Consideration
222I have very carefully considered the relevant evidence and the submissions of the parties in this matter.
223As Ms Brus rightly pointed out Housing NSW as the respondent bears the onus of establishing that misconduct on the part of Mr Gonzales took place (see Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 as affirmed by the Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164.) The standard to be applied to that onus is the civil standard arising from the dicta in Briginshaw v Briginshaw (1938) 60 CLR 336 (again see Prior)
224In considering the concept of misconduct I have also been mindful of the following decision in Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371, which has also been consistently applied in numerous cases by this Commission, wherein Cook J said at 374:
..... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to lawful commands of the employer and the right of the employer to enforce discipline.......(emphasis added).
225In North v Television Corporation Ltd (1976) 11 ALR 599, Smithers and Evatt JJ said at 608-609 also relevantly observed:
It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct but not regarded as grounds for termination. In such a situation it is reasonable to interpret that the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.
226However it has also been held that in misconduct cases, even if it is established that misconduct did occur, the Commission needs to examine whether termination, in all the circumstances, was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise, the Commission must also consider and make specific findings as whether the termination was harsh and/or unjust and/or unreasonable, or any combination thereof, per s.88 of the Act (see Bankstown City Council v Paris (1999) 93 IR 209 as reaffirmed in National Union of Workers' New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras. [64] and [65]) . Here however, the evidentiary onus moves back to an applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273.
227It should also be indicated that Housing NSW were entitled to take Mr Gonzales' previous misconduct into account when considering the appropriate disciplinary penalty to be imposed under s.47 (and as defined in s.42) of the PSEM Act for the latest act of misconduct per the observation of Sheppard J (as he then was) of the former Industrial Commission in John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517, concerning a past act of misconduct:
"...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..."
228That decision continues to be relevantly cited, and was so as recently as Connor C in Grant Thomas v Boral Cement Limited [2011] NSWIRComm 1045
229What does need to be considered however is whether any past acts of misconduct/formal warnings, or earlier disciplinary action, is firstly, sufficiently recent to still be of relevance (e.g matters many years in the past with a subsequent good record would probably not be relevant) and secondly, whether the issues about which disciplinary action was taken in the past are individually, or collectively, sufficiently relevant to the current issue under consideration (e.g warnings about very minor issues only, or related to an entirely different subject matter such as incorrectly filling out a form etc.).
230In the case of Mr Gonzales the former misconduct, the findings of the Deloitte's investigation which resulted in his demotion, were sufficiently recent (2009) and were also sufficiently relevant (inter alia deliberately failing to comply with policy and procedures) to be entirely appropriate to be taken into account by Housing NSW when considering further disciplinary action. It was also very relevant, and entirely appropriate, for Housing NSW to indicate this in the Employer's Reply.
231It should be emphasised that Mr Gonzales' s.84 application does not permit the Commission to re-visit Mr Gonzales' demotion by Housing NSW in July 2009 as a consequence of the findings made after the independent, and fairly extensive investigation, conducted by Deloittes. Nor does it permit the Commission to overturn those findings. Those findings remain, the demotion of Mr Gonzales stands.
232However, a great deal of the evidence and cross examination concerned ventilating issues that predated that investigation and that were the subject of Mr Gonzales' extensive complaint to the Australian Human Rights Commission which was terminated by the AHRC in November 2011 on the basis firstly, that it was incapable of being settled by conciliation, and secondly, that the additional complaint concerning trade union activities was out of time and lacking in substance.
233In any event there was insufficient evidence before the Commission about those matters to form any concluded view about which side was right. On one view (that of Mr Gonzales) he was bullied, victimised, harassed and discriminated against because of his union activities and ethnic background. For its part Housing maintained that those complaints were invariably made (as were the workers compensation claims) following attempts by management to manage (as it clearly had the right to do) his performance in the workplace.
