also considered the findings made by the Deputy President in relation to the matters referred to in s.170CG(3)(b) and (c). These were to the effect that the Respondent "was notified of the reason for his dismissal but in general, not specific, terms" and that "while an opportunity to respond to the allegations was given the process was open to criticism and was not in itself fair". It was submitted by the Company that on the evidence the Respondent was notified of the reasons for his dismissal and was given a proper opportunity to respond to the matters raised with him. Indeed it was said that some of the matters raised, following receipt of his explanation, were not taken into account at all by the Company in deciding to terminate his employment.
[18] On our examination of the evidence, we are satisfied that the Respondent was told of the reasons for his termination immediately before the decision to terminate was taken and that enough was said for him to be aware at least in general terms of the reasons for his dismissal. In relation to s.170CG(3)(b), we find that the Respondent was notified of the reasons for the termination.
[19] We are also of the view that the Respondent was given an opportunity to respond to those reasons (s.170CG(3)(c)). In this regard, we have examined the evidence presented and, in particular, that given by the Respondent and Mr John Garrett, the Deputy Branch Secretary of the Central NSW Branch of the Maritime Union of Australia, about the disciplinary meeting held on 24 September 1999. We are satisfied that the main issues which led to the Company's decision to terminate the Respondent's employment were raised at the meeting and that the Respondent was given, together with an official of his union, an opportunity to respond to the allegations against him.
[20] The Deputy President however considered that in view of the seriousness of what was in contemplation, namely summary dismissal, there was little opportunity actually given to the Respondent to respond. Whilst we accept that there might be some criticism of the process followed by the Company in regard to the limited time given to the Respondent at the disciplinary meeting to respond to the various incidents raised, in general we cannot conclude that the process was itself unfair. We find that the Respondent was given an opportunity to respond to the reasons for his termination relating to his conduct.
[21] In relation to s.170CG(3)(e), the Deputy President referred to a range of "other matters" which he considered relevant to the determination of whether the termination was harsh, unjust or unreasonable. These included the following:
· The impact of the termination on the Respondent in the circumstances of his length of service. The Deputy President considered that there "may well be a valid reason for disciplinary action short of termination" but that, in the circumstances of the case, the termination was harsh "because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (see Byrne v Australian Airlines (1995) 131 ALR 422, at 461 per McHugh and Gummow JJ).
· The personal and economic situation of the Respondent, including his age, qualifications and family circumstances. The Deputy President was of the view that this was a factor to take into account but must not be given significant weight.
· The penalty of dismissal was disproportionate to the gravity of the misconduct. In this regard, the Deputy President said:
"The dismissal for misconduct is disproportionate to the offence. The offence was failure to observe directions following warnings that the failure could lead to dismissal. All of the incidents relied on were the result of union based activities, including in that description the safety committee issues. The incidents which revived the previous warnings and undertakings were Mr Toby's leaving his allocated place of work on 22 September without permission and the refusal to comply with a direction to return to work immediately on 23 September. The first is clouded by the provision of the current enterprise agreement which does not require permission and agreement. Further subclauses 9(d)(iv)-(vi) of that agreement provide a remedy for breach of the procedure which, if put in place would have had the effect of removing one of the most important factors leading to Mr Toby's infractions, the right to represent the employees while on pay. It is noted that Mr Gilfillan agreed with Mr Crawshaw that Mr Toby's infractions all arose in his representative capacity. Action under the clause would therefore have removed the cause of Mr Toby's misconduct. As there is no allegation that Mr Toby transgressed other than as acting, albeit misguidedly, as an employee representative the apparent failure to consider this course of action must be considered as damaging to CTAL when one is considering a fair go all round. As for the second, the refusal to return to work on being directed I attach some significance to the fact that Mr Toby was expected to disassociate himself from his fellow workers.
There were a number of occasions after the undertaking referred to in the letter of 30 October 1998 was given which can not be distinguished from the incidents relied on to activate the undertaking in September 1999. There are therefore grounds to hold that management was selective in its reliance on the undertaking. This militates against a conclusion that Mr Toby was given a fair go all round." (see Print S6471 paras 76 and 77)
· The warning system in operation. The Deputy President had regard to the possibility that such a system would be compromised if there was a failure to act when a transgression occurs after warnings. However against this, it was not accepted "that once a final warning was given the employer is immune to scrutiny" (Print S6471 para 78). The Deputy President was of the view that the circumstances must be assessed taking everything into account.
