Blows v Townsville City Council [2016] QIRC 66

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Blows v Townsville City Council [2016] QIRC 066 PARTIES: Blows, Jeffrey (Applicant) v Townsville City Council (Respondent) CASE NO: TD/2014/71 PROCEEDING: Application for reinstatement DELIVERED ON: 15 June 2016 HEARING DATES: 8 and 9 March 2016 MEMBER: Deputy President O'Connor ORDERS: 1. Declare that the purported termination of the applicant on 24 June 2014 was invalid. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - APPLICATION FOR DECLARATION THAT DISMISSAL WAS INVALID - Whether the failure to comply with ss 259 and 260 of the Local Government Act 2009 and ss 279 and 283 of the Local Government Regulation 2012 rendered the dismissal invalid - Whether the delegation of authority to dismiss was valid - Whether the dismissal could also be considered harsh, unjust or unreasonable. CASES: Industrial Relations Act 1999 (Qld), ss 73, 74, 77, 79, 274A Local Government Act 2009 (Qld) ss 197, 259, 260 Interpretation of Legislation Act 1984 s 35 Workplace Relations Act 1996 (Cth) s 170CG Local Government Regulations 2012 (Qld) ss 278, 279, 280, 283, 305. -- 1 of 27 -- 2 Project Blue Sky Inc. and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 Promnitz v Gympie Regional Council [2015] ICQ 011. In Re Kenner; Ex Parte Minister for Education [2003] WASCA 37 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914 R v Saffron (1998) 17 NSWLR 395 Dare v Pullman (1982) 148 CLR 658 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 Kioa v West (1985) 159 CLR 550 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 BHP Coal Pty Ltd v Schmidt [2016] FWCFB 72 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 Selvachandran v Peteron Plastics (1995) IRCA 333 Wadey v YMCA Canberra [1996] IRCA 568 Cherti v Queensland Rail [2014] QIRC 220 Australasian Meal Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Byrne v Australian Airlines (1995) 185 CLR 410 Stewart v University of Melbourne [2000] AIRC 779 APPEARANCES: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Auto Logistics Pty Ltd v Kovacs (1977) 155 QGIG 320 Liddle v Lembke (1994) 127 ALR 342 Ms K L Fredericks, Solicitor instructed directly by Applicant. Mr N Le Mare, Solicitor instructed directly by the Respondent. -- 2 of 27 -- 3 Decision The applications [1] On 4 July 2014 an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the 'IR Act') was filed by Jeffrey Blows (the 'applicant') alleging he had been unfairly dismissed. [2] On 7 March 2016 another application was filed seeking a declaration and orders pursuant to s 274A of the IR Act. In particular, a declaration stating the termination of the applicant's employment was invalid because of the failure to comply with the provisions of the Local Government Act 2009 (the 'LG Act'). [3] The basis for that application was the Council had failed to comply with the requirements of s 259 and s 260 of the LG Act and s 279 and s 283 of the Local Government Regulation 2012 (the 'LG Regulation'). An order was sought that " … the respondent be restrained from relying upon any ground or particular being advanced in this proceedings that was not advanced in a written notice to the applicant pursuant to s 283 (1) of the Local Government Regulation 2012 …". Background [4] The applicant was employed as a Regulatory Services Officer in the Parking Unit of the Townsville City Council (the 'Council'). He was a temporary employee from 7 November 1994 and a permanent employee from 29 September 1995. [5] On 24 June 2014 the applicant was dismissed on the grounds he had committed serious and wilful misconduct arising from an alleged conspiracy by a group of Regulatory Services Officers of the Parking Unit. The Council alleged the group conspired to defraud the Council by avoiding payment for the parking of their private vehicles.1 [6] The table below lists the relevant correspondence from his employer to the applicant: Correspondence related to: Sender: Date: Alleged misconduct Mr Gavin Hammond 3 April 2014 Further allegations Mr Gavin Lyons 29 April 2014 Invitation to Show Cause Mr Gavin Lyons 3 June 2014 Termination Letter Mr Gavin Lyons 24 June 2014 [7] It is not in dispute that at the time of the applicant's dismissal he was a "local government employee" employed under the LG Act and the Townsville City Council (Queensland Local Government Officers) - Certified Agreement 2012. [8] The Chief Executive Officer (CEO) is authorised to take disciplinary action (including termination) against the applicant (a local government employee) in accordance with the power contained in s 197 of the LG Act and the provisions of Division 1 of the Part 3, Chapter 8 of the LG Regulation. 1 See Exhibit GL- 20 (Exhibit 3). -- 3 of 27 -- 4 [9] The CEO may, pursuant to s 259 of the LG Act, delegate his powers under s 197 to an appropriately qualified employee. [10] Exhibit GL-21 to the affidavit of Lyons contains the purported instrument of delegation. [11] The CEO must, pursuant to s 260 of the LG Act, establish a register of delegations containing the particulars prescribed under a regulation. Exhibit C to the affidavit of Lauren Barton contains a copy of the register of delegations created under s 260 of the LG Act. [12] It is clear the CEO has not recorded the delegation of his power under s 197 of the LG Act in the register in the manner required by s 260(2) of the LG Act. Statutory Provisions [13] A the relevant time, s 259 and s 260 of the LG Act provided as follows: "259 Delegation of chief executive officer powers (1) A chief executive officer may delegate the chief executive officer's powers to an appropriately qualified employee or contractor of the local government. (2) However, the chief executive officer must not delegate the following powers - (a) a power delegated by the local government, if the local government has directed the chief executive officer not to further delegate the power; (b) a power to keep a register of interests. 260 Local government delegations register (1) The chief executive officer must establish a register of delegations that contains the particulars prescribed under a regulation. (2) The chief executive officer must record all delegations by the local government, mayor or the chief executive officer in the register of delegations. (3) The public may inspect the register of delegations." [14] Section 305 of the LG Regulation sets out the particulars to be included in the register: "305 Particulars to be contained in register of delegations (1) For section 260(1) of the Act, the particulars prescribed for a register of delegations are - -- 4 of 27 -- 5 (a) the name or title of the person, or the name of the committee, to whom powers are delegated; and (b) a description of the powers delegated, including the provisions under a Local Government Act permitting or requiring the exercise of the powers; and (c) if the delegation was by the local government - a summary of the resolution by which powers are delegated, including - (i) the date of the resolution; and (ii) a summary of any conditions to which the delegation is subject; and (iii) if the resolution is numbered - its number. (2) The chief executive officer may include any other information in the register the chief executive officer considers appropriate." [15] The power which is purported to have been delegated by the CEO was the power to take disciplinary action against a local government employee under s 197 of the LG Act. That section provides as follows: "197 Disciplinary action against local government employees (1) The chief executive officer may take disciplinary action against a local government employee. (2) A regulation may prescribe - (a) when disciplinary action may be taken against a local government employee; and (b) the types of disciplinary action that may be taken against a local government employee." [16] Division 1 of Part 3 of Chapter 8 of the LG Regulation relevantly provides: "278 What div 1 is about This division prescribes, for section 197(2) of the Act, when the chief executive officer may take, and the types of, disciplinary action. 