Seamans' Union of Australia (on behalf of Graham Levy) v Sydney Ferries Corporation [2009] NSWIRComm 8 (9 February 2009)

Last Updated: 11 February 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Seamans' Union of Australia (on behalf of Graham Levy) v Sydney Ferries Corporation [2009] NSWIRComm 8



FILE NUMBER(S):
1300

HEARING DATE(S):
22 October 2008, 23 October 2008, 1 December 2008, 18 December 2008

DATE OF JUDGMENT:
9 February 2009

PARTIES:
Seaman's Union of Australia, NSW Branch
Sydney Ferries Corporation


CORAM:
Grayson DP


CATCHWORDS: Industrial dispute - Unfair dismissal - Allegations of misconduct - Applicant alleged to have abused and spat upon supervisor - Applicant alleged to have caused loss of revenue to employer - Applicant alleged to have endangered or caused risk of physical harm to persons on board Manly Ferry - Onus of proof - Reliance upon CCTV footage

Held - Certain allegations of misconduct made out - Others not - Applicant not personally liable as union delegate for industrial action taken at direction of union executive - Dismissal harsh - Reinstatement not impracticable - Reinstatement ordered


LEGAL REPRESENTATIVES
Mr R Reitano of counsel instructed by WG McNally Jones Staff (Mr M Jaloussis)
Mr A Saunders of counsel instructed by Allens Arthur Robinson (Mr P Arthur)

CASES CITED:
Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565
Bigg v NSW Police Service [1998] 80 IR 434
Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336
Hornsby Shire Council v Hunt [2002] NSWIRComm158
North v Television Corporation Ltd [1976] 11 AR 599
Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) [1990] 35 IR 70
Re Homebush Abattoir [1966] AR (NSW) 386
Wallace v Deering Auto Electrics [1985] 12 IR 34
Wang v Crestell Industries Pty Ltd [1997] 73 IR 454
WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547
Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Grayson, DP

9 February 2009

Matter No IRC 1300 of 2008

Seaman's Union of Australia, NSW Branch & Sydney Ferries Corporation re unwarranted dismissal

Notification under section 130 of the Industrial Relations Act 1996 by The Seamens' Union of Australia, NSW Branch of a dispute with Sydney Ferries Corporation re unwarranted dismissal

Application by the Seamens' Union of Australia, NSW Branch, (on behalf of Graham Levy) re unfair dismissal under section 84 of the Industrial Relations Act 1996

DECISION

[2009] NSWIRComm 8

1 Graham Levy (the applicant) commenced employment with Sydney Ferries Corporation (the respondent) in October 1998 and worked there as a general purpose hand until his dismissal on 6 August 2008, the circumstances of which are conveniently set out in the following letter of termination:

Dear Mr Levy,

I am writing to advise that your employment with Sydney Ferries will be terminated with effect from today as a result of you breaching the Sydney Ferries Code of Conduct, specifically, paragraph 9.5 which provides that an employee must:

"show respect and consideration to all other Sydney Ferries Corporation employees, be polite and helpful to your co-workers; co-operate as part of a team."

There are two incidents which have led to this decision to terminate your employment.

On 23 July 2008 a complaint was made that you abused and spat upon a fellow employee. The particular complaint was investigated and found to be substantiated. This is behaviour which Sydney Ferries Corporation considers to be inconsistent with paragraph 9.5 of the Code of Conduct and, further, is serious enough to warrant dismissal in accordance with the provisions of paragraph 8 of the Discipline Procedures.

On 20 June 2007 you were issued with a warning notice which indicated that further unacceptable conduct would result in more serious disciplinary action. Sydney Ferries considers that the incident which occurred on 23 July 2008 constitutes unacceptable conduct.

It is the opinion of Sydney Ferries Corporation that your conduct has been inconsistent with your duty to the Corporation as an employee. As a consequence your employment with Sydney Ferries is terminated.

Sydney Ferries Corporation will provide you with details in relation to your entitlements. It is requested that you return all Sydney Ferries property so final payments of these entitlements can be processed.

Yours sincerely

Michel Maree Hyrce

General Manager

Human Resources & Industrial Relations Division

2 Failing successful conciliation on 13 August 2008, the matter proceeded to hearing as an unfair dismissal application on 22 October 2008, 23 October 2008 and 1 December 2008. The matter then went over for submissions the last of which were filed on 18 December 2008.

3 In addition to his own evidence and the body of documentary evidence relied upon, the applicant called the following witnesses in support of his claim:-

· Mr Paul GARRET, Assistant Branch Secretary, Sydney Branch, Maritime Union of Australia

· Mr Paul HOUGHTON, General Purpose Hand, Sydney Ferries Corporation

· Mr Allan PAXTON, General Purpose Hand, Sydney Ferries Corporation

· Mr Ray WINDLE, General Purpose Hand, Sydney Ferries Corporation

· Mr David McGUIRE, General Purpose Hand, Sydney Ferries Corporation

· Mr Adrian DATE, Senior First Aid Trainer and Director, Vital First Aid Training Services Pty Ltd

4 In the respondent's case and in the addition to documentary material and CCTV footage relied upon, evidence was called from the following witnesses:-

· Mr Steven FITZHENRY, Facilities Manager, Sydney Ferries Corporation

· Mr Clayton SCOTT, Manager Marine Operations, Sydney Ferries Corporation

· Mr James PARNELL, Duty Manager, Sydney Ferries Corporation

· Mr Mark McINTOSH, Director of Operations and Plans, Sydney Ferries Corporation

· Mr Charles HEUSTON, ex Industrial Officer, Sydney Ferries Corporation

· Ms Fiona LOVE, Director of Training and Development, Sydney Ferries Corporation

· Dr Robert OAKESHOTT, AM, expert medical witness

5 It is accepted by both sides and well settled that whilst the applicant may bear the onus of establishing that his dismissal was harsh and/or unreasonable and/or unjust (Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279; Bigg v NSW Police Service (1998) 80 IR 434 at 452-6; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565; Re Homebush Abattoir [1966] AR (NSW) 386) the burden of proving an act or acts of misconduct on the part of an employee where such allegations are raised by an employer in defence of a decision to dismiss, falls squarely upon the employer (Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552-553; North v Television Corporation Ltd (1976) 11 AR 599 at 602; Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35).

6 In this case, the employer alleges that the applicant misconducted himself in a variety of ways which may each be appropriately examined for the purpose of these deliberations (Hornsby Shire Council v Hunt [2002] NSWIRComm158).

7 The most recent and perhaps the most damaging to the applicant if proved , is the allegation that he was abusive towards and spat upon Mr Clayton Scott whose position of Manager Marine Operations, broadly stated, gave him responsibility for the movement of vessels owned and operated by Sydney Ferries.

