Appeal Dismissed Over Sexist Comments Dismissal

The Industrial Relations Commission dismissed an appeal challenging the dismissal of an employee for sexist and discriminatory comments towards female colleagues. The Commission found the dismissal was not harsh, unreasonable, or unjust.

Industrial Relations Commission of New South Wales

CITATION: [NAME] (on behalf of [NAME]) v [NAME] [2005] [NAME] 388

APPELLANT National Union of Workers, New South Wales Branch (on behalf of [NAME]) PARTIES: RESPONDENT [NAME](S): IRC 3651 of 2003

CORAM: Wright J President; Boland J; Stanton C

Appeal - Application for leave to appeal and appeal - Unfair dismissal - Abusive and intimidatory language offensive to women - Refusal to recognise inappropriate conduct - No apology - Whether dismissal harsh, unreasonable or unjust - Role of Union in supporting its member - Importance of considering each limb of tripartite test as to whether dismissal harsh, unreasonable or unjust - Leave to appeal granted - Appeal dismissed CATCHWORDS: Unfair Dismissal - Appeal - Application for leave to appeal and appeal - Abusive and intimidatory language offensive to women - Refusal to recognise inappropriate conduct - No apology - Whether dismissal harsh, unreasonable or unjust - Role of Union in supporting its member - Importance of considering each limb of tripartite test as to whether dismissal harsh, unreasonable or unjust - Leave to appeal granted - Appeal dismissed

LEGISLATION CITED: Industrial Relations Act 1996

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 [NAME] v [COMPANY] of New South Wales (1999) 91 IR 385 Franklins Ltd v Webb (1997) 72 IR 257 [NAME] v [NAME] [2005] [NAME] 1094 CASES CITED: [NAME] v [COMPANY] (No. 2) (1999) 95 IR 380 [COMPANY] T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and [NAME]) v [NAME] (No 3) (1990) 35 IR 70 Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158

HEARING DATES: 10/13/2005

DATE OF JUDGMENT: 10/28/2005

APPELLANT [NAME] of counsel National Union of Workers, New South Wales [NAME] LEGAL REPRESENTATIVES:

RESPONDENT Mr J [NAME] of counsel Solicitor: [redacted]

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

[NAME]: Wright J, President Boland J Stanton C Friday 28 October 2005

Matter No IRC 3651 of 2005

NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH (O/B [NAME]) v [COMPANY]

Application by National Union of Workers, New South Wales Branch (on behalf of [NAME]) for leave to appeal and appeal against a decision of [NAME] given on 24 June 2004 in matter no 4106 of 2004

DECISION OF THE COMMISSION [2005] [NAME] 388

1 On behalf of its member, [NAME], the National Union of Workers, New South Wales Branch has applied for leave to appeal and, if leave is granted, to appeal a decision of [NAME] in which the Commissioner dismissed the appellant's application claiming unfair dismissal under s 84 of the Industrial Relations Act 1996: [NAME] v [NAME] [2005] [NAME] 1094. Background

2 [NAME] had been employed by [COMPANY] ("the respondent") as a [NAME] since October 1991 and his employment was terminated with payment in lieu of notice on 7 July 2004. At the time of the termination [NAME] was 55 years of age. It would appear that during the period 1991 to 1998 [NAME] had not come to the adverse notice of his employer. In March 1998, however, [NAME] was given a formal warning regarding the use of "foul and abusive" language towards a supervisor, [NAME]. The formal warning required [NAME] to improve his performance and attitude as follows: (a) You are to follow reasonable instructions of management without argument or question and without undue delays. (b) You are to work in a co-operative and professional way with fellow workers and management. We require you to stop using aggressive, abusive or threatening behaviour or language towards others. (c) You are to improve your attitude, from the negative aggressive outlook you have displayed recently. (d) You will work to increase the number of systems you assemble per hour, without reducing quality. (e) You will complete tasks as allocated by management and not make your own decisions on what work you will do. You will not wander off from the work area without good reason to do so. 3 [NAME] was warned that if his performance did not improve he might receive a further warning that might lead to termination of his employment. It seems that, subsequently, there was intervention by [NAME]'s union, the [NAME], over the abusive language warning and it was subsequently withdrawn, although the respondent stood by its position regarding [NAME]'s performance. 4 In December 1998 and January 1999 [NAME], the respondent's general manager, found it necessary to further counsel [NAME] and again warn him that his conduct and performance were not acceptable. On this occasion [NAME] had, amongst other things, threatened a fellow employee with physical violence and was dismissive of the respondent's concern in raising the matter. In a letter to [NAME] stated: The Company will not terminate your employment at this time. However you should very clearly understand that any of the following actions by you will lead to your dismissal with no further warnings being given: (a) Violence or threats of violence towards any other person.