279 When disciplinary action may be taken The chief executive officer may take disciplinary action against a local government employee if the chief executive officer is satisfied the employee has - (a) failed to perform their responsibilities under the Act; or -- 5 of 27 -- 6 (b) failed to perform a responsibility under the Act in accordance with the local government principles; or (c) taken action under the Act in a way that is not consistent with the local government principles. 280 Types of disciplinary action (1) The disciplinary action taken by the chief executive officer against a local government employee may be 1 or more of the following - (a) dismissal; … 283 Employee to be given notice of grounds for disciplinary action (1) Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee - (a) written notice of the following - (i) the disciplinary action to be taken; (ii) the grounds on which the disciplinary action is taken; (iii) the particulars of conduct claimed to support the grounds; and (b) a reasonable opportunity to respond to the information contained in the written notice. (2) The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee." The applicant's case for a declaration [17] The applicant submitted the failure of the Council to comply with ss 279 and 283 of the LG Regulation renders any purported termination of the applicant invalid. [18] It is not in dispute the respondent relied upon the provisions of s 197 of the LG Act to take disciplinary action against the applicant, the applicant being a "local government employee" at the time of the termination. -- 6 of 27 -- 7 [19] Nor is it in dispute the CEO must, pursuant to s 260(1) of the LG Act, establish a register of delegations. [20] It is contended by the applicant that the provisions of s 260(2) of the LG Act and s 305 of the Regulations are mandatory. The CEO has not complied in any respect with the requirements of the either the LG Act or the LG Regulation. Section 260 of the LG Regulation serves not only to establish a register of delegations but to also record the nature of the delegation. In part, its function to provide a notice to members of the public of the powers that have been delegated by the CEO. The application submits that it cannot have been the intention of the legislature to provide a mandatory provision only to have it ignored. [21] Neither party could direct me to any provision within the LG Act which would deal with the circumstance where the CEO failed to record a delegation in the register. [22] The applicant contends that the failure to record the delegation resulted in the invalidity of the delegation by the CEO. [23] A contrary construction is advanced by the Council who contends the requirement of s 260(2) of the LG Regulation is not mandatory. This construction carries with it the consequence that the relevant provision of LG Regulation is merely of a technical nature, the breach of which does not affect the validity of the delegation by the CEO. [24] In my view, the effect of failing to comply with the LG Act and the LG Regulation is not as contended by the applicant, namely, that the purported delegation has not taken place because the requirement for publication in the register of delegations has not been met. [25] In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky the following observation was made: "91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. … 93 In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which -- 7 of 27 -- 8 have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".2 [26] In determining the proper construction of s 260 of the LG Act I have adopted an approach to the construction of the section which would promote the purposes or objects underlying the Act as opposed to one which would not promote that purpose.3 [27] Whilst I accept the recording of the delegation in the register is a requirement of the LG Act, I am of the view that on a proper construction of s 259 of the LG Act, the delegation crystallises in the instrument of delegation. It is not, as has been submitted by the applicant, that the delegation is of no effect until such time as it is published in the register created under s 260. [28] The legislative purpose of the register of delegation is to serve as notice to the public of the powers which have been delegated by the CEO. It does so no doubt because the powers under s 197 LG Act are significant powers affecting, as they do, an individual's rights. [29] However, it does not necessarily follow that a failure to record a delegation from the CEO in the register of delegations would invalidate a purportedly effective instrument of delegation. Was the instrument of delegation effective? [30] The purported instrument of delegation relied upon by the respondent relevantly states that: "It is my intention that to the greatest extent possible I have delegated all powers necessary for the delegate to perform the role, and I intend that this delegation will be effective even if a specific piece of legislation is not listed above. 2 Project Blue Sky Inc. and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 (citations omitted). 