WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 227 of 1986. Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch, Appellant and Uniting Church of Australia, Trinity Parish, Perth Property Committee, Respondent. Before the Full Bench. His Honour the President D.J. O'Dea, Commissioner G.L. Fielding, and Commissioner J.A. Negus. The 24th day of June 1986. Ms K. Digwood on behalf of the appellant. Mr B.D. Williams on behalf of the respondent. Reasons for Decision. THE PRESIDENT: This is the unanimous decision of the Full Bench. Mr Battensby, a member of the appellant was employed by the respondent as a day maintenance cleaner at the Trinity Arcade from September 1979 until 15 November 1985. His employment was terminated on the grounds of alleged "unsatisfactory performance". The dismissal was apparently effected on the last day of his annual leave. That may have been somewhat irregular but as the events transpired nothing turns on it and it was thus not a matter with which the appellant took issue. The dismissal was effected without notice but with payment in lieu of notice. In addition, Mr Battensby was given accrued holiday pay, a small sum "for wage increase" and an ex gratia payment of $551.55; a total sum of $1 000. While Mr Battensby was absent on leave it seems that those who performed the work which would have normally been his responsibility made a better effort of it than he had, so much so that the standard of cleanliness in the arcade markedly improved to the point where it 49721—1 "started to sparkle". One of those who helped perform some of that work in this period was the respondent's maintenance manager, Mr Savin. In the course of performing that work he had vividly drawn to his attention what he regarded as shortcomings in Mr Battensby's work. It was this revelation and the improved standard of cleanliness in the arcade during Mr Battensby's absence which led the respondent's property committee to resolve to terminate his employment when it did. The appellant brought Mr Battensby's plight before the Commission claiming that he had been unfairly dismissed. When the matter could not be resolved by conciliation it was referred for arbitration and was ultimately determined against Mr Battensby. The Commission found that Mr Battensby did not perform his duties thoroughly and so "left himself open for criticism". The Commission concluded that Mr Battensby "did what he had to do without the enthusiasm or necessary application to achieve a good result". The fact that Mr Battensby was dismissed without warning was not seen to be material since the Commission though such a warning would in all probability have been ineffective, or at best the consequences thereof short-lived. In the result the Commission dismissed the appellant's claim. The appellant now challenges that decision principally on the ground that the Commission wrongly concluded that Mr Battensby did not satisfactorily perform his duties and that he lacked enthusiasm in his attitude towards the job. Further, the appellant complains that the Commission failed to give sufficient weight to Mr Battensby's length of service, to its allegation that many of the complaints against him were old or otherwise trivial and that the respondent's evidence was in parts confusing. Finally, the appellant complains that the Commission failed to apply contemporary standards of industrial justice which were said to "require fair warning of conduct or performance" by an employer before a dismissal is effected on the grounds of unsatisfactory service. In essence the question to be investigated in cases such as this is as Brinsden J., at page 386, and Kennedy J., at page 387 observed in the Undercliffe Nursing Home v. 1292 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 66 W.A.I.G. the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 "whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right". To a large degree the answer to such a question in any particular case is a matter of independent judgment for the Commission in light of the circumstances then disclosed. The circumstances disclosed in this case suggest that it is perhaps borderline, but in the end we are not persuaded that it was wrong for the Commission to conclude that the dismissal was not unfair. Whilst the evidence suggests that the state of uncleanliness which clearly appears to have beset the arcade was not entirely Mr Battensby's responsibility, there is ample evidence to indicate that his performance was less than ideal. Although it has to be acknowledged that the respondent's evidence was more general than specific, instances of Mr Battensby's shortcomings given by its witnesses included his failure to clean walls, high level ledges where appropriate, or assist in cleaning light fittings and failure to clear office bins. If one accepts the evidence of those witnesses, as the Commission appears to have done, and having regard to the schedule of cleaning duties required of Mr Battensby, we think it open to conclude that his work was unsatisfactory. It is not a fact, as the appellant asserts, that Mr Battensby was dismissed for the shortcomings disclosed during his holidays. He was dismissed for unsatisfactory service generally and that is supported by the evidence of the respondent's witnesses if not by its advocate's submissions. The standard of cleanliness in the arcade had been a matter of concern to the respondent's property committee for some time and had been the subject of complaint from its various tenants. Included in the evidence adduced before the Commission is testimony from Mr Savin that from time to time he had spoken to Mr Battensby about his lack of performance. Although Mr Battensby denied that those conversations took place, clearly the Commission did not accept the denial. Moreover, in mid 1984 the cleaning schedule was altered in an endeavour to overcome the respondent's concern regarding the standard of cleanliness in the arcade. Mr Battensby was invited to make suggestions as to how the cleaning schedule might be improved. More significantly, Mr Savin said he told Mr Battensby at that time of the general complaints concerning the standard of cleanliness in the arcade and that unless there was an improvement his job would be in jeopardy. Again, Mr Battensby denies that such a conversation took place but the Commission appears not to have accepted his evidence. Although Mr Battensby denied that his attitude to his work was other than satisfactory, there was evidence from his supervisors to the contrary which the Commission obviously chose to accept in preference to Mr Battensby's testimony. It appears that Mr Battensby did not impress the Commission by his answer to questions on the adequacy of the new schedule of cleaning arrangements. That is a matter of credibility entirely for the Commission. It is not something which the Full Bench can adequately assess from a reading of the transcript, although the transcript does give the impression that Mr Battensby was not as ready to answer questions on that and other subjects as he might have been. Further, and contrary to the appellant's assertion, it appears that the Commission did not reach its conclusion about the fairness of the dismissal in disregard of Mr Battensby's antecedents, particularly his length of service. The Commission expressly paid regard to his length of service suggesting that "the ex gratia payment of 2 Yi weeks wages which has been made already to him should stand". The fact that Mr Battensby was given an ex gratia payment in the order of $551.55 is properly a factor to be taken into account in determining whether the dismissal was fair or not. Finally, it is not the case that in every instance contemporary standards of industrial justice require a warning of potential dismissal before a dismissal can be fairly effected for unsatisfactory service. Each case must be looked at in light of its own circumstances [see: Sewards v. Canon Copiers Australia Pty Ltd (1983) 5 IR 227], In this instance the evidence which the Commission chose to accept as the most credible indicates that Mr Battensby had been told on a number of occasions to improve his standard of work and was told in mid 1984 that unless his work improved he could lose his job. In light of this, we are not satisfied that the Commission was wrong in concluding that a further warning was not warranted. In all the circumstances, although the dismissal was somewhat abrupt, we are not convinced that the decision arrived at by the Commission was not properly open to it and would therefore dismiss the appeal. Order accordingly. BEFORE THE