234There was also no evidence as the nature or extent of any investigation made by GIO in relation to the two workers compensation claims in 2006 where liability was accepted. Nor was there any evidence as to the basis for such claims. Mr Gonzales maintained that they were made because of bullying and harassment by managers and it was submitted on his behalf that Housing NSW did not investigate those managers and take any action against them. The only reference to those claims was the summary included in Ms Ricaud's 16 March 2010 letter to Medibank Health Solutions referring Mr Gonzales for the fitness to continue assessment (one claim in 2005, three in 2006 and one in 2008) . The issues referred to in the first three claims were said to be 'anxiety/stress reaction', 'anxiety disorder', 'unfair treatment', and the last two (which were not paid) referred to 'feeling intimidated by staff' and 'mixed anxiety and depression due to work harassment'. If there was no specific issue of workplace bullying raised in the claims that were accepted it is hard to see what Housing NSW could have investigated.
235The Commission makes it clear however that bullying in the workplace is an issue that must be taken extremely seriously and acted upon appropriately by an employer. When Mr Gonzales lodged his grievance against his managers in May 2006 alleging bullying, harassment, victimisation, racism etc, Housing NSW did take action and had that grievance investigated by an external HR manager who found there was no substance in the grievance.
236In relation to his claims about his union activities I find it hard to see Mr Bone's 17 March 2008 email as "discrete bullying". I can observe no such language. I note that the reference in the email was not to 'union activity' per se but to "inappropriate internal PSA purposes". I also note that on the evidence of Mr Gonzales and Mr Hawkins they were both members of the Progressive PSA (PPSA) and Mr Hawkins indicated that in 2008 that factional group opposed the elected officials in the 2008 PSA union election. Use of an employer's email (and facilities such as the notice board etc) would be standard in relation the usual industrial activities of a union on behalf of its members, but whether that extends to the internal "politiking" between rival factions in the context of competing membership and union elections may be a different matter. In any event as Ms Brus pointed out there was no detail provided as to just what was considered to be inappropriate.
237I also note that one of his complaints against a senior manager about allegedly disparaging/sarcastic comments made about him at some kind of local large meeting also extended to the elected PSA officer doing the same.
238I emphasise that the only relevance of those issues to this matter was that Mr Gonzales sought to establish that he had been dismissed, essentially, as a result of an ongoing campaign by Housing NSW to target him and force him out of the organisation because of his union activities and his complaints about bullying, harassment and victimisation by management.
239I can find no such connection has been established in any way. Neither Ms Gream nor Mr Aslanis had first hand knowledge of, or involvement in, any of the events/issues raised by Mr Gonzales. Ms Gream had been responsible for sending him for referral for the fitness to continue assessment in 2006, but on the instruction of other managers.
240In my very firm view the relevant events for my consideration occurred after the findings of the Deloitte's investigation and the decision of the Chief Executive (made after considering those findings and Mr Gonzales' response), to demote Mr Gonzales to a Grade 2 Clerk and impose upon him a strict performance management regime. However it is necessary to make some observations about the Chief Executive's decision as set out below.
241Ms Hawkins maintained that the issues found sustained were conceded as "relatively minor matters". That is true, but what the July 2009 Briefing Note of Mr Hodder did say however was this:
Considered separately each of the proven allegations against Mr Gonzales may be considered relatively minor. However taken together they do reveal a pattern of poor performance amounting to misconduct, a disregard for the situations and circumstances of clients, an apparent lack of understanding of the consequences of his actions for clients, a willingness to cut corners and avoid following policy and procedure in difficult cases, and a lack of commitment to providing high standards of service.
242It is also apparent from the Briefing Note that the Deloitte's findings were not just considered in isolation, but against a background of extensive specific documentation about poor performance (listed under some 13 bullet points), including specific numbers of complaints from clients, colleagues, external professionals and various other issues, in arriving at the decision to demote.
243Also taken into consideration by the decision maker was the fact that Mr Gonzales was not prepared to acknowledge any fault, or failings, or accept responsibility for his actions.
