Doyle v Taronga Conservation Society Australia

Industrial Relations Commission (NSW)|2020-10-22

Judgment

Before the Commission is a public sector disciplinary appeal lodged by Mr Willian Doyle (appellant) pursuant to s 98 of the Industrial Relations Act 1996 (NSW) (the Act) in respect of the decision of Taronga Conservation Society Australia (respondent) to terminate his employment as a gardener on 13 February 2020.
At the time of the dismissal, the appellant had worked with the respondent for a total of about three (3) years between 26 April 2014 and February 2020, initially as a volunteer. After returning from overseas, the appellant was engaged as a casual employee from mid 2018 before securing ongoing permanent employment from late April 2019 as a gardener. In his permanent role as a gardener, the appellant worked in the collection of browse; vegetation for animal consumption.
In the letter of termination, the respondent purports to dismiss the appellant during a probation period due to his inability to fulfil the inherent requirement of his role as a gardener. Specifically, the respondent asserted that the appellant was not meeting expectations and was unable to fulfil the inherent requirement of his role or meet the respondent's expectation under their Code of Conduct. The respondent listed the concerns as including:

Failure to take direction and follow instructions of your managers
Inability to maintain professionalism/professional behaviours
Inability to maintain professional working relationships
Failure to participate in planning and providing feedback regarding improvements in the Browse function

In support of this conclusion, the respondent provided eleven (11) examples of where the appellant was said not to have met the relevant expectations.
The appellant denies that he was in a probation period at the time of his termination. Further he denies that he was not meeting expectations and unable to fulfil the inherent requirements the role that he occupied. Further he asserted that he at no time breached the respondent's Code of Conduct. The appellant denied some but not all of the assertions of the respondent with respect to the eleven (11) examples provided to support the proposition that he was not meeting the respondent's expectations.

Background

The appellant's relationship with the respondent commenced on the 26 April 2014 when he became a Volunteer Keeper with the respondent. In July 2015 the appellant moved to the United States of America for personal reasons and he therefore ceased in this role.
In April 2018 the appellant returned to Australia and was reengaged by the respondent as a Casual Keeper, covering a maternity leave vacancy from mid July 2018.
In January 2019 the maternity leave position occupied by the appellant came to a conclusion. However, the appellant continued working one day a week in the Keeper role, and commenced picking up casual shifts in the Horticulture Area of the respondent.
After expressing interest in a role within the Horticulture Area, the appellant was forwarded a job advertisement for a permanent gardener position in early February 2019. After an interview process, on 17 April 2019 the appellant was offered a permanent role as a gardener for the respondent. The appellant was provided with the gardener job description at this time. After making queries, the appellant ultimately signed a Letter of Offer accepting the position on 29 April 2019.
Between July 2019 to 13 February 2020, (when the appellant's employment was terminated), there was friction in the relationship between the appellant and the respondent and a number of meetings took place between the appellant; and Mr Michael Drinkwater, the appellant's then supervisor, Mr Elio Bombonato, Manager of the respondent's Animal Presentation Precinct and Acting Head of Wildlife Operations, Ms Tracey McNamara, Human Resources Advisor and Ms Rebecca Edwards, Manager Human Resources.
On 13 February 2020, the appellant attended a meeting with the respondent where his employment was terminated.