3 Interpretation of Legislation Act 1984 s 35. -- 8 of 27 -- 9 Further, recognising that legislation is changed and made on an ongoing basis, this delegation is to be interpreted as continuing to be effective even though amendments are made to the empowering legislation."4 [31] The power purportedly delegated is contained in clause 3 of the instrument of delegation which relevantly provides: "POWERS DELEGATED The power to take any action related to conduct of the business of the delegate's area of responsibility, including: 3.1 engaging, managing, training, disciplining and discharging, staff; …" [32] The Council contends that clause 3.1 of the instrument of delegation was sufficient to confer power on Mr Lyons. [33] The disciplinary provisions under s 197 of the LG Act contain powers that affect the rights of individual council employees. In those circumstances, the instrument of delegation should, in my view, set out sufficiently the source of the power being exercised by the delegate so that the scope of the power is clear. [34] The instrument of delegation relied upon by the Council whilst ill-defined is nevertheless sufficient to delegate the powers of the CEO. In saying that, I would make the observation that CEOs of local government authorities seeking to delegate their powers to an appropriately qualified employee under s 197 of the IR Act (or indeed any of the CEO's powers) should ensure that the instrument of delegation, at the very least, provides details of the name or title of the person to whom the powers have been delegated and provide a description of the power delegated including the provisions under the LG Act permitting or requiring the exercise of the powers. [35] It would be an extraordinary thing if it was expected that a delegate of the CEO, in order to ascertain or confirm the extent of his or her delegated authority was required to read through the relevant of statutory provisions listed or not listed within the instrument in order to determine the exact extent of the delegation. Was the termination invalid? [36] In the affidavit of Gavin Lyons, the Director of Community & Environment, he deposes: "41. Draft "show cause" letters were prepared by Mr Healy and, on 3 June 2014, I signed these letters for each of the employees, which were personally issued to them in meetings with the Mr Healy and Mr Hammond on 4 June 2014. Exhibit GL-16 to this affidavit are copies of the show cause letters dated 3 June 2014 to Mr Blows, Mr Canham, Ms Tucker, Ms Baker, Mr Smith and Mr Townsend, with attachments. These 4 Exhibit GL-21 to the affidavit of Gavin John Lyons (Exhibit 3). -- 9 of 27 -- 10 letters provided each employee with an extracted version of the Investigation Report of Mr Healy and Mr Hammond, containing those parts relevant to each employee (but not including parts relevant to other employees). I was satisfied that this approach provided sufficient information for each employee to respond to the allegations regarding their own behaviour." [37] The show cause letter of 3 June 2014 relevantly contained the following information: "I have received a report prepared by Executive Manager Gavin Hammond and Employee Relations Advisor James Healy, regarding the investigation conducted into the allegations of misconduct made against you. The initial allegations made against you were put to you in the letter dated 3 April 2014, and the allegation which arose in the course of the investigation (the subsequent allegation) was put to you in the letter dated 29 April 2014. Those allegations specifically: (Initial) Allegation A: Parking a private vehicle in a regulated parking space in the Townsville CBD and wilfully failing to comply with council policies, procedures and local laws. (Subsequent) Allegation B: That you wilfully and systematically misused your authority as a Regulatory Services Officer by failing to issue parking infringement notices to members of the Regulatory Services Parking Unit in circumstances where their personal motor vehicles had been parked such that the issuing of a parking infringement notice would have been appropriate in accordance with the laws you are engaged to apply. I advise you that these allegations, if true, would constitute serious misconduct by you." [38] The Investigation Report was prepared by Gavin Hammond and James Healy. The report relied upon material obtained by an investigation undertaken by the LKA Group, including a surveillance report (the 'LKA Surveillance Report'). [39] The applicant was never given the final Investigation Report. Annexed to the Show Cause letter was an amended Investigation Report. The amended report was in identical terms to the report annexed to the correspondence to all of the other Regulatory Officers who were subject to disciplinary action. [40] The show cause letter of 3 June 2014 did not provide particulars of either Allegation A or B. However, the amended investigation report5 and the letter of 3 April 2014 did identify the following events in relation to Allegation A: 5 Exhibit GL-16 to the affidavit of Lyons (Exhibit 3). -- 10 of 27 -- 11 "(a) Parking a private vehicle in regulated parking spaces in the Townsville CBD and wilfully failing to comply with council policies, procedures and local laws:  On 5th December 2013 at 2.05pm your parked green Nissan (reg: 845- KKU) was observed in a regulated parking bay on Wills Street. You did not have displayed a valid parking voucher. This vehicle was again observed at 2.55pm still without a valid parking voucher on display.  On 18th December 2013 at 10.12am your parked Nissan (845-KKU) was observed in a regulated parking bay on Wills Street. A parking voucher was partially visible through the passenger side window with the purchase date and time on the end of the voucher printed 10th December 2013 8.37am.  On 6th February 2014 at approximately 8.30am you parked (845-KKU) in a regulated parking bay in the centre area of Willis Street. You did not have displayed a valid parking voucher. You had displayed two overturned and faded vouchers. This vehicle remained in the same position until 1.10pm when you left the car park." [41] Allegation A is in two parts. First the allegation is: "Parking a private vehicle in regulated parking spaces in the Townsville CBD." That statement does not of itself constitute a breach of any policy, procedure or local law. It would be assumed that the purpose of regulated parking is for individuals to park their private vehicles in the Townsville CBD. No breach is particularised. The second part of the allegation contained in the Show Cause letter states: "and wilfully failing to comply with council policies, procedures and local laws." Again, no particulars are provided as to how the applicant is alleged to have wilfully failed to comply with council policies, procedures and local laws. [42] The show cause letter failed to identify the relevant provision or provisions of the "council policies, procedures and local laws" which the applicant allegedly had "wilfully" breached and how the allegation, if proven, would ground a disciplinary finding under s 279 of the LG Act. [43] Mr Lyons accepted in cross-examination that in relation to allegation A it would have been relatively easy to particularise the alleged breaches of the respondent's policies and procedures. He said: "Would you agree, Mr Lyons, that it would have been fairly simple in relation to the first allegation, allegation A – and I’ll refer you again to the particular document, so I’m not causing confusion: 305 of your materials. Would you agree it would have been fairly easy in allegation A to particularise to Mr Blows how it was said he failed to comply with the council policies and procedures when parking his private vehicle?