Respondent's case.
44Ms Julianne Mitchell stated that she is employed by the respondent in the position of Works Support Officer, Narrandera. When the applicant was employed she reported to Mr Mathews. She stated that she was aware that in or about late February 2011 the applicant was requested to move by Mr Mathews to another part of the office. She saw the applicant moving his belongings. On or about 15 March 2011 she witnessed an incident between the applicant and Mr Mathews in the office. She saw Mr Mathews enter the applicant's office, have a brief conversation with the applicant and then leave and return to his own office. A short time later he re entered the applicant's office. She did not hear their conversation until she moved to be near Alison McComber's desk and saw the applicant pointing his finger at his door and in a raised voice said to Mr Mathews words to the effect of:
"Get the fuck out of my office."
Mr Mathews then left the applicant's office. She did not hear Mr Mathews raise his voice.
45The next day Mr Judd and Sexton came to the office and advised the staff that the applicant was suspended from duties.
46On or about 18 March 2011 she say the applicant in the office. She reported this to Mr Judd. Later that day when the applicant left she reported this to Mr Judd.
47On or about 25 March 2011 she had a telephone conversation with Ms Sonia Damento, Workplace Practice Officer. They discussed what she had heard and observed on 15 and 18 March 2011. She later received a copy of a file note from Ms Dametto which she read and was satisfied that it was accurate.
48She stated that because of the lack of cooperation that she got from the applicant she found working with him frustrating. She stated that she received a phone call at home from the applicant regarding the incident of 15 March 2011 which was uninvited. She said she would be reluctant to work with him again.
49Ms Alison McComber stated that she works for the respondent in the position of a Works Support Officer, Narrandera. On 15 March 2011 she said that she witnessed an incident between the applicant and Mr Mathews in the Narrandera office. She sat two to three metres from the applicant's office. She saw Mr Mathews go into the applicant's office. She heard Mr Mathews ask for some folders and the applicant state that he was the sealing engineer. Mr Mathews then came out of the office. A short time later Mr Mathews re entered the applicant's office. She said that she did not hear all the conversation but she did hear the applicant raise his voice and say words to the effect of:
" Get the fuck out of my office."
The applicant was red in the face and appeared agitated. She then heard the following conversation to the following effect:
The applicant:
" Go away you are hassling me."
Mr Mathews :
" I am not hassling you Wes, I am trying to explain."
The applicant:
" Fuck off, you don't know what you have started, you will have a fight on your hands. Fuck off out of my office."
The applicant then gestured towards his office door with his hand and Mr Mathews left the office and returned to his own.
50On or about 13 December 2010 the applicant walked out of the training room knocking into the door and spilling his coffee. The applicant grabbed the door in an aggressive manner and slammed it into the wall and left the building. The door handle had put a hole in the wall behind the door. Photos of this were attached to her statement.
51Mr Craig Mathews stated that he is employed by the respondent since 1998 in various designations and currently holds the position of Senior Project Manager, Maintenance. The applicant reported to him and he reported to Mr Judd. The applicant reported to him since he commenced with the respondent. The applicant was initially employed as a Project Engineer, South West Region in October 2007 and then in July 2009 his duties changed and he performed the Project Delivery Manager position within the Sealing Unit at Narrandera.
52The Project Delivery Manager position that was held by the applicant was classified as an Engineer Level 2 under the award. In his statement Mr Mathews listed the responsibilities of the position. The Riverina District of Road Services has five Project Delivery Manager roles: three in Narrandera and two in Hay. He said that this role is designed to allow for employees holding those positions to be moved between different projects from time to time as the needs of the business and its clients change.
53He said that the applicant's Offer of Employment states that it designates a region to which his position is allocated, but does not designate a particular project and states that the applicant "should understand that[he] may be required to carry out duties in other locations from time to time."
54He said that in late 2008 he received complaints from employees about the applicant concerning doing the work of others, communicating poorly with staff, working in an unsafe manner, his interaction with other employees and his inability to listen to advice.
55 Mr Mathews met with the applicant in early December 2008 identifying his role, his underperforming areas, made a number of requests such as completing weekly scheduling meetings with the Works Supervisor, completing a two weekly schedule, not working overtime unless approved in advance, not working outside the flexi time bandwidth and building rapport with the Works Supervisor and crews.
