Gary Axford and Wentworth Area Health Service

[1995] IRCA 621

Industrial Relations Court of Australia
New South Wales District Registry  NI 95/1971

Between:                 Gary AXFORD
  Applicant

AND:  Wentworth Area Health Service
  Respondent

Place:  Sydney
Date:  18 October 1995
Before:  Tomlinson JR

REASONS  FOR  DECISION

By application dated 24 April 1995 the applicant, Gary Axford, sought compensation and re-instatement as a result of a termination that occurred on 18 April 1995.  At all times the applicant was represented by the Health Services Union of Australia and was employed by the respondent as a wardsperson at Nepean Hospital in the western suburbs of Sydney.  At all times during the employment the applicant was an active member of his union and at the time of the termination he was president of the local sub-branch of the union the Health And Research Employees Association (“HREA”).  Additionally the applicant had occupied the position of chairperson of the Enterprise Agreement Committee.  The applicant is currently the Nepean Hospital delegate to the State Conference of his union.

In his statement marked exhibit 1 the applicant outlined the circumstances leading to his termination. Additionally the applicant told the court an employer/employee incentive plan known as Structural Efficiency Principles (“SEP”) put into place in 1993 designed to improve the running of the hospital had fallen away in his opinion due to the lack of commitment on the part of management.  Arising out of  SEP the applicant told the court that staffing levels were inadequate to the point that patient care was jeopardised in that time was that only one wardsperson was allocated for the night shift for a 300 bed hospital.  The applicant told the court management engaged consultants to assess the staffing level requirements of the respondent including wardspersons.

The applicant stated on 11 January 1995 he and other staff were requested by the Director of Core Services Ms Ruth Perrott to attend a staff meeting.  At that meeting Ms Perrott stated that the respondent in light of budgetary constraints would not be replacing with casual employees wardspersons who fell sick.  At the conclusion of that meeting the applicant then requested permission to then hold a meeting in order to speak to the wardspersons concerning staffing levels.  In examination in chief the applicant stated the reason for holding the second meeting was that he wanted all staff members would know what was going on. In his evidence the applicant told the court he had previously been attempting to meet with management in an effort to discuss staffing levels, apparently without success.  At that second meeting issues were discussed.  According to the applicant:

“The group then decided to take industrial action as of my meeting with hospital management was not successful.  It was not I who proposed industrial action.  This course of action however, was put to the meeting where everybody voted on the issue and it was carried unanimously.... wardspersons including myself were totally frustrated at managements inability to meet with the union (about staffing levels).  It was therefore decided to proceed with industrial action.”

In his sworn statement the applicant told the court that as no further meeting to discuss staffing levels with management was likely, and that as industrial action had been agreed to a the meeting on 11 January 1995, it was decided that that action would take place on 10 February 1995.  The applicant stated that he attempted to contact to his union organiser from head office, to discuss the course of action the wardspersons had voted upon to pursue. The applicant stated:

“I now know that I should have asked to speak to someone...from the Union office ...I now know that they could have advised me on the legality of the type of industrial action that we planned.”

Without being specific as to what type of industrial action, the applicant stated:

“That action took place”.

The applicant went on to state that almost two months later he was called up to the Chief Executive’s office and given a letter which stated inter alia:

“The allegations against you are that you organised and pressured staff into taking sick leave as a protest against staffing decisions taken by management and in particular, that you organised up to ten staff to be absent from duty on Friday 10 February 1995.  It is further alleged that you harassed, intimidated and victimised staff before and after the “sick leave protest” of 10 February 1995.  I regard the allegations against you as extremely ones (sic) and accordingly I have decided to suspend you from duty forthwith (with pay) whilst the allegations are further investigated.”

The applicant told the court that during the first week of his suspension, he became aware wardspersons were being interviewed and that he was not permitted to be at those interviews.  The applicant stated on 10 April 1995 he was told to present for interview the following day and at that point the respondent provided him with a copy of the written complaints against him.

The applicant in his evidence in chief amended paragraph 20 of his sworn evidence to read as follows:

“I attended the interview on 11 April 1995, with my head office organiser, and due to a fear of getting into trouble and because my organiser had advised me it is better to keep silent at this time than make statements that could further inflame the situation.  I made a decision to deny all knowledge of the industrial action.”

In cross examination the applicant stated that when he determined to deny all knowledge he was under considerable stress.

