Johnson v Catholic Education Office, Diocese of Parramatta

Industrial Relations Commission (NSW)|2014-08-21|Before: Mr P

Solicitors: Mr P Murphy Paul Murphy & Associates Lawyers (for the Applicant) Ms T Surry and Ms A Koelmeyer Workplace Law (for the Respondent) File Number(s): IRC 170 of 2014

Overview

Mr Alex Paul Nagy (the Applicant) commenced employment with Sutherland Shire Council (the Respondent) as a casual rear loader driver/offsider in the Waste/Cleansing Department on 17 November 2010.
The Applicant had a history of conflict with a co-worker in Waste Services, Mr Wasim Kotb, dating back to 2009. Mr Kotb is an Australian of Egyptian descent and is a Muslim. Mr Kotb alleged that the Applicant racially abused him by calling him a "f…..g raghead" and, as a result, has avoided the Applicant since December 2012.
The Applicant attempted to have Mr Kotb's employment terminated by attempting to solicit other employees in Waste Services to sign a petition seeking his termination while Mr Kotb was on annual leave in late 2012.
As a result of that behaviour by the Applicant, the Respondent, in an attempt to minimise contact between both employees, separated them by allocating them work in separate parts of the Shire area wherever possible.

The Issues

The following major incidents between the Applicant and Mr Kotb need to be considered by the Commission: A. The incident of 7 February 2014; B. Previous conduct issues of the Applicant: The incident on 21 September 2012 The Incident on 1 February 2013 The incident on 11 February 2013

