Tyndall and Ibnix Limited [2001] NSWIRComm 28 (12 March 2001)

Last Updated: 12 June 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Tyndall and Ibnix Limited [2001] NSWIRComm 28

FILE NUMBER(S): 5243

HEARING DATE(S): 14/02/2001

DECISION DATE: 12/03/2001

PARTIES:

APPLICANT

Troy Patrick Tyndall

RESPONDENT

Ibnix Limited

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT

Mr M H Corrigan, Solicitor

of Michael Corrigan Lawyer

RESPONDENT

Ms K Nomchong of Counsel

Solicitor

Shanahan Tudhope, Solicitors

CASES CITED: Byrne & Anor v Australian Airlines (1995) 185 CLR 310

Outboard World v Muir (1993) 51 IR 167

Bankstown City Council v Paris (1999) 93 IR 209

Foster and Woolworths Limited (unreported) Sams DP,

IRC6385 of 1999, 27 October 2000

Wang v Crestell Industries pty Ltd, 73 IR 454

Rapp v Wauchope RSL Club, 81 IR 116

Bigg & Anor v New South Wales Police Service, 80 IR 434

Burke v McGirr (1995) 87 IR 54

Busways v Johnson, 55 IR 255

Antanakopoulos v State Bank of New South Wales (1999)

91 IR 385

Hollingsworth v Commissioner of Police (No 2), 88 IR 282

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 17 -

1) During fifty-one weeks of employment the applicant had taken fifty days off work; thirty-six as single, full or half sick days; ten consecutive sick days and four days' annual leave.

2) At various times, the applicant was spoken to by Mr Amos about his absences.

3) Two documents tendered in the proceedings are relevant:

a) A note, headed "Verbal Warning", and dated 18 September 2000 (Annexure A to Ex'B') was expressed as follows:

VERBAL WARNING

Time Keeping is not of required level, late on too many

occasions in the morning, failure to report in when either sick or running late.

b) Unsigned letter from London office (Ex'D'):

IBNIX Limited

Level 10

99 Elizabeth Street

Sydney NSW 2000

31st October 2000

Statement regarding the Termination of

Troy Tyndall:

Troy Tyndall was employed by IBNIX Limited at our Sydney Branch office in the capacity of an Account Manager on the 14th October 1999.

During his employment, Troy Tyndall was given several warnings about his timekeeping, absenteeism and general disruptive behaviour. This culminated in a formal verbal warning of which a record was given to Troy Tyndall on the 18th September 2000, as attached. Troy Tyndall's employment was eventually terminated by the current Manager of the division, Mr Ian Amos who is Recruitment manager for the Asia-Pacific Region, on the 6th October 2000.

...

1    On 22 September 2000 the applicant left the office at lunchtime and did not return. He rang and left a message, but offered no explanation.

2    The applicant was verbally dismissed by Mr Amos on 6 October 2000. He was paid one week in lieu of notice according to his employment contract.

3    Mr Amos gave as the reason for the dismissal:

... London have instructed me to give you on(sic) weeks notice effective immediately, due to the fact they had found out that you took the afternoon of(sic) two weeks prior to look after your brother.

The Allegations

4    Ms Nomchong identified the following matters as being the reasons for the applicant's dismissal:

1. Excessive absenteeism.

2. Often late for work.

3. Warnings were given, but not heeded.

4. Excessive personal phone calls which were loud and disruptive in the office.

5. The applicant gave no explanation for leaving work early on 22 September 2000.

5    The applicant's response and explanation for each of these matters was:

1. As the only other family member residing in New South Wales, the applicant was responsible for his drug dependent brother. He had organised and assisted him through drug rehabilitation programs, arranged emergency accommodation for him and dealt with the Police. The company, particularly Mr Amos, had been sympathetic to his brother's unhappy predicament. In April 2000, the applicant suffered a stroke and was hospitalised. He required ten days' absence - which the employer accepted.

2. The applicant said Mr Amos had only mentioned in passing that it was not fair for everyone else if he came in late. However, Mr Amos did not make an issue of it, and took it no further.

He disagreed that he was spoken to on more than one occasion.

3. No warnings of excessive absenteeism were given and he was convinced the company appreciated his family problems and respected his attempts to help his brother.

He had never been given, or seen, the document headed "verbal warning" of 18 September 2000.

4. His brother would often ring him at the workplace and, at times, the conversations were heated. His brother was homeless, in trouble with the Police and often in a drug induced state.

The applicant had phoned Adelaide a number of times to sort out a matter involving his brother stealing from a family member. The Police were involved. Some phone calls lasted ten minutes.

Mr Amos had said he didn't mind personal calls so long as they were taken in the front office. This would minimise disruption to other staff in the open plan office.