Legislation and legal principles

The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the Act, which relevantly provides as follows: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals … (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: … (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment.
In public sector disciplinary matters, the Commission is required to conduct a fresh hearing to determine the facts based on the evidence. That is to say, I am not to simply conduct a review of the respondent's decision. Rather, as set out in the decision of Marroun v State Transit Authority (2017) 96 NSWLR 295 at [35]: "In colloquial terms, an appeal by way of fresh hearing means that the appellant body "stands in the shoes" of the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellant body has the same powers as the original decision-maker, no more want and no fewer. One basis for the inference is a use of the term "appeal" to describe what is in substance a fresh hearing."
The Commission's task in these proceedings, is to first determine whether the relevant conduct complained of occurred. The second step is to determine whether, in the Commission's view, the punishment imposed is appropriate: see Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 at [54].
I further note that Marroun confirmed the proposition that post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven. Accordingly, if the Commission allows the appeal it may consider post-decision events or conduct in determining whether some other form of disciplinary action is appropriate: see Maritime Services Board v Murray (1993) 52 IR 455.
I note that in exercising its jurisdiction in public sector disciplinary decisions, it has been said that the Commission is exercising a protective function: see Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173].
The parties made extensive submissions with respect to the rights and obligations provided for under the Government Sector Employment Act 2013 (NSW) (the GSE Act) and it is therefore necessary to set these out and it is convenient to do so now: 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment - (a) the employee has failed to meet a condition of engagement as an employee under section 54, … (c) the performance of the employee is determined under section 68 to be unsatisfactory, … (f) the employee has refused to perform the duties of the role assigned to the employee, … (h) a finding of misconduct has been made against the employee under section 69, … (k) on any other ground prescribed by the regulations. The instrument is to set out the ground or grounds on which the employment is terminated." … 67 Performance management systems (1) The head of a government sector agency is responsible for developing and implementing a performance management system with respect to employees of the agency. (2) The government sector employment rules may deal with the core requirements of any such performance management system. 68 Unsatisfactory performance of government sector employees (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the person who exercises employer functions in relation to the employee may (without limitation on relevant action) take any of the following actions - (a) terminate the employment of the employee (after giving the employee an opportunity to resign), (b) reduce the remuneration payable to the employee, (c) reduce the classification or grade of the employee, (d) assign the employee to a different role. ... (4) Without limiting the action that may be taken under this section by the person who exercises employer functions in relation to a NSW Health Service senior executive, the Secretary of the Ministry of Health may, if the Secretary is not the employer of the executive, terminate the executive's employment under this section. 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section - government sector agency means - (a) a Public Service agency, and … (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following - (a) a contravention of this Act or an instrument made under this Act, … (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following - (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions - (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. …
Part 7 and Part 8 of the Government Sector Employment (General) Rules 2014 (the Rules) provides for "Performance Management" and "Misconduct - Procedural requirements" respectively. It is necessary to set out the relevant Rules: Part 7 Performance management 35 Core requirements of performance management systems (1) The core requirements of a performance management system are as follows - (a) to set and clarify expectations for employees, (b) to guide and review employee performance, (c) to develop employee capability, (d) to recognise employee achievements, (e) to improve employee performance, (f) to resolve unsatisfactory employee performance, (g) to evaluate and strengthen practices. (2) The Commissioner may determine the essential elements of those core requirements. 36 Dealing with unsatisfactory performance (1) The person who exercises employer functions (the employer) in relation to a person employed in a government sector agency (the employee) may not take any action under section 68 (2) of the Act in relation to the employee unless - (a) the employee's performance is determined by the employer to be unsatisfactory in accordance with the agency's performance management system, and (b) reasonable steps have been taken to advise the employee that the employee's performance is unsatisfactory and the basis on which it is unsatisfactory, and (c) the employee is notified that the employer is proposing to take specified action under section 68 (2) of the Act in respect of the employee, and (d) the employee is given a reasonable opportunity to respond to the notice, and (e) the employer has taken any such response into consideration. … Part 8 Misconduct - procedural requirements … 38 Initial stage for dealing with allegations of misconduct (1) An allegation of misconduct by an employee of a government sector agency may be made by any person to the person who exercises employer functions in relation to the employee. (1A) The employee in respect of whom the allegation is made is referred to in this Part as the relevant employee and the person who exercises employer functions in relation to the employee is referred to in this Part as the employer. (2) After making an initial assessment of the allegation, the employer may decide not to proceed with the matter if the employer is satisfied that - (a) the allegation is vexatious or trivial, or (b) the incident or conduct concerned does not amount to misconduct, or (c) there is likely to be difficulty in establishing the facts of the matter. (3) If, after making an initial assessment, the employer decides to proceed with the matter, the relevant employee is to be advised - (a) of the details of the allegation of misconduct, and (b) of the action that may be taken under section 69 (4) of the Act against the employee. (4) The relevant employee is to be given a reasonable opportunity to make a statement in relation to the allegation. (5) The employer may, as a result of any such statement by the relevant employee - (a) decide to proceed to deal with the matter in accordance with this Part, or (b) decide not to proceed any further with the matter. The relevant employee is to be notified of the employer's decision. (6) The person making an allegation of misconduct is to be informed of any decision by the employer under this rule not to proceed with the matter. 39 Inquiries (1) The employer may, in dealing with an allegation of misconduct, conduct such inquiries as the employer thinks appropriate for the purposes of determining whether the misconduct has occurred. (2) A formal hearing involving the legal representation of the relevant employee or any other person and the calling and cross-examination of witnesses is not to be held in relation to an allegation of misconduct and the taking of any action with respect to the employee. 40 Findings by employer (1) The employer may, in dealing with an allegation of misconduct - (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or (b) make a finding that misconduct by the relevant employee has not occurred (in which case the employer is to dismiss the allegation and advise the relevant employee in writing). (2) The employer may not take any action under section 69 (4) of the Act in relation to an employee unless - (a) the employee is notified of the proposed action to be taken, and (b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and (c) if any such submissions are made, the employer has taken those submissions into consideration. (3) If the employer makes a finding of misconduct in relation to an employee, the employer may, instead of taking action under section 69 (4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee. (4) If, during that specified period, the employer is satisfied that the employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the employer may take any action under section 69 (4) of the Act in respect of the employee. (5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the employer. 41 Records relating to misconduct (1) If an allegation of misconduct by an employee of a government sector agency is made under this Part, the employer is to keep a written record of the proceedings and action taken in respect of the allegation. (2) Any personnel file kept by the employer on such an employee is to include information about any finding of misconduct by the employee that is, in the opinion of the employer, in the public interest to be included. In forming that opinion, the employer is to have regard to the nature and seriousness of the misconduct and the need to minimise any unnecessary or prejudicial information being kept on a person's file.
The GSE Act and Rules delineate between unsatisfactory performance and misconduct and are obviously aimed at prescribing a process for dealing with these issues in a procedurally fair manner. The legislation remains very prescriptive despite a streamlining processes through amendments to predecessor legislation (see the Second Reading Speech, 18 June 2020, in respect of the Public Sector Employment and Management Bill 2002 (NSW) which amended the provisions to their current form in the Government and Relations Employees Appeal Tribunal Act 1980 (NSW), now in ss 67- 69 of the GSE Act, referable to Part 7 and 8 of the Rules). The GSE Act and Rules effectively codify procedural fairness in the context of managing performance and misconduct issues.

