Australia, May 9 -- New South Wales Land and Environment Court issued text of the following judgement on April 9:

1. The applicant was a civilian employee of the respondent. He commenced employment with the respondent as Firewall Security Administrator on 8 November 2007. He remained in this position as at 15 August 2024, when he resigned.

2. It was not disputed that, despite resigning, he can pursue a claim pursuant to s 84 of the Industrial Relations Act 1996 (IR Act), consistent with the decision of the Full Bench in Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012.

3. The applicant resigned in response to written notice of his dismissal. That notice set out that his resignation would be accepted, if he resigned before the effective date of his dismissal.

4. The respondent set out two grounds for dismissing the applicant, which can be summarised as:

1) Breaching the respondent's policy by installing unapproved software; and

2) Being dishonest with the respondent when questioned about the installation of the unapproved software.

5. The applicant denies that there was an express policy of the respondent which he breached in installing the software. He further says that it would be unfair to dismiss him for his inaccuracies in his account about the installation of the software because of the way he was confronted with allegations of installing the software, and because he genuinely had a lapse of memory about the details of the installation.

The application

6. Initially, in the Applicant's Outline of Submissions (AOS), the applicant's case was that his dismissal was harsh. He submitted that the dismissal was harsh because:

1) It was disproportionate to the gravity his misconduct; and

2) The personal and economic consequences for him of the dismissal made it harsh.

7. Later, in his Applicant's Outline of Submission in Reply (AOSR), the applicant expressly added that his dismissal was procedurally unfair. The procedural unfairness was said to arise from various defects in the way in which allegations of misconduct were put to him, largely during the initial stages of the process.

8. While not set out expressly as procedural unfairness in the AOS, the substance of the alleged procedural unfairness was set out in the AOS. It was clearly understood by the respondent to be asserted, as the Respondent's Outline of Submission (ROS) squarely addressed issues of procedural fairness.

9. In the course of the arbitration, and in particular in cross-examination of the respondent's witnesses, the applicant also challenged the facts presented by the respondent as to the extent of his installation and use of the disputed software.

The task of the Commission

10. The fundamental task of the Commission in determining applications pursuant to s 84 of the IR Act is as set out in the in the AOS:

"6. The question before the Commission is whether the dismissal was harsh, or unreasonable or unjust ..."

11. As also set out in paragraph 7 of the AOS, an often quoted exploration of this is set out in:

"7. ... the decision of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19613f16da5bb342e58365e5)

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