5. The applicant said he left work early on 22 September after a work colleague had told him his brother was lingering outside the office. He found his brother, under the influence of drugs, having been "kicked out of another hostel and (drug rehabilitation) program".

He decided the best course of action was to get his brother out of his current environment and arranged for him to go to Adelaide by bus that day. He stayed with him while he waited for the bus. During this time he rang the company and left a message. However, he gave no explanation for his absence.

On the following Monday, he informed Mr Amos of what had transpired with his brother. Mr Amos expressed no concern, indeed, welcomed the fact that his brother's problem might be resolved.

SUBMISSIONS

6    Mr Corrigan contended that the applicant had been unfairly dismissed in circumstances where he had the employer's approval to take time off to attend to the needs of his brother. The dismissal was without notice or warning. He had received no counselling, or warnings, of excessive absenteeism. He was given no opportunity to respond.

Mr Corrigan submitted that the personal carer's leave provisions of the Clerks (State) Award entitled the applicant to take leave in the circumstances of his brother's drug addiction and related problems.

As to the relief sought, he submitted that, despite presently residing in Queensland, the applicant sought reinstatement. There is no evidence that a satisfactory relationship could not be re-established.

In the alternative, compensation of fifteen weeks should be ordered. Mr Corrigan also foreshadowed seeking an order for costs.

7    Ms Nomchong submitted that the applicant's dismissal must be taken in the context of a long line of absenteeism and obstructive behaviour. The incident on 22 September was the "last straw".

The employer's behaviour was sympathetic and patient. In the circumstances, its response was fair; as was the week's notice paid, according to the employment contract.

Ms Nomchong submitted that the applicant would have been well aware of the reasons for his dismissal. Mr Amos confirmed the reasons in the conciliation proceedings and the London office letter of 31 October was similarly expressive of the reasons. The file note of 18 September corroborated absenteeism as being of concern to the respondent.

As to the reliance on personal carer's leave under the Award, she said even this entitlement had evaporated. It is an alternative to sick leave, not in addition to it.

Ms Nomchong acknowledged that procedural fairness, to the requisite standard, had not been afforded to the applicant. Reinstatement was impractical, but if compensation is considered appropriate it should be "extremely modest". This was because of the applicant's work history, his junior status, his age and employment marketability.

8    In reply, Mr Corrigan said that, even if paid entitlements had run out, the spirit and intent of the carer's leave clause in the Award was such that the employer should provide unpaid leave.

CONSIDERATION

9    On its face, fifty days off work in less than a year is plainly excessive. Without good reason, such a record of absenteeism would be firm grounds for dismissal. However, that cannot possibly be the end of the matter. To be fair and reasonable, one must go behind the raw data and closely examine the applicant's circumstances. My impression of the applicant is that of an honest and caring young man who is deeply concerned about the welfare of his drug dependent brother. The applicant was the only family member living in New South Wales who had contact with his brother. I am satisfied that the applicant was experiencing a terrible and traumatic period in his life - not only did he have his brother's problems to contend with, but he suffered a stroke during the same period; probably brought about by the stress he was under. None of these matters were disputed by the employer.

10    As to the employer's responses, I am also satisfied that, up to the point of dismissal, the respondent displayed commendable tolerance and compassion to the applicant.

However, someone, either Mr Amos or a person/s in the London office, wanted an excuse to get rid of Mr Tyndall. Ms Smith's evidence was that the office is controlled from London and "they know everything that is going on".

While he could have expected that absenteeism might have been a factor in his dismissal, it was certainly not said by Mr Amos to be the reason for it. There was no letter of termination, no notice and no warning - only the applicant's version of what Mr Amos said, which was:

In the front office Mr Amos said, "I am the bearer of bad news Buddy", he continued, "London have instructed me to give you on(sic) weeks notice effective immediately, due to the fact they had found out that you took the afternoon of(sic) two weeks prior to look after your brother".

11    A file note, Ex'D', sent by facsimile from London, purports to explain the reasons for the applicant's dismissal. Aside from the obvious procedural considerations - which I will later refer to - it was unlikely that the London office would have been aware of, or appreciated the serious family and health reasons for his absences.

Moreover, Mr Amos' abrogation of responsibility sits in marked conflict with Ex'D', which expressly states that "Troy Tyndall's employment was eventually terminated by the current Manager of the division, Mr Ian Amos..". On the paucity of evidence the Commission is unable to establish who made the decision to dismiss the applicant.

12    The applicant said he had never received the warning letter of 18 September and Ms Smith, who typed the letter, said she didn't believe it was sent, as she would ordinarily have done so.

I am perfectly satisfied that this warning letter was never given to the applicant and he was unaware of its existence. This view is fortified by the curious title of the document as a "Verbal Warning". If it was a warning at all, it can only be a "written warning". The fact that it is so styled appears to me to demonstrate that it was no more than a file note placed on the applicant's personal file recording that a verbal warning had been given.

