Christopher Dean Plummer and Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 1068 (11 May 2005)

Last Updated: 12 May 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Christopher Dean Plummer and Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 1068

FILE NUMBER(S): 7246

HEARING DATE(S): 11/03/2004

DECISION DATE: 11/05/2005

PARTIES:

APPLICANT

Mr Christopher Dean Plummer

RESPONDENT

Stannard Bros Launch Service Pty Limited

JUDGMENT OF: Tabbaa C

LEGAL REPRESENTATIVES

APPLICANT

Mr P Macken

Leigh Virtue & Associates

Solicitors

RESPONDENT

Mr A Woods

Fisher Cartwright Berriman

Lawyers and Consultants

CASES CITED: J. Wells and Lloyd Moffat Investments Pty. Ltd. t/as Moffats Oyster Barn Restaurant [1998] NSWIRComm 220

CCH Australia Limited v Cherryl Dianne Bowen [1998] NSWIRComm 136

Perkins v Grace Worldwide (Aust.) Pty. Ltd. (1997) 72 IR 186

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Commissioner Tabbaa

11 May, 2005

Matter No IRC 7246 of 2003

Christopher Dean Plummer and Stannard Bros Launch Service Pty Ltd

Application by Christopher Dean Plummer re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2005] NSWIRComm 1068

1 The applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 18 December, 2003 alleging that the respondent had unfairly dismissed him on 01 December, 2003. The applicant contended that he had been employed from 18 April, 1995 until his dismissal as a Deck Hand pursuant to the provisions of the Motor Boats and Small Tugs (State) Award and the Stannard Bros. Launch Services Enterprise Agreement.

2 The file was allocated on the same day and was set down for conference and directions on 05 and 09 February, 2004 at which time conciliation attempts failed to resolve the claim. A filing schedule was directed and the matter was set down for hearing on 11 March, 2004.

Mr. P. Macken, Solicitor, entered an appearance on behalf of the applicant and called evidence from:

Christopher Dean Plummer Applicant

Mr. A. Woods, Solicitor, entered an appearance on behalf of the Respondent, and called evidence from:

Andrew Osborne Operations Manager

Background

3 Stannard Bros. is part of the Adsteam Group of Companies and is involved in the mooring and unmooring of large shipping vessels at Port Jackson and Port Botany.

4 Two shifts operate at the Port Jackson site of the Respondent firm - the span of hours for the day shift being 3 am until 3 pm and those for the night shift being 3 pm until 3 am. Employees are rotated not only between day and night shift, but also through the different positions within the shift on a 7 days on - 7 days off basis. On day shift, the applicant worked as part of a crew of eight (8) and on night shift, he worked as part of a crew of six (6) at that site. That system allowed each employee, even casuals, to fill the leading role of "Charge Hand" on an equal basis. Employees engaged on day shift were required to remain at the worksite for the full seven (7) hours regardless of whether or not there were any ships present or there was any related work to be undertaken. The employees on night shift, with the exception of the Charge Hand, who was required to be in attendance for the full shift, were only required to attend the site when there was work to be performed. The crew was never left short-staffed - someone from another shift filled every absence. Over 18 months ago, the Respondent firm found itself losing financially owing to the number of casuals being brought in to cover for absences for various reasons. An agreement was entered into with the Maritime Services Union on "self-relieving" which basically meant that if someone could not work a shift, then someone else from another shift had to fill in for him.

5 Briefly, the applicant commenced employment with the Respondent as a Deckhand at Port Jackson on 18 April, 1995 and worked continuously in that role as part of a crew until 01 December, 2003.

6 He went on a holiday to Thailand on 28 October, 2003 and was due to recommence work on 07 November, 2003. He stated that he had sustained an ear infection on or about 05 November, 2003 and had to cancel his flight home. He sent a message to the Respondent that he would not be able to return to work on 07 November. When his infection cleared, he took the first available flight home arriving at 1 pm on 18 November, 2003. He attended work at 3 pm on the same day. The Respondent sought medical evidence relating to his ear infection. The Respondent was not satisfied with either his explanation, or the evidence he provided in support of it, and terminated his employment on 01 December, 2003.

7 The Commission was being asked to:

1. find that the dismissal was harsh, unjust and unjustifiable;

2. make an order for reinstatement. It was submitted that there was no obstacle to him going back to work because the crew would be happy to have him back;

3. consequential upon the above, order the payment of wages for the period between his termination and return to work on the next available shift; and

4. make an order for continuity of service.

The Applicant's Evidence

8 Christopher Dean Plummer tendered an affidavit in the proceedings in which he stated that he had telephoned his sister on or about 05 November, 2003, while he was in Thailand, and asked her to contact the Respondent, advise of his predicament and indicate that he would not be returning to work on 07 November, 2003. His sister had advised him to consult a Doctor in Thailand but he had not done so. When his ear infection cleared sufficiently, he took the first available flight back which arrived in Sydney at 1 pm on Monday, 18 November, 2003. He commenced his shift at 3 pm on the same afternoon.

9 On or about the second or third day after his return to work, Mr. Osborne, Operations Manager, asked him to provide a medical certificate relating to his ear infection.

10 On 21 November, 2003, he attended upon Dr. Riju Ramrakha who examined him and provided him with a Certificate to the effect that from the information provided by the Applicant and from his clinical observation of him, it was highly likely that he was suffering from Eustachian Tube Dysfunction.

11 He provided a copy of the certificate to Mr. Osborne on the same day.

12 He had been employed on the basis of 7 days on - 7 days off and therefore was off work between 24 - 30 November, 2003 inclusive. At about 11 am on or about 27 November, 2003, he received a call from Mr. Osborne who asked that he attend a meeting with him that afternoon. After hanging up the telephone, he realised that he already had a commitment for that afternoon. He called Mr. Osborne back on his mobile telephone at about 1.30 or 2 pm and left a message on his voice mail offering to organise another appointment. He had not heard back from Mr. Osborne.

13 On Sunday, 31 November, 2003, he called the charge hand for his orders and spoke to Mr. Robert Hicks who indicated that he was recorded as absent sick on the following day. When he insisted that he had not rung in sick and intended to be at work the following day, Mr. Hicks consulted the delegate on the shift, Mr. Peter Origlass, and returned to the telephone to advise that he would be starting work at 7 am and then meeting with Mr Osborne.

14 When he returned to work on Monday, 01 December, 2003, Mr. Osborne approached him and said words to the effect that he did not believe that Mr. Plummer had an ear infection and did not accept the medical certificate. He advised the applicant that he was dismissed, effective immediately. Mr. Plummer asserted that, prior to that discussion, he had never been told that his employment was in jeopardy.