(b) Refusal to co-operate with others to provide service to our customers.

(c) Refusal to follow valid management instructions to perform tasks which within your experience and expertise to perform.

(d) Refusal to accept counselling and guidance. 5 In February 1999 an employee of the respondent, [NAME], sent [NAME] a letter outlining allegations of harassment against her by [NAME] and four other employees. Following an investigation, employees other than [NAME] apologised to [NAME] for their conduct. [NAME], however, resisted taking part in the process of resolving the complaint against him. He referred to [NAME] as a "troubled woman", a "snitch" and a person who must have "taken valium". 6 [NAME] refrained from terminating [NAME]'s employment over the [NAME] incident on the condition that he attend counselling with respect to his treatment of other employees and, in particular, women. [NAME] did so. 7 In November 1999 he was involved in an incident that caused other employees to complain about [NAME]'s "loud and abusive language" that they regarded as intimidatory. [NAME] was again counselled and warned about his conduct. He undertook not to repeat his behaviour. 8 There were further episodes of [NAME] refusing to follow instructions in 2000 and 2001. In February 2001 [NAME] refused to follow an instruction given to him by a supervisor. Threatened with dismissal [NAME] relented and acknowledged he was in the wrong. As a consequence of this incident on 2 March 2001 [NAME] was given a "final warning" that involved the following conditions: You are at all times required to: (a) be prepared to undertake any work within your capability in the factory with any other employees and at any work locations as directed by the Company. (b) promptly obey any reasonable and lawful instructions. This will be done without argument or question even though you may not personally agree with the request. (c) act in good faith towards, and fully co-operate with, [NAME]'s management, [NAME]'s other employees and the company as a whole (d) not victimise harass or intimidate any of [NAME]'s employees, including supervisors or managers, and to treat all other employees in a courteous, polite and pleasant manner. (e) co-operate with [NAME] in increasing assembly rates and productivity generally, without reducing quality and with the aim of assisting [NAME] to maintain its competitive position. (f) complete tasks as allocated by management and not make your own decisions on what to do. You will not absent yourself from the work area without good reason to do so or without express permission. You will not waste time during working hours