The respondent's case

The respondent relied upon the following written witness evidence in the proceedings: 1. Statements of Ms Rebecca Edwards, Manager Human Resources filed 29 May 2020 (Ex R1) and 21 August 2020 (Ex R2); 2. Statement of Ms Tracey McNamara, Human Resources Advisor filed 25 August 2020 (Ex A3); and 3. Statements of Mr Elio Bombonato, Manager, Animal Presentation Precinct, Wildlife Operations filed 1 June 2020 (Ex R5) and 25 August 2020 (Ex R6).
Each of the respondent's witnesses was cross-examined by the appellant.
The respondent relied upon written submissions filed 1 June 2020 (respondent's summary of case) and 28 August 2020 (respondent's case in reply). The respondent separately relied upon written submissions filed in court on 7 December 2020 addressing the appellant's list of questions. The respondent also made oral submissions before the Commission.
The respondent did not contend that the appellant was excluded from bringing the appeal under s98(3)(b) of the Act, nor did it argue that he was in probation pursuant to the Taronga Conservation Society Australia Salaried Employees Award 2012 (award) applying to his employment.
In summary the respondent contended that the appellant was terminated while completing "his contractual probation period", after a long period in which ([2] of the respondent's summary of case): 1. The appellant had made it expressly clear that he did not wish to be employed as a gardener; 2. They had over some weeks attempted to resolve his issues, without success; 3. The appellant disengaged from key aspects of his role, and refused to participate in internal processes relevant to it; 4. The appellant engaged in increasingly inappropriate conduct towards the respondent's employees; and 5. The prospect of an ongoing employment relationship was untenable.
Therefore the respondent contended that the dismissal was correct and preferable and indeed the only viable option.
With respect to the issue of procedural fairness, the respondent noted that s 100C (3) allows to the Commission to allow or disallow an appeal even where it concluded that the employer failed to comply with the rules of procedural fairness. The respondent relied upon the decision of Brindley v Secretary, Industrial Relations for Corrective Services NSW [2017] NSWIRComm 1026 where Newall C stated at [56]: "The Act does not say so in terms but the authorities lead me to conclude that the Commission's task is to determine whether the decision which was imposed is the correct or preferable decision in the circumstances."
Based on the factual circumstances (as the respondent says they are), they submitted that as a matter of discretion, the Commission should not intervene with the termination of the appellant's employment. In this regard, the respondent asserted that the appellant did not want to perform the job he was engaged to do (gardener); he should have been putting his best foot forward as he was (purportedly) in a probationary period, so the Commission ought not expect things will get better; and he had been given ample opportunity to amend his behaviour through the meetings he had with his management line.
In the respondent's case in reply, they characterise the appellant's conduct as misconduct and state that the appellant has had an opportunity to put his case in these proceedings and has done so by embracing his behaviour and restating this view of the correctness of his position. They argue that formal compliance with the GSE Act and Rules would not have made a shred of difference to the outcome of the matter and therefore the decision maker had the power to dismiss the appellant pursuant to s 47(h) of the GSE Act (on the basis of his alleged misconduct) and the Commission has jurisdiction to confirm this.
The respondent relied in the alternative upon s 47(f) of the GSE Act as the basis of the appellant's dismissal (refusal to perform the duties assigned).
The respondent argued, in summary that: 1. In response to the appellant's contention that the decision to terminate was not properly made in accordance with the GSE Act and Rules, procedural defects in an administrative decision do not act to invalidate the decision, even it is made outside of power: State of NSW v Kable (2013) 252 CLR 188 at [52]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24]. 2. the above conclusion is also supported by the text of s 100C (3) of the Act, and the second reading speech of the Industrial Relation Amendment (Public Sector Appeals) Bill 2010 which stated the intention of the relevant amendments to 'streamlines public service disciplinary process.'
Ultimately, the respondent submitted that the appeal should be dismissed.