---It could have been." [44] The report was finalised after the two initial letters were sent to the applicant on 3 and 29 April 2014. The final investigation report dated 29 May 2014 gave the following background: -- 11 of 27 -- 12 "(a) Allegations were initially put to officers of the Regulatory Services Parking Unit in relation to failure to pay for parking where such payment was required, and, in one case, a failure to issue a Parking Infringement Notice (PIN) to a colleague's private motor vehicle when the issuing of a PIN was warranted. Respondents Blows, Townsend, Tucker and Baker were advised that if the allegations against them individually were found to be true, then consideration would be given to taking disciplinary action against them up to and including the application of a First and Final Warning." [45] In Part B of the Report, the only allegation made against the Applicant was: "Parking a private vehicle in regulated parking spaces in the Townsville CBD and wilfully failing to comply with the council policies, procedures and local laws." It would appear that the incidents relied upon to substantiate that allegation related to the three alleged incidents identified in the amended investigation report and the letter of 3 April 2014. [46] With respect to allegation B, the manner in which the applicant wilfully and systematically misused his authority as a Regulatory Services Officer was not particularised. Nor was it identified where and when he failed to issue parking infringement notices to members of the Regulatory Services Parking Unit. The reason for the failure to properly particularise the allegation is, in my view, that neither the Investigation Report nor the LKA Surveillance Report identified any evidence to support such an allegation against the applicant. [47] The allegation contained in Part B of the show cause letter was in identical terms to that sent to all six of the Regulatory Services Officers under investigation. [48] The only evidence to support a finding that a Regulatory Services Officer failed to issue parking infringement notices to other members of the Regulatory Services Parking Unit relates to Mr Canham who was observed on 6 February 2014 failing to issue a PIN to Mr Ungermann.6 [49] The Investigation Report, under the heading "Analysis of Evidence" states: "d) 5 of the 6 Parking Officers employed claim there is no formal or informal arrangement or understanding or unwritten rule among other Parking Officers that they "look after each other" by not issuing PIN's where it would otherwise be warranted. However, one Parking Officer repeated their claim that there is such an arrangement in place. That Officer claims someone who they cannot remember told them of this "unwritten rule" either soon after their commencement, or around the time the Parking Officers were relocated from Dean Street to Walker 1.5 years ago." [50] Mr Canham said in cross-examination: 6 See LKA Surveillance Report - Exhibit GL- 15 to the affidavit of Lyons (Exhibit 3). -- 12 of 27 -- 13 It’s not the case, is it, Mr Canham, that this unwritten rule that you speak of is also a similarly-framed excuse that you’ve tried to put forward to give some explanation why you’ve behaved in this way - - -?---No. - - - at this particular time? Why then, if you’ve never used this rule, and never acted upon this rule, did you see fit to even raise it at all?---At the time it seemed like that was – they were just asking the questions. I was answering the questions. Did they suggest to you there was an unwritten rule?---They said is there any arrangement? That was the question asked, and I said yes, there was. I suggest to you, Mr Canham, there is no unwritten rule?---Mmm. And I suggest to you the reason that you have said that there is an unwritten rule between you and your colleagues is because you are trying to protect yourself and your job?---That’s, again, an incorrect assumption. [51] I did not find Mr Canham to be an impressive witness. He had no recollection of who told him about the unwritten rule or arrangement. Even the investigators gave consideration to the possibility that Mr Canham’s statement may have been false. But they accepted it because they were apparently unclear as to his motivation for making such a false statement as he implicated himself in wrongdoing.7 [52] Mr Canham said in cross-examination: So you understood at least that there was very strong evidence against you in relation to that particular allegation?---I believe that actually information came out after the first letters, and my anxiety was well before that. Right. But you understood that there was some evidence against you in relation to observations where you had been seen - - -?---Yes. - - - failing to issue the ticket?---Yes. [53] Mr Canham was clearly anxious about being terminated, as he had a great deal to lose. I have no doubt that Mr Canham told the investigators what they wanted to hear. The issue of whether there was an arrangement was, as Mr Canham notes in his evidence, raise by the investigators. In cross-examination he said: "At the time it seemed like that was – they were just asking the questions. I was answering the questions." [54] It was the evidence of Mr Lyons that he relied, in part, on the statement of Mr Canham in order to come to a conclusion that there was some arrangement or understanding. He agreed in cross-examination that Mr Canham did not "personally or specifically implicate Mr Blows" in relation to allegation B. 7 Exhibit GL-15 to the affidavit of Lyons (Exhibit 3). -- 13 of 27 -- 14 [55] It cannot be reasonably said that the Investigation Report contains evidence which would support a finding against the applicant in relation to allegation B. [56] As was observed in Promnitz v Gympie Regional Council:8 "Section 278 of the Regulation provides that Division 1 “prescribes” when a chief executive officer may take disciplinary action, and the types of action which may be taken. In these circumstances, “prescribes” means “to lay down … as a rule or a course to be followed”, “to lay down rules, direct, or dictate” or to “lay down or impose authoritatively”. In other words, Division 1 sets out what is to be done if a chief executive officer decides to take disciplinary action. The words of s 283 are written in an imperative manner: “the chief executive officer must give the employee”. Further, s 283(2) emphasises the importance of the notice to be given under s 283(1) by providing that no other ground or particular of conduct “can be advanced in any proceeding about the disciplinary action taken against the local government employee”. That particular set of words is wide enough to include a proceeding such as this where discretionary relief was sought." [57] Martin J went on to conclude: "Section 283: (a) is in mandatory form, (b) is confined to actions under the Local Government Act 2009, and (c) affords a right to an employee to be told of the allegations and to be given an opportunity to respond. The proper construction of s 283 of the Regulation is that a failure to give a notice in the terms set out in that section results in the invalidity of any action taken by the Council with respect to discipline under this part of the Regulation." [58] I accept that there was insufficient particulars contained in the show cause letter. In that regard, it failed to give a "written notice" in the terms set out in the LG Regulation. [59] The amended Investigation Report referred to the LKA Surveillance Report but this was not attached nor was it ever provided to the applicant. Perversely, the amended Investigation Report refers to Part A and Part B. Part A actually refers to allegation B and Part B refers to allegation A. [60] I accept the submission of the applicant that the amended Investigation Report attached to the Show Cause letter is general in nature and relates to an overview of the entire investigation. It does not provide particulars of the conduct claimed to support the grounds upon which the disciplinary action has been taken. Nor does it, as the applicant correctly submits, outline the applicant's specific conduct in relation to the allegations. 