The letter containing the foregoing conditions indicated that it would remain on [NAME]'s file indefinitely. 9 In April or May 2004 an incident occurred that eventually led to [NAME]'s dismissal. There was a heated disagreement between a leading hand, [NAME], and [NAME] when [NAME] moved some components into a storage area. [NAME] allegedly shouted at [NAME], "What are you fucking moving those for?" [NAME] replied, "I'm just doing my job". [NAME] referred the incident to her supervisor [NAME]. [NAME] spoke to [NAME] about the incident and, later, [NAME] apologised to [NAME]. 10 At the end of the day's work on 29 June 2004 [NAME], a production worker, was putting away some tools. [NAME] was working overtime and using the tools. He angrily said to [NAME], "You know I'm using those. Why did you put them away? [NAME] replied, "I'm leaving work and I didn't realise that you needed them." [NAME] informed [NAME] of the incident. [NAME] discussed the incident with [NAME]. 11 On 30 June 2004 a regular "toolbox" meeting took place of the [NAME] work team. The members of the team included [NAME] and [NAME]. Production issues were discussed and then [NAME] asked, "Does anyone else have anything to bring up?" There were various versions of what [NAME] said in reply to this invitation but counsel for the appellant accepted in his submissions on appeal that the words said by [NAME] were to the following effect: We have a bit of trouble here. I used to work with men in the railways for 27 years. If you had a run in with someone, you still have morning tea together and have a beer with the person on Friday night. But we have a problem with the women here. You have a run in with them and they carry on for months and months. This is crazy. In my opinion, the women should be at home looking after the kids. 12 The discussion turned to the earlier incidents involving [NAME] and [NAME] and [NAME] and [NAME]. We are satisfied that [NAME] made further accusations about female "dobbers" that were unmistakably directed at [NAME] and [NAME]. Voices were raised and the discussion became heated. 13 [NAME] said she was shocked by [NAME]'s comments that "women shouldn't be in the workforce". She said she felt very uncomfortable in the meeting and was reduced to tears. [NAME] said she was upset and "deeply offended by [NAME]'s comments on women in the workplace". She got up and left the room. Ms [NAME] was shocked by what occurred at the meeting. She felt [NAME]'s remarks regarding women were discriminatory. [NAME] at first thought [NAME] was joking when he made his offensive remarks about women and in fact said, "I will sign up for that". However, it became obvious, according to [NAME], that [NAME] was not joking and that he continued his attack "seriously and aggressively". 14 The female employees involved in the meeting complained to Mr [NAME], the respondent's production manager, about [NAME]'s conduct in the toolbox meeting. [NAME] noted the women were upset and "quite offended". [NAME] consequently called a meeting of the employees involved in the afternoon of 30 June 2004 in order to resolve the conflict. The meeting quickly degenerated into a shouting match with [NAME] refusing to retreat from his view about "female dobbers". 15 [NAME] felt the issues could not be resolved in the meeting and invited the female employees to file written complaints if they were of a mind to. This they did. On 1 [NAME] also provided [NAME] with his own complaint, in which he said [NAME] and [NAME] acted in a very disturbing manner at the toolbox meeting: I found their yelling, finger pointing and door slamming episode very unprofessionable (sic), specially from [NAME] who is a leading hand and should be setting an example

I also found their action very distressing and unerving (sic) to me. As [NAME] should supply me with a save (sic) stress free environment in which to work I would like someone to please take action over this event. 16 On 1 July we note that the personal conflict between [NAME] and [NAME] that arose out of the incident on 29 June was resolved following a meeting between the two employees in which they reconciled their differences. 17 On 1 and 2 July, [NAME] conducted individual interviews of all of the employees involved in the toolbox meeting of 30 June. 18 On 2 [NAME] met with [NAME], a human resources consultant to the respondent, and [NAME], regarding the conflict between employees in the [NAME] area. Following discussion about the final warning letter issued to [NAME] in March 2001, it was decided that [NAME] should be given an opportunity to show cause why his employment should not be terminated. 19 On Monday 5 [NAME] met with [NAME] and [NAME] an [NAME] delegate. [NAME] was advised of the respondent's view that he had acted inappropriately towards female staff who had been offended and harassed by his behaviour. [NAME] was advised his conduct was unacceptable. [NAME] was provided with a copy of the March 2001 final warning letter and suspended on full pay until the following day when at a scheduled meeting he would be invited to show cause why his employment should not be terminated. [NAME] was advised that his complaint was not significant ([NAME] asserted he was advised his complaint was "frivolous") and that it was he, [NAME], who had caused the conflict. 20 Following the meeting involving [NAME] and Mr [NAME], the delegate called a stop work meeting. [NAME], an organiser with the [NAME], attended the meeting. Following the stop work meeting a further brief meeting occurred involving [NAME], Mr [NAME] (another delegate) and [NAME]. [NAME] expressed support for [NAME] and questioned the basis for [NAME]'s suspension. Nothing was resolved in that meeting and employees commenced strike action. 21 On 6 July a meeting was held involving [NAME] and [NAME]. [NAME] made the point that the female employees had been offended. [NAME] maintained his support for [NAME] and according to [NAME]'s evidence [NAME] described the affair as a "gross overreaction" by the respondent, that what [NAME] had said in respect of women was a "throwaway line". [NAME]'s evidence was that [NAME] claimed that [NAME] only stated his opinion, which he was entitled to. 22 The meeting failed to resolve the matter. [NAME] made no attempt to offer an apology for the offence he had obviously caused and indeed, in the course, of the meeting referred to [NAME] as a "low life". Strike action continued. 23 On 7 [NAME] was advised that his employment was terminated. The termination letter from [NAME] stated, amongst other things: Whilst initially [NAME] indicated that he was going to reply on your behalf [at the meeting the previous day], you intervened in the meeting on a number of occasions and made various comments which indicate to me that you appear to have little or no appreciation of the impact of your actions on other employees. Your behaviour at the meeting also indicates to me that you have no intention of rectifying your unacceptable behaviour.