The appellant's case

The appellant relied upon his own statement filed on 24 November 2020 (Ex A1) which included a number of annexures.
The appellant was subject to cross-examination by the respondent.
The appellant relied upon written submissions filed 29 June 2020 (appellant's outline of submissions on jurisdiction) and 3 August 2020 (appellant's outline of submissions - merit case). The appellant also delivered oral submissions before the Commission at the hearing.
Although the appellant continued to rely upon the appellant's outline of submissions on jurisdiction, the proposition that the Commission was without jurisdiction to determine the matter was not developed in oral submissions. Counsel for the appellant conceded that s 100C(3) provides for a discretion to consider the matter on its merits, though strenuously argued that the Commission should find that it was not appropriate to exercise that discretion in favour of the respondent: see Tcpt, 7 December 2020 p 86 (12 - 46). The appellant argued that the rights contained within GSE Act and Rules providing for procedural fairness were fundamental. It was further put that the discretion needs to be exercised fairly and with full knowledge of the facts and in a way that does not undermine the broader legislative intent provided for in the GSE Act and the Rules.
The appellant argued that he ought to have been given the benefit of a Performance Improvement Plan before his employment was terminated. The appellant also noted that there was no proper counselling prior to the termination of his employment, nor was he provided with what was described as "mentorship". He argued that the failure to implement these processes "could not be cured" and to allow someone to be terminated without the protections of s 68 of the GSE Act is not fair and "not right". It was put that the appellant was not given an opportunity to colloquially, "pull his socks up", or as it was put in oral submissions by his counsel, "some people need a kick up the backside to realise what their obligations are in their employment. That is why PIPs exist, to set out to them what the defined expectations are before they're terminated": see Tcpt 7 December 2020, p 85 (46-50). The appellant submitted that the dismissal here was analogous to summary termination on the basis of performance management which "is unheard of."
The appellant also argued that because the procedural requirements had not be complied with pursuant to the GSE Act and the Rules, then the decision to terminate is invalid and the Commission would not make the same decision for this reason alone.
With respect to the respondent's contention that the appellant was refusing to do his role as a gardener, the appellant submitted that the Commission should find that he had never refused to do work that was asked of him and therefore the finding was not open.
With respect to the particulars of the allegations in the letter of termination, the appellant either argued that the conduct could not be made out on the evidence, or where it is made out or admitted, the Commission should find that it did not constitute the type of performance or conduct issue that warranted disciplinary action.
It was ultimately submitted by the appellant that this matter should be remitted back to the respondent to re-determine the issues raised in these proceedings in accordance with the GSE Act and Rules.