56In July 2009 he moved the applicant into the Sealing Unit. The moving of Project Delivery Managers gives the individual more experience, variety and career progression. This move was no different to the way other Project Delivery Managers in the past had been moved between projects.
57On 6 September 2010 he held a meeting between the applicant and a Mr McComber. It concerned a complaint by the applicant that Mr McComber had made a threat to him. In his view after discussing the matter that there existed conflict between the two. He stated that he was aware a mediation session was organised to take place between the two men.
58He stated that he had an informal discussion on 26 November 2010 with the applicant concerning a report that he may have driven home under the influence of alcohol. After listening to the applicant's story Mr Mathews was of the view that the applicant could have used better judgement in driving a long distance at night. He also spoke to the applicant about his management of hours , prioritising his work activities ( required a two weekly schedule to be provided), management of travel time and to hold weekly management meetings. He was told to hold such meetings. He was also spoken to about trying to improve his working relationships with his crew and other office staff. Mr Mathews stated that he told the applicant that if there was not an improvement in his performance he would consider elevating this to a formal performance management. He said that the applicant stated that he would leave if it went to a formal performance management. An email sent by the applicant later that day responding to the issues did not acknowledge or accept any of the matters that had been raised.
59On 29 November 2010 Mr Mathews provided the applicant with a two week schedule pro forma and asked him to complete it each Monday. This he refused to do.
60On 30 November 2010 the two men met again and Mr Mathews again stated that he required the two weekly schedule to be completed. The applicant said that he would not do it as he worked off a white board. Mr Mathews did not believe the white board served the same purpose.
61On 2 December 2010 Mr Mathews held a meeting with the applicant and Mr Dunnett. Work issues were gone over . It was his view, that this was not a performance meeting about Mr Dunnett's work.
62On 8 December 2010 Mr Mathews received a phone call from Mr Dunnett stating that the applicant wished to hold another Ensite review meeting and that they had just had one two weeks ago. He said that he rang the applicant and stated that it was a better idea to spread such meetings out and that he should hold his weekly management meeting. The next day Mr Dunnett advised him that the applicant had held an Ensite meeting but not a weekly management meeting as had been suggested.
63A meeting on 13 December 2010 held between the applicant , Mr Dunnett, Mr McComber , Mr Cross and Mr Mathews was to discuss various work issues. The meeting resulted in Mr McComber and Mr Dunnett complaining to the applicant that he did not listen to them. The applicant did not believe he had to listen to what was being said and left the room slamming the door into the wall.
Mr Mathews denied that he sough to belittle the applicant. Later that afternoon he contacted the applicant and apologised for the way the meeting went. He also spoke to Mr McComber and Dunnett about the way they had spoken to the applicant. The two men agreed the meeting had got out of hand and said that it would not happen again. Later that day Mr Mathews and the applicant had a discussion about what had happened that morning and other work issues/strategies that the applicant had, that needed to be sorted. The issue of the applicant completing the two weekly schedule was again raised and again the applicant refused to do them. This refusal was passed onto Mr Judd.
64He understood that Mr Judd spoke with Ms Cvetkovic explaining the issue and expressing the view that that the matter needed to be managed by way of formal performance management.
65Mr Mathews organised with the applicant to hold a meeting with him on 16 December 2010. On 16 December 2010 Mr Mathews received a phone call from Mr Dunnett informing him that he had received an informal management letter from the applicant. This letter had been issued without Mr Mathews knowledge. The meeting on that day did not take place as the applicant had to go home and fix his car and mind his children. On that day Mr Mathews received an email from Mr Cross to state that he had not been included in a management review meeting that had been convened by the applicant. A copy of the letter received by Mr Dunnett was found on Mr Mathew's desk. Mr Mathews then sent emails to Ms Ctvekovic detailing issues that he was having with the applicant.
66On or about 4 February 2011 he again spoke to the applicant with respect to completing the two weekly schedules.
67On or about 17 February 2011 Mr Mathews received a complaint from Mr Dunnett concerning the way the applicant had spoken to Mr Adams. Mr Dunnett had received the complaint from Ms Kelly Hicks a Works Support Officer. Emails of this incident were passed onto Mr Judd by Mr Mathews.