244Ms Hawkins was correct in saying that there was a stringent performance management plan to be imposed upon Mr Gonzales. The aim was clearly to improve his performance. Mr Hodder also commented on previous issues to do with performance management as follows:
It is also recommended that a more rigorous performance improvement programme being required of Mr Gonzales. In the past, there appears to have been some issues with the adequacy of performance management strategies imposed on Mr Gonzales. It is also recommended that the Director General take a prominent role in monitoring the performance management process:
Setting minimum performance standard targets to be included in the plan, and
Requesting that reports on Mr Gonzales' progress in improving his performance be provided to the Director General for an initial period of six months.
245Whilst it is understandable that Mr Gonzales would be very distressed and upset as to the outcome, as evidenced by his written reply to the Director General (as part of the 'show cause' process), his response to the decision and the instruction to report for duty to Mr Neylan (the Acting Regional Manager) on the 13 July 2009 was to attend a doctor on that day and obtain a medical certificate indicating that that he was 'suffering persistent depression and anxiety related to Adjustment Disorder'. He subsequently sought unpaid leave to enable him to lodge and proceed with his disciplinary appeal to GREAT. This was granted and there is no evidence of any pressure/direction from Mr Neylan (or any other manager) being applied/given to Mr Gonzales to return to the workplace and report for duty at any stage during the ensuing five and a half months.
246Mr Gonzales also lodged his extensive complaint with the AHRC seeking a reversal of the adverse findings against him and his demotion, restoration to his Grade 4 position and an apology from management. There was evidently conciliation conducted (by phone and with each side individually) in the latter part of 2009 but with no conciliated outcome.
247The GREAT appeal did not settle at conciliation and it is appreciated that Mr Gonzales was not able to proceed further due to financial circumstances, and there is no evidence as to whether or not the PSA had been approached to assist with running his case. That simply left the status quo as being in place. Mr Gonzales was demoted and Housing NSW had the right to seek to direct him to return to the workplace and take up his new duties. At that stage Housing NSW did not have any medical certificates that would have suggested that he was unfit to report for duty.
248It was not until Mr Gonzales formally withdrew his disciplinary appeal to GREAT on 13 January 2010 that Mr Neylan took further, and entirely appropriate, action in writing to him on 19 January 2010 to direct that he report to him personally on Wednesday 27 January, with advice that failure to follow that direction might lead to formal disciplinary action. Mr Neylan also invited Mr Gonzales to contact him by phone (number supplied) if any further information was required.
249Mr Gonzales' response was to forward by mail, on 27 January with no other explanation or covering letter, or phone call, two Centrelink Medical Certificates covering the period 15/08/2009 to 16/02/2010. There were no further Certificates forthcoming until 31 May 2010 (by email and again without any other communication) covering the period 15/02/2010 to 17/08/2010.
250Again there is no evidence that Mr Neylan or any other manager initiated any further disciplinary action as foreshadowed or issued further letters/directions (and in any event that may well have been considered by Mr Gonzales as harassment). The only evidence about any subsequent contact is contained in Ms Ricaud's 7 July letter of referral to Medibank Health Solutions (the second referral) where she indicates as follows:
Management has made several attempts to contact Mr Gonzales by phone without success. Additionally an email was sent to Mr Gonzales using the same email address that his Centrelink certificates were received from but there was no response from Mr Gonzales. Registered mail was sent to his last known address which is the same as the address stated on the medical certificates but this was sent back unclaimed.
251In March 2010 when Ms Ricaud sent her letter to Medibank Health Solutions for a fitness to continue assessment and the letter to Mr Gonzales (by registered mail) advising of such referral and the appointment with the psychiatrist on the 14 April 2010, Mr Gonzales had at that stage not been able (or prepared) to resume his position, had been absent from work without approval for some six weeks and without any response to the direction issued by Mr Neylan, (apart from simply sending the Centrelink certificates) without even taking into consideration the previous six months leave without pay/part sick leave without pay, and Housing NSW did not have a current medical certificate. As indicated above, the medical certificate for the period following 16/02/2010 was not forwarded until 31 May 2010.