The comments that occurred on 30 June 2004 were totally unwarranted and inappropriate. Your comments could be regarded as an act of harassment. In addition, your comments with respect to "dobbing" could also be seen as an attempt on your part to victimise the women employees present for what we regard as appropriate conduct on their part. I believe you have been given every opportunity to raise any issue that you believed relevant to both the allegations and the possibility of the termination of your employment.

I am particularly disappointed by your response. I was equally troubled by a comment by [NAME] who said that he agreed with your comments with respect to women in the workforce.

In considering your personal situation I have also reviewed your long history of warnings which have been given to you. In particular, I refer to a letter of warning issued to you on 2nd March 2001. This in my view demonstrates that the company has been more than accommodating with respect to your behaviour in the past. Your personnel file contains a number of previous incidents of inappropriate behaviour on your part, verbal aggression against employees and management as well as straight out defiance of legitimate expectations of the company. I would also add that in April 1999 you were warned with respect to similar inappropriate comments to a female employee.

In the course of the meeting your representative, [NAME], made it clear to me that you understood the seriousness of your actions. You had every opportunity at the meeting to ask [NAME] to retract his comments or modify his responses. You chose not to...

I believe you have engaged in serious and wilful misconduct and that the appropriate action, taking into account your history with the company, is dismissal... 24 The industrial action by employees of the respondent, ostensibly in support of [NAME], apparently ceased on or about 13 July 2004 following the lodgement of a claim on [NAME]'s behalf under s 84 of the Act. Decision at first instance

25 After canvassing the background to the matter, summarising the submissions of the parties and considering what he regarded as the relevant evidence, [NAME] concluded: 46 This case has involved a dismissal after a long period of service. Regrettably the latter years of the applicant's employment have been marked by incidents of inappropriate behaviour. The applicant's less than exemplary work record was a factor that appropriately contributed to the substantive basis for the applicant's dismissal. 47 The applicant mistakenly believed that he had been dismissed for expressing a "politically incorrect" opinion. The right of the applicant to hold personal views is undeniable. However, the applicant expressed his views in a manner which would, on any reasonable expectation, cause insult and offence to other employees, in particular, women. The applicant then displayed no contrition for his actions, nor did he show any preparedness to assist in the resolution of the workplace conflict that he had created. 48 Unfortunately the involvement of the applicant's Union did not assist in the resolution of the workplace conflict and the issues were exacerbated. Regrettably the applicant actually committed further misconduct which in large part, would have provided justification for summary dismissal. 49 Rather than react in a hasty or ill conceived way, the employer adopted a careful and highly commendable evaluation of the circumstances. The employer assessed the applicant's misconduct having regard for various factors including the applicant's poor employment record balanced against his long service and general competence. 50 The evidence established that there was valid substantive basis for the employer's decision to dismiss. Further the employer provided proper process to allow for the applicant to make out a defence, offer explanation or in any other way assist in maintaining his employment.

51 Consequently the dismissal of the applicant was not harsh, unreasonable or unjust. The applicant's claim for unfair dismissal is accordingly dismissed. Proceedings in these matters are concluded. 26 At [45], the Commissioner referred to the bases of the employer's decision to dismiss [NAME]: The evidence established that the employer's decision to dismiss was based upon the combination of; (a) the applicant's employment record including a final warning of over 3 years earlier; (b) the misconduct of and following 30 June, particularly associated with the absence of contrition for the conflict that was created by inappropriate remarks made at the "Tool Box Meeting"; and (c) further misconduct regarding the aggression and hostility towards the employer exampled by the "low life" comment. The employer also had regard for the length of service of the applicant and his general competence. Careful, balanced consideration of all of these issues would have provided understandable, indeed compelling basis to take the decision to dismiss. 27 It would appear from what the Commissioner stated at [46] and [47] that the bases upon which he decided the dismissal of [NAME] was not harsh, unreasonable or unjust were: (a) The appellant's "less than exemplary work record"; (b) The appellant's views regarding women in the workforce caused insult and offence to other employees, particularly women; (c) The appellant displayed no contrition for his actions; (d) The appellant did not show any preparedness to assist in the resolution of the workplace conflict he created; (e) The appellant committed further misconduct by referring to a management representative as a "low life". Grounds of appeal