15 During that conversation Mr. Osborne also stated that he did not "accept the last certificate that you presented to us". Mr. Plummer assumed that he was referring to the 3-5 days' sick leave he had taken in about September 2003 to travel to Queensland to assist the wife and son of a deceased friend with making funeral arrangements and attending to his affairs. Upon his resumption at work on that occasion, Mr. Osborne approached him and asked him where he had been the last few days whilst he was off sick. He contended that he told Mr. Osborne the truth, nevertheless, he was asked to produce a medical certificate for that absence. Dr. Ramrakha gave him a medical certificate on 07 October, 2003 verifying that he had attended a funeral in Queensland!

16 Mr. Osborne was handed that certificate and he had made no comment on it until 01 December when the Applicant was asked to leave the premises immediately without his wages for the week, an Employment Separation Certificate or his accrued long service leave.

17 He received an Employment Separation Certificate on 29 December, 2003, which set out the reason for his termination as being "unsuitability for this type of work". He received his long service leave entitlements approximately a week and a half prior to the hearing.

18 Up until the hearing date, he had not been able to obtain alternative employment despite his efforts. He was keen to return to work with the Respondent firm.

19 He had spoken to the five other members of his work crew since his dismissal about the possibility of him returning to work. They were Mr. Terry Dickson, Mr. Des Gray, Mr. Ray Forrest, Mr. Ronny Lock and Mr. Robert Leo. He had asked them, whilst they were all together, if they would be happy to work with him again if he was reinstated and they responded that they never had any problem working with him in the past and did not expect to have any in the future. He had seen the crew again on 10 March, 2004 and shown them Mr. Osborne's affidavit relating to their complaints about him. Each of them had denied it. He had handed them prepared statements refuting that part of Mr. Osborne's evidence and they had signed them.

20 He was acquainted with Mr. Peter Provan, the union delegate. He had known him all his life. In the winter of 2002, Mr. Provan had an argument with the driver in their crew because the latter had his own boat and undertook work elsewhere. Mr. Plummer stuck up for the driver as he considered it to be a personal attack against him because he was not the only one who had a second job. He recalled that expletives had been exchanged between him and Mr. Provan. He contended that he had been sitting down when Mr. Provan came at him. He stood up but was hardly able to move because of the clothing he had on. Mr. Provan had attacked him and ended up falling over him. Mr. Colin O'Keefe ended up pulling Mr. Provan off Mr. Plummer. That was their first altercation and he had not reported it to anyone. There had been tension between them since then and no further communication.

21 He was not aware of any complaints made against him by the union or anybody else during August 2003.

22 He agreed that he had met with Mr. Osborne in August 2003 when the latter expressed concern at the sick leave he was taking and advised him that he was required to provide a medical certificate whenever he took sick leave. He had declined an offer to have a representative of the union present at that meeting. Instead, he took a work colleague, Mr. Terry Dixon, with him to that meeting. He recalled that he had not agreed with the contents and therefore had refused to sign a document he had been shown. Although he had indicated that he would obtain advice about it first, he had not taken that document with him.

23 Throughout the 8.5 years of employment, he had neither seen nor completed a leave request form. He stated that all the employees had to do was call the charge hand and advise the rest of the crew of the leave period they wished to take. He had never been advised by Mr. Osborne, or anyone else, about a leave notification form. Whenever an employee wanted to take time off that interfered with a shift, that employee would make arrangements to swap with another employee and would record it in the Swap Book. He had arranged a shift swap during his holiday in Thailand. The entry in the Swap Book for the period 03 November - 08 November stated: "G O'Keefe for C Plummer, five days."

24 During cross-examination, he acknowledged that he was aware that his sick leave record revealed that between 14 April, 2003 and termination on 01 December, 2003, a period of approximately 7.5 months, he had taken 23 days sick leave. He agreed that for a majority of those absences he had not provided a medical certificate because it was common knowledge around the yard that medical certificates were only required for absences in excess of two days.

25 He confirmed that, from the conversation he had with Mr. Osborne in August 2003, he understood that he had to produce medical certificates for each day of absence from then on. He acknowledged that he was also aware that the Respondent would be looking closely at his sick leave record from then on in. Despite that knowledge, he had not consulted a physician about his ear infection whilst he was in Thailand.

26 He agreed that the record from the physician regarding the Queensland trip did not contain anything about a medical condition and, in fact, did not even purport to be a medical certificate. He thought that Mr. Osborne would understand that his close friend had died and would not require a certificate. He had no accrued sick leave at that time and was aware that he was not going to be paid for that time anyway. He had telephoned Mr. Gary Mayer, one of the delegates, and advised him of the circumstances in which he needed to take time off. Mr. Mayer had crossed him off the roster and written him down as "off sick". Despite being the subject of a warning in relation to sick leave, it had not occurred to him to call Mr. Osborne. Upon his return, Mr. Osborne had approached him and requested a certificate for that absence and he had produced one.

27 He stated that he knew he had an ear infection because he had a lot of pain in his ear. He concluded that he was able to fly back to Australia on 17 November when there was no longer any pain. He had purchased a return ticket and merely changed his return flight at a travel agent in Thailand on or about 05 November, the day before he originally intended to fly back to Australia. He had visited the travel agent 2-3 times in order to delay his flight back until the infection cleared. He could not name the travel agent nor did he have any records in relation to the changing of those flight details.

28 He stated that he had not spoken to his sister about what she had said to Mr. Osborne.

29 Mr. Osborne had approached him on Tuesday, 18 November while he was in the mess room, asked him if he wanted a witness and then proceeded to advise that he wanted to talk to him about his delayed absence in Thailand. He asked to view travel documentation and a medical certificate in relation to his trip to Thailand. The applicant stated that he had pointed out that he had not consulted a Doctor in Thailand but undertook to bring in, by Friday of that week, documentation attesting to his trip. He confirmed that he knew what he was required to produce for the meeting on the Friday. He denied, however, that Mr. Osborne had warned that he would be terminated if satisfactory evidence was not produced.

30 He stated that he had waited three days after returning home before consulting a doctor because he had been on night shift and he was still trying to catch up on his sleep through having the ear infection and jet lag. His ear still hurt but he had been well enough to attend work. He would not accept that the words used by Dr. Ramrakha had the effect of informing that the applicant was no longer suffering from the ailment that he claimed to be suffering from and further implying that he could not be certain of the applicant's medical condition during his time in Thailand.

31 On Friday, 21 November, he took in the original record of his flight and the original certificate from Dr. Ramrakha. Mr. Osborne was not on site and so he photocopied the medical certificate and left the copy in an envelope on his desk. He could not provide any explanation as to why he had not copied the travel document and left the copy for Mr. Osborne. 24 - 30 November, 2003 was his week of. He denied that Mr. Osborne had returned his call and spoken to him or that Mr. Osborne had left him a message after he left the message on Mr. Osborne's voice-mail on Thursday, 27 November.