252Again, I consider that it was entirely appropriate for Housing NSW to take that referral action, particularly in the light of no communication or contact from Mr Gonzales despite the attempts evidently made by management.
253This brings me to the second attempt of Housing NSW to have Mr Gonzales attend a fitness to continue assessment through the 19 July letter, this time from Mr Allen the Chief Executive. Due to his failure to attend the previous appointment, and lack of any contact with Housing NSW, he was now, quite rightly, being directed to attend the scheduled appointment on 4 August 2010.
254In relation to the attempt to have this correspondence and the relevant documentation sent to, and received by, Mr Gonzales it was Ms Gream's oral evidence that a courier was unsuccessfully used by Ms Ricaud but she did not have any documentation as to that attempt.
255However, I note that in the 7 July letter to Medibank Health Solutions, after referring to the return of the registered mail of the documentation of the first referral (as mentioned above) Ms Ricaud relevantly indicated as follows:
As a final measure a copy of this report and all associated documentation referred to will be couriered to Mr Gonzales.
256It is also relevant to note at this stage that M2001-11 Revised 'Fitness to Continue' Procedures specifically provides as follows:
Employers should hand the referral material to the employee in person where possible. When the employee is absent from the workplace, the material should be delivered by registered mail or courier to ensure that every reasonable effort is made to provide the employee with the information regarding their referral.
257Notwithstanding those provisions Ms Ricaud took the additional and precautionary step (no doubt in the light of the returned couriered material) of sending an email to Mr Gonzales on 30 July advising, not only that she had sent him registered mail, but also attaching Mr Allen's letter directing him to attend the assessment. She had sent the registered mail on 26 July, it was noted as accepted and processed by the Leightonfield Distribution Facility on 27 July, that would suggest a delivery of the appropriate registered mail collection notification card by the local Postal Officer on 28 July at the earliest, but no later, I would consider than, 29 July. In any event Mr Gonzales indicated in evidence (in response to the Commission's questions) that he did take the card to the Post Office. That would strongly suggest to me that those cards (both the earlier and the subsequent card) were actually being delivered to his mail box in the usual way by Australia Post. Mr Gonzales was simply choosing not to collect the registered mail.
258No doubt the tone (which was entirely appropriate and warranted in my view) of Mr Allen's letter prompted Mr Gonzales' swift response by email to Ms Ricaud later that same day and the undertaking to pick up the registered mail which he did the next day, Saturday 31 July. I have no doubt whatsoever that if Ms Ricaud had not contacted Mr Gonzales by email as she did on 30 July and attach Mr Allren's letter that Mr Gonzales would not have collected the registered mail and it would have been returned to her as unclaimed as had the March registered mail.
259Yet again Mr Gonzales' response was to go the doctor and seek a medical certificate, which he did on 31 July, (the day he picked up the registered mail) for the period 31 to 6 August notwithstanding that he had a current Centrelink Medical Certificate valid till 17 August 2010. He maintained in his written evidence that he emailed this 31 July certificate to his employer and in oral evidence said he could not remember doing so and said he told the AHRC about it, but did not send them a copy.
260I have carefully considered the contents of Mr Gonzales' email exchanges with Ms Ricaud on 30 July and on 2 August as well as his letter of response to Mr Allen of 2 August.
261I do not believe, on the balance of probabilities, that on 30 July Mr Gonzales did in fact have another appointment on 4 August as he claimed, and he certainly did not have an appointment with "his psychologist". He was not truthful to Housing NSW. I do not believe that at the stage of sending those emails he had yet made any attempts (he may have done so subsequently), to get himself on any kind of wait list. The 9 February 2011 letter of Dr Asar, (his GP not his psychologist), does not indicate in any way just when he made the appointment for 4 August 2010, and as Ms Brus pointed out this was readily able to be changed to 5 August, it would appear, at very short notice.