Was the dismissal harsh, unreasonable or unjust?

The lead authority for a definition of the terms "harsh, unreasonable and unjust" is to be found in Byrne & Anor v Australian Airlines (1995) 185 CLR 310. In their joint judgment, McHugh and Gummow JJ said at p465:

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 consequence 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.

13    As is evident in Byrne, the High Court found that in a particular case, a dismissal might attract a finding based on one of the descriptors, a combination of the three, or all three.

14    This notion was developed and discussed in Outboard World v Muir (1993) 51 IR 167, where a Full Commission said:

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

15    A contemporary authority reaffirming this principle is to be found in Bankstown City Council and Paris (1999) 93 IR 209, where the Full Bench said:

The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

16    I am satisfied that the dismissal of Mr Tyndall, in the circumstances disclosed during the arbitration, attracts a finding that the dismissal was "harsh" and "unreasonable" within the meaning of Pt 6 of ch 2 of the Act.

17    In making this finding I have had regard for the following:

1. At all times the employer was aware of the applicant's personal and family difficulties. Indeed, the employer had organised a salary advance so the applicant could pay for his brother's rehabilitation.

2. The failure of the respondent to bring direct evidence as to the circumstances leading to the dismissal and what was said by Mr Amos as the reasons for dismissal. No evidence was adduced as to any attempt to subpoena Mr Amos. The only contact was Ms Smith calling his mobile phone without success.

3. As I accept the applicant to be a witness of credit, I prefer his evidence of what occurred, and what was said between himself and Mr Amos.

4. The evidence is inconclusive as to who made the decision to dismiss the applicant. If it was made in London, by someone unknown, there is no evidence which reveals whether the London office was familiar with the applicant's personal and family circumstances.

5. Similarly, there was no evidence that London ever knew, or sought an explanation, for the applicant's excessive absenteeism. Certainly there was nothing in Ex'D' - the letter from London to Sydney confirming the dismissal - which discloses any consideration of mitigating circumstances or explanations considered. Ex'D' states that Mr Amos terminated the employment, whereas the applicant said Mr Amos had said "London have instructed me to give you one week's notice" (Ex'2' par 4).

6. The London office seemed to be under the impression that the applicant had received a formal written warning. This was not correct - as I discussed earlier.

7. The evidence is inconsistent as to the reasons for dismissal. Mr Amos said the reason was the incident on 22 September. It is instructive to observe that the London letter makes absolutely no mention of this incident.

10. One of the reasons for dismissal was said to be excessive personal and disruptive phone calls. This allegation is not recorded anywhere prior to dismissal; it was not put to the applicant at the time; nor was it put by Mr Amos on transcript during conciliation proceedings on 10 November. I find therefore that this allegation - not only has no legs, but was introduced post facto in an attempt to bolster the respondent's palpably flawed case.

The Procedure

18    Ms Nomchong appropriately conceded that the procedure leading up to, and including the dismissal, was not perfect. However, she submitted that, despite any procedural deficiencies, the applicant's employment record was such as to justify his dismissal.

19    The Commission has often referred to the principle that where the employer may have not strictly complied with the rigours of procedural fairness, such deficiencies may not necessarily result in a finding of unfairness.

20    In Foster v Woolworths Limited (unreported), IRC6385 of 1999, 27 October 2000, I put the principle this way:

... it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it.

21    This settled law is derived from a long line of Full Bench decisions including Wang v Crestell Industries Pty Ltd, 73 IR 454, Rapp v Wauchope RSL Club, 81 IR 116, Bigg & Anor v New South Wales Police Service, 80 IR 434, Burke v McGirr (1995) 87 IR 54, Busways v Johnson, 55 IR 255 and Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385.

22    A useful contemporary authority which refers to the statutory basis for findings of procedural fairness (s88) and the tests to be applied are found in Antanakopoulos v State Bank of New South Wales where the Full Bench said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.

23    In my opinion, the procedural deficiencies identified in this case were so manifestly unfair as to plainly distinguish this case from the principle discussed in Foster, such as to safely ground a finding that the dismissal was procedurally "harsh and unreasonable".

24    In this respect, the Commission has taken into account, the following matters:

1. The applicant was never provided with written reasons for dismissal.

2. Mr Amos' verbal dismissal did not identify all of the matters the respondent subsequently relied upon to justify the dismissal.

3. The applicant was given no opportunity to respond to the allegations or explain his actions.

4. The applicant did not receive, nor was he aware of, the file note marked "Verbal Warning".

5. The applicant received no warning, or notice, that his performance was in question.

6. The applicant was dismissed unilaterally and without warning.

7. Almost two weeks had passed from 22 September to 6 October between the alleged reason for the dismissal and the actual dismissal. The applicant was entitled to believe that his direct superior appreciated and understood the reason for his leaving work early on that day and had taken no action to caution or criticise him.