8 At approximately 12:25pm on 23 July 2008, Mr Scott was informed by his duty manager that a passenger aboard the Manly Ferry had been injured. He went with the duty manager to No. 3 Jetty at Circular Quay where the vessel (either the Collaroy or the Narrabeen - the evidence is inconclusive) was berthed. He boarded the vessel and observed an elderly male passenger with a cut over one eye. He ascertained from general purpose hand Lita Vnoucek that the passenger had fallen down three or four stairs, a distance of about 60cm to 80cm. Ms Vnoucek had discovered the passenger at the foot of the stairs and had helped him to a nearby seat. Mr Scott assessed the passenger and concluded that there were no fracture injuries. Mr Scott was able to make such assessments having obtained the following first aid qualifications:

· Professional Association of Diving Instructors (PADI) Medic First Aid

· Royal Life Saving Society Instructors Certificate in the category of senior resuscitation

· Certificate in Workplace Senior First Aid issued by accredited and registered training organisation Life Support & Safety Training Services Pty Ltd and recognised within the Australian Qualifications Framework

· Senior First Aid Certificate issued by accredited training organisation Survival First Response (Australia) Pty Ltd

· Certificate of Senior First Aid (current) issued by St John Ambulance Australia

He said that it was not an infrequent feature of his job as Manager Marine Operations to attend at incidents requiring the use of his first aid training and skills.

9 Whilst Mr Scott was in the process of completing his assessment of the injured passenger, the applicant arrived and proceeded to involve himself in the management of the injured passenger. The evidence was that the applicant had been at lunch when contacted by fellow general purpose hand Paul Houghton and advised of the incident at No. 3 Jetty. He left his lunch and collected his back pack which contained what he described as a very small first aid kit which he kept for his own use. He then went to No. 3 Jetty.

10 Like Mr Scott, the applicant is trained in first aid and since the start of his employment with Sydney Ferries, he has like all other general purpose hands, received periodic tuition at the employer's expense from St John Ambulance in order to maintain his certification in that regard. He also deposed, as did Mr Scott, to experience prior to joining Sydney Ferries in delivering First Aid programmes as an instructor. Furthermore, the applicant made it widely known to fellow employees and duty managers that he wanted to be called upon to apply his first aid training at any time there was an incident whilst he was on duty. Indeed, his enthusiasm in that regard resulted in him dealing with over 100 first aid emergencies, he estimated, in the ten years he worked with Sydney Ferries. Some doubt was cast on that estimate by the evidence of Ms Love who thought it was an exaggeration on the applicant's part. So also was his claim to have worked as a paramedic with NSW Ambulance Service prior to joining Sydney Ferries when in fact , as the evidence disclosed, he was dismissed from the position of Probationary Ambulance Officer after failing to satisfactorily complete the prerequisite training program.

11 Plainly however, the applicant considered his level of competence in first aid to be greater than Mr Scott's and he conceded in cross-examination firstly, that he understood Mr Scott to have had a non-WorkCover accredited background in first aid; secondly, that Mr Scott's knowledge of first aid was "ancient" and thirdly, that he was unaware as at 23 July 2008 of Mr Scott's current St John Ambulance certification in first aid.

12 To the extent that he was ill-informed and wrong in his understanding of those things, his eagerness to question Mr Scott's management of the injured passenger may otherwise have been less than it was. One will never know but when the applicant became aware that Mr Scott intended to transfer the passenger by wheelchair from the vessel to the wharf and into the care of ambulance officers who had been called, he insisted that the passenger should not be moved until first attended to by ambulance officers on board the vessel. Mr Scott said (and the applicant denied) that the applicant, without introducing himself or explaining who he was, began to loudly question the elderly passenger who was becoming visibly upset. The applicant did not ask Mr Scott what history had been taken from the injured passenger and wrongly assumed that the passenger had fallen down the whole flight of stairs, a distance of 5 metres or more, rather than down the last three or four steps (60 cm to 80 cm) as Mr Scott had ascertained.

13 Mr Scott said he told the applicant the matter was under control and that he, the applicant, could return to his work station. He said he then wheeled the passenger off the vessel to the waiting ambulance officers. He claims the applicant was hostile towards him and said among other things:

What do you think you are, a fucking doctor?

14 The applicant denied using the above words and claimed it was he and general purpose hand Lita Vnoucek and not Mr Scott who wheeled the passenger off the vessel. He further claimed that Mr Scott then came over and covered the passenger with his urine soaked coat; that Mr Scott pushed him out of the way whilst he was taking a history from the passenger in order to remove the passenger from the vessel; that Mr Scott responded to his (the applicant's) protests with words to the effect:

I don't care; I have a ferry service to run. He's only got broken ribs.

15 Mr Scott denied these things and he emphatically denied any suspicion on his part of a fracture injury to the passenger's ribs or any other part of the body. I have little hesitation in accepting his denial in that regard. To do otherwise would in my mind impute to Mr Scott a careless indifference to the passenger's welfare without any proper basis in the evidence the balance of which, including that of Mr Paxton, would seem, in any event to attribute the possibility of broken ribs to the applicant rather than to Mr Scott. Insofar as Mr Scott may have expressed a wish to see the ferry returned to normal operation it would be perfectly understandable given his function of managing marine operations within the enterprise and I do not accept as is suggested against him, that Mr Scott in any way placed the vessel's return to normal operation ahead of the injured passenger's welfare.

16 Expert evidence taken late in the case from first aid trainer Mr Date and from Dr Oakeshott indicated to me although not by consensus that whilst the applicant's preference for not moving the passenger may have been correct in terms of orthodox first aid practice, it was not an unreasonable act on Mr Scott's part in the circumstances prevailing on 23 July 2008.

17 Plainly though, and more relevantly for the purpose of these proceedings, the incident with the injured passenger caused tension and hostility between Mr Scott and the applicant which by one means or other, led to what transpired about an hour later. The applicant said he was disgusted and annoyed with Mr Scott's actions and he resented being overruled by Mr Scott whom he considered to be less competent than himself in first aid. After going ashore and as he walked away from Mr Scott he said to himself in a normal tone:

You have got to be fucking joking

18 What next transpired an hour or so later may be briefly described this way. At about 1.30pm Mr Scott was on No.5 Jetty in company with Mr Fitzhenry and Mr Ruman inspecting works in progress in the meal room. Access to and from the jetty is by means of barriers or automated gates. Both the applicant and Mr McGuire were on gate duty at the time. Mr Scott claims as he passed through the gate followed by Mr Fitzhenry and Mr Ruman, the applicant said to him:

You're a fucking joke

19 Mr Fitzhenry said he heard the applicant say those words. Mr McGuire said he heard no comment whatsoever from the applicant and nor did he hear anything Mr Scott said to the applicant. I must say it is somewhat surprising given his proximity to the events, that Mr McGuire heard nothing but that was his sworn evidence. For his part, the applicant admitted making a comment to Mr Scott allegedly in response to Mr Scott grimacing at him as he passed through the gate. He denied the words attributed to him by Mr Scott and Mr Fitzhenry and said he called Mr Scott a goose.