32 In contrast with what he had stated in his evidence-in-chief, that Mr. Osborne had come up to him and expressed words terminating him, he agreed during cross-examination that he had been notified the previous day that he was required to attend a meeting with Mr. Osborne. He agreed that Mr. Des Gray was in attendance at that meeting. Despite the advance notice of the requirement to produce travel documentation, the advance notice of the meeting, the previous warnings about sick leave and the fact that he was aware that the meeting was about his time away in Thailand, he had not taken in the travel documents with him to that meeting. He insisted that Mr. Osborne had been brief and succinct about his termination - the doctor's certificate he had produced was simply not acceptable to the Respondent. He insisted that Mr. Osborne had made no mention of problems being experienced by management as a result of his unexplained absences over the past few months and certainly no mention of his workmates' frustration with him. He denied any knowledge of his work team complaining about his attendance record. He conceded that Mr. Osborne had offered to pay his cab fare home but he had declined the offer and telephoned his mother to pick him up.

33 He denied making any threats at all to Mr. Osborne or to any other managers of the Respondent firm. He denied cautioning Mr. Osborne with words to the effect, "If I were you, I would be careful and watch my back" or telling him to "Get f........d" following his termination. He agreed that he had used his mobile telephone to call his mother to pick him up but denied saying to her words to the effect, "I am being fucking sacked by that fucking Osborne. We will see him in court". He described himself as being surprised and overwhelmed at the time but not angry.

34 He further agreed that his statement was wrong when he said that he had not been paid any wages for the week commencing 01 December, 2003. He confirmed that on the Thursday following his dismissal a week's wages had been banked into his account for the week commencing 01 December, 2003.

35 He rang Mr. Dickson two days prior to the hearing. The crew was together. He read out to him the contents of paragraph 25 of Mr. Osborne's affidavit. Mr. Dickson had laughed and asked for a copy to be faxed over to them. Mr. Plummer indicated that he would take one over and show it to them. He waited outside the Respondent's premises and called the charge hand's telephone. This time Mr. Ronnie Lock answered and passed the telephone to Mr. Dickson. He let them know he was waiting outside. All the five members of the remaining crew had met him outside, read the statement and refuted the contents of that paragraph describing them as lies. That reaction had prompted him to ask them if they would be willing to give evidence on his behalf and they had declined. Mr. Robert Leo suggested that they sign an affidavit in relation to the concerns they had with that paragraph and all had agreed.

36 He had telephoned his Solicitor the next morning and met with him just before lunch on 10 March, 2004. At that time, they had drafted the statements for the five employees. All the statements were identical terms save for one. Those statements did not form part of the evidence in the proceedings but, he conceded that they went further than paragraph 25 of Mr. Osborne's affidavit. That was because they had all assured him that they had never complained and would be willing to work with him if he was reinstated.

37 As requested by Mr. Dickson, he had telephoned at about 5 pm to inform him that the statements were prepared and required their signatures. He did not get to speak to him until about 6 pm. He then went over and met his crew outside the work premises at Cooper Street. All had signed and addressed their statements.

38 He has been a member of the Maritime Union of Australia since he was about 16 years of age yet he had not consulted his union, apart from the site delegates, in relation to his attendance record.

39 He was aware, through his father, that there were another six positions to be made redundant but was not aware that an agreement had been reached between the respondent and the Maritime Union of Australia to make approximately seven or eight positions redundant amongst that workforce. He confirmed that if he were reinstated, he would not apply for voluntary redundancy.

40 Mr. Plummer insisted that he had never sighted an application for leave form and never had to complete one during his employment with the Respondent. The application for leave, dated 12 November, 1996, sought an RDO for the applicant on 15 November, 1996. He insisted that he had not signed that application.

41 The application for leave, dated 02 May, 1997, sought annual leave for the applicant from 19 May, 1997 until 02 June, 1997. He confirmed that he had signed the application on 02 May, 1997 and had been approved on the same day.

42 During re-examination, he stated that he had rarely taken annual leave over the last few years but agreed that he could recall seeing those forms. Upon careful examination, he stated that he had not completed the details required on the application but had signed both documents.

43 His inability to return from Thailand at the relevant time meant that he would miss one shift prior to his next rostered week off.

The Respondent's Evidence

44 Andrew Osborne tendered a statement in the proceedings in which he gave evidence that he was originally engaged as Operations Manager at Port Jackson on 13 April, 1999. His duties were later extended to include Port Botany. As he was required to supervise both shifts at two sites, it was not possible for him to constantly supervise all of the company's employees all of the time and he could not rely solely on the Charge Hand as it was a rotating position and was filled by casuals on occasion. He therefore relied on all employees informing him of any problems that required his attention. He also relied on quarterly meetings of the Workplace Safety Committees to identify and address any workplace issues that arose. More regular meetings were held when necessary. The employee members of that committee were Peter Provan, Colin O'Keefe, Brucie Batten and Robert White. He indicated that the company would prefer to nominate a permanent charge hand on every shift but agreement cannot be reached with the union in that regard. The union requires additional persons to be engaged in that role which would equate to a roster of five persons at an annual cost of $350,000.

45 Mr. Osborne gave evidence that between August and November 2003, the Workplace Safety Committee at Port Jackson met on approximately four (4) occasions "to address safety and operational issues associated with the absenteeism of the Applicant".

46 In early August 2003, he had been approached by three (3) of the site delegates at Port Jackson who were also employee members of the Safety Committee, namely Peter Provan, Colin O'Keefe and Bruce Batten, who advised him that "the men in the yard are getting sick of covering for Chris Plummer...because he keeps not turning up to work and he is not contactable". He had asked for specific examples but they had not been prepared at that time to expand on that complaint.

47 Shortly after, in August 2003, the same three delegates made another approach to him about the applicant stating words to the effect, "The guys are unhappy with Chris' attendance. He is taking a lot of sick leave and turning up late. This means that some of the guys are having to cover for Chris. Chris has been called in to the Union office prior to this to be spoken to about all of this sick leave, but it doesn't seem to be doing any good."

48 On 12 August, 2003, he had examined the Applicant's sick leave records and discovered that he had taken ten (10) days' sick leave since 14 April, 2003 which he considered to be excessive. He also noted with concern that the Applicant had not produced a medical certificate for the last four (4) absences. He held a disciplinary interview with the Applicant on the same day and issued him with a warning in the presence of Terry Dickson and Anthony Darr. The Applicant had declined two offers made by Mr. Osborne during that meeting to have union representation. Mr. Osborne testified that he had advised the Applicant that the other employees were complaining that he was putting pressure on everyone else by taking more than his accrued sick leave entitlements. The Applicant had responded that he had not realised the extent to which he had taken such leave. He had agreed to allow the Applicant an opportunity to take the warning letter away to obtain advice on it. Mr. Plummer had refused to sign it. During his next shift, the Applicant advised Mr. Osborne that he would "take the warning and just get on with things".