8 [2015] ICQ 011 (citations omitted). -- 14 of 27 -- 15 [61] Even if it was accepted that the amended Investigation Report formed part of the written notice for the purposes of s 283 of the IR Regulation (something which I do not accept) it was insufficient to ground a conclusion that the applicant ought to be dismissed. [62] The amended Investigation Report was in my view never prepared or intended to be used for the purpose of providing particulars necessary for the requirements of s 283 of the LG Regulation. [63] I accept that the show cause letter was a "written notice" for the purposes of s 283 of the Regulation. In my view, the "written notice" did not comply with the requirements of s 283 of the LG Regulation and accordingly any action taken by the respondent with respect to discipline against the applicant in reliance on it must be invalid. [64] In Re Kenner; Ex Parte Minister for Education9 Olsson AUJ wrote: "23. He commenced his analysis of the conceptual issues arising before him by directing attention to the judgment of the Full Court in Re Railway Appeal Board; Ex parte Western Australian Government Railways Commission [1999] WASCA 63; (1999) 21 WAR 1. He relied upon it as authority for the proposition that the situation of employers and employees in the public sector, where that relationship is governed by a statutory regime, is quite different from an employment relationship in the private sector governed by the common law. This is particularly so, he said, in the areas of appointment, promotion and discipline governed by specific statutory provisions. In any case, where it can be established that applicable statutory requirements have not been substantively complied with, any decision arrived at may be ultra vires and void ab initio. 24. I pause to comment that such a proposition is undoubtedly correct in instances in which an employer is vested by statute with a jurisdiction of a disciplinary nature. The case above cited stands as authority for the proposition that such statutory provisions usually give rise to a quasi judicial function which must be exercised in accordance with the relevant statutory procedures and in compliance with the principles of natural justice. It follows that, to the extent that these requirements precondition the jurisdiction and are not complied with, action taken, including a purported dismissal, is ultra vires and void." [65] Whilst earlier investigations were undertaken by the Council and the letters of 3 and 29 April 2014 sought the views of the applicant regarding those allegations, s 283 of the LG Regulation inserts a mandatory step before the taking of disciplinary action against a local government employee and it does so notwithstanding an earlier investigation and the opportunity for the employee to respond. As Martin J wrote in Promnitz: "[25] So much can be accepted. In this case, though, there was no compliance to any extent with the requirements of s 283. An issue may arise, for example, as to whether or not a “written notice” required by s 283(1)(a) sufficiently set out the grounds on which the action is taken and the 9 [2003] WASCA 37 [23]. -- 15 of 27 -- 16 particulars of conduct claimed to support the grounds. That will be a question to be determined with respect to each notice. But, one must also examine the other side of the coin. What has occurred in this case is that the employee was not afforded the right given to her by the Regulation to respond to the written notice. [26] It may be that the underlying hardship perceived by the Council is that, as it had already conducted an inquiry through an agent, the appellant had already been provided with an opportunity to say what she wished to say. Nevertheless, s 283 of the Regulation inserts a mandatory step before the taking of disciplinary action and it does so without reference to any earlier investigation that might have taken place."10 [66] I would, for the reasons advanced above, declare the purported termination of the applicant invalid. [67] Should an alternative view be taken to my interpretation of the effect of s 283 of the Regulation, I will deal with the substantive application for reinstatement brought by the applicant under s 74 of the IR Act and filed on 9 July 2014. The application for reinstatement under s 74 of the IR Act Onus of Proof [68] Prima facie, in an unfair dismissal case, the applicant carries the burden of establishing, on the balance of probabilities, that the dismissal was harsh, unjust or unreasonable. However, in cases involving a dismissal because of serious misconduct or alleged criminal conduct, the onus shifts from the applicant employee to the respondent employer.11 [69] In considering the appropriate standard of proof to be applied, Chief Commissioner Hall (as his Honour then was) in Stark v P & O Resorts (Heron Island) wrote: "For myself, I would add, though it is not a proposition which is necessary to the decision in this matter, that whomsoever it is who the ultimate onus of proof in an unfair dismissal case, on a grave allegation of criminal misconduct the onus must inevitably shift to the proponent of the allegation and, equally inevitably, the higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and M v M (1988) 166 CLR 69 at 76 to 77 must be applied, compare Byrne and Another v Australian Airlines Ltd. (1992) 192 per Hill J."12 Matters to be considered in deciding the application [70] Section 77 of the Act provides that the Commission must consider certain matters in deciding on an application such as this: "77 Matters to be considered in deciding an application 10 Promnitz v Gympie Regional Council [2015] ICQ 011. 11 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454, 463. 