262Similarly, at the stage of his email letter to Mr Allen of 2 August I do not believe he had any appointment, or had made any arrangement whatsoever, to have a Psychiatric assessment on 12 August 2010. I note that he did obtain a subsequent referral to a psychiatrist from Dr Vincent Nguyen on 14 August, but again, there is no evidence as to just when he made the appointment to obtain that referral. That referral was not activated until 15 March 2011 when he subsequently attended for his first consultation with Mr Huy Nguyen, Forensic Psychologist, with two subsequent consultations and a report prepared for the purposes of this application (and addressed to the Commission).
263At no stage in his email exchange (and he had two opportunities to do so) did he say that he had not received the earlier March referral documentation sent by registered mail. Nor did he say that he was initiating a self assessment as per the Procedures. I do not accept that he somehow did so in the language he used or that it was somehow implied or that the 'black and white language' of the email did not allow him to convey this information, not that he was just focusing on the main issue of the "intimidatory" direction. His language and the information he did convey was very precise and specific. In response to his claim to have arranged his own appointment he was also told quite clearly and without any equivocation by Ms Ricaud that he was still directed to attend the appointment and the consequences of non-compliance.
264For Mr Gonzales to say that he was complying, and not disobeying, because he was seeking his own assessment is not only disingenuous, but plainly incorrect and wrong.
265Similarly, the submissions made on his behalf that he had the right to seek a self assessment in lieu of complying the employer's direction was also plainly incorrect and wrong. The Procedures make it crystal clear that the employer has the right to direct an employee to attend a fitness to continue assessment. An employee is "obliged to comply with an employer request to attend a fitness to continue assessment". As Ms Gream explained in her evidence (and the Procedures make quite explicit) an employee (or their doctor) who seeks to initiate a self assessment must do so through the employer and with the provision of appropriate documentation from the employer.
266In any event Mr Gonzales did not make any subsequent contact with Housing NSW or enquire as to any action proposed to be taken by Mr Allen. Given the very clear and direct language of both Ms Ricaud's email and Mr Allen's letter Mr Gonzales could not possibly have been unaware of the very real possibility and indeed likelihood of disciplinary action being initiated. To believe he could just ignore the situation and it would go away was just not reasonable. He had indicated to Mr Allen that the situation could not continue. Housing NSW, not unreasonably, also considered that the situation could not continue in the face of Mr Gonzales' failure to comply with directions.
267He maintained that he was conveying information about his position and his intentions to the AHRC, (and had been doing so at different times in 2010), and expected them to convey that, in turn, to Housing NSW, but he acknowledged that he never asked if that had been done, or received any feedback about the passing on of such information. However that did not remove Mr Gonzales' obligation to contact his employer directly rather than rely on some third party, particularly when apparently there had been no more conciliation involving Housing NSW in 2010.
268Mr Gonzales never did proceed with any consultation with a psychiatrist in 2010 and thus the report he undertook to provide to Mr Allen never eventuated.
269The significance of Mr Gonzales' failure to state at any time in the email exchange that he had not received (as he claimed in evidence) Ms Ricaud's letter of 19 March was that this would have left Housing NSW in the position, not unreasonably, of holding the belief that he had just ignored that registered mail, declined to collect it. There was also the returned couriered documentation earlier in July, although there was no evidence as to the basis of such return.
270In the absence of any further communication from Mr Gonzales, and given that he did not attend the scheduled appointment as directed, it was not surprising that Mr Allen moved to the next stage of initiating disciplinary action and hence the letter of 31 August in which Mr Gonzales was advised that dismissal was now being considered and given the opportunity of providing a written response. Again, this was sent by registered mail, again it was not collected and returned.
271In the absence of any written response, or any contact whatsoever, from Mr Gonzales, Mr Allen then took final step of issuing a letter of dismissal on 15 December 2010, some three and a half months later. Hardly hasty action. Again the letter was sent by registered mail, again it was not collected and again returned to Housing NSW in late January 2011 (as shown by the documentary evidence).
272NSW Businesslink/Housing NSW are certainly deserving of criticism for continuing to send out payslips to him until March 15, 2011. It was accepted that he did not receive formal notification (in the absence of him collecting the 15 December registered mail) of his dismissal until he was advised of such on 15 march 2011. There was no issue of his application being lodged out of time therefore.