The paragraph 20 outlined above replaced an earlier paragraph 20.  That paragraph

stated:

“I attended the interview on 11th April, with my head office Organiser and, on her instructions, denied all knowledge of the industrial action”.

In his sworn statement and evidence in chief the applicant categorically denied alleged harassment of other union members and further stated that he did not organise the industrial action for 10 February 1995.  The applicant wished it to be placed on the record.

“As the proposed meeting (with management to discuss staffing levels) was never organised, the industrial action was proceeded with”.

The applicant stated he had never threatened any person with victimisation if they did not participate in some form of action but that he had, from time to time, reminded persons of the union rules that all persons are bound by a decision of a meeting.

The applicant stated that he believed that the management of the hospital singled him out because he is the union President of the sub branch at the Nepean Hospital.  In his evidence in chief the applicant based this belief on the fact that he was of the view that no other people were disciplined by the respondent.  The applicant tendered various testimonials as to his value as an employee with the respondent.  The authors of those documents were not available for cross examination and I found in general the documents to be of little value as the court was advised nothing contained therein was relevant to the dismissal proceedings.  Also tendered were past staff appraisal documents.  Those documents fell into the same category as the references.  In cross examination the applicant was questioned at length concerning paragraph 20 of his affidavit. He agreed “some of the responses (at the interview conducted by the respondent) were not truthful” and denied the suggestion that prior to the sick leave strike he arranged a sick leave roster for other members of staff.  The applicant agreed under cross examination that it was an oversight on his part that his affidavit filed in support of his application failed to supply the rest of the information given by Ms Perrott at the general staff meeting concerning extra levels of staffing and wardspersons.

In response to suggestions that prior to the holding of the second meeting the applicant had alerted the Head Wardsperson Rory Barber as to the position concerning the forthcoming proposal on the illegal sick leave strike so that Barber may leave the room the applicant stated:

“Not that I am aware of”.

Similarly, in relation to the suggestion that on 23 January 1995 the applicant stated to three fellow employees words to the effect:

“You three are off to-morrow on sick leave - bring doctor’s certificates”

the applicant answered in court:

“I don’t know”.

Further, the applicant stated he could not recall a conversation he had with Wardsperson Narelle Webster when she allegedly questioned why a proper (rather than an illegal) strike could not be considered by the union.  The applicant advised the court he was away from work on 10 and 11 February 1995 as he had injured his back lifting a patient and was incapacitated.  The applicant stated that in his view “industrial action” was taken on 10 February 1995 and that he would not use the term “strike”.  The applicant told the court in relation to the suggestion that he told people to take industrial action that he could not speak on behalf of other people and further that he was not experienced in industrial relations.

The applicant stated he had never read Rule 39 of his union rules relating to illegal strikes.  The applicant told the court he was not responsible for the actions of union members and that with regard to the illegal sick leave strike he was “under the impression that the operating theatres were not affected and that the patients were not at risk”.

The applicant said at the meeting held on 11 January 1995 the vote was taken that Rick Hunt was to organise the programme of industrial action on 10 February 1995 and that he the applicant was unaware of the details.  In response to various questions put under cross examination concerning the sick leave strike on 10 February 1995 the applicant stated to the court:

“I do not know if anyone was sick on 10 February 1995”.

Further at about that time the applicant stated he formed the view that when it came his time to be interviewed he would say nothing.  The applicant agreed that the disciplinary policy of 1991 formulated between the management and its employees operated to govern the situation in hand.

When shown the signed record of interview held by the respondent on 11 April 1995 the applicant stated that that record may not be correct as he was under considerable stress and was “quite mixed up at the time” and his signature was not placed on the document in the belief that the contents were correct.  At the time of the investigation by the respondent the applicant agreed that together with others he was interviewed by Mr Murphy a person also involved with his relevant union.

It was put to the applicant that as he was not able to deal with the situation accurately in relation to questions concerning his conduct at work that perhaps he would similarly fail to deal with a professional/medical situation in an honest and accurate fashion.  The response of the applicant was that in those circumstances upon investigation he hoped

“that my (prior work) record would be considered”.

The court heard evidence that at one stage the respondent requested a break down of the amount of time the applicant spent on union matters. The applicant in his response stated that the purpose of the request was really to target his union activities.