20 Mr Scott denied grimacing at the applicant as he approached the gate and said that, upon hearing the words spoken by the applicant he turned back and said to him:

What did you say?

21 The following passage of Mr Scott's evidence indicates what then allegedly occurred:

We then had an exchange of words to the following effect:

He said: I said you're a fucking joke

I said: You can't speak to me like that. I'm your boss. I can report you for this.

He said: I don't care. You're a fucking joke. Why don't you fuck off. Or I'll spit on you.

I then turned away from Mr Levy and heard sounds that I associate with a person gathering saliva in their mouth and then spitting. The spitting sound was so real and immediate that I seemed to feel spit hitting my back immediately after the sounds were made. Because I was wearing a great coat at the time, I know that I could not have actually felt the spit hitting my back. Nevertheless, the sound was so real that it created that sensation within me,

I immediately turned back to Mr Levy and we spoke words to the following effect:

I said: Did you just spit on me?

He said: What if I did? You're a fucking joke.

David McGuire, the other GPH on duty at Jetty 5, was standing in the GPH booth at this time. I turned to him and we had the following exchange:

I said: Are you listening to this?

He said: I don't want nothing to do with this

Shortly afterwards Mr McGuire walked away from the gate.

Mr Levy and I then continued our exchange as follows:

I said: What the fuck's all this about?

He said: What do you reckon, you fucking idiot? It's about the old bloke on the Manly ferry.

I said: I'm your manager and I could report you for this behaviour. Do you want me to do that? With your record you could lose your job.

I turned to leave. As I stepped away from Mr Levy he said:

You really are a fuckwit.

I wheeled around to face Mr Levy and we had the following exchange:

I said: You just don't get it, do you? Do you want me to report you?

He said: It's just me and you here, mate. Your word against mine. Now why don't you get the fuck out of my face?

As Mr Levy said these words to me he opened his arms wide and stood squarely in front of me.

At this point a customer pushing a stroller with a child in it approached Mr Levy and me and inquired about the ferry timetable. I said to the customer words to the following effect:

Graham will help you.

As I said this I gestured with my hand toward Mr Levy. Mr Levy provided the customer with the information that she required. She then walked through the gate to the wharf.

Mr Levy and I continued our exchange in words to the following effect:

I said: Your behaviour is unacceptable. You can't talk to people like that and you can't go spitting on your managers. You have to learn to control yourself.

He said: I'm not the one with the problem. You are, you fuckwit. Anyway, what are you going to do? It's just you against me.

I turned away from Mr Levy and took approximately half a dozen steps towards the glass doors on Jetty 5 where Mr Fitzhenry and Mr Ruman were standing. As I walked away from Mr Levy I heard him call out:

You're a fucking joke. There's nothing you can do about me, and you know it.

At that point, I stopped, turned around and walked back to Mr Levy. I said to him:

Right, that's it. You're on report.

22 The applicant's version of events is as follows:

At about 1:46pm. I was working at the barriers at No. 5 Wharf at Circular Quay when Mr Scott walked through with another SFC Manager, Steven Fitzhenry, and 2 contractors. As Mr Scott walked through the gate he grimaced at me. My response to Mr Scott's grimace was to call him a "goose". When he heard that comment, he turned around to the other gate hand, Dave McGuire, and said to him in words to the following effect:

"Did you hear that?"

I did not hear the reply from Mr McGuire. Mr Scott then turned towards me and said:

"What did you say?"

I said:

"Just forget it."

Mr Scott then began to abuse me verbally. He was saying words to the following effect in an angry but restrained voice:

"You piece of shit. I've seen your file. I am going to get you sacked. You are finished. You are gone."

I was surprised at the language Mr Scott was using in a public area and I said to him words to the following effect:

"What gives you the right to talk to me in such a manner?"

Mr Scott then came back towards me and stood right up to me; he was virtually "in my face". I backed away and Mr Scott continued to come towards me, bumping me with his stomach and chest. At the same time, he was continuing to abuse me, calling me a "piece of shit. You are finished. I'll get you". After a few seconds of this tirade of abuse, which was directed at me, Mr Scott turned around and walked away from me, however, he turned around very quickly and came back towards me again. He was in an enraged and threatening mood and his manner put me in fear that he was going to physically assault me. Through his verbal tirade he stated words to the following effect:

”I have seen your file, it's thick and you are finished. I will get you sacked and you are a piece of shit."

I did not want to prolong the confrontation so I said to him in words to the following effect:

"Just go away and leave me alone.”

Mr Scott continued abusing me and trying to stand over me so I put my arms up in the air and backed away from him. At no time did I verbally abuse Mr Scott during this confrontation nor did I use any foul or threatening language towards him.

23 A further abridged version of the events of 23 July 2008 was given in the form of a contemporaneous incident report by Mr Scott in the following terms:

Incident:

At approximately 13:50 I was departing Jetty 5 after conducting a wharf inspection with a number of people including Facilities Manager Steve Fitzhenry and PMO Stefan Ruman.

On passing through the barriers, I noticed GPH Levy staring at me in a hostile manner. As I passed him Mr Levy cursed me saying "You're a fucking joke". Somewhat surprised I asked him what he said; whereupon he repeated that I was a fucking joke.

I tried to question Mr Levy further, but he kept turning away from me and muttering derogative profanities. I told him that he could not speak to me that way and that I would put him on report. He told me that I was a fuckwit and it was just him and I and no one could prove what he said, just the CCTV whereupon he threw his hands up in the air to feign indifference. I turned to the other GPH on the gate, Dave McGuire, who was in earshot of the discussion and asked him if he heard what Mr Levy had said. Mr McGuire said he was not going to get involved and soon after left the gate area.

I Told Mr Levy that his job could be in jeopardy for this type of behaviour, whereupon he responded that I was the one that should lose their job. Mr Levy further stated that if I didn't leave he was going to spit on me.