12 (1993) 144 QGIG 914, 916. -- 16 of 27 -- 17 In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider - (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to - (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance - (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant." (a) Was the applicant notified of the reason for his dismissal? [71] The letter of termination dated 24 June 2014 identifies two allegations. As noted elsewhere, the show cause letter identifies the allegations but failed to properly particularise each allegation. [72] On the face of the termination letter, the basis for his dismissal was on the grounds that the allegations against the applicant have been substantiated and that he had committed serious and wilful misconduct. Again, the termination letter lacks particularity. [73] For the purposes of this assessment under s 77 of the IR Act, I have, notwithstanding the legal and technical omissions already identified in the show cause letter under the LG Act and LG Regulation, in dealing with the application for reinstatement, focused primarily on the elements of s 77 of the IR Act. [74] In considering the totality of the evidence before the Commission as to the reason for the applicant's dismissal, the answer to the question "Was the applicant notified of the reason for his dismissal?" must be "No." (b) Did the dismissal relate to operational requirements or the applicant's conduct, capacity or performance? [75] It is not in dispute between the parties that the dismissal did not relate to operational requirements of the respondent but rather to the applicant's conduct, capacity or performance. I must therefore consider the matters identified in s 77(c) of the Act. -- 17 of 27 -- 18 (c) Had the applicant been warned about the conduct, capacity or performance; or was he given an opportunity to respond to the allegation about the conduct, capacity or performance [76] There is no doubt that Mr Lyons proceeded on the basis of s 197 of the LG Act. The dismissal was based, it was said, on the substantiation of the two allegations set out in the letter of 3 June 2014. [77] The consideration of s 77(c) of the IR Act is set against the background of an acceptance that the respondent has failed to comply with the provisions of the LG Act and the LG Regulation. [78] In relation to the allegations contained in the letter of 3 April 2014, the respondent indicated that if the allegations were substantiated, the Council was considering the imposition of a "step three warning". In the letter of 29 April 2014, the applicant was advised of a further allegation which if substantiated would constitute serious and wilful misconduct and would be grounds for disciplinary action up to and including dismissal. [79] Neither the investigation report nor the LKA Surveillance Report identified any conduct on behalf of the applicant which could substantiate allegation B that he had "wilfully and systematically misused your authority as a Regulatory Services Officer by failing to issue parking infringement notices to members of the Regulatory Services Parking Unit in circumstances where their personal motor vehicles had been parked such that the issuing of a parking infringement notice would have been appropriate in accordance with the laws you are engaged to apply." [80] The result is that it cannot be said that in relation to allegation B that the applicant was given a proper opportunity to respond as the allegation was not particularised. [81] In relation to allegation A, the respondent has again failed to adequately set out the particulars to support the allegation. As noted in [43] above, it would have been relatively easy for the respondent to particularise the alleged breaches of the respondent's policies and procedures. [82] The function of particulars is to enable the applicant to know the exact nature of the case which, through the show cause process, they are called upon to meet.13 Particulars are not the same as allegations.14 [83] Absent the particulars, the applicant had no real opportunity to adequately identify the matter alleged against him and to be in a position to provide a proper defence. [84] Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam ('Re Minister'), in discussing the manner in which procedural fairness cases are approached by the courts, said (at [37] ): "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 13 R v Saffron (1998) 17 NSWLR 395; Dare v Pullman (1982) 148 CLR 658, 664. 14 R v Saffron (1998) 17 NSWLR 396 as per Hunt AJA, 446-449. -- 18 of 27 -- 19 [85] As the evidence before the Commission revealed, not all the material in the possession of the decision-maker was disclosed to the applicant15. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person.16 [86] Equally, a decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it.17 [87] BHP Coal Pty Ltd v Schmidt,18 a recent decision of the Full Bench of the Fair Work Commission set out what is expected of employers when conducting investigations into disciplinary matters. [88] The case involved an employee who was dismissed after he failed to notify his supervisor that he had damaged plant equipment. The employee subsequently brought an unfair dismissal claim against the employer. [89] At first instance, the Commissioner found that the employer had predetermined to dismiss the employees, and did not have proper regard to his written response. However, on appeal, the Full Bench held that the dismissal was fair concluding that the employee was given an opportunity to provide input into the investigation and that his responses were considered by the employer. [90] The Full Bench expressed the obligation imposed on an employer in conducting investigations as follows:  ensure the employee is aware of the precise nature of the concerns about their conduct or performance; and  give the employee a full and genuine opportunity to respond to these concerns. [91] The Full Bench wrote: “When an investigation reveals inappropriate conduct on the part of the employee it would be usual and proper for an employer to form a view about the significance of the findings to possible disciplinary action against those responsible and to provide the employee with an opportunity to respond to the allegations of misconduct. A detailed statement of allegations demonstrating the significance of the behaviour against performance and conduct expectations is procedurally fair and good management practice. The employer of course needs to retain an open mind and have regard to responses made by the employee. But 15 [2003] HCA 6. 16 Kioa v West (1985) 159 CLR 550, 629; (Brennan J); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Muin v Refugee Review Tribunal (2002) 76 ALJR 966. 17 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 [81]. 