On behalf of the applicant the court heard evidence from Mr Robert Smith who stated that he was a wardsperson at Nepean Hospital and had been employed in the health industry for some 18 years.  In affidavit the witness stated:

“On the 11 January 1995 I was instructed to attend a staff meeting at which my supervisor explained ... that the Hospital had not agreed to the request of the staff to increase staffing levels and that further, the Hospital had decided not to replace persons sick with casuals.

At the conclusion of the meeting, the wardspersons asked management to leave the room so that the wardspersons could hold a union meeting to discuss the ..decision.  Gary Axford was one of about half a dozen people who spoke ...Gary .. was not in the chair.. everyone voted in favour of this action...I was told we sought advise (sic) from our union organiser however I was told our organiser had resigned and the union was still in the process of replacing him...I believe that management at the hospital decided to get (sic) Gary Axford because he was the union delegate and constantly arguing with them about staffing levels..  I put a harassment ...complaint... in writing and unlike Gary Axford’s case where he was suspended whilst the complain was being investigated nothing has done in relation to the nurse or in relation to my complaint... when I was interviewed by the Hospital in relation to this matter I denied any knowledge of the industrial action as I was worried I would get into trouble.  I was also advised not to say anything by my new HREA union organiser who had been appointed at the time”.

In cross examination the witness agreed there had been “a lot of talk about the mass sickie” and further that he knew it was the wrong thing to do.  The witness stated he did not know if the vote for the sick leave strike at the staff meeting in January was unanimous or not.  Further the witness agreed that after receiving his complaint concerning the treatment he had received at the hands of another more senior fellow employee the witness agreed that the respondent had in fact looked into the situation and that something had been done to relieve the situation and the matter had been attended to by the respondent.

On behalf of the applicant the court heard form Mr Rick Hunt, who deposed he also was a wardsperson with the respondent.  The affidavit of the witness stated inter alia:

“On 11 January 1995 I was requested to attend a staff meeting at which Ruth Perrott explained to all the staff that the Hospital had not agreed to the request of the staff to increase staffing levels and that further the Hospital had decided not to replace wardspersons who fell sick with casual employees.  This meant that the staffing problems...would only become worse...it was therefore decided that the 10 February would be the day of our industrial action...As it turned out I was off sick on both 9 and 10 February 1995..I believe that the management at the hospital is victimising Gary Axford because he was the union delegate and was good at representing the members interests.  I think they are trying to break the union at the hospital and for that reason fear that if they can get Gary Axford then I am next.  I am so concerned I have spoken to my supervisor about this which led me in my interview with the hospital to deny any knowledge of the industrial action as I was worried I would get into trouble.  I was also advised not to say anything by my new HREA union organiser....”

In cross examination the witness confirmed that he had been among the group of people who had hidden the “shopping trolley” of Ms Narelle Webster containing confidential patient records.

In cross examination the witness stated he was untruthful at the interview with the respondent as he was concerned that he would lose his job if the respondent discovered the true situation.  The witness stated he had talked to Gary Axford concerning the three complaints of harassment lodged with the respondent.  Further the witness said that after the meeting of 11 January which was chaired by him he  discussed matters concerning the strike with the applicant Gary Axford as to who would go off on sick leave and who would stay at work.  On 9 and 10 January 1995 the witness reported in sick to work.  The witness stated that he together with the applicant and another person deliberately his the shopping trolley of Ms Narelle Webster in the lift “to teach her not to leave it around”.  Under re-examination the witness denied the existence of a “sick leave roster” and stated staff members just went off on sick leave when they wanted to.

On behalf of the applicant the court heard evidence from Mr David Humphries whose sworn witness statement was admitted into evidence.  Mr Humphries had been a wardsperson for some 4 years and provided similar evidence admitted previously and agreed the applicant was a friend of his.  In cross examination the witness agreed that some 11 persons went on strike on the day in question.  Mr Humphries agreed that he had concealed the truth from the respondent during the course of the investigative interview as he did not wish.  I am unable to place much weight on the evidence of this witness as in cross examination he stated his witness statement was made some time ago and there were a “ few things that he did not remember” and further he was away on holidays at the time of the mass sick leave event.  The witness agreed he discussed the interviews that were being conducted by the respondent with other employees who had been called to interview to assist the respondent.  The witness was of the view that he might tell lies in certain circumstances if he was unsure of what the outcome might be.