8. It would have come as a complete shock to the applicant to be dismissed for reasons which Mr Amos had always accepted. Moreover, Mr Amos had understood and condoned the applicant's absenteeism.

25    There was evidence given about the Company's commission arrangements and an expectation by the applicant that he was entitled to more than he actually received. There was an implied criticism of his failure to attract more business. However, this was never raised as a reason for his dismissal, and not relied upon during the hearing. I propose therefore, to take this matter no further, suffice to observe that such claims as the applicant might have to unpaid commissions, are not able to be dealt with by the Commission, as presently constituted.

Relief Sought

26    In conciliation proceedings on 10 November 2000 the applicant sought compensation, not reinstatement. At the hearing, he reverted to reinstatement as the primary relief sought; even though he currently resides in Queensland. He cited his difficulties since dismissal, in obtaining alternative employment as the reason for his change of mind.

27    He was questioned as to animosity in the office and his relationship with Mr Amos. His evidence was that his dismissal "came as a surprise to everyone. Marie Smith was shocked". He denied any animosity existed with other staff, or Mr Amos. Indeed, he said they had all socialised together.

28    Ms Nomchong submitted that reinstatement was impractical. Ms Smith's evidence was that it would be "awkward"; the office was small; and the accounts, previously dealt with by the applicant, are now held by others.

29    In my view, it is not a sufficient basis for claiming impracticality of reinstatement by merely suggesting "it will be awkward". If this was the case, few if any reinstatement applications would be granted. It is trite to observe that a reinstatement of an employee by the Commission will invariably be "awkward"; not only for the employer. However, mere awkwardness can never be sufficient grounds for refusing reinstatement where, in all other respects, reinstatement is warranted.

30    To illustrate this point, I refer to the views opined by a number of Full Benches of this Commission; recently expressed in Hollingsworth v Commissioner of Police (No 2), 88 IR 282, where at 341 Wright P and Hungerford J said:

Finally on this aspect of the practicality of reinstatement of the appellant we refer with agreement to what was said by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows:

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable." (Emphasis added.)

That passage was applied by a Full Bench (Fisher P, Hungerford J and Bishop C) of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 and by another Full Bench (Hungerford and Schmidt JJ and Murphy C) in Oswald v New South Wales Police Service (unreported, NSW Industrial Relations Commission, IRC97/4130, 11 March 1999, pp50-51). It is appropriate to apply it again in the instant case.

31    I propose to similarly apply this passage to this case.

32    The Commission accepts that the applicant genuinely wants his job back; badly enough to move back to Sydney from Queensland. For this, he should be praised. There is no evidence of any animosity between the applicant and other employees. In view of my observations of the applicant's demeanour and manner, I would apprehend no difficulties at all with his working relationship, be it at Ibnix, or anywhere else.

33    In addition, the person who either dismissed him or conveyed the message, Mr Amos, is no longer employed by the company. Any suggestion of animosity between the applicant and Mr Amos - even though it didn't exist - is hardly relevant.

34    Similarly, a claim that reinstatement is impractical because the applicant's accounts are now handled by others, or, in other words his work is performed by others, has a corollary that no dismissed employee would ever be reinstated. Of course, the work is performed by other employees. How could it be otherwise?

In any event, the nature of the employer's business is such that it relies on the enthusiasm and capabilities of employees to find and secure new contract opportunities. In my opinion, the applicant should be given a second chance to prove himself, without the enormous personal pressures he was previously burdened with.

35    Accordingly, I propose to order the applicant's reinstatement on terms and conditions no less favourable than he enjoyed at 6 October 2000. In view of his present domicile, I propose that reinstatement occur within twenty-one days of today or such earlier time as may be conveniently arranged.

36    The Commission finds this case is an appropriate one for secondary orders requiring the applicant to be paid according to his contract of employment from 1 December 2000 to the date of reinstatement.

ORDERS

37    The Commission orders:

1. Pursuant to s89(1) of the Industrial Relations Act 1996, that Ibnix Limited reinstate Mr Troy Tyndall to his former position on terms no less favourable to those which would have applied had he not been dismissed on 6 October 2000.

2. Pursuant to s89(8) of the Industrial Relations Act 1996, that Mr Tyndall's reinstatement be effected within twenty-one days of today's date.

3. Pursuant to s89(3) of the Industrial Relations Act 1996, that Ibnix Limited pay to Mr Troy Tyndall an amount equivalent to his weekly rate of pay from 1 December 2000 to his reinstatement.

4. The amount in Order 3 shall be paid within twenty-eight days of today.

5. That any application for costs be made by notice of motion within twenty-one days of today.

Peter Sams

Deputy President

LAST UPDATED: 15/05/2001