18 BHP Coal Pty Ltd v Schmidt [2016] FWCFB 72. -- 19 of 27 -- 20 applied in a common sense way, if serious misconduct is evident from the investigation, an employer cannot be expected to have no leanings or inclinations as to the likely sanction against the employee."19 [92] Wilcox CJ in Gibson v Bosmac Pty Ltd20 wrote: "Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particularly formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section."21 [93] Moore J in Wadey v YMCA Canberra22 dealt with the issue of what would constitute an opportunity to defend when he wrote: “[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” [94] In light of the facts outlined above, I am not satisfied that the evidence before the Commission could support a conclusion that in accordance with s 77(c)(ii) the applicant has been given an opportunity to respond to the allegations against him. (d) any other matters the commission considers relevant Was the dismissal unfair because of dissimilar treatment? [95] The applicant argued the dismissal was unfair as there had been dissimilar treatment of the other staff. [96] The applicant contended that the penalty imposed on the applicant was inconsistent with the approach the respondent took in relation to another Regulatory Officer who had committed a more serious misconduct. The employee (Mr Canham) was issued with a Grade Three Warning. The penalty was imposed by the respondent notwithstanding that it had been established that Mr Canham's conduct amounted to serious misconduct. Mr Canham was the only Regulatory Officer who was identified as having failed to issue a PIN. 19 Ibid [35]. 20 (1995) 60 IR 1; See also Northrop J in Selvachandran v Peteron Plastics (1995) IRCA 333. 21 (1995) 60 IR 1, 7. 22 [1996] IRCA 568. -- 20 of 27 -- 21 [97] The evidence before the Commission was that Ms Tucker, Mr Baker, and the applicant were all terminated. Mr Ungermann retired from his employment with Council and Mr Smith, Mr Thompson, Mr Canham were all given a final warning. [98] In cross-examination, the issue of dissimilar treatment was explored. Mr Lyons was asked follows: I take you to part A, page 229. Halfway down the page it talks about – paragraph C there – that the allegation to all six officers was the same?---Yep. And it’s a: …wilfully and systematically misuse their authority as regulatory services officers by failing to issue those infringement notices to members of the parking unit in circumstances where the vehicles have been parked such that the issuing of a parking infringement notice would have been appropriate. Would you agree, Mr Lyons, that the only person who was actually substantiated in having that actually occur, that is, failing to issue a parking infringement notice in circumstances where one would have expect to have been issued one, was by Mr Canham when he failed to issue an infringement to Mr Ungermann? There – was the question would – would I be surprised about that or No, would you agree with that?---I understand that was part of a – that was uncovered as part of the investigation. Yeah. So in terms of substantiating that particular allegation against the applicant, it’d be fair to say, then, wouldn’t it, that you relied on the entire report as it stood in relation to all of the investigated employees? ---I would agree. [99] In Cherti v Queensland Rail23 the Commission, in relation to the approach to be taken in assessing differential treatment of employees in respect of termination of employment, wrote: "In dealing with the issue of differential treatment of employees in respect of termination of employment, Senior Deputy President O'Callaghan was influence by the approach adopted in Sexton v Pacific National (ACT) Pty Ltd and Daly v Bendigo Health Care Group." In Sexton, Vice President Lawler said: "[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable … [36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the 23 [2014] QIRC 220 [24] - [31] (citations omitted). -- 21 of 27 -- 22 meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made." In Daly, Senior Deputy President Kaufman (as his Honour then was) said: "I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable." Vice President Lawler and Senior Deputy President Kaufman acknowledged that, whilst differential treatment of comparable cases can be a relevant matter, a degree of caution needs to be exercised to ensure that the case examples are truly comparable and that sufficient evidence is placed before the tribunal hearing the matter in order for it to make a proper assessment." [100] The material before the Commission suggests that Mr Canham had committed, in the view of Mr Lyons, serious misconduct. He was, according to the evidence of Mr Lyons not dismissed because he "…did not act to realise a personal gain."24 Mr Lyons reached that conclusion even though Mr Canham had admitted that there was an arrangement or understanding in existence between Regulatory Officers not to issue PIN's against each other. [101] I do not accept the evidence of Mr Lyons. In this matter, I am of the view that sufficient evidence is before the Commission to form the conclusion that the penalty imposed on the applicant was inconsistent with a far more serious breach and was disproportionate to the nature of the breach alleged against the applicant in allegation A. 24 Affidavit of Lyons (Exhibit 3) [38]. -- 22 of 27 -- 23 [102] Having regard to the level of seriousness of the breach, namely, misconduct, and assuming allegation A can be substantiated, it was submitted by the applicant that other options were open to the respondent in dealing with his conduct. [103] The material before the Commission discloses that in relation to allegation A, it was suggested in the letter from Mr Lyons dated 3 April 2014 (and the Investigation Report) that an appropriate penalty was a Stage Three Warning, and I agree. In coming to that conclusion, I am mindful of the fact that the applicant is in a position of trust and that he is obliged to ensure that he maintains not only the confidence and trust of his employer but of the wider community that he serves as a Regulatory Officer of the Council. Nevertheless, the imposition of a Stage Three Warning reflects the seriousness of the breach and would place the applicant on notice that any further breaches of the Council's policies may result in termination. [104] Having regard to the nature of the conduct in allegation A, the differential treatment of Mr Canham for a far more serious breach namely, a serious misconduct it would seem to me that the penalty applied to applicant, namely, termination of his employment, was disproportionate to the nature of the disciplinary matter alleged against him. [105] The letter of dismissal of 24 June 2014 does not demonstrate, in my view, a genuine consideration of the evidence provided by the applicant in his defence. Whilst I appreciate that the applicant did not respond to the allegations in Part A of the Show Cause letter, he did respond to the allegation contained in Part B. [106] In regard to allegation B, the evidence is woefully insufficient to justify any finding against the applicant. It was alleged against the applicant that he had wilfully and systematically misused his authority as Regulatory Services Officer. "Wilful" requires some deliberate act or omission and not one which was casual, accidental or unintentional.25 "Systematic" requires some methodical and repeatable procedure. [107] The evidence of the applicant that he parked in the 8 hour parking area as it was not patrolled as frequently as the other regulated areas does not immediately suggest that there was some unwritten rule in place not to issue PIN's to other Regulatory Officers. Nor does the evidence that the Applicant did pay for day parking on 10 December 2013.26 It may be asked that if some arrangement was in existence, then why the Applicant would pay for parking at all or park in a less regulated parking area. [108] Mr Lyons evidence was that applicant had admitted that he had not received a PIN on any of those occasions identified in allegation A. On that basis it was suggested by the respondent that this was proof of the existence of some private arrangement amongst Regulatory Officers. However, Mr Lyons in cross-examination admitted that there other explanations for the fact that no PIN was issued. [109] It is, of course, equally consisted with a conclusion that the applicant was not issued with a PIN because he was not in breach of the parking regulations. [110] It is not relevant to the proceedings before the Commission to suggest that the applicant has admitted to seven or eight instances where he has not paid for parking 25 Australasian Meal Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 113. 