On behalf of the respondent the court heard from Mr Geoffrey Murphy whose statement was admitted into evidence as exhibit B.  Mr Murphy is the Human Resources Manager for the Wentworth Area Health Service and in addition to being a solicitor has had in excess of seventeen years experience in both human resources and industrial relation.  On 20 March 1995 the witness was contacted by Mr Warren Westcott, the General Manager of the Penrith District Health Service seeking advice in relation to three complaints being received from members of staff involving the applicant Garry Axford that alleged the applicant had harassed them in what appeared to be an episode of organised sick leave.  The witness and Mr Westcott agreed to contact Ms Perrott and the seriousness of the allegations was discovered.

Interviews were arranged with the three complainants as a result of which a decision was taken by the Chief Executive Officer to suspend the applicant pending the finalisation of the inquiry process.  The applicant was formally advised of that step by letter signed by the Chief Executive Officer and handed to him on 3 April 1995.

In all 24 wardspersons and former wardspersons were interviewed by the respondent.  As a result the applicant was interviewed by Mr Murphy together with Ms Tyson, the Principal Director of Nursing Services of the respondent on 11 April 1995 in the presence of Ms Kay Ryan, the union organiser from the Health and Research Employees Association.  The witness stated during the course of that interview the allegations were set out to the applicant in detail and he was expressly invited to address each allegation.  The applicant, according to the witness, acknowledged the extreme seriousness of the allegation.  In a sworn statement a copy of the transcript of the interview, referred to earlier in this judgment was provided.

In cross-examination the witness stated that the size of the investigation was much larger than normally conducted by the hospital in view of the seriousness of the allegations received by management.

On behalf of the respondent the court heard from Mrs Judy Stewart who stated that at the meeting organised on 10 January 1995 it was her opinion that many people were too scared not to put their views forward as to concerns involving the mass sick leave strike.

The witness stated that she felt intimidated by Garry Axford and was told to put her hand up and vote in favour of the resolution.  Further on behalf of the respondent the court heard from Mr Ivan Parry, a night wardsperson employed by the respondent who stated he did not vote in favour of the mass sick leave strike and that he tried to voice his disapproval to the proposed action but that he could not be heard.  The court also heard from Mr Richard Conde and the evidence of Mr Barry Doverty was noted.

On behalf of the respondent the court heard from Ms Ruth Perrott who stated that she was the acting director of Core Services Division of the Penrith District Health Service.  On 11 January 1995 she attended a meeting of staff at the Nepean Hospital to advise of a management decision involving staffing policies.  The witness stated on 11 February 1995 she became aware of a report by Barry Doverty, the night supervisor to the effect that an allegation had been made that a high level of sick leave had been orchestrated.  The witness regarded this as a serious matter.  Subsequently the witness received a complaint by Narelle Webster, a wardsperson, that she was being harassed by the applicant.  A written complaint was not received from Ms Webster until 20 March 1995.  Two other complaints regarding harassment by the applicant, Garry Axford, were received from Wayne Langton and Judy Stewart.  Investigations commenced into the occurrence of the excessive sick leave.  Those investigations commenced in the first week of April 1995.

In response to cross examination the witness advised she was not a human resources manager but it was incumbent upon her to deal with complaints from members of staff concerning harassment at the hands of another member of staff.  The witness stated that she took guidance and instruction from Mr Geoff Murphy, the hospital’s Human Resources Manager.

CONCLUSION

The applicant in this case at all times was a committed member of his union.   That he passionately cared about work issues is not denied.  The circumstances giving rise to the applicant’s termination began when the respondent hospital management received various complaints of harassment made by staff members against the applicant.  From the evidence it is clear that those complaints were received against a background of general disquiet of which management was aware and about which management was concerned.

The circumstances giving rise to the complaints of harassment for the purposes of these proceedings began with the meeting initially convened for staff by Ms Perrott on 11 January 1995 when the staffing policy of management was explained.  That policy should be looked at in light of the fact that the hospital had entered into a commitment over a period commencing 1993 to spend some $14 million on furniture fittings and equipment (exhibit L) and had additionally according to the evidence of Ms Perrott had decided to employ more wardspersons for both day and night shifts.  The evidence showed that that information was relayed by Ms Perrott to staff at the first meeting and perhaps the fact that it was so relayed was under-emphasised during the course of the hearing of this application.  The court heard no evidence from that applicant that neither the he nor his union took into the account the overall budget plans of the hospital referred to above nor was any evidence heard from the applicant relating to the manner in which wardspersons coped with tasks when a fellow wardsperson was away sick.  The court heard evidence from Ms Webster that when a fellow wardsperson was away for a while the system of team co-operation in her opinion worked effectively.  The emphasis placed on staffing issues by the applicant appeared to be one-sided and although there may have been some issues particularly relating to the working conditions of wardspersons the applicant as a union sub branch president should have been able to present to the court in a broader perspective of the respondent’s position rather than omit to place before the court all the facts and information. Undoubtedly the primary responsibility of a union representative is to safeguard jobs and improve working conditions.