49 In approximately September 2003, he came across a group of employees on day shift laughing and joking together. In response to his inquiry, he was advised words to the effect, "Chris Plummer is at it again - this time he is in Queensland for a week attending a funeral. He has really got you worked out." To his knowledge, the Applicant had not sought, nor been approved, any period of leave for any reason at that time. He had not been aware that the Applicant was not attending for work at that time. He rejected the Applicant's evidence in that regard pointing out that sick leave would have been inappropriate in any event as bereavement leave would have been applicable. It was contended that the Applicant had not submitted a leave application form at any time between September to November 2003. He had expressed his displeasure to the Applicant upon his resumption at work.

50 Mr. Plummer was rostered off during the period 28 October, 2003 until 03 November, 2003. As was the relatively common practice at that site, he had arrived at a private arrangement with another employee, Mr. G. O'Keefe, for the latter to perform five shifts that were rostered to be worked by the Applicant from 03 November until 08 November, 2003. That arrangement was recorded in the Swap Book and witnessed by a delegate. The Applicant had not applied for leave beyond 08 November, 2003.

51 On the evening of 09 November, 2003, Mr. Osborne received a voicemail message from the applicant's sister to the effect that, "...I'm calling to let you know that Chris is in Thailand and has an ear infection. He has been to the doctor and they won't let him fly home. Chris has asked me to try to organise swaps for him for the extra time off that he'll need." Mr. Osborne testified that no one was willing to perform the Applicant's shift in the week commencing 10 November, 2003.

52 Mr. Osborne rejected the applicant's claim that he had worked the night shift on 17 November, 2003. The attendance record for that Monday indicated that a line had been drawn across his name and the word "sick" had been recorded in the column headed "Remarks".

53 The five (5) remaining members of that crew (Robert Leo, Terry Dickson, Des Grey, Ron Lock and Ray Forest) approached him together and said words to the effect, "When are you fucking going to do something about Chris not turning up to work? It's an absolute joke. Do something about it. We're all getting sick and tired of covering for him".

54 When the Applicant turned up at work on 18 November, 2003, Ms. Osborne advised him that he wanted to talk to him about his non-attendance at work the previous week. The Applicant declined his offer to have a witness of his choice in attendance. Mr. Osborne put the Applicant on notice that unless he produced, within the next seven (7) days, a medical certificate covering his extended stay in Thailand and copies of travel documentation that would verify his whereabouts during that absence, then his employment would be terminated. The Applicant's response was that he did not have a medical certificate from a doctor in Thailand, "I wouldn't go and see one of those fucking quacks. I'll get a doctor's certificate from here". Mr. Osborne's response offered the Applicant an ultimatum - either produce medical records from Thailand or produce travel documents (such as a flight ticket, boarding pass or amended itineraries) to verify his whereabouts over the relevant period.

55 The medical certificate produced by Mr. Plummer on 21 November, 2003 was deemed completely unsatisfactory in that it was from a medical practitioner in Australia and it was dated 21 November, 2003. The doctor had pointed out that he had not examined the Applicant whilst he was suffering from any medical condition that would have prevented his attendance at work. He further pointed out that the medical certificate was based on the history provided to him by the Applicant. In addition, the Applicant had not supplied the alternative evidence required of him in relation to his whereabouts at the relevant time.

56 Mr. Osborne telephoned the Applicant on 27 November, 2003 and invited him to attend a meeting on site later that afternoon. Shortly before the appointed time, the Applicant sent a voicemail message to Mr. Osborne stating, "Sorry, I forgot about the meeting. I am on my way to the Central Coast". Mr. Osborne gave evidence that he had immediately called the Applicant, expressed his displeasure, advised that the medical certificate was unacceptable and that he would not accept the Applicant's explanation for his absence without sighting acceptable medical or travel records. He formed the view that the Applicant could no longer be trusted to work in an unsupervised environment. He had taken 23 sick days over the period between 14 April, 2003 and 01 December, 2003, the majority of which were neither explained nor approved.

57 On the next occasion the Applicant was at work, 01 December, 2003, Mr. Osborne arranged a meeting with him and invited Mr. Des Gray to attend as a witness. He repeated the advice given on 27 November and, in addition, advised the Applicant that his unexplained absences over the past few months had caused problems not only for management but for his workmates concluding with words to the effect that "Your complete disregard for your workmates and your job here is so extreme that I have decided to terminate your employment". Mr. Osborne recalled that the Applicant's response had been to tell him to "Get f.....d" and then proceeded to make a telephone call and say to someone, "I am being f....g sacked by that f....g Osborne. We will see him in Court". He had remained with the Applicant until he left the premises. As he left, he had made what he considered to be a threat to him personally, "If I were you, I would be careful and watch my back".

58 He had prepared a termination letter and posted it to the Applicant on 03 December, 2003. The letter expressly stipulated that he was being paid one week's pay in lieu of notice commencing from 01 December, 2003.

59 The applicant has since been paid all accrued long service leave.

60 Discussions were being held with the Union to develop a new enterprise bargaining agreement. Part of the discussions related to the requirement by the Respondent to reduce its workforce from 60 to 44 employees. If the Commission were to reinstate the Applicant, then the Respondent would have to make someone else redundant to create a vacancy for him.

61 During cross-examination, Mr. Osborne explained that Mr. Plummer's absenteeism had not been discussed at any Safety Committee meeting. It had been raised with him by the delegates who, co-incidentally, were also members of that Committee. Although he had considered it to be a safety issue as it was a complaint about the amount of overtime other employees were having to work because of absenteeism, the delegates wanted to have it dealt with as a separate personal issue because it involved only one person. There had not been an organised safety committee meeting in early August 2003 when they first approached him.

62 He denied any knowledge of a personal vendetta by Peter Provan against the Applicant and his father or of an assault by Mr. Provan on the Applicant on one occasion at work. He confirmed that he had believed the delegates when they lodged the complaint with him and had not considered that there may have been any underlying motives. He had not raised the issue with Mr. Plummer as they had not provided him with any evidence in support of their allegations. He believed that they had the evidence at that time but did not want to divulge it to him. He confirmed that no-one had refused to work an extra shift as a result of tiredness or stress.