The Incident on 7 February 2014

The Applicant relied on the complaint he provided to management on the day of the incident, being 7 February 2014: This morning about 6.15 am Jordan (SCO) Hew (SCO) and myself, were walking down the driveway of Ethal St Depot, when Wasim Kotb & Glen his offsider drove past & Wasim was yelling obsenities (sic) at me & making rude gestures with his fingers. We then arrived at the bin cage where Wasim was loading bins, he kept up his tirade until they left, with a yell, you dickhead & some more hand gestures.
In his statement in the proceedings, the Applicant elaborated on the obscenities as including "dickhead", "f…wit" and "moron". He said his co-workers had asked him "What was that all about?" and he replied that "this has been going on for over 2 years. I don't know why he is doing this now. I have had enough of this and I want to complain to HR. Will you sign my complaint as witnesses to what happened this morning?" They had agreed. The report was co-signed by Jordan Dimitrovski and Hew Millett. He could not recall which supervisor he had submitted it to but recalled that he was told that Mr Kludass would review it.
He stated that he was never interviewed about its contents by Council. On 21 February 2014, he was summoned to a meeting in Ms Grewal's office and was shown the CCTV footage of the incident. He noted that the truck had its relevant window up. He said Ms Grewal said to him, "We don't believe you. You have made up these stories and it is all your fault" to which he had replied "I might as well leave now". He was directed to wait outside the room while another piece of information was being verified. Upon resumption of the meeting he said he was told by Ms Grewal, "You are vexatious and mischievous and that you have fabricated all of the allegations. We are terminating your employment with immediate effect".
The Applicant contended that the allegations in the letter of termination, which he received in the post a few days later, were untrue. The termination letter stated in part: … Council had the opportunity to view CCTV footage at the driveway entrance at Ethel Road and again from another camera focussed on the bin cage area. We allowed you to view this footage today and there is no indication whatsoever or any body movements and actions that would suggest 'Wasim was yelling obscenities at me and making rude gestures with his fingers' (quoted from your complaint) at the driveway entrance to Ethel Road Depot and we did not even see you or the other two workers look around if such an incident was taking place. Far more telling is the footage at the bin cage area. Your complaint indicates Wasim is loading bins and that is clearly visible. What is not apparent is that (further quote) 'he kept up his tirade until they left, with a yell, you dickhead, and some more hand gestures'. There were no visible hand gestures, there was no indication that verbal dialogue occurred between you and Wasim, you did not stop nor did the other two workers.
The Applicant stated that he was not given any opportunity to respond and had not received any verbal or written warnings.
The Applicant stated that the following Supervisors were notified at different times of the experiences he has had with Mr Kotb - Saresh Nair, Darrel Wells, Bob Hilliard, Kevin Clarke and Paul Derbridge. It is noted that none of those named by the Applicant were called to give evidence in the matter.
Mr Huw Oliver Millett, a casual labour hire employee, provided a statement in which he confirmed that he witnessed what occurred on 7 February 2014 as he had been walking along the driveway with the Applicant. His evidence was thus: Wasim Kotb and his offsider drove past us and Wasim started pointing and laughing at Alex and was making rude and inappropriate gestures to Alex, sticking his fingers up at him and calling him a dickhead and making the "dickhead" sign with his hands. Then Wasib (sic) drove into where we were working and got out of his truck and continued with offensive language and hand gestures only towards Alex. He was belittling and embarrassing Alex. At the time Alex did not respond to Wasib (sic) or say anything in return. Alex then said to Jordan and me "do you see the way he is carrying on". I am sick of this.
Mr Millett stated that his team was engaged on bin repairs, some 10 metres away from where Mr Kotb's truck was parked.
Mr Millett said that he freely agreed to sign the formal harassment complaint made by the Applicant as it was accurate. Mr Kludass stated that Mr Millett confirmed its accuracy to him on 12 February 2014 although he did not appear to Mr Kludass to have read it prior to that date.
Mr Millett was advised by his labour hire company that he was being taken off that work at the request of the Council while it investigated the complaint he had co-signed. He was never interviewed about the complaint and never returned to work with the Council.
Mr Kotb is employed as a full-time Waste Technician with the Respondent since May 2008. He gave evidence that he has been under his doctor's care and taking medication for depression since 2012 due to racial abuse suffered at the hands of the Applicant at work. For that reason, he has avoided any contact with the Applicant since November 2012. It is noted that Mr Nagy did not start work with the Council until 17 November 2010.
Mr Kotb gave evidence that, at about 6.15 am on 7 February 2014, he was driving a flat-bed tipper truck into the Ethell Road Depot with Mr Glen Cleland, Technician, in the passenger seat. He did not recall seeing anyone in the driveway. As he pulled up in the bin cage where new bins are fabricated and special event bins are stored, he said he saw two casuals in the bin cage fabricating bins some 15 metres away. He recognised one of them as Huwey. They waved at one another. While the two casuals carried on with their work, he and his passenger alighted and commenced to load bins into the truck. The whole task took no more than 4 or 5 minutes. He was aware that the Applicant was close to the other two casuals but they did not speak to one another. He later saw the casuals walking up towards the toilets at the depot at about 10.30 or 11.00 am. They did not speak.
Mr Kotb did not become aware of the allegation until Friday 14 February 2014 when he was provided with a show cause letter and suspended for the rest of that day and the following two working days (17 and 18 February 2014). He stated that he was shocked and surprised by the allegations and denied them. As a result, he attended on his treating doctor who increased his medication from 10 mg to 20 mg and he has been on that dosage since that time.
Mr Kotb provided a written report on 19 February 2014 in which he acknowledged that he had problems with his co-workers in the past but had since moved on as he did not wish to put his family at risk. He pointed out that whilst at the yard, he and his co-worker, Mr Cleland, were about 10 or more metres away from anybody else and did not make contact with them. Mr Kotb pointed out in his report that upon resumption from leave, he was upset by the information he received that Mr Nagy was trying to get a petition signed by co-workers to have him dismissed. He was also advised that while working with Mr Nagy during Mr Kotb's absence, Mr Nagy called Mr Cleland a "f….g dog" for being a witness for Mr Kotb over his last complaint to management.