It was common ground that after Ms Perrott finished speaking on 11 January 1995 the applicant requested permission to speak to the assembly and that in fact he did.  Although there were many union members present, it is irrelevant to find if that second meeting arranged by the applicant was technically a union meeting, suffice it to say various propositions were put and carried and the fact that non-union members may have taken part in the voting process does mean the business transacted at the second meeting did not have the imprimatur of the union.  It was common ground the applicant addressed that second meeting initially and that he requested another person Mr Rick Hunt to technically “chair” the second meeting.  At that meeting details were worked out of what can only be called an illegal sick leave strike involving mass absences of wardspersons on a particular designated day.  That strike was arranged and subsequently carried out on 10 February 1995 without any notification being provided to management at all.  Prior to that date the court heard evidence of the involvement of the applicant and other union members in the organising of various “sick leave rosters” wherein staff would be allocated various days to be absent from work on the basis of a medical certificate on sick leave.  The court heard no evidence as to whose responsibility it might have been to so inform management of the impending mass sick leave strike but it should not be overlooked that the applicant at all times was the president of the local sub branch of the relevant union. 

In both his sworn statement and his evidence given viva voce to the court I find the applicant lacked credibility and that I generally preferred the evidence of other witnesses.  The applicant lacked credibility particularly when he told the court he lacked experience in industrial relations on the one hand and on the other hand told the court he in his position as President of the union sub branch would speak on behalf of members in situations of conflict involving work place disputes and the respondent.  Additionally it is simply not possible that the answer of the applicant in response to questions concerning the illegal strike was that he did not know if anyone was on sick leave on the day of the sick leave strike on the basis of the evidence before the court.

In submission the respondent detailed in paragraph 8 the misleading evidence given to the court by the applicant.  The applicant denied that he spoke to the meeting of 11 January 1994 and further denied that sick leave could be used as a form if industrial action.  The applicant’s witness Robert Smith agreed that the idea of going off on a mass sick day as a form of protest was not only discussed in the meeting of 11 January 1995, but that the applicant initiated that discussion and that it was voted on at meeting.  The witness Hunt gave evidence that not only was there a vote but that he discussed the roster of persons to go on sick leave with the applicant and that he and the applicant went to individuals and informed them of the day on which the mass sick day was to be held.  Further in support of the lack of credibility of the applicant the applicant denied involvement in the hiding of Ms Webster’s shopping trolley full of patient notes and yet Mr Hunt stated to the court that he, Mr Rigby and the applicant had hidden the shopping trolley in the lift “to teach Webster a lesson”.  The respondent particularises other examples but to my mind the most telling example of the lack of credibility of the applicant is clearly set out when it is stated by the respondent:

“Axford himself admits (Transcript, p.75,11.14-19) that the statement initially provided by him to the Court in the proceedings, and provided to the Respondent, was in part false.  The example is particularly discreditable because it demonstrates an attempt by Axford to blame the fact that he earlier lied to his employer on (the advice of) another person, a claim he then has to retract.”

In his evidence the applicant stated “it was decided that the (alleged industrial action) would take place on 10 February 1995. .Undoubtedly the applicant has a strong personality but for him to refer to the proposed sick-leave strike as “the course of action the wardspersons had embarked upon” in his sworn evidence gives a slanted view of the reality as the court heard evidence that the sick-leave strike was both solely proposed and organised by the applicant.  The applicant was the President of the sub branch of the union and he stated in his affidavit he should have made attempts to contact someone from head office to discuss the legality of the proposed strike.  The applicant was heavily involved in union activities and yet allowed and encouraged a situation to develop wherein an illegal strike took place.  The applicant took no steps to see that the time honoured system of advising management in advance of such a strike was adhered to so that a skeleton wardspersons staff could be arranged.  The co-workers and other employees became aware of the situation they had placed themselves in relation to the illegal strike when the respondent commenced enquiries into the harassment allegations made against the applicant.  Their contracts of employment had been placed at risk.  The fellow employees of the applicant decided not to tell the truth concerning what actually happened.  I agree with the submission of the respondent that inciting another employee to breach his or her contract of employment by unlawfully absenting themselves comprises the tort of interference with contractual relations: Thomson & Co v Deakin [1952] 1 Ch 646, at 681, and further for an employee to incite fellow employees to breach their contracts is a fundamental breach of the employee’s duty of fidelity to the employer - an essential element of the contract of employment: Blyth Chemicals v. Bushnell (1933) 49 CLR 66.