63 Mr. Osborne agreed that there had not been any absences by the Applicant between the first approach and the second approach by the delegates. He confirmed that he had not been provided with details about the meeting between the Applicant and his union and that he had not raised the issue with the Applicant. Throughout his engagement at that yard, the union had dealt with its problems internally, before management could get involved, that's been the "culture of the yard".

64 He confirmed that the union had been approached to give evidence in the proceedings against the Applicant but had declined.

65 He explained that, as the Applicant's sick leave absences had exceeded 10 days, he required a medical certificate for all absences in excess of that amount, irrespective of whether they were only single day absences. The company had a sick leave policy which was kept in the office and had not been distributed to staff. He agreed that it would be unfair on any reasonable view of it to point out to the Applicant that medical certificates were required for single day absence without making him aware of the company policy.

66 Mr. Osborne had issued only one other warning. It was to another employee in the three or four months prior to issuing the Applicant with a written warning. When Mr. Plummer asked for a copy, Mr. Osborne had personally written the warning out twice so as to give him a copy to take away.

67 He admitted that he had been surprised the first time the Applicant declined to have someone from his union in attendance. However, he had not asked for a reason as the Applicant already had another witness in the room.

68 Mr. Osborne agreed that the Applicant received his first warning in 8.5 years on 12 August, 2003. He further agreed that the presumption can be made that he did not agree with its terms as he had not been prepared to sign it. He had followed it up with the Applicant in the mess room some three or four days later and the Applicant had undertaken to provide him with the signed copy but that had never been received nor followed up.

69 The charge hand, Gary Mayer, would have written the word "sick" in the attendance book sometime during the day shift. Mr. Mayer had called to advise him of the Applicant's absence. It was standard practice for the charge hand to note who was in attendance and who was absent. He pointed out that the Leave Notification Forms were available to be completed and submitted for long service leave and bereavement leave, but the Applicant had either completed and submitted such an application nor contacted him to seek such leave. Blank forms were located in the desk in their mess room.

70 Mr. Osborne agreed that he had not disciplined Mr. Mayer for writing the word "sick" in the attendance book even though he knew that the Applicant was at a funeral. That was because he had not yet received any paperwork advising of the true reason for the Applicant's absence. Mr. Osborne insisted that all the other employees submitted the necessary application for leave forms and informed both him and the charge hand of their intended absence.

71 The Applicant had taken periods of leave in the past but he had taken them by doing swaps. An employee was able to arrange to have two weeks off at a time that way.

72 He refused to accept that the Applicant had not been dishonest in relation to that leave. He insisted that the Applicant had taken sick leave to attend a funeral. All other employees communicated with him and advised him of their particular needs and they were able to sort matters out over the telephone. The Applicant had not done so either before he left on bereavement leave or upon his return. He insisted that the Applicant should have been aware of the existence of those forms.

73 Mr. Osborne agreed that he asked the applicant for a certificate regarding that absence but had not specified that he wanted death certificate. He pointed out that the Applicant could have provided proof in the form of a completed leave form specifying bereavement leave or a cutting from a newspaper containing his deceased friend's funeral notice. He admitted that he had not told the Applicant precisely what he wanted and had not discussed the unsuitability of the medical certificate until he brought it up at the point of dismissal. He pointed out that he had not discussed it with the Applicant because the latter had not personally handed it to him. He had left it in the room for Mr. Osborne to pick up days later.

74 Neither Mr. Osborne nor the charge hand had approved the period of leave for the Applicant from 3 to 8 November. It was written into the shift swap book and approved by one of the delegates. He had no problems with that as the internal swap meant that the shifts in question were covered. Shift swaps did not require leave forms to be completed. After 10 November, he asked other employees in the yard and they refused to fill in for the Applicant for that week. He had not asked the delegates.

75 He insisted that he had walked into the mess room on 17 November, 2003 and found Rob Leo, Terry Dickson, Des Gray, Ron Lock and Ray Forrest sitting there. He could not recall who had asked him to do something about the Applicant. When it was pointed out to him that Ray Forrest had not been present and did not start his shift until 1 am the following morning, he stated that he had prepared his statement using the attendance record to reconstruct his memory. He conceded that he had made an error in regards to Mr. Forrest but refused to resile from his statement that the question had been asked of him by the group of employees.

76 He had been informed by the Applicant's sister that Mr. Plummer had consulted a doctor in Thailand. He had demanded to see a certificate from that doctor. It was logical to believe that if a doctor in Thailand had told him he could not fly, then he would have obtained a medical certificate to that effect. He could not see the Applicant, as planned, on the Friday because of his work commitments. He agreed that the Applicant left the medical certificate obtained in Australia but did not leave the airline tickets. Therefore, he did not know whether the Applicant had them with him to show Mr. Osborne on 21 November or not.

77 By 27 November, 2003, he had given the Applicant his first written warning about his sick leave record, had received an unacceptable medical certificate for an absence occasioned by bereavement of a friend and warned him about the unacceptable medical certificate he had obtained in Australia for an alleged ear-ache he had suffered in Thailand. He made the decision to terminate the Applicant at that point. Mr. Osborne agreed that at the first warning stage he had not told the Applicant that his employment was threatened and that the first threat of termination was at the second meeting. He agreed that he asked for the travel documentation because he did not believe the Applicant. He pointed out that had he been given the opportunity to sight those documents, he may have changed his mind about the Applicant. He denied that the union had leaned on him to dismiss the Applicant and he also disagreed that he had pre-judged the Applicant.

78 He had made a record in his diary of what was said at the termination meeting. He confirmed that he had offered the Applicant a ride home in a taxi but had excluded that from his statement.

79 He confirmed that the Applicant had been dismissed for misconduct, however, in the Employment Separation Certificate, the box alongside "Unsuitable for this type of work" had been ticked and the box alongside "Misconduct" had not been ticked. He agreed that the document was a lie.

80 He explained that he could no longer trust the Applicant because he had received information that Mr. Plummer was not turning up for some of his night shifts. He conceded that he had never sought an explanation for that allegation from the Applicant although it had formed part of the reasons for his dismissal.

81 Mr. Osborne was unable to relate any incident during which the Applicant had been untruthful to him. He agreed that he did not have a shred of evidence to suggest that the Applicant had ever dealt with him dishonestly in any way, shape or form.

82 He agreed that it was important that people co-operate with one another yet those persons he had referred to in his statement had not been prepared to back up their allegations with a statement and had not been prepared to give evidence in the Commission.

83 During re-examination, Mr. Osborne clarified the issue regarding the Employment Separation Certificate. It had been completed by himself and by the Paymaster. He confirmed that it was not he who had completed the section relating to the reason for the dismissal.

84 Mr. Osborne confirmed that he would have been satisfied if the Applicant had attended the later meeting with travel documentation explaining his absence but that documentation was never produced by Mr. Plummer.