28 The appellant's grounds of appeal were as follows: GROUNDS OF APPEAL 1. The Commissioner erred in finding that the applicant's comments in the toolbox meeting of 30 June 2004 amounted to misconduct and/or unlawful conduct so as to justify dismissal.

2. The Commissioner erred in failing to consider whether the dismissal was harsh in all the circumstances and in particular in circumstances where the applicant: [redacted]

b) was fifty five years of age; c) was generally a competent worker; d) had no recorded issues concerning his conduct at, or performance of, work for over three years;

e) mistakenly believed he had been dismissed for expressing a 'politically incorrect opinion';

f) conduct which gave rise to the dismissal was neither deliberately designed to cause hurt or injury nor motivated by malice.

g) mistakenly believed he was entitled to express his opinions and that he had nothing to apologise for; 3. The Commissioner erred in finding that the manner in which the applicant expressed his opinion was the reason for his dismissal.

4. The Commissioner erred in finding that the respondent properly took into account or took into account at all the nature of the applicant's alleged misconduct as against his employment record and length of service.

5. The Commissioner erred in failing to find the dismissal unreasonable in light of the respondent's reliance on a warning which pre dated the dismissal by more than 3 years.

6. The Commissioner erred in failing to take into account the lack of intention or wilfulness in the actions of the applicant.

7. The Commissioner erred in failing to consider the appropriateness of the punishment and the harshness of the punishment given to the applicant in light of the applicant's supervisor (who had supported the comments of the applicant on 30 June 2004) being given a verbal warning.

8. The Commissioner's finding that there was a valid substantive reason to dismiss was against the evidence and contrary to the evidence.

9. The Commission erred in finding that the respondent had engaged in a careful and highly commendable evaluation before deciding to terminate the Applicant. Leave to appeal

29 An appeal to [NAME] of the Commission under Pt 7 of the Act must be by way of leave: s 188(1) of the Act. [NAME] is to grant leave where it is of the opinion that the matter is of such importance that, in the public interest, leave should be granted: s 188(2).

30 Leave will not be lightly or automatically granted: Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 at 265; [NAME] v [COMPANY] (No. 2) (1999) 95 IR 380 at 381. In appeal proceedings, [NAME] is not engaged in a rehearing of the proceedings at first instance, but is focused upon the correction of error: Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420; Strathfield Group Ltd v Hall [2002] 121 IR 158 (20 December 2002) at [45].

31 A factor that has been held to be relevant to the grant of leave is whether or not an appeal raises substantial and important considerations. This concept embraces issues of principle or law and also whether a matter has wider implications for the jurisdiction of the Commission including whether the decision has widespread practical application: [NAME] at 382. 32 We consider this appeal does raise a matter of such importance that in the public interest we should grant leave. As the background to the matter shows, what was initially a relatively straightforward workplace issue, which with goodwill and common sense was capable of being resolved at a departmental level within the enterprise, developed into a significant industrial dispute where several working days were lost due to industrial action. 33 Whilst the stance taken by [NAME] contributed substantially to what occurred, we were concerned at the position taken by [NAME]'s union in the matter. The [NAME]'s support for [NAME] involved an error of judgment that served not only to reinforce in the appellant's mind a belief that his stance on the matter was right when, in fact, on any reasonable analysis it was indefensible, but it also led to unnecessary strike action. We consider, in the circumstances, there is a public interest to be served in addressing the substantive issues in the appeal and in [NAME] explaining its reasons for coming to the conclusion that the appeal should be dismissed.