Mr Glen Cleland, Waste Technician, provided a statement in the proceedings in which he stated that he has been working with Mr Kotb as a team since September/October 2011. His evidence backed up Mr Kotb's version of events. He stated that he did not see the Applicant make any hand gestures. He also stated that neither of them spoke to the three casuals.
During cross-examination, he stated that he did not see the 3 men walking as they drove through the yard of the Ethell Road depot until they arrived in the bin area. He explained: Not through the yard, sometimes I go through the book and that and see what bins we've got to put on and take off, I do that, look through the book and check that.
Mr Cleland estimated that the 3 men were between 10-20 feet or 5 metres in front of the truck carrying on with their own work.
Mr Peter Robert Hazeldine, Director Shire Infrastructure, provided a statement in the proceedings in which he advised that he had returned a telephone call from Mr Nagy on or about 26 February 2014. He recalled that the Applicant introduced himself and advised words to the effect: I was accused of persecuting people and manipulating people and my employment was terminated. I want my job back. I want to know why Wasim is not held responsible. I think it is because he is a Muslim and Council is too scared to deal with him, I think that is why. This is all bullshit as far as I am concerned.
Mr Hazeldine recalled that he advised Mr Nagy that he supported the Council's actions in that matter adding: You have been found to have lied and been vexatious and malicious and based on the reports I have seen, I consider that Council's actions are reasonable. Council can't tolerate this type of behaviour and there is no room for it in my Division. Mr Hazeldine stated that the Applicant had persisted pointing out that the threats and behaviours of Wasim had been witnessed by Daryl Wells. Mr Hazeldine repeated that he agreed with Council's actions.
Mr Hazeldine was not involved in the investigation into the allegations against the Applicant. However, in anticipation of an approach from the Applicant as he had an open door policy, he quizzed Ms Grewal and was aware of the circumstances relating to the termination at the time he received the call from the Applicant.
Mr Kludass stated that he interviewed Mr Millett who did not fill him with confidence when, in response to his question as to whether the contents of the statement he signed were true and correct, he responded "Well, I suppose I had better read it". He went on to confirm the contents of the letter of complaint. He was not able to discuss the matter with Mr Dimitrovski because the latter was not available that week. He interviewed Mr Cleland who refuted the allegations.
Mr Kludass proceeded to view the CCTV footage and confirmed that it did not corroborate the allegations of the Applicant. During cross-examination he stated: Because the CCTV vision, in my mind, was crystal clear that there was no - it was my only independent source of verification whether something happened or not. So, here I have two sides that are in total disagreeance with one another. My only source of independence, if you want to think of it like that, is - was the CCTV footage…. Essentially the body language told everything. There was none. So, to me, if someone's walking past, making an accusation, saying - waving and gesturing and calling and swearing, I would expect a reaction from any person where that was being levelled at. I'd expect someone to go like this or to maybe wave back or gesture back. There was absolutely no sign of that. And even at some stage during that time, from my recollection, Mr Kotb actually had his back to the three people attending to the bin stacks that were faced away from where the three staff were walking past, Mr Nagy, Mr Millett and Mr Dimitrovski….
Mr Kludass held a disciplinary meeting on 20 February 2014 with Mr Kotb at which Steve Vann (USU) was present as were Ms Grewal and Mr Peter Evans. Mr Kotb denied the allegations insisting that he had been avoiding interaction with the Applicant since the incident in December 2012. He pointed out that Mr Reg Edwards would confirm that Mr Nagy was asking employees to sign a petition against him while he was overseas on leave in 2012. He insisted that Mr Nagy was fabricating allegations against him.
Mr Kludass stated that Ms Grewal watched the video of the alleged incident and also concluded that the allegations by Mr Nagy were not substantiated. At her request, Mr Kludass contacted Mr Nagy and asked him to attend a meeting in Ms Grewal's office on 21 February 2014. There was confusion as to whether the request was made orally or by email. He was provided with sufficient time to locate a support person he was told he could take to the meeting. He had attended the meeting unaccompanied.
Mr Nagy attended the meeting on 21 February 2014 without a support person.
The Applicant stated that Mr Kotb was yelling obscenities at him and making rude gestures with his fingers as he was walking down the driveway of Ethell Road Depot. There was no evidence of any hand movements from Mr Kotb as he drove into the Depot. There was no evidence of any reaction from the Applicant and his two companions as one would expect from the body language of people who were the target of loud obscenities. It was suggested that two of the three men fell off the screen at one stage. Mr Nagy's passenger, Glen Cleland, did not see the three men until they drove into the bin cage. Whilst it may be argued that he may also not have seen the hand gestures, he could not have missed hearing if Mr Kotb had yelled obscenities from the cabin of the truck as he drove past those men. Mr Cleland gave evidence that both he and Mr Kotb never spoke to any of the three men.
The CCTV footage did not demonstrate at any time that Mr Kotb "kept up his tirade until they left, with a yell, you dickhead & some more hand gestures". Two witnesses were called in relation to the matter. Mr Cleland, as indicated earlier, gave evidence that both he and Mr Kotb never spoke to any of the three men.
Mr Millett gave evidence on behalf of the Applicant. When interviewed by Mr Kludass in relation to the complaint he had co-signed, he had responded with the words, "Well, I suppose I had better read it". I accept that such a response does not fill one with confidence. That response was not denied in his oral evidence.
Another witness, the third signatory to the complaint, Mr Dimitrovski was not available at the interviews were held by Mr Kludass. However, there was no explanation as to why Mr Dimitrovski was not called to give evidence in these proceedings.
On balance, I accept that the CCTV footage, the prime independent source of verification of the facts, demonstrates that the allegations made by the Applicant against Mr Kotb were not substantiated.