As I turned to walk away I heard GPH Levy spit, and then felt something on my back. I turned around and returned to Mr Levy and asked him did he spit on me, he again let out a barrage of expletives and personal attacks. I left and went to Jetty 4 and examined my coat in the presence of Steve Fitzhenry, who identified spittle on the back of my jacket. I then went to Admin of Jetty 3 and re-examined my coat in the presence of Duty Manager James Parnell. He discovered spittle on my coat in the small of my back.

At all times throughout the discussion, I maintained a calm and professional attitude, not raising my voice and not lowering myself to name calling or personal attacks, My main aim, other than identifying why he had verbally attacked me, was to ensure that passengers would not be aware of the verbal exchange.

The interaction between G Levy and me was witness (sic) by Steve Fitzhenry and Stefan Ruman in part if not whole.

Earlier in the Day:

Earlier in the day I attended an injured passenger on board Narrabeen. In the course of managing the medical emergency, GPH Levy arrived and tried to take over. Mr Levy started haranguing the passenger for personal details, such as current medications. When the passenger could not provide the information Mr Levy became agitated towards the passenger.

In the process of this, GPH G Levy's medical expertise was declined by me and I gradually removed his influence on the incident. In the course of events I had the passenger removed from the vessel in a wheelchair. Mr Levy took great umbrage to this to the extent that he asked me in a most hostile manner if I thought I was a fucking Doctor now, along with some other abusive remarks.

In the interests of the injured passenger, who was present whilst these comments were being made, I chose to ignore them and not inflame the situation.

I am of the belief, that the interaction between GPH G Levy and me, earlier in the day, was the catalyst that resulted in him abusing and spitting on me at Jetty 5 later in the day.

24 Having carefully considered the totality of the evidence given and in the case of the video film, the evidence seen in relation to the events of 23 July 2008, I am satisfied on balance and find accordingly that the applicant probably did use the words "you're a fucking joke" as Mr Scott walked past him through the barrier.

25 I have reached that view having regard among other things firstly, to the fact that both Mr Scott and Mr Fitzhenry heard those words spoken by the applicant; secondly and after initially denying in the disciplinary interview on 24 July 2008 that he used foul or threatening language (in fact he denied saying anything at all), the applicant admitted using what I will describe as derogatory and offensive language towards Mr Scott as the latter walked past him through the barrier; thirdly, the words "you're a fucking joke" bear a compelling similarity to the words "you have got to be fucking joking" which the applicant admitted using an hour or so earlier in reference to Mr Scott; and fourthly, the applicant by his own admission was disgusted and annoyed with Mr Scott about the events on board the Manly Ferry. These things are strongly suggestive of a motive and a propensity for the applicant to behave in the manner alleged.

26 It is worth observing here that the applicant was moved to feel annoyance and disgust towards Mr Scott on a number of ill-informed and wrong premises namely, that Mr Scott had no or no current first aid training when in fact the opposite was true and further, that the coat Mr Scott placed over the passenger was soaked in urine when in fact as Mr Paxton's unchallenged evidence revealed, it was coffee which the passenger had been holding when he fell. The applicant conceded in cross-examination that he did not smell the coat or take any other steps to find out whether the wet substance on the coat was urine. He simply assumed it was urine on the coat and on the basis of that assumption became disgusted with Mr Scott's actions in placing the coat on the injured passenger while he was being taken by wheelchair towards the ambulance.

27 Whether and to what extent the applicant continued to behave abusively towards Mr Scott becomes a more difficult issue to resolve largely because of the conflicting evidence and also because of the fact that Mr Fitzhenry was out of earshot by the time Mr Scott returned to confront the applicant at the barriers. On the one hand, the fact that Mr Scott walked away and then returned to confront the applicant on no less than six occasions over a period of minutes lends support to the allegation by Mr Scott that the applicant continued his abuse in the stated knowledge that he would be seen by the CCTV cameras but not heard.

28 On the other hand, Mr Scott's actions may be seen as an unwarranted and overbearing or excessive response to the applicant's initial abuse. I consider on balance and find accordingly that the applicant probably did continue to taunt Mr Scott, a fact which explains more readily than the alternative Mr Scott's repeated departures from and returns to close quarters with the applicant. Further and as before, it would be consistent with the hostility felt by the applicant towards Mr Scott over the events on board the Manly ferry an hour or so earlier. Having said that, it seems to me perhaps with the benefit of hindsight, that Mr Scott would have been far better to have adopted a less confronting course of action in dealing with the applicant's initial offensive remark and as much was conceded by Mr Scott in cross-examination.

29 Beyond the abusive remarks made by the applicant the state of the evidence, as I am disposed, does not permit a finding to the requisite degree of satisfaction (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362) that the applicant committed the ultimately inexcusable act of spitting on Mr Scott. There are too many doubts. Firstly and in spite of the close attention given during the course of the hearing to the CCTV footage, there is no discernable act of spitting to be seen. Secondly, Mr Scott's evidence in this respect needs to be treated with some caution because initially he said he heard the applicant spit and then felt something on his back. He later changed that account and gave the following sworn evidence:

I then turned away from Mr Levy and heard sounds that I associate with a person gathering saliva in their mouth and then spitting. The spitting sound was so real and immediate to me that I seemed to feel spit hitting my back immediately after the sounds were made. Because I was wearing a great coat at the time, I know that I could not have actually felt the spit hitting my back. Nevertheless, the sound was so real that it created that sensation within me.

30 That sworn evidence was prepared by Mr Scott in the form of a written statement after he had been shown the CCTV footage revealing among other things that he was wearing the heavy coat to which he refers in the sworn evidence. This is in contrast to the contemporaneous account given ten weeks earlier without the advantage of the CCTV footage and there must in those circumstances, be inevitable doubts about the reliability of such evidence. There was no immunological testing done to establish whether the moisture later found on the back of Mr Scott's great coat was human saliva and it was not until he had walked with his colleagues Fitzhenry and Ruman some considerable distance away from No 5 Jetty where the spitting incident allegedly occurred, that he recounted the incident to them (or at least to Fitzhenry).

31 There is further the fact about which he was closely cross-examined that the question he asked Mr McGuire - "Did you hear that?" - is more likely to be a reference to words being spoken than to the low act of one person spitting on another. Had the question to Mr McGuire been "Did you see him spit on me?" - then it may be a different matter. Mr Scott's evidence about why he would ask Mr McGuire one question but not the other was unconvincing,

32 At all events neither Mr McGuire nor Mr Fitzhenry both of whom were standing nearby, witnessed such an act and as I say, I have some doubts about this aspect of Mr Scott's evidence. I do not consider this allegation to have been made out and as to the applicant's assertion that he suffered some form of physical assault at Mr Scott's hands, I do not consider there is sufficient support for that proposition either. Plainly the two were at close quarters during the confrontation but I do not accept that the confrontation was other than verbal. It is however, a complaint that was made by the applicant from the outset and it should have been investigated by Sydney Ferries rather than (as would seem to have been the case) taking no action and leaving it to the applicant as to whether he would refer the matter to the police.