SUBMISSIONS

85 It was submitted on behalf of the Applicant that the conduct of the Respondent was the most disgraceful, inappropriate and obdurately reprehensible imaginable.

86 It was contended that the Applicant, who had 8.5 years' standing as an employee, had been set up by the union. His treatment had been unfair at every stage and Mr. Osborne had conceded that the Applicant had been unfairly dealt with.

87 It was submitted that the dismissal was patently unfair and the best, fairest and most appropriate way to fix the extensive damage that had been caused was re-instatement. Both reinstatement and re-employment were possible in the present circumstances. To award compensation would be to heap unfairness on unfairness.

88 It was further submitted that the Applicant had demonstrated himself unequivocally to be a completely trustworthy person at every point. He had been truthful in his responses to Mr. Osborne and had not attempted to hide anything. He had co-operated during every step of the process.

89 It was contended that the Applicant had a right to expect, after 8.5 years' employment, that he would be extended some indulgence for going to the assistance of the wife and child of a dead friend at their time of need. It was held to be reprehensible conduct on the part of the Respondent to not only use the fact that a fellow employee had entered a different reason for his absence against him, but to ignore the certificate for a few months and then raise it as an issue at the termination hearing.

90 It was acknowledged that the Respondent had probably been the victim of misinformation provided by some of its employees against the Applicant. Those employees had probably been influenced by their animosity towards the Applicant. It was pointed out that Peter Provan probably had a vendetta against the Applicant whom he had assaulted some time before. Nonetheless, that should not affect his reinstatement as he had five workmates, none of whom had given evidence against him and Mr. Osborne did not spend all of his time on that site.

91 In addition to reinstatement, the Respondent should be ordered to remunerate the Applicant for all the time he has been off work and maintain his continuity of service.

92 It was submitted on behalf of the Respondent that in order for the dismissal to be unfair, it would have to either be unfair on substantive grounds (that is, there is no valid reason for the termination) or be unfair on procedural grounds.

93 The Commission was reminded that the only evidence before it was the evidence of the Applicant and that of his former manager.

94 The Applicant was aware of the procedure for seeking leave and there was evidence before the Commission of at least two occasions when he had submitted leave application forms. The Applicant was also aware that the nature of the leave he took was bereavement leave. He had taken a week off to attend a funeral in Queensland.

95 Aware that he was on a warning in relation to his unexplained absenteeism, he had taken a further week off in Thailand with no contemporaneous evidence of a medical condition. He had been spoken to about that absence upon his return. The Applicant conceded that he had taken 23 days of "sick" leave between his anniversary date in April 2003 and termination on 01 December, 2003, largely without evidence.

96 His evidence with regard to his delay in Thailand was described as highly questionable and the contention that he did not consult a doctor in Thailand did not assist his case at all. The Applicant would have the Respondent believe that he diagnosed himself with having Eustachian tube dysfunction, or even an ear infection. What was even more questionable was his evidence that he knew when his infection had cleared sufficiently to allow him to fly back to Australia. That, coupled with the contents of the medical certificate obtained in Australia, proved conclusively that his evidence that he was ill during that time was a lie.

97 It was contended that the Applicant knew how to manipulate the system to avoid having his absences detected. There was no conspiracy. His workmates finally had enough of covering up for him and complained to Mr. Osborne who researched the records and confirmed that there was a basis for their allegations. He had warned the Applicant accordingly. In that regard, the Respondent relied on the decision of his Honour, Harrison DP in J. Wells and Lloyd Moffat Investments Pty. Ltd. t/as Moffats Oyster Barn Restaurant ([1998] NSWIRComm 220) which, it was submitted, had a reasonably similar factual matrix to the present case. His Honour had concluded:

.... Any employee who takes a deliberate and sustained attitude of non-communication cannot expect their employment to continue.

98 The Applicant, it was pointed out, had every opportunity to maintain his employment by taking up the ample opportunity he had been given by his Manager to provide contemporaneous evidence in relation to the unexplained absence in Thailand. He had not done so. He was given the option of providing either a contemporaneous medical certificate or travel documents. He had not taken up either of those options. Instead, he produced what he knew was not going to be acceptable - a medical certificate that was dated after the absence.

99 It was concluded, therefore, that there was a valid reason for the dismissal.

100 It was submitted that there were two elements to procedural fairness. Firstly, that an opportunity be provided to an employee to correct their behaviour and, secondly, that a suitable opportunity be provided to respond to the allegations prior to disciplinary action being taken.

101 The evidence of Mr. Osborne revealed that a number of complaints had been made about the Applicant's absenteeism dating back to approximately August 2003. The Applicant had a history of absenteeism and a warning was ultimately issued to him in August 2003. At that time, two offers were made to the Applicant to have a witness of his choice in attendance. In addition, he had been allowed to take the warning letter away to seek legal advice. The Applicant later advised that he was willing to accept the warning. It was submitted the procedure had been completely fair.

102 Despite that warning, the Applicant had telephoned the charge hand regarding his intention to take time off to attend a funeral. The Applicant contended that he had taken approved sick leave. The Applicant had a right to paid bereavement leave in certain circumstances. Whilst bereavement leave may not have been applicable in the present circumstances, the Applicant had neither applied for bereavement or other leave by completing the relevant form nor put in a courtesy call to his Manager to seek authorisation. The Applicant's evidence that he was not aware of the existence of the leave forms should be rejected as two of his previous applications have been tendered in evidence. The Applicant had provided a medical certificate not related to a medical condition. The Applicant was given a verbal warning by the Respondent in relation to his unapproved absence which served two purposes - once again the Applicant had been warned about his excessive absenteeism and, secondly, he was put on notice as to the type of evidence that he would be required to produce in the future.

103 Mr. Plummer had been afforded an opportunity to defend the allegations prior to his termination. In light of the notice he had been given, it was absolutely stunning that the Applicant would deliberately abstain from consulting a doctor in Thailand for the absence from 08 - 18 November, 2003. It was submitted that his attitude demonstrated a dishonesty in relation to the Applicant's true medical condition and/or an extraordinary disregard for the warning he had been issued in August 2003 regarding the production of medical certificates.

104 His failure, at all stages, to produce contemporaneous medical certificates or travel documents for the relevant period caused the Respondent grave concern regarding the continued employment of the Applicant. The Applicant had provided another medical certificate from Dr. Ramrakha. It was submitted that the Respondent's scepticism was understandable in light of the fact that it had received two medical certificates from Dr. Ramrakha which had not related to any medical condition.

105 Dr. Ramrakha issued the Applicant with a certificate regarding his attendance at a funeral. He issued another, when the Applicant was attending work in Australia, about the ear infection he alleged he suffered in Thailand.