Incident on 21 September 2012

Mr Kludass received from Mr Daryl Wells, Operations Controller of Waste Services, on 16 October 2012, a typed document addressed "To Whom It May Concern" written by the Applicant and co-signed by Max Phillips, Shane Baker and Roland Barber - all Waste Services Technicians.
In that document, the Applicant claimed that his relationship with Mr Kotb (whom he has known since the latter commenced employment with Council) had been amicable up until 7 September 2012. He was offsider for Max (a council truck driver). They had driven down the Woronora boat ramp on 7 September 2012 to pick up rubbish collected by Mr Kotb's crew. He contended that during the course of their regular banter he asked Mr Kotb what he thought of the riots (the Muslim protest demonstration in the Sydney CBD). He contended that Mr Kotb replied that the western world was always rubbishing Muslims. The Applicant claimed that the banter continued unabated without any aggression or any sense of slander involved. They separated on amicable terms "as has been the case countless times previously" and crossed paths several times with their contact always amicable. He recalled that it was witnessed by Mr Max Phillips. Mr Kotb stated, during cross-examination, that the incident occurred on 21 September 2012 which would be correct as the riots occurred on 15 September 2012.
The Applicant went on to add that at about 4.30 am on Saturday 22 September 2012, as he was off siding for the driver, Shane Baker, he received a call from Mr Kotb who, without any pleasantries, launched into a tirade of abuse and threats calling him: a 'fucking lying cunt' who had a 'big fucking mouth' and that he was 'going to get me'. I said 'what are you talking about' and hung up the phone.
He said that Mr Kotb tried to call him again at least 10 times that morning but he refused to take the calls as he was upset and hurt. Finally Mr Kotb sent an SMS which read: 'YOU ARE A RACIST AND I'M NOT ACCEPTING IT'. The Applicant said the message was saved in his phone. The Applicant said that at the end of his shift he went to the office and reported the telephone call and the text to the acting supervisor, Daryl Wells.
The Applicant said that Mr Kotb arrived at the depot as he was about to leave, approached him as he sat outside the depot office and began yelling similar abuse to the ones meted out earlier that morning with the added threat, "I'm gonna sort you out like a man - this isn't over yet buddy" while poking his chest and slapping his thighs. He said Darrell Wells heard the abuse and yelled to Mr Kotb to calm down. Reginald Edwards, a fellow worker who was present at the time and was sitting behind Mr Kotb, stood up and tried to pull Mr Kotb aside and reason with him. All of the above was witnessed by another employee, Roland Barber, who was standing next to him at the time.
The Applicant could not fathom how Mr Kotb could get so angry and abusive. He described the idea of him being racist as "absurd".
The Applicant stated that although Daryl Wells heard the tirade, instead of coming out of the office, he merely yelled out to Mr Kotb to "calm down". Mr Wells later advised him to provide him with a report which he did. Mr Wells later advised him "not to go near him (Kotb), don't talk to him and take no notice of him". As noted earlier, Mr Wells was not called to give evidence in the proceedings.
Mr Kotb was adamant that the incident never occurred.
Mr Roland Barber provided a witness statement in which he described the incident as follows: Mr Kotb walked directly towards Mr Nagy (who was seated) and grabbed both legs near the top of the knee and put downward pressure on Mr Nagy's legs forcing Mr Nagy to jump. He then slapped both his legs with both arms and started poking Mr Nagy in the chest.
The incident had shocked and disturbed him causing him to approach Mr Wells to tell him that something had to be done about it. He said Mr Wells advised him that he did not have to submit a statement as everything was under control.
The following day, Mr Barber went to see the Supervisor, Paul Derbridge, regarding the assault he had witnessed and was reassured that everything was under control.
Mr Barber alleged that thereafter his shifts commenced to be reduced until eventually he was receiving two per month. He now works in the private sector.
Mr Cleland recalled in his statement that the Applicant came up to Mr Kotb as they were both working at the boat ramp at Woronora. He witnessed Mr Nagy say, in an angry, "fired up" voice, words to the effect "We can't go into the city because of you lot". He explained that: Yeah, I only just, yeah, it was just like a blast and that was that.