Consideration

At the outset, I reject the appellant's submission (to the extent it was maintained) that the Commission was required in this matter to allow the appeal because the respondent was wrong when it acted as though he was still in probation in terminating his employment and therefore did not follow the processes provided for in the GSE Act and the Rules. The Commission is empowered by s 100C (3) to determine the matter on its merits even if the procedures in the GSE Act or the Rules have not been followed. The requirements of Part 7 and 8 of the Rules clearly seek to address issues of procedural fairness within the meaning of s 100C (3) and to find otherwise would render the clear and obvious intent of the section nugatory, namely, to enable the Commission to deal with the merits of the case.
Accordingly, I proceed to consider the matter as a hearing de nova, standing in the shoes of the decision maker. I therefore turn to consider why the appellant was terminated and whether the factual issues that lead to that scenario are made out on the evidence.

Are the allegations about Mr Doyle's conduct as set in the letter of termination made out on the balance of probabilities?

The reasons for the appellant's dismissal were set out in the letter of termination as contained in [3] above.
It is necessary to consider the particulars of the allegations which formed the basis of the respondent's conclusion that the appellant was not meeting its expectations under the Code of Conduct and was unable to fulfil the inherent requirement of his role such that the relationship was unviable.
The eleven (11) examples of conduct given by the respondent of the appellant not meeting their expectations were stated in the letter of termination as including: 1. During July 2019, you were unwilling to participate in Taronga's Performance Agreement process stating that the gardener role description was not reflective of your duties. 2. On 24 July 2019, when working with (Ms) Sam Elton to provide your input into the development of the Browse Safe Work Practices, you were asked to collate your notes and send these through, this did not occur. 3. On 18 November 2019 during a meeting with Elio (Bombonato) and Tracey (McNamara), you became frustrated and left the meeting abruptly. 4. On 3 December 2019, during a meeting with Michael (Drinkwater) and Elio (Bombonato), you became frustrated and stated words to the effect of "I'm so fucking pissed off right now" in a raised voice. 5. You have continuously raised concerns regarding the Gardener Role Description and your award classification, after this had been discussed and clarified with you on numerous occasions and you had been advised of the final outcome. 6. You have made comments to Michael (Drinkwater) to the effect of "the planning meetings that were conducted were nothing but lip service." 7. In a meeting on 3 December 2019 regarding workplace efficiencies in the Browse team, you displayed closed body language, were slouching in your chair, and did not contribute any feedback on how the function could be improved, despite continuously raising concerns. 8. On 3 February 2020, you included Toby Johnson, Horticulturalist, in your email to Elio (Bombonato) regarding your probation review, which you are aware is a confidential matter. 9. You failed to respond to Elio's (Bombonato) meeting request invite which was scheduled for Friday 31 January 2020 regarding your probation review without providing Elio with any notification that you were unable to attend the meeting. 10. You have stated several times that you "have absolutely no interest in being a gardener" whilst being employed as a gardener. 11. To date, you have not provided any constructive feedback on the Gardener Role Description, despite the review of the Role Descriptions taking place at your request. You have instead continued to express your dissatisfaction, stating words to the effect of "its rubbish".
I have considered the allegations made against the appellant under the subheadings below: 1. The award classification meeting of 18 November 2019 2. The Browse Planning Meeting of 3 December 2019 3. The Performance Planning Process 4. The appellant's willingness to perform the role of gardener 5. Participation in the Browse Safe Work Practices Process 6. Conclusions with respect to allegations against the appellant

The award classification meeting of 18 November 2019

I have found, on balance, the appellant conducted himself inappropriately during the meeting of 18 November 2019 in that he became frustrated and left abruptly (see allegation (3)). The meeting was convened for the purpose of discussing the appellant's ongoing concerns with respect to his classification as "Gardener" and not "Browse Collector" with Mr Bombonato and Ms McNamara. The evidence of the meeting given by the appellant, as compared to that of Mr Bombonato and Ms McNamara was inconsistent. Mr Bombonato and Ms McNamara gave evidence that upon being told, in effect, that the award would not be changed to include the new position of "Browse Collector", the appellant became frustrated and left the meeting. The appellant gave evidence that the context of him walking out was that he was the subject of an outburst from Mr Bombonato where he stated that he was free to leave the zoo at any time and "Bill, I can't pull a fucking award out of my fucking arse." Both Ms McNamara and Mr Bombonato denied those words were spoken or that Mr Bombonato's conduct was inappropriate during the meeting.
I have decided that the account of what happened at that meeting of Ms McNamara and Mr Bombonato is more likely than the appellant's. In particular, I note that the appellant attached a diary entry he had written to his statement referring to the meeting stating, "Politely disagreed + walked out" which would seem to more accurately reflect the version of events presented by the respondent's witnesses as to what transpired. The appellant also gave evidence under cross-examination that he had become frustrated and he had left the meeting abruptly.
The appellant was entitled to raise the questions that he did about the classification of his role, however, he still had an obligation to do so in a manner that was respectful and professional. His conduct in walking out of the meeting fell short of acceptable workplace conduct. This kind of behaviour is not conducive to building trusting and constructive relationships in the workplace.