It is a finding of this court that the applicant Gary Axford on the evidence before this court both harassed and intimidated fellow employees being employees of the respondent, the Wentworth Area Health Service, actions which amount to misconduct.

It is a finding of this court that the applicant Mr Axford interfered with the contract of employment of co-workers and further breached his fundamental duty of fidelity to the respondent, warranting dismissal from his job as a wardsperson.

It is a finding of this court that upon investigation the respondent discovered the extent of the conduct of the applicant outlined immediately above, and that as the evidence showed that conduct was proven, the respondent had a valid reason within the meaning of the Industrial Relations Act for dismissal. It is a finding of this court that the statement by the applicant made in paragraph 20 of his sworn statement placed on the record during the course of the hearing of this matter is against the principles of industrial responsibility and that it is inequitable to require an employer to investigate complaints against an employee and for that employee, unbeknownst to the employer, to deliberately conceal the truth in regard to those allegations. It is a further finding that the applicant deliberately lied to his employer to conceal the truth when the respondent attempted to ask the applicant for an explanation as to his conduct.

The applicant stated that he believed he has been singled out by management as he was the President of the union sub branch at the hospital.  I place no weight on that statement at all and note that no evidence was provided that other persons were accused in writing of harassment.  In making that statement the applicant overlooks the fact that he was dismissed for harassment and that allegation is possibly an attempt to incorrectly focus the attention of the court on the fact that the termination was unlawful due to union activity.

Persons who did not obey the direction of the applicant to take days off on sick leave were ‘blacklisted’ or victimised.  Mr Stewart, a witness for the applicant, gave direct evidence of this and the evidence of Mrs Jenny Smith corroborates this.  Two employees of the respondent, Ms Webster and Ms Smith, give direct evidence that the applicant Mr Axford told them to take days off and claim sick leave.

The reasons for the termination of employment as written by the respondent to the applicant were contained in its letter of termination dated 18 April 1995 and that one of those reasons was harassment of fellow employees.  It is a finding of this court that victimisation or harassment of fellow employees in the workplace is a valid reason for the termination of employment based on the operation requirements of the respondent.  The evidence shows that when the fellow employees took the massive sick leave the applicant took no steps to see that a skeleton staff was in place. Accordingly I am of the view that s170 DE(1) has not been breached by the respondent in the treatment accorded to the applicant as the operational requirements of the respondent made the reason for termination a valid reason.  Under s170 EDA (1)(a) I am satisfied the employer has discharged the onus upon it.  Under s170 EDA(1)(b) if the employer demonstrates that there was such a valid reason, the employee bears the onus of proving that the dismissal was, despite the existence of a valid reason, harsh, unjust or unreasonable.  I find the conduct of the applicant to fall into the category of misconduct and to be grave and accordingly the applicant in his evidence has not discharged the burden of finding the effect of the termination was harsh, unjust or unreasonable.

I place little weight on the evidence of Mr Robert Smith as it was contradictory.  I place little weight on the evidence of Mr Rick Hunt as there was no evidence presented that the respondent had any intention or had done anything to indicate actions of victimisation of either him or the applicant.  I find that there was no evidence of substance to support the allegation that the applicant was dismissed for union activity as apart from being asked to submit a break down of the time spent concerned with union matters.  The applicant failed to bring to court any evidence of substance to support this allegation.