273Mr Gonzales maintained in his 14 April 2011 letter to Ms Gream that he had not received registered mail and that it "may have been never been delivered or mis-delivered." Frankly it stretches the bounds of credulity that out of four registered mail letters sent to him (the two referrals, the "show cause" letter and the dismissal letter) the only one delivered and collected (on his evidence) was the July mail about which he had received the email advice from Ms Ricaud enclosing Mr Allen's letter. Housing NSW should not have had to resort to sending emails to Mr Gonzales to advise him of such registered mail so as to ensure he would pick it up. I have no doubt that had Mr Allen's letter not been attached to Ms Ricaud's 30 July email then Mr Gonzales would not have collected that registered mail.
274It should also be noted that during 2010 Mr Gonzales was receiving mail from NSW Businesslink - his payslips. While he maintained he did not receive all of them he did receive those in the critical month of August 2010 so he was accepting mail when it suited him.
275However this continued avoidance of Housing NSW's registered mail correspondence also accord's with the assessment of Mr Nguyen, the Forensic Psychologist who in his 19 May 2011 Report noted as follows:
......
3. Mr Gonzales's (sic) interpersonal style is characterised by an exceptionally strong need to be accepted by others. This strong need for acceptance may cause him to feel uncomfortable with interpersonal confrontation or conflict.
276He went on to conclude inter alia as follows:
1................ In my clinical opinion, he is psychologically fit to resume his previous work duties. However, as his personality profile indicated, his tendency to avoid conflict may be a major obstacle for him to return to work with his previous managers. If possible, it is more rehabilitative for him to be transferred to another department to start afresh (emphasis added).
277Two observations need to be made about that conclusion.
278Firstly, transfer to another department was never a practical possibility given the provisions of s.87 of the PSEM Act. Approval of the other department would have been required as Mr Aslanis stated. I also do not believe that the transfer of Grade 1-2 Clerk was ever a viable option or possibility in the climate of the Treasury imposed budgetary constraints across the public sector in recent years which has resulted in various restructures/consolidation in some departments and generally greater regard for whether unfilled vacancies did need to be filled, and in some instances non-renewal of temporary appointments (as a result of knowledge gained through a variety of s.130 and s.84 matters).
279Secondly, I note that the reference is to Mr Gonzales' "previous work duties". This would seem to suggest the former Grade 4 position rather than the Grade 2 position to which Mr Gonzales had been demoted in 2009 and to which he had not been prepared to return. Indeed I can see no reference in any history referred to in the report to the issue of his demotion. The absence of the usual relevant documentation provided by an employer for such an assessment (as included in Housing NSW's March and July referrals), together with this reference would suggest that Mr Nguyen did not have all relevant facts before him to enable a properly considered and reliable opinion, no fault of Mr Nguyen I hasten to add.
280This raises doubt as to whether Mr Gonzales is fit, at this point in time, to return to work in the public service. Even if the Commission had been minded to consider reinstatement or re-employment he would still have had to be subject of an appropriate and properly referenced health assessment. I also note that as at the date of the hearing, and consequent upon his dismissal, he had been moved by Centrelink from sickness allowance benefits to Newstart (with disability) benefits which evidently continued to mean that he was not obliged to search for work.
281I also note Mr Gonzales' response when asked whether he had any idea in August 2010 as to how long he would be away from work that his expectation was that "Housing will conciliate the matter and see the merit of my case for reinstatement and I'm sure I will definitely rise to the occasion to be well and fit for my job description." That seemed to strongly suggest to me that he meant his former Grade 4 job description.
282This position also fits with Mr Gonzales' s.84 application in this matter in which he sought as one of the remedies re-employment in " any State Government job within my capacity and Grade 4 - Maximum Clerk". It was conceded, however, by Ms Hawkins in oral submissions that were the Commission minded to order reinstatement or re-employment then it could only be to the Grade 2 (supernumerary) position he formally held prior to his dismissal.
