Croft v RMS

decision of the commission 1Wesley Shane Croft ("the appellant") seeks leave to appeal and to appeal from a decision of Commissioner Ritchie given on 29 March 2012 in Matter No IRC 827 of 2011 dismissing an application brought pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"): Croft v RMS [2012] NSWIRComm 1004. 2After hearing the parties on 7 September 2012 on the question of leave the Full Bench determined that leave to appeal should be refused. The Full Bench made orders to that effect. What follows are the reasons for refusing leave. 3It should be observed at the outset that a significant delay has occurred in the disposition of this appeal. This was caused by, firstly, the Commission granting an indulgence to the appellant to instruct new legal representation and, secondly, to allow the appellant to amend his notice of appeal.

Background 4In or around 20 October 2007, the appellant commenced employment with the Roads and Maritime Services (then known as the Roads and Traffic Authority) ("RMS" or "the respondent"). 5The appellant was dismissed from the RMS on 5 May 2011 as a Project Engineer, South West Region, Engineer Level 2. 6By letter dated 16 March 2011 titled "Suspension from Duty with Pay - Proposed Termination of Employment", the respondent detailed various incidents that led it to consider terminating the appellant's employment. 7The matters were set out by the Commissioner at [116]: The request by Mr Mathews (sic - Matthews) to leave sealing related files on the sealing bookshelf on 15 March 2011 The refusal by the applicant to comply with a reasonable request to undertake the new duties allocated to him on 25 February 2011. The applicant's response directed to Mr Mathews (sic) on 15 March 2011 accusing him of being unfair and harassing the applicant and the applicant pointing to the door and telling him to "f...off" and telling him he would " have a fight on his hands", again telling him to " f...off " and shouting at him to " get out of your office". Your declining of requests to attend a meeting with Mr Judd on 16 March 2011. An incident between the applicant and Mr Adams that occurred on 16 February 2011 where the applicant stated in a loud voice" I work with a bunch of pricks and you're all c..nts." The meeting on 25 February 2011 discussed with the applicant his work performance, his poor relationship with his immediate supervisor and members of his team, difficulty in managing reasonable workload requirements and his unprofessional conduct towards his supervisor Mr Mathews (sic), his new work project and opportunity to improve his communication and relationship building skills. These concerns had been raised with the applicant on 26 November 2010 and documented in correspondence of the same date. Refusal to comply with completing the two week schedules. 8The Commissioner summarised the appellant's response at [117] as follows: Denied using bad language and accused Mr Judd, Mathews (sic) and Sexton of misleading events to victimise him and threatened his employment. Did not wish to meet with Mr Judd on 16 March 2011 as he wished to have feedback from HR prior to any meeting and may wish to have representation. Also in accordance with section 19 of the Professional Engineers Award his request was reasonable. Mr Mathews (sic) refused to listen to his reasonable requests that he did not wish to discuss his current position with him and that Mr Mathews (sic) was threatening his employment. Maintained that in his opinion his job is still in Sealing. Admitted that he commented on Mr Adams rude behaviour as a "rude prick. He should get a real job." The various Harassment, Bullying and Victimisation reports that he had lodged with HR. His desire to continue to work on improving current Sealing practises. The applicant proposed a number of options including: Maintaining his employment in the Sealing unit , bringing in outside referral sources to resolve problems his experienced in bullying , harassment , victimisation etc and to ensure reasonable penalties are applied to personnel for their involvement and actions. Maintain his employment in the Sealing unit and HR address his grievances etc.. with feedback from HR advising what action is to be taken to minimise the risk of reoccurrence. As above but with external resources in conjunction with HR. As above but obtain formal recognition for his positive contribution for implementing the appropriate policies. Seek formal recognition for his positive contribution implementing management systems, improving IT systems. He would also consider a permanent or secondment position with Project Services eg Project Manager (Maintenance) based in Narrandera. 9The Commissioner immediately observed at [118]: It is clear from the applicant's response that he sees Mr Judd, Mr Mathews (sic) and Mr Sexton responsible for victimising him and threatening his employment. It is also clear that at no point in his response does he admit any blame for the incidents or his work performance that occurred that led up to the date of his response. 10The reasons for the appellant's termination were set out in a letter dated 2 May 2011 at [113] as follows: Overall, I note your response to the proposed penalty indicates no acknowledgment by you as to how your actions have caused disciplinary proceedings to be commenced against you or any admissions regarding your conduct and contribution to any poor relationships or behaviour. Your proposal for an alternative outcome to your disciplinary matter, including a secondment, is in direct contradiction to your ongoing refusal to comply with Mr Mathews' (sic) and Mr Judd's request to undertake alternative duties. I am satisfied that sufficient evidence exists of your poor relationship and communication skills and disregard for management authority despite ongoing discussions with you by your supervisors about these matters. Additionally , there is sufficient evidence of you refusing to comply with Mr Mathews' (sic) direction to provide work schedules and to work on an alternative project, as well as refusing Mr Judd's direction to meet with him, and your intimidating behaviour towards Mr Mathews (sic) in the incident on 15 March 2011. Your lack of insight into your behaviour has on others given the RTA no basis on which to maintain any trust it has in your capacity to conduct yourself professionally , and in accordance with the standards expressed in the RTA's Code of Conduct and Ethics. I therefore do not believe an alternative option would address these problems. As such, following careful consideration of the evidence and documentation you have provided , I have determined that the most appropriate disciplinary action is that your services be terminated immediately upon receipt of this letter. You will receive payment of three(3) weeks pay in lieu of notice. 