[22] We generally agree that the matters referred to by the Deputy President under s.170CG(3)(e) are relevant to the consideration of the present matter. However we would place a different emphasis on some of the matters. The Deputy President decided that the termination of the Respondent's dismissal was harsh because of the matters considered under s.170CG(3)(e).
[23] This conclusion was, in our view, reasonably open to the Deputy President on the evidence and material before him. As we understand the reasoning process followed by his Honour, the conclusion was not influenced by the findings made in relation to the matters referred to in s.170CG(3)(a),(b) and (c). Indeed the finding made by the Deputy President under s.170CG(3)(a) was clearly made as a result of the "other matters" considered and the reasons developed under para (e).
[24] We accept the Company's submissions that the scheme under s.170CG(3) of the Act involves the making of findings in relation to the matters referred to in paras (a)-(e) and then a consideration of whether a termination was harsh, unjust or unreasonable having regard to those matters. If an erroneous finding is made in relation to one of the matters in paras (a)-(e), this may compromise the findings on other matters or the overall conclusion reached and determination made in the case. However we do not accept that in the circumstances of the present case the conclusion reached by the Deputy President regarding the harshness of the termination was affected by any such erroneous finding.
[25] Nevertheless, in view of the submissions made, we have considered whether the termination of the Respondent's employment was harsh, unjust or unreasonable having regard to the findings we have made in relation to the matters referred to in s.170CG(3). We note that there was a valid reason for the termination and that the process of notifying the Respondent about that reason and giving him an opportunity to respond was not flawed. However, for reasons similar to those given by the Deputy President, we conclude that the termination of the Respondent's employment by the Company was harsh, unjust or unreasonable.
[26] In reaching this conclusion, some of the considerations of particular significance are as follows:
· the Respondent's long period of service with the Company;
· the incidents which took place on 22 September 1999 (leaving the allocated place of work without permission) and on 23 September 1999 (refusal to comply with a direction to return to work immediately) were not in all the circumstances of such a serious nature as to warrant the action being taken on the basis of the previous warnings and undertakings and to result in the termination of the Respondent's employment;
· the General Manager of the Company agreed during cross-examination that the Respondent would not have been dismissed without the incidents of 22 and 23 September 1999;
· these incidents, and previous incidents leading to the giving of the warnings and undertakings were, in our opinion, the result of a misguided approach by the Respondent to his union based activities and representative role;
· the circumstances of the incident of 22 September included leaving the place of work in order to discuss an immediate industrial issue with a supervisor and the requirements of the Enterprise Agreement which was introduced in July 1999 for employee representatives to advise their immediate supervisor of their absence from normal duties (see clause 9(c) and (d) of the Container Terminals Australia Limited Enterprise Agreement 1999) - the previous agreement and the personal undertaking given by the Respondent in 1998 required both advice to and permission from an authorised person for such absences;
· the provision of specific remedies and processes in the 1999 Agreement for dealing with breaches in relation to the entitlement of employee representatives to be absent from their normal duties without pay to represent the interests of their fellow employees (see clause 9(d)(iv)-(vi)) and the failure of the Company to apply such remedies in relation to the incident of 22 September;
· similar incidents of the Respondent leaving his allocated place of work without permission to attend to union duties on 31 May and 26 August 1999 were not taken by management to warrant the activation of the final warning and undertaking given in October 1998 and the latter incident only lead to a letter being placed on the Respondent's file on 23 September, the day before his dismissal; and
· the circumstances of the incident of 23 September included that the Respondent along with other employees did not return to work after an authorised meal break, the failure lasted for about an hour and was due to discussions regarding an industrial issue, the Respondent resumed work along with other employees, there is no evidence that management judged the Respondent's position regarding resuming work differently from that of other employees and it was conceded in evidence that an earlier resumption of work by the Respondent alone would have required him to disassociate himself from his fellow workers and would be contrary to normal practice in the stevedoring industry.
[27] On the other side, it is recognised that there have been failures by the Respondent over an extended period of time to observe the Company's procedure for leaving his allocated place of work in order to attend to union duties as an employee representative. There has also been other misconduct, such as events in September 1998 which included the unauthorised attendance by the Respondent and some other employees at a hearing in the Commission and the making of false entries in the first aid log to facilitate such attendance, and which led to the issuing on 30 October 1998 of a final written warning to the Respondent. There is no doubt about the seriousness with which these earlier incidents must be viewed or that the warnings issued must be taken into account. However they are not the only matters for consideration.