68Mr Mathews then had a conversation with the applicant. The applicant denied calling Mr Adams "a cunt" but did call him a "rude prick". He also raised the issues of not completing the two week schedules and his practise of copying senior management into emails relating to RFS operational matters. Mr Mathews also spoke to Mr Adams concerning his behaviour. Mr Mathews also issued a letter to the applicant directing him to complete a two week schedule by 4.00pm on 18 February 2011. He received the schedule. It was the only one he ever received.
69On or about 23 February 2011 Mr Mathews had a telephone conversation with Mr Judd, Mr Sexton, Ms Cvetkovic and Ms Roach. The topic of conversation was the work practises of the applicant and how he interacted with his fellow workers and the subsequent negative reaction from these employees. The result was that the Sealing unit was not functioning satisfactorily and change was needed to ensure that the Sealing programme would be delivered.
70On 25 February 2011 Mr Mathews and Sexton met with the applicant. The meeting went for approximately three hours and covered the way the applicant communicated with fellow employees eg sending an email to a person who sat by his side in the office. The requirement to change his management style and to communicate better with his crew. It was at this meeting that the applicant was told that he was going to be moved into Construction for the rest of the financial year. He was told that the relationships within the Sealing unit can not continue. He was told that he would move to a office in the building about 20 metres away. He was also told that he will stay as the Sealing engineer and return to that position in July. He was also told that if he couldn't build and maintain relationships in the office the next step would be formal performance management. He was told that he would be involved in preparing the PSP for the next year's programme.
71On 2 March 2011 Mr Mathews sent an email to the applicant outlining his new project. Mr Mathews stated that this new project was not a demotion in grade, rate of pay or status. The heavy patching work was most needed due to a particular wet season.
72The applicant refused to undertake the new project. Emails between the parties occurred between 2 and 4 March 2011. The applicant was told that that he was refusing a reasonable instruction if he did not accept this new project. The applicant then went on leave and returned on 15 March 2011.
73Prior to proceeding on leave the applicant had been told by Mr Mathews to leave the Sealing files at his old desk. During his leave Mr Mathews required some of these files which he found in the applicant's new office. Mr Mathews did not replace the files.
74On 15 March 2011 Mr Mathews advised the applicant that he wanted the Sealing files left on the Sealing bookshelf. The applicant stated that he was keeping them as he was the Sealing engineer and for Mr Mathews to go and check the award. The Sealing engineer was his job
75Mr Mathews left the office and called Mr Judd. Mr Judd advised to let the applicant know that he is refusing a reasonable direction and that Mr Mathews will be getting further advice on commencing formal performance management. Mr Mathews returned to the applicant's office and advised him of his position. The applicant advised Mr Mathews that he was being unfair and that he was harassing him.
76The applicant then pointed to the door with his arm and in a raised voice told Mr Mathews words to the following effect :
"Get the fuck out of my office. You're harassing me and you haven't followed procedures. You should go back to your office and think about how unfair you have been and you haven't followed procedures. I'll fight you all the way, you've got a fight on your hands. Fuck off, get out of my office. Go get out, get out. Get out."
Mr Mathews stated that he was not harassing him and that he was going to get advice.
77In his office Mr Mathews then individually spoke to Ms McComber and Ms Mitchell and asked whether they had witnessed what had just occurred. He then spoke to Mr Judd and was told to make a detailed record of what had just occurred. This he did.
78Mr Mathews stated that he believed that it would be untenable for the applicant to return to the Narrandera depot both for himself and the office staff. The new Project Development Manager and Sealing crew are working well as a cohesive crew with an improved morale. He does not believe that the applicant is suited to a role that includes management of a direct control workforce. He had problems in both the Maintenance and Sealing units in terms of communication and working relationships as well as with the general administration and office staff.
79Mr Shane Dunnett stated that he commenced employment with the respondent in 1997 and currently holds the position of Works Supervisor. He commenced in this position in 2008. He reported to the applicant from approximately 1 July 2009. In his position he is responsible for the output of bitumen on national and state highways as well as supervising such work working mainly on site with one or two days in the Narrandera depot per fortnight. In the area that he worked the sealing season is from September to April when the weather is hotter. He stated that it is critical that the work is well planned and everyone knows what is happening, where and when. Various documents and meetings take place so as people are informed. On at least one occasions he stated that the applicant made changes to the Sealing programme without letting him know which resulted in a crew turning up at a location without equipment and materials.