33 Turning then to the events of 9 March 2007 it is said by Sydney Ferries that the applicant's actions that day in directing fellow general purpose hands to "open the gates" on Manly Wharf (thus enabling members of the travelling public to pass through the wharf and onto the ferry free of charge) constituted misconduct in respect of which the applicant was issued with a warning letter in the following terms:

Dear Mr Levy,

Warning - Graham Levy

I write to you to confirm the outcome of the disciplinary meeting which was held today to consider the allegations made against you regarding your actions on 9 March 2007.

As stated at the meeting it was alleged that on 9 March 2007 you directed other employees at the Manly Wharf to cease selling tickets, to open the gates and allow passengers onto ferries and travel free of charge.

I considered your denial of the allegation, as well as the information provided about the matter by Mr Glen Wood (Deputy Sydney Branch Secretary, Maritime Union of Australia) and the SFC Controlling Officer, who was at Manly Wharf on 9 March 2007. I am satisfied that the allegations are confirmed.

As stated at the meeting your actions are unacceptable and warrant disciplinary action. I therefore formally warn you that unacceptable conduct will not be tolerated by Corporation. Any further unacceptable conduct will result in more serious disciplinary action, possibly including termination of your employment.

A copy of this letter confirming the warning will be placed on your personal file.

Yours sincerely.

Denis Mole
General Manager,

Operations Division

34 The applicant claims to have acted on 9 March 2007 as an elected union delegate in conveying to union members at Manly Wharf what he understood to be a direction from the Maritime Union of Australia to "open the gates" at Manly Wharf (or "freewheel the turnstiles" as it was also described) in protest against the employer's decision to cease providing taxis from work to home for employees working after midnight. The direction came to the applicant via an SMS text message from fellow union delegate Mr Nathan Donato in the following terms:

Garrett wants you to open the gates at Manly. Please call him ASAP.

35 The applicant said he attempted unsuccessfully to contact Mr Paul Garrett, Assistant Secretary, Sydney Branch, Maritime Union of Australia. He then tried, also unsuccessfully, to contact Mr Glen Wood, then Acting Secretary, Sydney Branch, Maritime Union of Australia. He then conveyed the direction to all gate hands at Manly to open the gates. After the gates had been open for seven minutes or so, he received a further instruction from another MUA delegate to the effect that progress had been made and the industrial action should cease. He immediately directed that the gates be closed.

36 The following evidence in relation to the matter was given by Mr Garrett whose statement was admitted without objection and who was not required for cross-examination:

On 9 March 2007, SFC acted outside the provisions of the SUA Agreement by issuing a new Taxi Policy to its workforce. The Union was made immediately aware of this fact. In response, I, along with Acting Branch Secretary Glen Wood, spoke with the relevant SFC management that morning and it was conformed that the policy was in place, despite it being acknowledged that it was outside the provisions of the SUA Agreement. The SFC management advised that they were not prepared to revisit this position.

On that morning, and in response to this action by the management of the SFC, a direction was given from the Sydney Branch to the Delegates to "freewheel" the passenger turnstiles, which would have allowed passengers to travel for free.

After the Sydney Branch gave the direction, further communication took place between Michel Hyrce, General Manager - Human Resources and Industrial Relations, and I. During this phone call and at the request of the Sydney Branch, it was agreed that a meeting would be convened later that afternoon to resolve this matter and Ms Hyrce conceded to me that the policy had been issued outside the provisions of the EBA.

During the period of this phone call, the Delegates were already in the process of organising the industrial action as directed and Mr Levy, whilst at his position at Manly, "freewheeled" the gates and allowed passengers at Manly to travel for free for no longer than seven minutes, as I recall. Mr Levy was a Delegate of the MUA/SUA at the time.

At the completion of my phone call with Ms Hyrce, I had confirmation that a meeting would take place later that afternoon. Therefore, I rang the Delegates to confirm this and to direct them to desist in any further industrial action so as to allow the meeting to take place. I recall speaking to Mr Levy who advised me of the Manly position and he advised me that he would immediately ensure that the direction was complied with.

A meeting was convened at 2pm on March 9, 2007, which included myself, Denis Mole and Michel Hryce amongst other participants. In that meeting, it was again conceded that SFC management could have handled the issuing of the Taxi Policy better and the Union left the meeting with the understanding that Graham Levy would not be subject to any further disciplinary action.

The matter was further discussed again with Michel Hryce on March 14 in a meeting with Denis Mole and Michel Hryce regarding the upcoming Bridge walk celebrations in honour of the 75th anniversary of the Sydney Harbour Bridge. Again, I together with the other Union officials present at the meeting left with the understanding that the Taxi Policy matter had resolved itself and Mr Levy would not be subject to any disciplinary action.

On June 19, 2007, some three months after the incident and the two abovementioned meetings, the Sydney Branch was made aware that the SFC was again pursuing a meeting to deal with the Taxi Policy and Graham Levy's conduct on 9th March 2007. It was relayed to Mr Mole that this matter had been concluded and the actions of the SFC were now moving towards the intimidation and harassment of a Delegate by SFC management.

A further protest was made on June 20, 2007, to and acknowledged by, the CEO of the SFC. Subsequently, a meeting was convened to allow Graham Levy to meet with SFC management at 1 pm, as requested.

Present during the June 20, 2007 meeting were Ms Hryce, Mr Mole, Mr Wood, Mr Levy, MUA Delegate Steve Staines and myself. The Sydney Branch raised our objection to the way SFC management had handled the Taxi Policy matter and the subsequent attack upon an MUA Delegate. Mr Levy was subjected to disciplinary action in the meeting, which resulted in a warning.

At 3:22pm on June 20, 2007, after the meeting, I corresponded via email to the MUA Delegates advising them that:

"Graham Levy was notified that he would be issued a warning for when the gates were allegedly opened on March 9 following Sydney Ferries Corporation sending out a new taxi policy [without] consultation with the Industrial Committee as per 16.3 of the EBA".

The Sydney Branch referred the matter to the NSW Industrial Relations Commission and Deputy President Grayson heard the matter (IRC 1033 of 2007). This matter was subject to a number of hearings but did not progress beyond the recommendation stage. I note that on June 25, 2007 whilst handing down his recommendation, His Honour Deputy President Grayson, also by way of comment, noted that Mr Levy was issued with a warning, not a final warning, and stated that:

"As to the warning issued to Mr Levy..."