The Browse Planning Meeting of 3 December 2019

The appellant admitted that he stated in a planning meeting on 3 December 2019, that "I'm so fucking pissed off right now", or "words to that effect" although he gave evidence that he did so in the context of being provoked by Mr Bombonato (see allegation (4)). Moreover, Mr Bombonato gave evidence under cross-examination about the incident as follows (Tcpt, 7 December 2020, p 12 (22-33)): Q. In a meeting he once said, "I'm so fucking pissed off right now", do you accept that? A. Yes, I do. Q. But he was saying that about the way that he felt at the time, he wasn't telling you to, for example, pardon me commissioner, get fucked, was he? A. No, I don't believe so. Q. He was a bit exasperated at the time? A. I believe so. Q. But otherwise you've made no allegation that he's ever sworn at you, have you? In your statement you have made no-- A. No. Q. --allegation that he has sworn at you? A. That's right, I believe so.
The respondent did not contend that this is a "swearing case", but in acknowledging the conduct, the appellant apologised for what he said before the Commission, demonstrating some insight into the inappropriateness of the statement.
I also accept the evidence of Mr Bombonato that during the planning meeting, initially the appellant displayed closed body language, and was slouching in his chair and not properly participating, albeit this changed as the day progressed and the appellant, "slowly warmed up" so that by the end of the session he was engaging (see allegation (7)).
Further, the appellant did "not deny" saying, "the planning meetings that were conducted were nothing but lip service", although explaining that it "would have related to the fact that I had just spent 3 hours discussing the future of Browse Collection with Elio Bombonato to then be told by him that I had not future with the Zoo": Ex A1 at [76] (see allegation (6)).
The appellant's conduct during the planning meeting was inconsistent but at least at times unconstructive and unprofessional.