106 Setting all the above aside, the Respondent had been prepared to accept travel documents attesting to the whereabouts of the Applicant during that period. The request was made on 18 November, 2003 and the Applicant was given time to obtain that proof. Those documents were never produced.

107 The Commission was urged to dismiss the application on the basis that the Respondent had a valid reason for the termination of the Applicant and he had been provided with procedural fairness in that he was put on notice to correct his behaviour since August 2003 and was provided with an opportunity to respond to the allegations in November 2003.

108 Although the Respondent did not concede the conspiracy theories, the Applicant apparently believed that he was being victimised after 8.5 years' employment. Therefore, it would be impracticable to order either reinstatement or re-employment.

109 Attention was drawn to section 89 of the Industrial Relations Act 1996 which relevantly provides:

89 (1) Reinstatement. The Commission may order the employer reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

89 (2) Re-employment. If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable.

89 (5) Compensation. If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed.....

110 It was noted that the Commission is not restricted as to what considerations it may take into account in considering whether reinstatement or re-employment is appropriate, or impracticable. Those considerations may include the availability of an appropriate position and the effect of a return to work on the relationship between the parties. In that regard, the Respondent relied on a Full Bench decision in CCH Australia Limited v Cherryl Dianne Bowen ([1998] NSWIRComm 136) which cited with approval a decision of the Full Court of the then Industrial Relations Court in Perkins v Grace Worldwide (Aust.) Pty. Ltd. ((1997) 72 I.R. 186) - which was authority for the principle that each matter should be decided on its merits. It was submitted that reinstatement or re-employment would extend beyond simply embarrassing the manager, or cause inconvenience to the Respondent. It would extend to the trust that must exist between an employer and an employee who is in an unsupervised position. The Respondent was not able to supervise the Applicant at all times without incurring significant cost and a restructure of the organisation to make such a provision was estimated by Mr. Osborne to cost in the vicinity of an additional $350,000 per annum.

111 The evidence of a long history of unexplained absences was revealed in the evidence before the Commission. That had a significant effect on the morale and health and safety of other employees on site. In addition, the Applicant had demonstrated a complete disregard for the policies, practices, and counselling/disciplinary procedures of the respondent firm. The Commission was reminded of the evidence of Mr. Osborne as to the abuse and veiled threat of physical violence he had received from the Applicant upon his termination. The respondent, it was submitted, should not be forced to reinstate or re-employ the Applicant in view of such a threat.

112 Mr. Osborne had testified that six out of a total of 50 positions were shortly to be made redundant. If an order of reinstatement or re-employment were made, then the respondent would simply be forced to make a further employee redundant.

113 Finally, should the Commission determine in the Applicant's favour but consider reinstatement and re-employment to be impracticable, then it can only make an order as to the payment of compensation.

114 In reply, it was pointed out on behalf of the Applicant that inferences should be drawn from the fact that the five other members of the Applicant's crew had assured him that they all like him, they disagreed that there was any problem with working with him and would work with him again if he was returned to work. The Respondent had objected to the tender of their statements and, even though they are current employees, had not called them to refute the Applicant's evidence. Three delegates who allegedly complained about him had not been prepared to give evidence in confirmation and support of their complaints. The inferences, it was submitted, were all one way, in favour of the Applicant.

115 In relation to the obstacles for reinstatement, it was submitted that, on the authorities available, there were four main considerations that would militate against reinstatement. Firstly, there was no delay in making the application. Secondly, the evidence indicated that there was irretrievable breakdown. The evidence was uncontested that his crew would be happy to have him back. Thirdly, the inference is that his position was still available; and, Fourthly, there was no issue that the Respondent was a big operational enterprise employing fifty employees.

CONSIDERATION

116 Although the Applicant had been employed for a period of approximately 8.5 years, he gave evidence that he had neither seen nor completed a leave request form in that time. Initially he denied completing the leave form, dated 12 November, 1996, seeking a Rostered Day Off on 15 November, 1996. During re-examination, Mr. Plummer recalled that he had seen those leave application forms and had signed both that form and another application form requesting annual leave on 02 May, 1997.

117 There is no reason to doubt the evidence of Mr. Osborne that three of the delegates and members of the Safety Committee had drawn his attention to the dissatisfaction brewing amongst fellow employees in relation to Mr. Plummer's excessive absences and the resultant effect on their workload. In addition, mention had been made to Mr. Osborne that the Applicant had been counselled by his union, the Maritime Union of Australia, but that had not appeared to have done any good.

118 Evidence was given by Mr. Osborne that he had asked the Union if it would be prepared to give evidence in that regard and his request had been rejected. The Commission is not aware if a similar attempt was made by the Applicant. It is noted that the Applicant had been a member of the Union since he was 16 but neither the Union nor its delegates had appeared in the proceedings in support the Applicant. There was no reason for Mr. Osborne to think that there was a personal vendetta against Mr. Plummer. The Applicant had confirmed that he had not reported the incident with Mr. Provan to management.

119 The Applicant acknowledged that his sick leave record revealed that he had taken 23 days off between 14 April and 01 December 2003, a period of approximately 7.5 months. He had not been required to provide medical certificates for the majority of those absences as they were single day absences.

120 The Applicant further acknowledged that on 12 August 2003, he had been counselled by Mr. Osborne with regards to the 10 days' sick leave he had taken since 14 April, 2003 and put on notice that he was required to provide medical certificates thereafter for each absence in excess of those 10 days. He gave evidence that he was aware that the Respondent would be keeping a close look at his sick leave record.

121 The warning had been issued in the presence of two other employees as the Applicant had declined two offers to obtain union representation at that meeting. The Applicant had not agreed with the terms of the written warning and sought, and was granted, an opportunity to take it away and obtain advice on it. When Mr. Osborne followed it up later, Mr. Plummer had merely indicated that he would accept the warning and provide a signed copy later. He had not done so.

122 A month later, during September 2003, Mr. Plummer telephoned one of the delegates, Mr. Mayer, and advised that he was taking a week off to attend the funeral of a close friend in Queensland. Mr. Mayer, it was contended, had crossed him off the roster and written him down as "off sick".

123 Mr. Gayer brought the Applicant's absence to Mr. Osborne's attention but, once again, the nature of the absence was brought to his attention by other employees. Neither sick leave nor bereavement leave would have been applicable in the circumstances. Mr. Plummer had not completed a leave application form. Mr. Plummer was acutely aware of the warning he had received only one month earlier, yet he had not seen fit to telephone Mr. Osborne to seek authorisation for his absence bearing in mind that the position of Charge Hand was a rotating position and was filled by casuals on occasion. In addition, Mr. Plummer had not attempted, upon his resumption at work, to seek out Mr. Osborne and explain the reason for his absence.