I am aware that the SFC management, in determining to terminate Mr Levy as a result of the incident that took place on 23rd July 2008, have relied on the fact that on June 20 2007, Denis Mole, General Manager - Operations Division, had issued a "final warning letter" to Mr Levy. This is misrepresentation of the true facts. I note that the letter was titled "Warning - Graham Levy" and was issued as a warning and not a final warning. Both Mr Levy and Sydney Branch were of the understanding during this matter that the letter was a warning and not a final warning. The heading of the letter given to Mr Levy, as well as the matters that I have referred to in the above paragraphs support this understanding.

Whilst Mr Levy and the Sydney Branch protested this warning, the matter was not further progressed in the NSW Industrial Relations Commission, as it had become an item of interest through the Special Commission into Sydney Ferries headed up by Bret Walker SC.

37 I am of the view on the limited evidence before the Commission as to the events of 9 March 2007 that the applicant cannot be held personally responsible as an elected union delegate for implementing a union direction in the circumstances then applying. The evidence indicates that each of his co-delegates was in the process of implementing similar directions at the same time as the applicant. It is not as if the applicant acted on his own motion independently of the MUA, and the respondent in my opinion falls short of establishing misconduct on the applicant's part in that regard.

38 Furthermore, the additional propositions for which Sydney Ferries contended in support of the allegation of misconduct on 9 March 2007 namely, that the applicant by his actions knowingly caused Sydney Ferries to lose revenue and knowingly endangered or caused the risk of physical harm to those on board the ferry by not enabling the turnstile counters to record passenger numbers boarding (and thus prevent overcrowding) were the subject of considerable controversy.

39 As to the first of these propositions, the applicant maintained that he was unaware of any let alone the extent of revenue loss but also, if there was any, it was minimal. His evidence when taken to that proposition in cross-examination was as follows:

Q. And when you received the text message you understood the phrase "open the gates at Manly" to mean, allow passengers at the Manly Wharf to enter through the wharf and onto the ferry free of charge?

A. Yes.

Q. And the purpose in opening the gates at Manly was to cause harm to Sydney Ferries Corporation, correct?

A. Absolutely not.

Q. The effect of opening the gates at Manly would mean that Sydney Ferries Corporation would lose revenue because the passengers wouldn't pay the fees they otherwise pay?

A. Sydney Ferries loses $65 million a year. The seven minutes the gates were open was mostly best described as not even a drop in the ocean.

Q. Do you accept that if the gates are open for any period of time at Manly and if passengers walk through without paying the effect of that is Sydney Ferries Corporation loses revenue it would otherwise receive?

A. Yes.

Q. And you understood, don't you, losing revenue is a form of putting pressure on Sydney Ferries Corporation?

A. Sydney Ferries lose a great deal of money every year. It was not, I believe, my position to make any judgment as to what the effect of my action was. I was requested to do so. I honestly believed, and that belief has been confirmed by Mr Woods, the Assistant Branch Secretary, that it was a matter above my calling. I simply obeyed instruction as an good navy man would.

Q. You didn't exercise any discretion?

A. No. I saw that there would be no harm or risk of harm to the travelling public. I followed the instruction of my Branch Secretary as a union delegate and followed his instruction.

Q. So, before making the decision to instruct the general purpose hands at Manly to open the gates you had regard to whether there might be any harm to anybody, did you?

A. I think that a reasonable person would always ensure that they don't cause or risk causing any physical harm to anyone.

Q. In making that decision to instruct the general purpose hands at Manly to open the gates you also had regard to the fact that by reason of doing so Sydney Ferries Corporation would lose revenue, didn't you?

A. Again, the revenue lost in the scheme of things was minimal, and I was, again, following instructions of Mr Glenn Woods, the Deputy Sydney Branch Secretary of the Maritime Union of Australia.

Q. With respect, Mr Levy, you haven't answered my question. The question was: You had regard to the fact that opening the gates at Manly would cause Sydney Ferries to lose revenue. You had regard to that factor in exercising your discretion to tell the general purpose hands to open the gates, correct?

A. I requested no further information other than the request had been passed on from Mr Woods that the gate be opened and Mr Woods, ultimately, as is in the statement, took ownership of that request.

I thought more of the benefit of my fellow workers, the people I was representing, than any minimal loss of income that may have occurred to Sydney Ferries.

Q. You had regard to the loss of income but you thought that was a minor consideration?

A. In regard to the position I was in on that day, yes.

and later:

Q. When you were given instructions from someone from the union to do something you first exercise your own judgment before deciding whether to do it. That's right, isn't it?

A. Certainly, I make sure that there is no risk of harm to any person, physical harm, but to compare a request for minor industrial action to that physically assaulting a person I can't find a comparison.

Q. The gates at Manly were open for seven minutes under your instructions. That's right, isn't it?

A. Seven minutes under the instructions that were passed on to me from the union officials, yes.

Q. During that seven minute period many passengers passed through the gates at Manly, didn't they?

A. Very, very quiet time of the day. Some people did. Sydney Ferries who have the exact number, I'm sure, or should know the exact number.

Q. You don't know how many passed through, do you?

A. I didn't standby the gates, no, I did not.

Q. You weren't watching how many went through?

A. No, it was not my role to be a gate hand. My role was onboard the vessel and my duty was to standby the gangway, which I did.

Q. And you had no idea how many passengers passed through the gate during the seven minutes they were open, correct?

A. Had I had left my position standing buy the gangway and gone to the gate I would have seen on the counter that should have been working how many people had gone through.

Q. I was just asking whether you had any idea how many people went through the gate during the seven minutes they were open. The answer to that question is "no", isn't it?

A. No.

Q. And the passengers who passed through the gates when they were open didn't pay for any ferry ride they took to Circular Quay, did they?

A. They may have already purchased their tickets. The ticket office where you purchase tickets and where people usually purchase or always purchase tickets is some 30 or so metres away from the gate. So the expectation of travellers is that they purchase a ticket or have a valid ticket before approaching the gate. So the loss of revenue I couldn't calculate should have been, in all honesty, negligible.

Q. The purpose in opening the gates was to cause Sydney Ferries Corporation to lose revenue, wasn't it?

A. The purpose of opening the gates was me following the instructions of the Deputy Branch Secretary Mr Glenn Woods to open the gates, and whether revenue was lost I cannot say. Sydney Ferries lose $65 million a year and has many systems in place which lose huge amounts of money which they fail to address.