The Performance Planning Process

The appellant was highly resistant to engaging in the Individual Performance Agreement process with the respondent and sought to obstruct it, principally by seeking to raise complaints with his managers. I accept the appellant's evidence that his manager, Mr Drinkwater agreed that he would not complete the Individual Performance Agreement in mid 2019 after the appellant raised the issue of the gardener position not being reflective of his role with him (see allegation (1)). However, the process was re-enlivened by Mr Bombonato in about November 2019 and in late January 2020 he asked by way of email that the appellant submit his self-assessment initially in error by 5 January 2020, then by 28 January 2020, offering to extend the time if required. After the document had not been submitted, on 30 January 2020, Mr Bombonato followed up the appellant with respect to the self-assessment. The same day, there was an email exchange where the appellant stated: "Hi El/Mike … Agreed, yes more time needed to adequately convey and honest/ robust and transparent self-assessment with enough review time for similar feedback. In the absence of any prior objective setting or performance agreement im finding this a very difficult process. In being brutally transparent im finding this situation extraordinary and quite disconcerting. As such, I also have a raft of additional questions, feedback and concerns re the recently proposed Role Description, "Probationary Review" and future Browse Department strategy. I will collate and distribute these accordingly. As such kindly request we reschedule any review until after these concerns are mutually allayed."
From the text and email exchange it could be concluded that an agreement was reached that the meeting of 31 January 2020 would not proceed to allow the appellant more time to complete his self-assessment (see allegation (9)).
Mr Bombonato wrote to the appellant on 3 February 2020 with a "friendly reminder" that he submit his self-assessment by close of business that day the tone of which was respectful, professional and clear.
At about 7 pm on 3 February 2020, the appellant sent his self-assessment to Mr Bombonato and Mr Drinkwater, copying Mr Toby Johnson, another employee of the respondent and senior horticulturist, not in his direct line of management and the PSA delegate (see allegation (8)). The inclusion of Mr Johnson in the exchange was unnecessary and demonstrative of the increasingly combative way the appellant was approaching the process.
In the cover email, the appellant expressed that he had found the process of a "retrospective" review to be difficult, disconcerting and stressful to complete. He again stated that he had additional feedback, concerns and questions and he would like to seek mutual resolution on, prior to any "probationary" review taking place. One of the five issues raised included the role description of "gardener v a dedicated browse collector."
The appellant's resistance to the Performance Agreement Planning process was further evident in the appellant's self-assessment document. Although not the first employee to have formed a higher opinion of himself than his superiors (he assessed himself as either fully meeting expectations or exceeding expectations in each area he evaluated), the self-assessment was incomplete and his responses passive aggressive, supporting his high self-evaluation by pointing to grievances he had raised with the respondent about various matters. For example, in the personal attributes section, the appellant states in his self-evaluation: "General comments Considering the initial, continuous and recent personal challenges encountered during my tenure in the HORT-BROWSE department, I feel I've proactively demonstrated these personal attributes consistently, professionally and with the upmost decorum in the most difficult of circumstances, specific comments, examples of each sub section as follows; … Employee, self-evaluation - Exceeds expectations Be Open & Honest By example; I've continually raised awareness of the lack of due process, organisational structure effectiveness (under resourced/undervalued), self and individual team member accountability, training needs, lack of uniform/personal safety equipment and of basic tool allocation adequately fulfil the daily tasks for the role."
It is of concern that the appellant maintained under cross-examination that his self-assessment was his best effort, his responses were an accurate reflection of his performance and that he properly participated in the Performance Agreement Planning process.
The respondent has a right to require the appellant to engage in its Performance Agreement Planning processes and the appellant demonstrated extraordinary resistance to this legitimate and normal undertaking. This conduct and behaviour was not an appropriate response to any of the issues or concerns that he raised.

The appellant's participation in the Browse Safe Work Process

For completeness, I note that the appellant denied being asked to collate his notes and send these through to his colleague, Ms Elton in the context of developing the Browse Safe Work practices (allegations (2)): Ex A1 at [48]. Although his evidence did not directly address any request made on 24 July 2019 to carry out this particular task, there was limited evidence from the respondent to substantiate this allegation (see Ex R5 at 13).

The appellant's willingness to perform the role of gardener

The respondent argued that the appellant was unwilling to do his job because he had expressed a view that he was not a gardener, which was the classification he had been engaged as (see allegation (10)). While the appellant seemed to have difficulties letting go of the fact that he had been classification as a "Gardener" under the award and there was no separate "Browse Collector" classification, ultimately there was no evidence before the Commission that the appellant was unwilling to do the work that he was actually asked to do by the respondent. His issue seemed to be that the classification did not correctly describe what he was in fact doing: see for example Ex R5 at EB4. This may have crystallised had the appellant been asked to perform duties other than browse collecting, which the respondent no doubt had a right to do, but that never happened. Accordingly, there is not a sufficient factual basis upon which s 47 (f) of the GSE Act (refusal to perform duties) could be relied upon to justify the dismissal of the appellant. That is not to say that manner in which the appellant raised the issue of his classification was appropriate.

Conclusion with respect to the sustained allegations

The respondent has made good its allegation that the appellant: 1. Failed to take directions and follow instructions of his managers; This was demonstrated in the appellant's conduct in his participation in the Performance Planning Process as considered above at [57]-[64]. The appellant sought to avoid and delay the process and had to be "pinned down" by the Mr Bombonato to finally get him to participate. The appellant's self-assessment was not his best effort and in effect he never complied with the respondent's directions with respect to the process. 1. Failed to maintain professionalism/professional behaviours; The appellant's conduct in both the award classification meeting and Browse Planning Meeting as considered above at [49]-[54] are clear examples of the appellant conducting himself in an unprofessional manner. The appellant's conduct in these meetings was "below the line", rude and discourteous. Further the appellant's conducted through the Performance Planning process was aggressive and unprofessional. 1. Failed to maintain professional working relationships; and Because of the appellant's conduct as considered above, his relationships with his managers and in particular Mr Bombonato were significantly compromised. 1. Failed to participate in planning and providing feedback regarding improvements to the browns functions. While the appellant did not fail to participate, his participation was unprofessional, confrontational and unconstructive for the reasons provided above.
I have formed the view that the conduct engaged in by the appellant may be characterised as misconduct, albeit not so serious as to warrant instant dismissal (see below). The original decision-maker could have made that finding and I do not understand the decision of Marroun to prevent such a finding even if the complaint was not originally characterised as such.
The respondent's Code of Conduct provides as its core values: "Integrity … Act professionally… Trust … Build relationships based on mutual respect … Communicate intentions clearly and invite teamwork and collaboration"
At least in respect of these core values, the appellant's conduct has fallen short.