80Mr Dunnett outlined what happened when the applicant held an Ensite meeting on 9 December 2010 so soon after a previous Ensite meeting two weeks before. In Mr Dunnett's view such a meeting so soon after the previous one was not called for and a loss of time occurred.
81 He also outlined what occurred on 13 December 2010 in a meeting held between the applicant , himself, Mr Mathews and McComber. He stated that he told the applicant that " You just don't listen" with the other two men agreeing. Mr McComber stated that " You have problems working with other people" and the applicant leaving the meeting stating words to the effect of " I don't have to listen to this fucking shit."
82 On 15 December 2010 Mr Dunnett stated that he organised a teleconference meeting to take place at 9.30am the following day, with the applicant and Mr Cross from the Narrandera office and himself and Mr Adams from on site at Gunbar. The meeting took place at 9.30am without the applicant, as his whereabouts was unknown. The meeting lasted about ten minutes. At approximately 10.00am the applicant arrived at the site when 'spraying' was taking place which required a coordinated safety procedure involving a number of vehicles and a cockle tipper. Particular safety procedures have to be followed. Mr Dunnett saw the applicant drive his vehicle onto the blocked off side of the road. Mr Dunnett stated that by his hands he gestured to the applicant " what are you doing here?". The applicant then advised Mr Dunnett via the two way radio that he was required at a meeting. After completing his part in the process Mr Dunnett then drove back to where the applicant was standing near Mr Adams car. He denies he drove towards the vehicle at excessive speed and pulled up about five metres away. The applicant then held a management review meeting but did not include Mr Cross. Mr Dunnett advised the applicant that they had already had the meeting. The applicant did not respond. The applicant did not ask if they had anything to say. At the end of the meeting the applicant handed Mr Dunnett a letter regarding his performance. After having the letter read to him, Mr Dunnett stated that he would be calling Mr Mathews. Mr Dunnett advised Mr Mathews that the letter was in his name. Later Mr Judd called Mr Dunnett and advised him that the applicant had no right to do anything like that. Mr Dunnett did not believe that he had done anything wrong.
83Mr Dunnett outlined what occurred with the change of site around 21 February 2011,his referral to Mr Mathews ( normal procedure when his direct supervisor is not at work) as to why the change had to take place and the subsequent reaction from the applicant who complained that he had not been kept informed. The change in location took place on the applicant's day off.
84Mr Dunnett stated that it was the style of the applicant not to listen to anyone's else's advice. It was his way or nothing. He left Mr Cross out of management meetings which made it difficult for Mr Cross to order aggregate and other supplies. He did not think that the applicant added much value to him or the sealing crew. The new Project Development Manager communicates frequently with the team. If the applicant was reinstated back to the Narrandera depot there would not be a sealing crew because no one would work with him. He said he would be reluctant to remain in his position.
85Ms Emilia Cvetkovic stated that she commenced with the respondent in June 2001 and is currently acting in the position of Manager, Industrial Relations and Policy and has been since June 2011. In her statement she outlined the various positions she has worked in and the policies and guidelines that the respondent has. She advised that the applicant was a participant in a training session on Managing Unsatisfactory Performance and Conduct that she assisted to run.
86On or about 14 December 2010 she stated that she received a call from Mr Judd and Mr Sexton regarding performance concerns of the applicant. This was followed by an email from Mr Judd confirming the discussion and that it may be appropriate to commence a formal performance management programme for the applicant. She then sought further information from Mr Mathews. On 16 December 2010 she received further information from Mr Mathews regarding issues that he had with the applicant. She stated that she became aware that the applicant had issued a performance letter to Mr Dunnett and that he intended to issue a second one. She was also aware that the applicant had not provided a two weekly schedule when required to by Mr Mathews. She assisted Mr Judd in preparing a letter of warning to the applicant. On 23 February 2010 she participated in a telephone conference call with Mr Judd, Mathews, Sexton and Ms Roach concerning the applicant.