[28] We have considered all the circumstances of the termination and have had regard to the matters specified in s.170CG(3) of the Act and we have come to the conclusion that the termination was harsh, unjust or unreasonable. Whilst the conduct of the Respondent would justify disciplinary action by the Company, we do not consider that in the totality of the circumstances it justified dismissal. As found by the Deputy President in the consideration of this case, "dismissal for misconduct is disproportionate to the offence" (Print S6471 para 76).
[29] The Deputy President ordered that the Respondent be reinstated in his employment with the Company but made no order in relation to wages lost between the date of termination and reinstatement. In deciding to reinstate the Respondent, it is clear that the Deputy President was influenced by the undertaking given by the Respondent that, on reinstatement, he would immediately and "for ever" cease to play any role in the union or on the safety committee. Indeed the Deputy President says in his decision that reinstatement was only considered appropriate on the basis of the undertaking.
[30] In the appeal, the Company submitted that the undertaking did not provide a sufficient basis for reinstatement and that it was not reasonably open to the Deputy President to conclude that reinstatement was the appropriate remedy. In this regard, counsel for the Company submitted that there were three reasons why the undertaking should not be relied upon: (a) earlier undertakings and assurances given by the Respondent had not been honoured; (b) there was conduct of the Respondent in breach of obligations under the Enterprise Agreement and in consequence there was no reliable basis for the acceptance of the undertaking; and (c) any such undertaking is inherently unenforceable by the employer under the Act (see s.170CK and s.298K) or under the Enterprise Agreement (see clause 9). It was submitted that the justification for the reinstatement order was misconceived and, in a practical sense, unfair to the employer. If there was some element of harshness or unreasonableness in the termination of the Respondent, the Company submitted that a modest amount of compensation should have been assessed.
[31] In reaching his decision on remedy, the Deputy President had regard to the circumstances identified in s.170CH(2) and, to the extent possible on the material before him, made findings in relation to each of the circumstances. The Deputy President concluded that an order for reinstatement was appropriate having regard to the undertaking given and the fact that all the warnings and incidents of misconduct arose out of the Respondent's performance of union related activities. It was noted that no suggestion was made that the Respondent's "transgressions occurred as an ordinary worker" (Print S6471 para 82). The Company did not put arguments similar to those referred to earlier regarding reliance on the undertaking to the Deputy President.
[32] We have examined the evidence and material presented and we have come to the conclusion that it was reasonably open to the Deputy President to make the orders decided upon. Indeed we adopt the reasons given by the Deputy President in reaching our conclusion that reinstatement not later than 3 June 2000, without an order in relation to lost wages, is the appropriate remedy in the circumstances of the present matter.
[33] In relation to the undertaking, this was given by the Respondent and his counsel in the course of Commission proceedings and has been taken into account in a significant way reaching the decision to reinstate him in employment. It is an undertaking that has been freely given by the Respondent to the Commission and an undertaking that goes to the heart of the problems which have arisen regarding the Respondent's conduct in his employment. The Deputy President was entitled to rely upon the undertaking. Clearly the Company is also entitled to rely upon the undertaking given in the course of Commission proceedings and relied upon in reaching a decision. In this regard it is noted that counsel for the Respondent referred to the provisions of s.170JD of the Act regarding the variation and revocation of orders and said that if the Respondent began to engage in the same activity, it would be possible to come back to the Commission and seek the revocation of the reinstatement order. We are satisfied that in the circumstances of this matter it is appropriate to have regard to the undertaking given by the Respondent in reaching a decision regarding reinstatement.
[34] For all the reasons given, we have decided as follows:
(a) to grant leave to appeal;
(b) in view of our findings in regard to various matters referred to in s.170CG(3) of the Act, to allow the appeal in part; and
(c) in view of our conclusions regarding the decision of the Deputy President regarding the harshness of the termination and approprate remedy, and our own determination that the termination was harsh, unjust or unreasonable and that reinstatement is appropriate, to confirm the orders made by the Deputy President.
BY THE COMMISSION:
Appearances:
R.J. Buchanan QC of Counsel with A Gotting for Container Terminals Australia Limited.
S Crawshaw SC with W Giddins for Phillip Toby.
Hearing details:
2000.
Sydney:
June 29.
Printed by authority of the Commonwealth Government Printer
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