On behalf of the applicant it was submitted that there were significant breaches of procedural fairness that rendered the decision to terminate unlawful. Secondly that the applicant was treated in a different manner to other employees by the Wentworth Area Health Service because of the fact that he was the local union sub branch President and thirdly it was submitted in view of all the circumstances surrounding the case, the court should conclude that the treatment of the applicant was harsh, unjust and unreasonable and hence the reason for dismissal was not valid. On the basis that Section 170 DC of the Act sets out the obligations of the employer in relation to procedural fairness the applicant argued the Wentworth Area Health Service had its own agreement in the form of a Disciplinary Policies and Procedures (Exhibit 17) and that this agreement was made prior to the Industrial Relations Act. The applicant argued the respondent in investigating the complaints against the applicant failed to follow its own procedures. The Policy provided:

“Disciplinary matters must be dealt with promptly in the interests of the organisation and in fairness to the employee involved. An employee who is called for a disciplinary interview should be given :

-at least 24 hours notice of the interview except in the circumstances where summary dismissal may result

-the opportunity to have a union representative or another employee present as an observer

-an indication of the nature and purpose of the interview”.

On behalf of the applicant it was submitted that the second paragraph of the above extract is in direct conflict with Point 9 of Schedule 11 of the Act that provides for assistance by another person when defending allegations liable to result in termination of his employment.  Clearly, it was argued, procedures of the respondent only provide for an observer and not an advocate.

I am unable to agree with that argument and find that at the interview the applicant had the assistance of a union representative and no evidence was produced to support the finding that either that representative was prevented from rendering assistance.  It is also a finding of this Court that the applicant was not prevented from answering the allegations and dealing with them at the interview organised by the respondent but the evidence shows he determined not to beforehand. On behalf of the respondent it was argued the employer received complaints of harassment and that the applicant victimised other employees - these complaints were investigated and the allegations put to the applicant at interview.  The applicant had more than a week before the interview and had been advised in writing of the allegations against him.  I do not agree with the submission of the applicant that in not providing the copies of the allegations earlier the respondent has denied the applicant natural justice and support the contention of the respondent that in Gibson v Bosmac NI 380 of 1994, Wilcox CJ, 5 May, unrep) the Chief Justice expanded on his comments in Nicholson v Heaven and Earth Galleries (1994) 57 IR 50, speaking of the principle of procedural fairness embodied in S 170 DC stated:

“Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance had has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section”.

However in general the over-riding principle of law is that Policy as set out in Exhibit 17 must be judged in light of the provisions of the Industrial Relations Act in relation to the procedures to be followed in respect of unlawful terminations. With regard to that proposition on behalf of the applicant it was submitted:

“While this (Schedule 11 of the Industrial Relations Act) provides the legislative procedures in relation to termination, the Wentworth Area Health Service has its own Disciplinary policies and Procedures (Exhibit 7). Exhibit P clearly shows the procedures are an agreed document between the union and the Area Health Service although it must be pointed out that this agreement was made before the Industrial Relations Reform Act created the Industrial Relations Court of Australia. It is therefore argued by the applicant that the Union is not estopped from making arguments as to the inadequacies of the Disciplinary Policies and Procedures (Exhibit 17) when tested against the legislative requirements of the Industrial Relations Act 1988 as amended by the Industrial Relations Reform Act 1993”.

It was submitted by the respondent at paragraph 106 of its written submission in relation to that over-riding principle of law:

It is quite clear  from this (the steps of investigation and interview undertaken by the respondent and the manner in which the applicant behaved therein) that Axford was offered procedural fairness in conformity with the Act and the relevant authorities.  There is no justification for demanding from the employer, as the applicant has sought to do, a different or other standard of procedural fairness than demanded by the Act.  It is significant that the applicant  puts in submissions that the disciplinary policy in place at the Hospital predated the introduction of s.170 DC and that s.170 DC overrides the disciplinary policy.

This assertion is, with respect, clearly correct.  It is s. 170 DC, together with the relevant terms of the Termination of Employment Recommendation (Schedule 11 to the Act) which provides the standard that the Respondent must meet.”

I agree with the final submission of the respondent that in this matter the Respondent did meet that standard.

For the above reasons the application for relief under the Industrial Relations Act is dismissed.

I hereby certify that this and the preceding eighteen (18) pages are a true and correct copy of the Reasons for Decision of Judicial Registrar Tomlinson.

Associate:

Date:  18 October 1995

Appearances

Applicant

Counsel:  Mr C Thomson
Instructed by:             Health Services Union of Australia

Respondent

Counsel:  Mr P J Newall
Instructed by:             Mr G Murphy of Wentworth Area Health Service.