87On 15 March 2011 she received a phone call from Mr Mathews concerning an incident between himself and the applicant. She also on that day had a discussion with Mr Judd. She also spoke to Mr Evans. On 16 March 2011 she received a phone call from Mr Judd who stated that the applicant was refusing to speak to him about the incident of 15 March 2011. As a consequence of the refusal of the applicant to supply a two week schedule to Mr Mathews, his alleged behaviour to Mr Mathews on 15 March 2011, refusal to change duties, refusal to meet with Mr Judd and that he had already been issued with a warning letter of unacceptable behaviour it was considered appropriate to commence applying the Discipline Policy and Discipline Guidelines to the applicant. On 17 March 2011 she allocated conduct of this matter to Sonia Dametto Workplace Practice Officer.
88On or about 16 March 2011 Ms Cvetkovic issued a memorandum to Richard Boggon, Director, Commercial Services which recommended the applicant be suspended with pay and to issue a show cause letter as to why he should not be terminated. This was approved by Mr Boggan and a show cause letter was given to the applicant by Mr Judd. She had a further telephone conversation with Mr Mathews , Sexton and Judd as to what happened when Mr Mathews and Sexton had gone to deliver the letter to the applicant. She also asked Ms Dametto to enquire into what occurred between the applicant and Mr Mathews on 15 March 2011. She understands that Ms Dametto spoke to Mr Mathews, Ms McComber, Ms Mitchell and Mr Humphries.
89The applicant sent letters to Mr Boggon and to Ms Edwards, Acting General Manager , Human Resources Strategy dated 15 December 2010 and 18 March 2011. On 20 April 2011 Ms Cvetkovic had a conversation with Mr Judd about the recommendation that the applicant's employment be terminated. On the same day she and Ms Dametto prepared a memo to Mr Boggon recommending that the applicant be terminated. She stated that she was aware that on 2 May 2011 Mr Boggon issued a letter to the applicant terminating his services.
90Mr Richard Boggon stated that he commenced employment with the respondent in January 2007 and commenced in his present position of Director of Commercial Services of Roads and Maritime in February 2011.
91He stated that he first became aware of the issues concerning the applicant when he visited the Narrandera Depot some time prior to July 2010. He stated that he was advised by local management that the applicant did not work as part of a team and was not maintaining or building relationships.
92 On 16 March 2011 he stated that he was supplied with a memorandum prepared by Ms Cvetkovic recommending that he suspend the applicant. Prior to making a decision he spoke to line management. He made the decision to suspend and signed a show cause letter. On 18 March 2011 he received the applicant's response plus two letters dated 15 December 2010 and 18 March 2011, that had been sent to the General Manager, Human Resource Strategy. He stated that he carefully reviewed the applicant's response. He also sent a copy to the Workplace Practices Unit for their advice. On 20 April 2011 he received a memorandum from Ms Dametto recommending that he terminate the applicant's services. He noted that the issues raised in the applicant's letters to the General Manager had been investigated and dealt with. In those circumstances he did not think those issues had any bearing on his decision. He stated that he decided to terminate the services of the applicant because there had been a number of issues concerning the applicant , not just one. The issues had been repeated over a period of time, his refusal to undertake the duties he had been directed to undertake by Mr Mathews or comply with his directions and had behaved in an aggressive and inappropriate manner. His refusal to produce the two weekly schedules as required by Mr Mathews and his conduct having an adverse effect on the team. He considered moving the applicant but concluded that the issues that existed were likely to repeat themselves.
93On about 2 May 2011 he signed a letter terminating the applicant.
94He also stated that he did not receive any message that the applicant wished to meet with him. He said that nothing that the applicant advanced in his evidence in these proceedings would have altered the decision he took to terminate the applicant even if he had met with the applicant prior to the termination.
95He held the view that the relationships that the applicant had with his managers had irretrievably broken down. The applicant had made it clear that he was not prepared to carry out his duties as directed. Re-instatement or re employment would he believe, lead to the same likelihood of refusal with the same managers being involved in his supervision.
96Mr Garry Sexton stated that he commenced with the respondent on 8 June 2010 and currently holds the position of Human Resources Advisor, South West, New South Wales. He stated that on or around 23 December 2010 he attended a meeting with Mr Judd and the applicant. On 23 February 2011 he attended a meeting with Mr Mathews and the applicant. At both meetings he took notes which he attached to his statement. In his statement he denied the applicant's assertion that he picked the letter up from the floor and pushed it into the applicant's chest. He denied touching the applicant in any way. He offered the letter to the applicant and said :
"You really should read this it is important."