Was the dismissal appropriate in all of the circumstances, including with regard to questions of procedural fairness? If not, should the Commission refrain from making an order for reinstatement because the relationship is untenable?

In view of the findings I have found about the appellant's conduct, I am required to consider whether in the circumstances, termination is an appropriate outcome. In this regard, I note that I have considered the appellant's conduct and behaviour both in terms of there being separate incidents but also the collective effect of that conduct. The evidence has demonstrated a consistency in his behaviour in that he engaged in an unprofessional and aggressive manner in what might be described as "upward bullying" of those in his management line. However, I have decided that it would be premature to terminate the applicant's employment based on that conduct. Put simply, without a warning, the appellant's conduct, though serious, was not of a nature that warranted termination without warning and it was a disproportionate outcome.
The appellant's conduct warranted something less than this, namely formal counselling and remedial action, giving the appellant an opportunity to change the trajectory of his relationship with the respondent.
In these proceedings, I am asked by the respondent to find that the appellant's stance and attitude has not changed since his termination and it would therefore be a futility to allow the appeal because the issues would remain. I agree that the appellant has not shrouded himself in glory in these proceedings and his conduct needs to be corrected for the relationship between him and the respondent is to be viable.
I agree with the respondent that the appellant has in some respects "dug in", particularly with respect to the issue of his position description and classification as gardener, rather than a browse collector (see allegation (5)). Indeed, in response to the allegation that he had not provided constructive feedback to the amended position description that took into account his concerns, the appellant's evidence was that the issue of "Role Description amendments is still to be resolved", though he denied stating that is was "rubbish": Ex A1 at [86] (see allegation (11)).
I have grave concerns that the appellant's conduct and behaviour will not change despite these proceedings and with the benefit of an opportunity to do so. He has shown very little insight and not taken very much responsibility for his performance and conduct in this matter. However, albeit somewhat reluctantly, having carefully considered the parties submissions against the evidence, I have decided that it would be unfair for the appellant to be denied the opportunity to change because there remains a chance that he will. If there is not a change to the appellant's performance and conduct the relationship will be untenable and unviable but in the absence of an opportunity for redirection, I am unable to find that that there has been a complete breakdown in the relationship because he might improve. In arriving at this decision I have carefully considered the respondent's evidence with respect to the basis upon which it concluded that the relationship was no longer viable, both at the time the appellant was terminated and afterwards.
In my view, the denial of procedural fairness in this matter may be of substance.
Accordingly, I allow the appeal.

What Orders should be made?

The appellant contended that the decision of the respondent should be quashed and the matter remitted for determination in accordance with the GSE Act and Rules. I have decided that the better approach is for the Commission to attempt to finalise all issues brought by the parties in these proceedings to enable the appellant and respondent to effectively "move on". For the reasons contained in this decision, I make orders for reinstatement and back pay to the appellant on the basis that the appellant is formally counselled for his misconduct and underperformance. The factual matters determined by the Commission should form the basis of a Performance Improvement Plan to be implemented immediately upon the appellant's return to work.

Orders

I make the followings Orders: 1. The appeal be allowed. 2. The appellant be formally counselled by the respondent in respect of his misconduct and underperformance. 3. The respondent restore the appellant's employment to the position of gardener on the same terms and condition as applied to his position at the time of his termination from 15 February 2021. 4. The respondent is directed to pay the appellant an amount of remuneration equivalent to the amount which he would have received, but for the decision to terminate his employment. 5. The appellant's continuity of employment with the respondent is taken to be unbroken.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2021

Government and Relations Employees Appeal Tribunal Act 1980(NSW)

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Decision date

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Judgment (17 paragraphs)

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Legislation Cited (3)

Cases Cited (8)

Cited By (1)