124 It was Mr. Osborne who had approached the Applicant and asked for the reason for his absence. Mr. Plummer contended that he had been asked for "a certificate" and he had produced a medical certificate. The medical certificate, dated 07 October, 2003, stated:

Christopher Plummer of ........ saw me today. He states that he left home 22/09/03 to go to Queensland to arrange a funeral for a close friend who died on 21.09.03. He returned to work on Sunday 28.09.03.

125 Mr. Plummer made no effort to produce to the Respondent any proof of attendance at the funeral - be it in the form of a funeral notice, or obituary notice or such like. Mr. Osborne had not commented on the "proof" provided by the Applicant because Mr. Plummer had not handed it to him personally - he had merely left it for Mr. Osborne to find.

126 The Respondent did not take any issue with the straight swap done by Mr. Plummer with Mr. O'Keefe for the latter to undertake the former's five shifts falling during the period 03 November to 08 November, 2003. As required of them, they had recorded it in the Swap Book and had it witnessed by a delegate. Mr. Plummer had not applied for leave beyond 08 November, 2003. Nevertheless, the Applicant did not return to work until 18 November, 2003 and other employees had refused to cover his shifts.

127 The Applicant gave evidence that his sister had advised him to consult a Doctor in Thailand about his ear-ache. He had not done so. He booked himself on a flight back to Sydney when there was no longer any pain from his ear. He returned to Sydney at 1 pm on 18 November and commenced his shift at 3 pm. He made no effort to approach, or contact, Mr. Osborne to explain his absence from 09 November to 17 November inclusive.

128 It was Mr. Osborne who approached him and offered an ultimatum. He was to either provide a medical certificate from a local Doctor pertaining to his ear infection or provide proof of his travel arrangements which would attest to his whereabouts during the relevant period. The evidence of Mr. Osborne was that the Applicant's sister had informed him that her brother had consulted a doctor in Thailand.

129 Mr. Plummer did not attend to that request until three days later. He stated that he needed to catch up on the sleep he lost through having the ear infection and the jet lag. The medical certificate from Dr. Ramrakha, dated 21 November, 2003 stated:

This is to certify that in my opinion, on the basis of information provided by the patient and my clinical observations he is suffering from:

21 November 2003 EUSTACHIAN TUBE DYSFUNCTION

On the basis of the history he has given me it is highly likely that he had an ear infection and Eustachian tube dysfunction whilst in Thailand (8th - 18th November) which would have made flying both risky and painful however I did not examine him at this time.

130 He took the medical certificate and travel document to work that afternoon. In the absence of Mr. Osborne, he copied the medical certificate and left it for him in an envelope on his desk. He provided no explanation as to why he had not left a copy of the travel document.

131 Mr. Plummer agreed to attend a meeting with Mr. Osborne to discuss that absence on 27 November, 2003. It is difficult to understand how, in light of the circumstances, one can arrange such a meeting for that afternoon and, on the same day, depart for the Central Coast on the pretext that he had forgotten about the meeting. Nevertheless the meeting had been rescheduled for 01 December, 2003.

132 Despite having advance notice of that meeting and the stated purpose of the meeting, he had not taken into the meeting any documentation regarding his travel arrangements. He did not produce any details regarding his travel agent even though, according to him, he had visited that office two or three times to alter his return flight.

133 The parties were in agreement that Mr. Des Gray, a fellow employee had been present during the termination interview despite the Applicant's rejection of an offer to have someone of his choice in attendance as a witness. Neither party had called on him to give evidence in the proceedings.

134 The parties had already complied with the filing schedule when the Applicant obtained affidavits from his co-workers allegedly refuting the contention by the Respondent that they had complained about him. The affidavits, signed on 10 March, were objected to by the Respondent the following day, at the commencement of the arbitration proceedings. They did not intend to present themselves for cross-examination. All those employees had declined a request by the parties to attend and provide evidence on their behalf and neither party had compelled their attendance. Those affidavits were not admitted into evidence.

135 I accept that the Applicant had ample opportunity to correct his behaviour following the warning about his excessive sick leave and the advice that he was required to produce acceptable evidence to explain further absences. I further accept that the Applicant had been provided with ample opportunity to explain the absences in Queensland and in Thailand and had failed to take those opportunities seriously.

136 It was obvious that acceptable evidence in relation to the Queensland absence would have been proof of the death/funeral of his close friend. I share Mr. Osborne's scepticism about accepting a medical certificate which not only did not relate to a medical condition, but which post-dated the event.

137 In relation to the Thailand trip, acceptable evidence would have been at the very least a medical certificate from a local doctor. The Applicant did not deny the evidence given by Mr. Osborne that his reaction to that suggestion had been, "I wouldn't go and see one of those fucking quacks. I'll get a doctor's certificate from here". Once again, the medical certificate related to an alleged condition which pre-dated the visit and which had not occurred in Australia.

DECISION

138 It is abundantly obvious that a culture exists at that workplace that has worked for both the Respondent and its employees. The conditions are very much in favour of the employees. They swap shifts with one another and, in doing so, are able to have two straight weeks off in some instances. The Applicant did not have to take annual leave for a very long period of time as he did not have to under that system. Based on that culture, the employees had a great deal of latitude and could work unsupervised. In view of the events described above, it is obvious that the Applicant is unable to work unsupervised. In order for the Applicant to be extended further indulgence, he needed to communicate with his employer and not run his own race which he appeared to be doing. I find that the actions of Mr. Plummer, in responding to issues involving the last two unauthorised absences, were akin to those described by his Honour, Harrison DP, in Wells.

139 Had it not been for the following failure on the part of the Respondent, the dismissal would not have been harsh, unreasonable and unjust.

140 Nevertheless, the culture of the workplace does not diminish from the responsibilities of the Respondent to ensure that policies and procedures are being adhered to. The Respondent had allowed the crew to run the show, so to speak, and when it got out of hand and neither they nor the Union could rein the Applicant in, they got the employer involved. The Applicant was already set in a particular mindset.

141 In addition, the Respondent had failed to properly communicate its displeasure with the Applicant's response to the Queensland absence. It is just not good enough to raise it as an issue at the time of the termination.

142 The Respondent had carelessly condoned the behaviour of the Applicant and, on that basis, termination was harsh in the circumstances.

ORDER

1. The Respondent is ordered to pay to the Applicant a sum equivalent

to four weeks' pay calculated at the rate of pay at the time of his

termination, less the appropriate taxation deduction.

2. The payment is to be made within 28 days.

3. The Order is to take effect on and from today's date, 11 May, 2005.

4. Matter No. IRC 7246 of 2003 is concluded.

I. Tabbaa

COMMISSIONER

LAST UPDATED: 12/05/2005