He also denied that he and Mr Judd sought to block the applicant's access to the door.
97Mr Mitchell Judd stated that he commenced with the respondent in 1981 and currently holds the position of Road Services Manager, Country West. In his current position he reports to Mr Greg Evans who reports to Mr Richard Boggon. He manages approximately 350 employees. Seven District Works Managers report to him, one of those being Mr Craig Mathews. In his statement Mr Judd gave an overview of the organisation and its operation in the competitive field that they operate in. In the season when they work each day equates to between $75,000 to $100,000 turnover. In his view it is therefore very important for the planning and monitoring of work through periodic team meetings, weekly meetings and two weekly schedules.
98Mr Judd approved the appointment of the applicant. The applicant was not recruited into the Sealing role. There was no recruitment process into that position. The applicant was changed from a position in the Maintenance to a position in the Sealing team. In both positions he held the position of a Project Delivery Manager.
99He stated that he and Mr Mathews had several conversations concerning the applicant's performance. He was aware that Mr Mathews attempted to address the issue of the applicant's management of time through the completing of the two weekly schedule. He became aware of the applicant's refusal to complete the two weekly schedule on or about 26 November 2010.
100On 13 December 2010 he received a phone call from the applicant complaining about the abuse he had received at a meeting with Mr Mathews, Mr McComber and Mr Dunnett. Later that afternoon he received a phone call from Mr Mathews describing what occurred at the meeting and his failure to control it. That day he spoke with Mr Sexton and Mr Mathews concerning the applicant's work issues and as a consequence he spoke to the Workplace Practice Unit to seek advice. The next day he spoke with Ms Cvetkovic about the applicant. It was agreed that Ms Cvetkovic would speak to Mr Mathews. Several days later he again spoke with Mr Mathews who advised that he had apologised to the applicant.
101On or about 16 December 2010, Mr Judd had a telephone conversation with Mr Mathews concerning the applicant issuing a performance management letter to Mr Dunnett. Mr Mathews advised that he was unaware of the applicant's intention of doing this. When he received a copy of this letter it confirmed Mr Judd's view that the applicant was not authorised to issue such a letter. The applicant had not consulted either Mr Sexton or Mathews prior to sending the letter or a second proposed letter. In consultation with Ms Cvetkovic he determined that on the basis of this incident and his refusal to raise the two weekly schedule he would issue the applicant with a letter of warning. Mr Judd then spoke with Mr Dunnett advising that the applicant should not have issued such a letter.
102On or about 22 December 2010 Mr Judd said he spoke with the applicant and stated that he wished to speak to him about the letter to Mr Dunnett and the completing of the two weekly schedule. The following day he with Mr Sexton met with the applicant. The applicant admitted that he had not spoken to either his supervisor or HR prior to sending the letter to Mr Dunnett. He was told that he had misunderstood the policy and not to do it again. With respect to the two weekly schedule Mr Judd directed the applicant to comply with what Mr Mathews had asked. Mr Judd did not agree that the applicant's behaviour with respect to Mr Dunnett was reasonable. Post that meeting Mr Judd issued the applicant with a warning letter.
103With respect to the applicant's letter of complaint sent to Mr Doran and Ms Edwards around 15 December 2011, Mr Judd said that he was directed by the Workplace Practice Unit to undertake an investigation into the complaints. On 10 February 2011with Ms Roach, he spoke with the applicant and went through the issues that had been raised by the applicant. On or about the same day he spoke with Mr Mathews concerning the applicant's request for parental leave. Mr Mathews also responded to questions concerning an altercation with Mr Cross and another person and the allegation of Mr Dunnett driving in an aggressive manner. Mr Judd also spoke with Mr John Harrison concerning the alleged fight outside the Rosehill Bowling Club. He also spoke with Mr Cobcroft denying that he was involved in a fight. Mr Judd received an email from Mr Mathews who spoke with Mr Adams concerning the allegation of Mr Dunnett driving in an aggressive manner. Mr Adams had no memory of this. As a result of his investigations Mr Judd made his determinations based on the evidence that he had collected and either determined that no further action was warranted or lack of evidence could not warrant any action.