Consideration

34 [NAME] was employed as a [NAME] under the [NAME]) Award. That Award entitles an employer to dismiss any employee without notice for serious misconduct: cl 4.3.3. The Award also provides for notice of termination to be given to an employee in circumstances other than summary dismissal or payment in lieu of notice: cl 4.3.1. 35 In the present case the appellant was dismissed for "serious and wilful misconduct" but a payment was made to him in lieu of notice. Given this, it seems to have been accepted by the parties that [NAME] was not summarily dismissed, despite the alleged misconduct. However, whilst neither party addressed the issue, we would observe that the onus of proving an allegation of misconduct leading to termination of employment, regardless of whether the dismissal was summary or by notice or payment in lieu of notice, is on that party alleging misconduct: Pastrycooks Employees, Biscuit Makers Employees and [NAME]) v [NAME] (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1997) 72 IR 257 at 261.

36 The reasons expressed by the respondent in its letter to [NAME] of 7 July 2004 for terminating the appellant's employment were: (a) The appellant's comments at the toolbox meeting on 30 June 2004 regarding the role of women in the workplace, which the respondent regarded as "totally unwarranted and inappropriate" and which could be regarded as "an act of harassment". (b) The appellant's comments with respect to "dobbing" could be seen as an attempt to victimise female employees. (c) The lack of appreciation on the part of the appellant of the impact of his conduct on other employees and indications in meetings with the appellant that he had no intention of rectifying his "unacceptable behaviour". (d) That the appellant had been given every opportunity to deal with the allegations against him but had chosen not to "retract his comments or modify his responses". (e) The long history of warnings against the appellant in relation to "verbal aggression against employees and management and straight out defiance of the legitimate expectations of the company"; similar inappropriate comments to a female employee in 1999. 37 The respondent considered all of this amounted to serious and wilful misconduct on the part of the appellant and it would appear from the decision of [NAME] that the Commissioner essentially agreed with the respondent, although he placed considerable emphasis on what he considered to be the unacceptable nature of [NAME]'s comments at the toolbox meeting on 30 June 2004.

38 Noting, however, that it was not the comments of the appellant at the toolbox meeting alone that led the Commissioner to dismiss the application at first instance, it is, nevertheless, necessary to consider the nature of those comments and whether they amounted to misconduct and/or unlawful conduct.