283In relation to Mr Gonzales' dismissal I consider that Housing NSW followed the procedures it was obliged to follow under the PSEM Act and thus no issue of procedural fairness arises per Antonokopoulos.
284True it is that Housing NSW did not make any contact either by phone or further email with Mr Gonzales and chase up any response to Mr Allen's 31 August letter and this could possibly be viewed as a lack of procedural fairness being extended to Mr Gonzales (in that he did not exercise his right to respond and have that taken into consideration by the decision maker). However, Housing NSW had no way of knowing Mr Gonzales (as he had claimed) was not receiving their registered mail (with the exception of the July referral) and in the absence of any information provided by him to the contrary were entitled to believe that he had received such mail and was just not prepared to collect such mail hence its return.
285However, even where there are held to be procedural flaws and/or defects in a process, that does not necessarily mean that it is fatal to the eventual outcome. There have been numerous cases dealing with procedural fairness issues in formal arbitral proceedings. The decision in D & R Flood Commercial Pty Ltd and Flood [2002] NSWIRComm 88 traversed the various authorities in that context (and in particular where there had been reference/reliance by the decision maker below on a matter raised/referred to in conciliation) and the Full Bench indicated at para 53 as follows:
A convenient statement of the appropriate general approach is that set out in the judgment of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the Court, having referred to the "general principle ... well expressed by the English Court of Appeal" in Jones v National Coal Board [1957] 2 QB 55 at 67 that "everyone ... is entitled [to] a fair trial at which he can put his case properly", observed at 145 - 146:
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.
..................
286I consider that the general principles enunciated above are equally applicable to a disciplinary process. The crucial question to be asked is whether that alleged flaw/defect in procedural fairness would have affected the outcome. As indicated above, in the face of Mr Gonzales' continued avoidance of returning to work in the Grade 2 position and his failure to comply with the direction to attend the 4 August medical and make any kind of contact or response to Housing NSW, I have no doubt whatsoever that any response he could have made to Mr Allen's 31 August letter would not have made any difference to the disciplinary outcome of dismissal Mr Allen subsequently determined for the misconduct committed by Mr Gonzales, namely failure to comply with a direction to attend a fitness to continue assessment. There is no evidence that he was prepared in any way either to attend a fitness to continue assessment organised by his employer, or accept his demotion.
287I should also indicate that I consider that the direction issued was lawful, entirely reasonable and in accordance with the "revised Fitness to Continue Procedures' not to mention Housing NSW's rights and obligations under the PSEM (General) Regulation.
288I am fully aware of the consequences of a dismissal from the public service for an older worker (see D'Sousa v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042). However after carefully considering all of the relevant circumstances of this matter I do not consider that it is either appropriate to reinstate Mr Gonzales or re-employ him in the public service. He did commit misconduct in failing to follow the direction of his employer, that misconduct was serious and the only penalty available was dismissal.
289Whilst I have some sympathy for Mr Gonzales' position and his circumstances, it is abundantly clear that he retains deep seated, firmly held, and unshakeable beliefs that are unfortunately unlikely to be changed by any findings or observations in this decision.
290Having carefully considered all the evidence and submissions in this matter, as well as the appropriate authorities, I do not consider that the termination of Mr Gonzales was either harsh or unreasonable. I come to this conclusion based on the seriousness of the misconduct which occurred, the circumstances of the misconduct, and Mr Gonzales' ongoing intransigence in relation to his demotion. I can find no procedural fairness of sufficient consequence to render his termination unjust.
291It is not strictly speaking necessary to deal with the issue of practicability of restoring the employment relationship, however in my considered view it would be impracticable due to the practical considerations traversed by Mr Aslanis in his evidence (which is accepted), the length of time Mr Gonzales has been absent from the workplace and the nature of the misconduct which strikes at the heart of the employer/employee relationship and the confidence an employer is entitled to have in the conduct of an employee. Consideration of monetary compensation in lieu thereof does not then arise.
292Mr Gonzales' application is therefore dismissed.
Elizabeth Bishop
Commissioner