104On or about 28 February 2011 Mr Judd stated that he prepared an Initial Assessment Report of his investigations and directed it to Mr Evans. On or about 8 March 2011 he prepared a letter to the applicant advising him that the investigation was completed and that the matters were closed. Mr Judd sought for this letter to be given by hand to the applicant. It subsequently came to his attention that he did not have any acknowledgement that the applicant had received the letter so he resent the letter by registered post on or about 23 March 2011.
105On 23 February 2011 Mr Judd advised the applicant via email that he was not to include senior management into emails he has sent concerning matters relating to project delivery. Mr Judd was aware that Mr Mathews had already spoken to the applicant about this practise and to cease it.
106On 15 March 2011 Mr Judd became aware of an incident between the applicant and Mr Mathews. He received a phone call from Mr Mathews stating that the applicant had :
"given me a gob full of abuse. He told me to fuck off, said I was harassing him, bullying him, told me to get out of his office, said 'I'm not prepared to talk to you about this'. I can't tolerate this . What can we do ?"
Mr Mathews told him about the sealing folders and that the applicant had taken them into his new office.
Mr Judd then spoke to Ms Cvetkovic and it was decided that Mr Judd would go to Narrandera and speak to the applicant. He then telephoned the applicant that afternoon and organised to meet him the following day. He stated that no issue was raised about holding the meeting.
107On 16 March 2011 Mr Judd said he travelled from Dubbo to Narrandera to meet with the applicant leaving at approximately 6.30am. At 8.20am the applicant sent an email stating he would not be available for the scheduled meeting. He phoned Mr Sexton and advised him and then he phoned the applicant who stated that he would not attend until he had external representation. Mr Judd stated that external representation was not necessary as he just wished to hear his side of what had happened the previous day. Mr Judd then directed the applicant to attend. The applicant said he would not. The applicant was warned that not coming could potentially lead to disciplinary action and could lead to termination. The applicant stated that he understood this. He was directed again, and again he refused. Mr Judd then said that he was coming down and that he don't leave the office and that he would report this to Head Office. He then spoke to Ms Edwards and Ms Cvetkovic and advised them of what had happened. Ms Cvetkovic said that she would prepare a memorandum to the Director recommending the applicant's suspension. He then sent an email to the applicant confirming their conversation. He also spoke with Mr Mathews updating him on what had occurred. He also spoke with Mr Sexton asking him to come over to Narrandera . They agreed to meet at Narrandera at 1.00pm.
108That afternoon Mr Judd gave the applicant a letter of suspension and proposed termination of employment. When received the applicant rejected the letter. Mr Judd denied that he or Mr Sexton sought to block the applicant from leaving the office or that Mr Sexton pushed the letter into the applicant's chest.
109On 18 March 2011 the applicant returned to the office and Mr Judd phoned him and asked him why he had returned when he was suspended.
110On or about 27 April 2011 Mr Judd received a copy of a memorandum recommending the termination of the applicant. He agreed with this action and listed his reasons as to why. He stated that the issues with the applicant were caused by inherent characteristics, eg not listening to others, inability to accept their input or views, apparent unwillingness to delegate, refusing directions from superiors where he felt they were unnecessary, inability to build and maintain working relationships and an inability to accept that he had contributed to the issues he had experienced in the workplace and work through a solution.
He believed that the behaviours that the applicant was exhibiting would be problematic regardless of whether particular people were reporting to him or not. He saw no evidence of any change taking place with the applicant's behaviours so a placement in another part of the business would place an unreasonable burden on any new workplace and he had lost confidence in him as a member of a team that Mr Judd is responsible for.
111Mr Judd stated that he is not aware of any training programmes that the applicant has attended on his initiative. The achievements that the applicant recorded are activities that are expected of anyone holding the position of the applicant.
112If reinstated to the Narrandera depot Mr Judd believed it would cause serious damage to the goodwill at Narrandera and that it would increase tension and animosity in the workplace. Since his departure the Sealing unit has been functioning well and continues to be profitable. He believed that the applicant demonstrated a pattern of behaviour that would be repeated and created conflict.