39 The appellant contended his comments did not constitute misconduct. [NAME] pleaded that he was entitled to express his opinion; that he was not going to be hidebound by "political correctness"; that his comments were not directed to any individual in particular; that he was merely attempting to generate some discussion on conflict in the workplace; and, he had not intended to cause offence. 40 It would appear that [NAME]'s comments initially did not cause offence because the persons present took the comments as being made in a light-hearted or joking manner. But it became obvious that [NAME] was not joking. He regarded female employees as troublemakers and "dobbers". His comments were not made as a "throwaway line" as contended by [NAME] but rather were made against the background of the incident between himself and [NAME] in April/May and the incident involving [NAME] and [NAME] on 29 June 2004 where the two employees were verbally abused by [NAME] and [NAME] and who subsequently referred the matter to their supervisors. Moreover, it was [NAME] who initiated the confrontation at the toolbox meeting with his hurtful and offensive remarks about female "dobbers" and that women should be at home looking after the kids. [NAME]'s history of aggressive and intimidatory behaviour towards other employees and given the context in which his remarks were made on 30 June, we consider his purpose in making them was to provoke, offend and intimidate. 41 Whether comments about the role of women in the workplace might be regarded as offensive or insulting or harassing may depend on the context in which they are said or the demeanour of the person making the comments. Here, however, the effect of [NAME]'s comments was unmistakeable; there can be no question on the evidence that all of the female employees present at the toolbox meeting were offended and, in our opinion, [NAME], knew well what the effect of his comments would be when he made them. What is more, the appellant agreed in giving his evidence he was "well aware" of the respondent's policy regarding discrimination and harassment, which describes harassment as: [A]ny form of behaviour which is unwelcome and which humiliates, intimidates or offends the person at whom it is directed. 42 [NAME]'s comments were obviously directed towards [NAME] and [NAME] and were made with an aggressive and serious manner, there could be no mistake the comments were intended to be intimidatory and offensive; they were also contrary to the respondent's policy, a policy with which [NAME] was familiar. 43 We do not consider that the Commissioner erred in finding that [NAME]'s comments on 30 June 2004 caused insult and offence to women. Moreover, [NAME]'s conduct on 30 June may properly be regarded as misconduct in the course of his employment. 44 It may have been that the outburst by [NAME] at the toolbox meeting on 30 June 2004 could have been excused as an isolated incident that warranted not dismissal but rather serious counselling and the seeking of an undertaking from him that such conduct would not be repeated. However, in upholding the employer's dismissal of [NAME], the Commissioner was entitled to take into account the appellant's employment history and his conduct post-30 June 2004. 45 [NAME] had a history of aggression and intimidation towards other employees and a disregard for the authority of supervisors. The Commissioner was entitled to take this into account in determining the application before him. To the extent that [NAME] did so, he was not in error. 46 Earlier incidents of misconduct by an employee in the course of his or her employment with an employer may be relevant to the question of whether the employee has demonstrated such a disregard for the contract of employment, or one of its essential conditions, that the employment relationship is no longer tenable or that the parties to it are no longer compatible given their respective rights and obligations under the contract. That is, by his or her conduct the employee has demonstrated an intention that he or she no longer intends or wishes to be bound by the contract. 47 Whether an employer is entitled to rely upon earlier misconduct may involve such questions as the nature of the misconduct and whether, for example, it was trivial or serious; whether it demonstrated a persistent course of conduct that evinced an intention not to be any longer bound by the employment contract; whether it was too far removed in time to be relevant; or, whether the employee's otherwise good employment record outweighed the earlier misconduct making it irrelevant or only marginally relevant. 48 The appellant contended in the present case that the Commissioner erred in failing to take into account the trouble free period between 2001 when [NAME] received his final warning letter and 2004 when he was dismissed. It was also contended for the appellant that the respondent should not have relied on the final warning because it was in relation to a refusal by the appellant to follow a lawful direction and not related to the reason for dismissal; it, therefore, could not be regarded as a course of conduct evincing an intention not to be bound by the contract of employment. 49 The final warning given to [NAME] in 2001 may be properly seen as the culmination of a number of episodes of misconduct dating back to 1998, including incidents of aggressive and intimidatory behaviour towards supervisors and other employees. One of the conditions imposed on the appellant in allowing him to remain in employment in 2001 was that he would: [N]ot victimise harass or intimidate any of [NAME]'s employees, including supervisors or managers, and to treat all other employees in a courteous, polite and pleasant manner. 50 The final warning was expressed to be for an indefinite duration. That might be regarded as unusual in the industrial context, but in this case it has to be seen in the light of the appellant's poor record between 1998 and 2001. It was a clear signal to [NAME] that he was on final notice regarding his conduct and it was not open to him at any time to revert to his earlier unacceptable mode of behaviour. 51 We consider it was open to the respondent to have relied upon the final warning letter issued to the appellant in 2001 as the basis for asking the appellant to show cause why his employment should not be terminated. 52 The Commissioner, of course, in refusing the application at first instance, did not confine himself to a consideration of the appellant's offending remarks on 30 June 2004. This is demonstrated by the Commissioner's reliance on what occurred post-30 June. 53 The appellant found himself in a position where he was being asked to provide his employer with reasons why he should not be dismissed in light of his conduct on 30 June 2004. He was aware that the female employees against whom he had directed his remarks were upset and hurt by his conduct. It would have been glaringly obvious to [NAME] that it was open to him to achieve some reconciliation with those he had slighted in the same way in the same way he had in the past or as [NAME] had done with [NAME], or to offer an apology and provide an undertaking he would not repeat his behaviour. Whether this would have been sufficient to save his employment is not known but the point to be made is that [NAME] displayed no regret at all for his remarks. His view was that he had done nothing that required an apology; that he was entitled to express an opinion and did so. 54 [NAME] or his union could have expected the respondent to maintain the appellant's employment in the face of a refusal by him to make amends for what were indisputably offensive remarks against women in breach of the respondent's discrimination and harassment policy, defies reasonable explanation. 55 If [NAME] seriously believed all of the blame for the confrontation at the toolbox meeting was not his and the female employees' conduct was inappropriate as he had complained that it was, it was open to [NAME] to step back from his position of having nothing to apologise for and at the same time seek undertakings that the female employees also behave appropriately in the future. But [NAME] offered no compromise. 56 Part of the reason for the perversity of [NAME]'s stance may have been the support he was receiving from his union organiser, [NAME]. [NAME] commented that the [NAME]'s involvement was unfortunate in that it did not assist in the resolution of the conflict and the issues were exacerbated. Indeed, we consider that was so. The Union's role was ill-advised and most unhelpful. The responsible course would have been to advise [NAME] to retreat from the position he had adopted, to apologise and undertake not to repeat his conduct, thereby perhaps saving his employment. It was an error of judgment on [NAME]'s part to support [NAME]'s position. 57 Regardless, however, of the [NAME]'s role it was always open to [NAME], a man of firm opinion and character, to make out his own case. It would appear that whilst [NAME] acted on behalf of [NAME] in discussions with the respondent on 5 and 6 July, the appellant also spoke when he chose to but not in a conciliatory way. In the course of the discussion on 6 [NAME] referred to [NAME] as a "low life"; not a comment that would have won support for the appellant's increasingly precarious position but rather one designed to further insult. [NAME] was contemptuous of the opportunity that had been offered to him to perhaps save his job. 58 The appellant claimed that the Commissioner erred in failing to consider the appropriateness of the punishment given to him in light of the appellant's supervisor being given a verbal warning in circumstances where the supervisor supported the appellant's comments regarding women at the toolbox meeting. The supervisor, [NAME] was under the mistaken impression [NAME] was joking and joined in the joke. It became evident to [NAME] that in fact [NAME] was not joking and he agreed later with [NAME] he should have taken more decisive action to prevent the situation in the toolbox meeting from escalating. [NAME] was given a strong warning by [NAME] and acknowledged his mistake. [NAME] had no history of conduct requiring disciplinary measures to be taken against him. The respondent's treatment of [NAME] is readily distinguishable from the action it took in respect of [NAME]. 59 The appellant claimed the Commissioner erred in finding the respondent had engaged in a careful and highly commendable evaluation in deciding to terminate him. At [49] of his decision [NAME] found: Rather than react in a hasty or ill conceived way, the employer adopted a careful and highly commendable evaluation of the circumstances. The employer assessed the applicant's misconduct having regard for various factors including the applicant's poor employment record balanced against his long service and general competence.