26 Exhibit GL-3 (Annexure D) to the affidavit of Lyons (Exhibit 3). -- 23 of 27 -- 24 in a regulated area. Section 283(2) of the LG Regulations makes it clear that only those grounds and particulars contained in the written notice are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular can be advanced in any proceeding about the disciplinary action taken against the applicant. Was the Dismissal Unfair? [111] The IR Act relevantly provides: "73 When is a dismissal unfair (1) A dismissal is unfair if it is - (a) harsh, unjust or unreasonable; or (b) for an invalid reason. …" [112] The phrase 'harsh, unjust or unreasonable' was considered by the High Court in Byrne v Australian Airlines27 ('Byrne') where McHugh and Gummow JJ wrote: "In Bostik (Aust) Pty Ltd v Gorgevski (No 1)(174), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985: 'These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.'"28 [113] In Stewart v University of Melbourne,29 Ross VP (as his Honour then was) considered s 170CG(3) of the Workplace Relations Act 1996 (Cth) in which he followed the joint judgment of McHugh and Gummow JJ in Byrne. Ross VP wrote: "… a termination of employment may be:  Harsh, because of its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; 27 (1995) 185 CLR 410, 465-468. 28 Ibid 467. 29 [2000] AIRC 779. -- 24 of 27 -- 25  Unjust, because the employee was not guilty of misconduct on which the employer acted; and/or  Unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." [114] I accept that the dismissal was unfair within the meaning of s 73 of the IR Act. In assessing the evidence before the Commission I have formed the view that the dismissal was unfair because it was disproportionate to the gravity of the conduct; unjust because the applicant clearly was not guilty of the conduct alleged against him; and unreasonable because it was decided on inferences which would not reasonably have been drawn from the evidence before the respondent. Remedies [115] As outlined above, I am not satisfied that either allegation A or B has been made out against the applicant. [116] Allegation B was, on any view of the evidence, hopelessly inadequate and could never have been substantiated. However, should I be wrong in my assessment in relation to allegation A, then the decision to dismiss the applicant was disproportionate to the gravity of the misconduct. [117] The applicant seeks reinstatement. Section 78 of the Act gives the Commission the power to reinstate an employee in circumstances where their termination has been found to be unfair. [118] Section 78 of the IR Act provides as follows: "78 Remedies - reinstatement or re-employment (1) This section applies if the commission is satisfied an employee was unfairly dismissed. (2) The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal. (3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable. (4) The commission may also— (a) make an order it considers necessary to maintain the continuity of the employee's employment or service; and -- 25 of 27 -- 26 (b) order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and (c) order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal. (5) This section does not limit the commission's power to make an interim or interlocutory order." [119] Reinstatement is the primary remedy under the IR Act and s 79 is only enlivened "If, and only if, the commission considers reinstatement or re-employment would be impracticable." [120] It was submitted by the respondent that conduct of the applicant has destroyed the trust and confidence between him and his employer, and as such reinstatement would not be an appropriate remedy. [121] There is very little evidence before the Commission to support a conclusion that it would be impracticable to reinstate the applicant. There is some evidence of Mr Lyons that "… I consider that the nature of the conduct engaged went to the heart of Mr Blow's role as a Regulatory Services Officer, and it would therefore not be possible for the Council to trust him to continue in that position."30 [122] As a general rule, it is not appropriate to reinstate a dismissed employee if the employer has lost trust and confidence in the employee such that reinstatement is impractical. However, a suggestion that there has been a loss of trust and confidence, of itself, is not necessarily conclusive. [123] In Perkins v Grace Worldwide (Aust) Pty Ltd31, the Full Bench of the Fair Work Commission wrote: Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short- 30 Affidavit of Gavin Lyons [50] (Exhibit 3). 31 (1997) 72 IR 186. -- 26 of 27 -- 27 lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. [124] I do not accept that it would be impracticable to reinstate the applicant. Whilst I accept that it has been some time since the applicant was terminated and it may be inconvenient or difficult for the respondent to reinstate him, it is nevertheless, in my view, not impracticable for them to do so. In Auto Logistics Pty Ltd v Kovacs (1997) 155 QGIG 320, de Jersey P considered the meaning of word "impracticable". His Honour concluded: "That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible."32 [125] I do not accept the submission of the Council that reinstatement would not be an appropriate remedy. I am confident that the applicant and Council could rebuild the employer and employee relationship. Having seen the witnesses nothing suggests to me that the restoration of the employment relationship is impracticable. It needs to be borne in mind that notwithstanding a conclusion of serious misconduct, Mr Canham was not terminated by the respondent. In his case, the respondent was comfortable to impose a Grade Three Warning. The employer and employee relationship was not broken. It would therefore follow that a similar approach could be adopted in relation to the applicant. Orders [126] Accordingly, pursuant to s 274A of the IR Act, I make the following orders: 1. Declare that the purported termination of the applicant on 24 June 2014 was invalid. 32 Auto Logistics Pty Ltd v Kovacs (1977) 155 QGIG 320, 321, citing Liddle v Lembke (1994) 127 ALR 342, 360. -- 27 of 27 --