HIS HONOUR

Q. But you don't deny--

A. No --

Q. --the effect of your action would be to deny revenue that would otherwise have been raised?

A. I don't deny that, your Honour, but the tickets would have, 99 per cent of those persons would have prepaid or already purchased tickets before approaching the gate. There was no shutdown of ticket sale far as I was aware.

SAUNDERS

Q. Mr Levy, many people who travel on the ferries buy what is known as a ten ticket pass, or ten ticket system. You familiar with that?

A. The travel ten, yes, sir.

Q. When you buy a travel ten you pay upfront for the ten tickets, that's right, isn't it?

A. And many people have travel passes which are colour coded for the areas they travel in too.

Q. Mr Levy, lend yourself to answering my questions, please?

A. I have no knowledge of the break up of tickets sales.

Q. I'm not asking you about the break up of ticket sales. I am asking you about your knowledge for when people buy a ten ticket pass and I am putting to you when they buy such a pass they pay for it upfront, is that right?

A. That's right, yes.

Q. And each time they take a ferry ride they have to pass through the gates?

A. Yes.

Q. Before they pass through the gate they must put their ticket into the gate?

A. Yes.

Q. And when we do so the gate opens and the gate marks off the fact that the ten ticket pass has been used for that particular occasion, correct?

A. Most of the great, great mechanical additions in that system they fail to operate appropriately on many occasions and I really couldn't say how many people, whether there was 1, 100 or zero people who had those type of tickets in that seven minute period.

Q. Do you seriously say to his Honour that on many occasions those ten ticket passes fail. Is that your evidence?

A. That's very true.

Q. How many times have you used one?

A. I have had an employee pass and never used one. As a gate hand I have had many, many occasions when I couldn't even count the number of times that those tickets have failed to operate appropriately, have taken double trips off, have not taken trips off.

Q. Mr Levy, if I were to say to you I have been catching ferries for the last eight years, buying those ten pass tickets, and never had one fail, what do you say to me?

A. You are a very lucky person and should buy a lottery ticket.

Q. Is that a serious answer, is it?

A. Seriously, I can't say anything other than I have seen the ticketing system capturing and recording system on the ground fail so many times. I couldn't even quantify it.

40 As to the second proposition the applicant said this:

Q. So you took a decision without having any regard to the consequences of your action, correct?

A. I acted as a conduit for Mr Glen Woods, Deputy Branch Secretary, who had made this request, which is stated, he did of me to open the gates.

Q. And one consequence of opening the gates is that Sydney Ferries Corporation has no idea how many people pass through the gates when they are open?

A. That's absolutely incorrect. The counters on the gate are activated whether the gate is on free open or whether people put tickets in. The counters on the gate are absolutely configured so that even were a manager to come down and open the gates, as they do on New Years Eve or other times of high patronage such as when QE2 and Queen Mary were her and managers came down and opened the gates. The number of people who are on those ferries are known as an absolute at all times. This is a requirement of safe working operations within the ferries.

Q. You appreciate it's an important requirement of safe working conditions that Sydney Ferries know how many people are on any ferry?

A. And they were absolutely aware and the numbers. There is no opportunity whatsoever to override on the Manly gate the number of people who go through. So just because the gates are open doesn't mean that they do not know how many people are onboard a vessel. That is absolute legislative requirement.

Q. You know the importance of knowing how many people on the vessel?

A. And Sydney Ferries were well aware of that, sir.

Q. Mr Levy, the Manly Wharf was being renovated at the time you issued the instruction in March 2007, wasn't it? Do you recall that?

A. I could not comment as to what construction work had or not undertaken at that time.

Q. I want to suggest to you there were no counters on the gate as Manly Wharf as at 9 March 2007?

A. Well, in that case I can't be held accountable for that the negligence of Sydney Ferries failing to keep proper equipment telling the number of people. Counters were not - hand counters were not issued to gate staff and no knowledge was made - that matter was not made aware to any staff that I know of that the counting mechanism was faulty, and if it was, again I state that Sydney Ferries was remiss in their duty to care for all passengers.

Q. Is your answer to my question, that you don't know whether there are any counters operating at the gate at Manly Wharf on 9 March 2007?

A. I make the assumption they were in operation and they should have been. Had they not have been it would have been the requirement of Sydney Ferries to have counted on every single person by hand. And had the gates been opened the gate hands stood by their position that people's comfort and safety was a priority, would have then counted those people on as they had done whether they produced a ticket or not.

Q. Mr Levy, the gates at Manly operated this way, I want to suggest to you, that is when the gate opens there is automatic counting of a person going through and the trigger for that counting is the gate opening itself. Do you agree with that?

A. No, I do not. That is incorrect. There are senses within the structure of the gate which counts people whether the gate is open or shut. One of the mechanisms is insertion of a ticket and the withdrawal of a ticket. The other is a passage through of the person. If you were to have a person, for example, with a vision impairment their carer goes through, one person flashes a pass the other person does not have a ticket, both those people are then subtracted from the electronic counter. That is one very clear example of the situation.

41 Although Mr Scott gave brief evidence as to the operation of the turnstile counter system, it did not directly address the applicant's description of the system including in the alternative to tickets triggering the counting mechanism, that the mechanism is also activated by passengers passing through sensors built into the structure of the gate. Furthermore, the applicant's unchallenged evidence was that things were very quiet on Manly Wharf at the time the gates were opened and self-evidently the fewer the number of passengers boarding the ferry, the lesser the risk of physical harm by over-crowding.

42 I do not think on balance, that the respondent has established misconduct on the applicant's part on 9 March 2007 and as earlier observed I have formed that view on the basis that, in opening the gates that day the applicant was not acting on his own motion but rather in furtherance of a direction by his union to take that form of industrial action and notwithstanding the potential for loss of revenue of which he was probably well aware, his sole motivation was observance of his union's direction. I do not accept on the evidence presented that there was any consequential risk of physical harm to those on board the ferry let alone a risk of which the applicant was or should have been aware. The respondent is therefore not entitled in terminating the applicant's employment, to rely upon a warning given in relation to the events of 9 March 2007.

43 In the light of the conclusions reached the question whether the applicant's dismissal was harsh, unreasonable and/or unjust is by no means a simple one and it rests on a very fine balance indeed. On the one hand the respondent has failed to make out the spitting allegation and there can be little doubt, if that allegation had been made out, that the applicant's fate would have been sealed. On the other hand, there can be equally little doubt that the applicant's conduct towards Mr Scott on 23 July 2008 was inappropriate and deserving of strong condemnation. Two things cause me to believe, however, that the ultimate sanction of dismissal is harsh and in this case, disproportionate to the gravity of the misconduct.