We concur with the Commissioner's finding; there was no error in this respect. 60 The appellant claimed the dismissal was harsh. He contended that the Commissioner failed to give proper weight to his nearly 13 years' service with the employer; that he was 55 years old; that he was generally regarded as a competent worker; that his last recorded warning had been three years earlier; and, that he had not deliberately set out to injure or offend. 61 It is apparent to us that in the exercise of his discretion [NAME] had regard to the appellant's age, years of service with the company, his competence as a worker, his last formal recorded warning, his comments at the "Tool Box" Meeting and his conduct subsequent to that meeting. The Commissioner stated at [45]: Careful, balanced consideration of all of these issues would have provided understandable, indeed compelling basis to take the decision to dismiss. 62 In [NAME] v [COMPANY] of New South Wales (1999) 91 IR 385 at 392-393 [NAME], after addressing a number of factors that led the Bench to the conclusion there was no appealable error, stated: These factors were sufficiently taken into account in the balancing of considerations in the Commissioner's decision, and demonstrate that there was no appealable error in the Commissioner's decision. Another finding may have been open having regard to the nature of the misconduct, procedural defects and various mitigating factors such as the commendable prior service of the appellant. However, this appeal bench should not substitute its own views as to a decision which was reasonably open at first instance. The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. Applying these provisions appropriately would not permit the appeal to be upheld. It is therefore dismissed. 63 [NAME]'s statement in [NAME] is apposite. It may have been possible that a different conclusion could have been arrived at in the present case. However, given the Commissioner's findings were open to him and given the primacy we should accord the first instance decision, it is not open to this [NAME] to substitute its views for those of the Commissioner. 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As [NAME] observed in [COMPANY] T/as [NAME] (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, [NAME] found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". Orders

66 We make the following orders: 1 Leave to appeal is granted. 2 The appeal is dismissed. ___________________

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