11The Commissioner carefully considered the evidence in respect of each of the allegations directed to the appellant's performance and conduct and made the following findings: (i)that the appellant failed to complete the two week schedule due on 4 March 2011 despite being directed to do so. The Commissioner found that this was a reasonable instruction and by not carrying it out, the appellant placed himself in a position where disciplinary action would be taken (see [119] - [120]; (ii)that on the balance of probabilities the appellant did swear at Mr Matthews on the morning of 15 March 2011. The Commissioner saw no reason why two independent witnesses, Ms Mitchell and Ms McComber, should tell lies on this issue. He accepted both these witnesses as witnesses of truth. He also accepted the evidence of Mr Matthews with respect to this issue; (iii)that the appellant, therefore, was in contravention of the respondent's Code of Conduct and Ethics (at [125] - [126]); (iv)that Mr Judd had a duty to meet and speak with the appellant concerning what had occurred between the appellant and Mr Matthews on 15 March 2011. The absence of the appellant in not meeting with Mr Judd was "ill-founded" (at [132]); (v)that on the balance of probabilities neither Mr Judd nor Mr Sexton blocked the appellant from leaving the room when they met with the appellant on 16 March 2011 to provide the appellant with a suspension letter (at [133]); (vi)that directing the appellant be moved to a position to carry work on constructions on a temporary basis, was a reasonable direction that would allow normal work to continue. A contention that such a direction was in breach of the Professional Engineers (Roads and Traffic Authority Division of the Government Service of New South Wales-Salaries) Award 2008 was rejected by the Commissioner. 12Where the evidence did not support any wrongdoing by the appellant the Commissioner properly rejected it. This included the rejection of evidence that on 16 February 2011 the appellant used particularly offensive language towards Mr Adams. 13The Commissioner's conclusions were as follows: [149]In summary it is my finding that it was the actions of the applicant that led to his dismissal. The failure of the applicant to recognise his own frailties, but in response accuse both managers and fellow staff of lying is unacceptable. In all the correspondence that he developed that became evidence in this matter, there was no recognition by the applicant that he may have been in the wrong. [150]It is therefore my finding that his termination by the respondent was neither harsh, unreasonable or unjust. [151]I therefore dismiss this application. This matter is now concluded. 14In his application for leave to appeal and appeal, the appellant contended leave should be granted because the Commissioner's decision involved a number of serious errors as follows: a.He did not swear at his manager; b.His suspension was contrary to the Respondent's policy; c.His employment was terminated without accurate investigation; d.Swearing at a manager does not automatically warrant termination; e.He should not have had to take up the temporary role; f.He was victimised, bullied and harassed; g.His reported grievances were not at all investigated and he was not advised of all outcomes. 15The appellant also made an application pursuant to s 191(2) of the Act for leave to adduce fresh evidence. 16The respondent's case was that leave to appeal would not be granted because the requirements of s 188 of the Act had not been satisfied. This section provides: 188 Appeals to Full Bench by leave only (1)An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2)The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3)The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4)This section does not apply to an appeal made by the Minister. 17In essence, the respondent submitted that the appellant was baldly (and impermissibly) seeking to re-agitate the central factual matters in the proceedings below, namely, whether the alleged serious misconduct had in fact taken place. It followed, so it was submitted, that the appeal was an attempt to undermine the clear findings of credit made by the Commissioner that the appellant's evidence, where it conflicted with the evidence given by witnesses for the respondent, should not be accepted. 18It was also submitted that the appellant sought to advance scandalous and offensive contentions that should not be entertained by the Commission. By way of example, the appellant seeks to rely upon representations he made to the Hon Duncan Gay MLC, Minister for Roads and Ports, to the effect that the respondent has engaged in thuggery, deceit, misconduct, alleged corrupt conduct, incompetence and collaboration; and includes a suggestion of improper influence on the Commissioner's decision. 19The respondent further submitted that there was no question of legal principle, or public importance that arose from the appeal and that the appeal "does not have wider implications for the jurisprudence of the Commission". It was also submitted that the appeal seeks to raise numerous matters that were not advanced in the proceedings below. By way of example, the appellant advanced the following: a.The respondent's witnesses had improper motives; b.The respondent's (alleged) procedural failings were deliberate and motivated to avoid redressing grievances raised by Mr Croft; c.Mr Judd was "in contempt of the Commission for deliberately misleading the Commission"; d.Mr Judd was motivated by reprisal for Mr Croft raising safety concerns; e.The Respondent's witnesses collaborated evidence; f.Mr Boggon, Ms Dametto and Ms Cvetkovic were "all in breach of the respondent's Disciplinary Policy and Disciplinary Guideline and acted incompetently, which in itself is considered serious misconduct"; g.Mr Boggon and Mr Judd did not have delegation to commence disciplinary proceedings or to terminate the appellant.