44 The first is that rightly or wrongly the applicant's abusive conduct towards Mr Scott had its genesis in his genuinely held belief that the injured passenger should not have been moved off the ferry prior to being seen by ambulance personnel and accordingly, that Mr Scott's actions were potentially harmful to the passenger. Whilst his behaviour towards Mr Scott was in no way justified it could be said in the applicant's favour that it was at least well motivated by genuine concern for the injured passenger.

45 Secondly, I do not think the abusive exchange between the applicant and Mr Scott would have escalated to the level it did if Mr Scott's response to the initial taunt had been more measured and less confrontational. The applicant as the architect of his own destiny must accept responsibility for his behaviour but Mr Scott's contributory role, as I am disposed, must be seen as a mitigating factor in that regard.

46 Turning then to the question of remedy it is the respondent's submission that the Commission would not order reinstatement because it would be impracticable to do so for the following reasons:

(a) The incidents on 23 July 2008 were not isolated. Mr Levy, was, at that time, on a written warning in relation to his direction to the GPHs at Manly to "open the gates". In addition, Mr Levy has in the past been:

(i) stood down as a trainer in the light of this deliberate decision to defy a direction to deliver training and instead attend a meeting of union delegates

(ii) asked to leave a training session because of his inappropriate conduct during the session

(iii) provided with a written warning in relation to an altercation with a Master in a vessel

(iv) guilty of talking to members of the public in a "loud and aggressive manner" at the scene of an injured employee.

(b) The conduct of Mr Levy on which SFC relied to dismiss him was serious

(c) The relationship of trust, confidence and good faith between Mr Levy and SFC has been damaged beyond repair. In this regard, it is relevant that:

(i) Mr Levy has repeatedly demonstrated that he is not a person who will follow lawful and reasonable directions from his employer. Mr Levy's refusal to deliver training when directed to do so is one example of such conduct, which conduct Mr Levy described as "appropriate" and he would "certainly" do the same thing again tomorrow. Mr Levy's response to directions from Mr Scott on 23 July 2008 is another such example.

(ii) Mr Levy was dishonest in his denial to Mr McIntosh on 24 July 2008 that he did not do anything to provoke Mr Scott. In particular, Mr Levy did not tell Mr McIntosh that he called Mr Scott a "goose". Mr Levy was similarly dishonest in his denial that he gave the direction to :open the gates" in 2007.

(d) Mr Levy's reinstatement would have a detrimental effect on the safety and welfare of other SFC employees and members of the public. So much is clear from the potential risk to health, safety and welfare to SFC's employees and customers caused by Mr Levy's decision to "open up the gates" at Manly, thereby creating a situation in which SFC did not know how many passengers had boarded the Manly ferry;

(e) Mr Levy has not demonstrated any real contrition in relation to his actions (Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [112]). The most he has done is to acknowledge that he should not have called Mr Scott "a goose". Mr Levy has:

(i) not apologised for swearing out loud in the presence of other SFC staff and an injured passenger, despite admitting that he did so;

(ii) not apologised for swearing directly at Mr Scott, an allegation that he continues to deny;

(iii) not demonstrated any contrition for giving the direction to "open the gates" at manly. Instead, Mr Levy attempted to blame others for this incident and gave evidence that what he did was an appropriate step in the circumstances; and

(iv) not conceded that it was inappropriate of him to "take over" the scene from Mr Scott or become disgusted and very angry with Mr Scott for disagreeing with him as to whether the passenger should be taken off the ferry. Mr Levy's failure to make such a concession is even more stark in the light of the evidence that two of the factors which led to him becoming so upset with Mr Scott were not in fact correct, namely, the wet substance on the injured passenger's coat was coffee, not urine and the distance the passenger fell was about 60cm to 80cm, not 5 metres.

47 I do not accept that the matters set out above demonstrate impracticability of reinstatement although it may be readily acknowledged that if the employment relationship is to be a viable one, it will be necessary for the applicant to carefully avoid a recurrence of conduct of the type which occurred on 23 July 2008. As to the events of 9 March 2007, the applicant's direction to "open the gates" at Manly Wharf has never been denied, as far as I am aware. Conversely, and as I have earlier observed, it was a direction given by the applicant on behalf of the MUA and it did not on the evidence presented, compromise the safety of those on board the ferry.

48 The circumstances of the applicant refusing duty and absenting himself to attend a meeting of union delegates does, on its face, give rise to some concerns. The evidence given by Ms Love in her capacity as Director of Training and Development indicates that a union delegates meeting was called at a time the applicant was to deliver a critical phase of general purpose hands training. His application for leave to attend the delegates meeting was declined after unsuccessful attempts were made to find a replacement trainer. The applicant was directed to deliver the training and refused, instead attending the delegates meeting. He was removed from training duties for a time and then reinstated. No disciplinary action was taken and he continued as a trainer without further complaint against him (as a trainer) until his dismissal in July 2008. Whilst the applicant's decision to refuse duty on that occasion (probably in or about September 2006) may point to an error of judgment on his part and perhaps to a misunderstanding of his right to absent himself from duty without approval, I do not think it counts towards or of itself demonstrates impracticability of reinstatement.

49 As to other matters raised by the respondent in this regard, I accept that the applicant brought no credit upon himself by initially denying that he did or said anything to provoke Mr Scott and then later admitting the contrary. I also accept that his abusive reaction to being overruled by Mr Scott was unwarranted and palpably wrong but it is hardly surprising that he has shown contrition only for that which he admitted (eg calling Mr Scott a "goose") rather than that which he denied. Perhaps with the benefit of time to reflect further upon those matters he may feel as I do, that disgust and annoyance towards Mr Scott were totally inappropriate responses to what occurred on board the ferry on 23 July 2008. In the result, however, I do not consider the respondent's resistance to reinstatement to be persuasive.

50 Given as I have found, the applicant engaged in serious misconduct on 23 July 2008 albeit not to the extent alleged by Sydney Ferries, I do not consider it would be an appropriate outcome for reinstatement to be ordered with full back pay and I note in that regard the applicant's evidence that since being dismissed he has engaged in casual employment with Northern Sydney and Central Coast Area Health Service as well as with TAFE and the Royal Life Saving Society. The evidence was that most of the shifts worked would have been worked in any event in accordance with prior secondary employment approval from Sydney Ferries.

51 I make the following orders:

1. That the applicant be reinstated to his former position on terms not less favourable than those that would have been applicable if he had not been dismissed.

2. That the period of employment of the applicant with Sydney Ferries be taken not to have been broken by the dismissal.

LAST UPDATED:
9 February 2009