It is noted that Reginald Edwards, Waste Technician, gave evidence on behalf of the Respondent. He provided a statement in which he recalled that he had heard of the above incident but had not been a witness to it. He also recalled that the Applicant had approached him while he was working in the sign-on room. Mr Edwards agreed, during cross-examination, that the Applicant may have actually thought that he had witnessed that particular event. Nevertheless, the Applicant asked him if he had witnessed the incident and he had replied in the negative. Undeterred, the Applicant asked him if he would counter sign the complaint he intended to lodge against Mr Kotb in relation to that incident. Mr Edwards said he replied, "I'm not backing you. I didn't see it and I'm not getting involved."
During cross-examination, he explained: I had a discussion with Alex, I'd say it would've been within two days of what actual, their argument, and he come up, I was in the sign-off room, and he come into me and he said "I'm putting in a complaint, a written complaint about Wasim and I would like you to sign it", and I said "I didn't see anything, I'm not signing nothing".
Mr Kotb was invited to a fact finding meeting in relation to three issues - a customer complaint, the above allegation and, thirdly, a complaint from another employee, Kris Marslew, about a heated exchange with Mr Kotb on 27 November 2012 which involved swearing and Mr Kotb jumping in front of him and demanding an apology. Mr Kotb had been issued with a third and final written warning in relation to the three allegations.
In relation to the Marslew incident, Mr Kotb stated in cross-examination: A: Kris Marslew got told to stay off the boat by me and my offsider. He decided to get on the boat, erratically throwing green waste bags, hit me in the head with bougainvillea, nearly took out my eye. I simply asked for an apology, once, twice. He kept throwing bags erratically. Third time I asked, "Can I get an f'n apology?" and that's why to be honest I got the warning, for using f'n. That's what I said, "Can I use - can I get an f'n apology?" That's the honest truth and that's what happened. Q: So you deny you said - or you deny that as you became angrier you jumped up onto the boat, pointing at about six inches from his face, screaming, "Fucking apologise, you just tried to fucking hurt me"? Do you deny that? A: No. Q: So-- A: I used the f word right at the end. Q: So you agree that you jumped up and six inches from his face-- A: I never jumped up. I was already up there. I never jumped up. Q: And were you six inches from his face? A: I was - no, no, no. He was supposed to be down there. He was - he wasn't supposed to be on the boat. It was only the driver that's supposed to be on the boat. He never took that - he never listened to me. I told him for his own safety and everyone's safety. I nearly got my eye poked out, but apart from that, that's okay now.
In relation to the incident with the Applicant, Mr Kotb stated during cross-examination: A. Well, obviously on that day it was - I'll give you the date exactly. This is the best - to the best of my knowledge, on the twenty-first of the ninth the incident happened, twenty-first of the ninth. It was on a Friday, I came back from the rubbish service, was doing recycle. As I was on the boat unloading I got told, "Why can't I go to the city? Because of you f'n rag heads." I kept my mouth shut. This, that, that, I kept copping it, copping it. I kept my mouth shut. This was in front of my worker and the truck driver, Max. The next day I went to the - went to him, I said to him, "I'm not accepting that. I'm not the racist one." Mr Kotb insisted that nothing happened on 7 September. He confirmed that he sent the Applicant an SMS the following day (22 September 2012) stating "I am not the racist one and I'm not accepting it". He went to his doctor on 24 September 2012 and that was when his dosage was increased.
Mr Kotb acknowledged that he did say to Mr Nagy "This is not over yet" and words to the effect "We will sort this out like men … not here but out of work".
The Applicant said he met with management on 10 December 2012 during which he was advised that the CCTV footage was inconclusive and no action was to be taken in the matter. He was denied a viewing of the tape because, according to Mr Kludass, the tape was lost.
Both the Applicant and Mr Marslew lodged separate complaints about Mr Kotb with WorkCover in mid-December and early December 2012 respectively after Council had met and addressed the complaint with Mr Kotb.
Mr Marslew subsequently withdrew his WorkCover complaint. Ms Grewal noted that the withdrawal occurred at or about the time that Mr Marslew was notified that he had been successful in obtaining a permanent position with Council.
As a result of the WorkCover complaints, Deborah Long from WorkCover met with Ms Grewal and Ms Breen (Fair Workplace Coordinator) and Mr Kludass on 8 January 2013. It is pertinent that the minutes kept of that meeting noted the following: Deb expressed her concern that the conflict between parties was not yet resolved, based on Alex's comments. She was concerned that Alex may deliberately create a situation where Wasim will respond adversely by taunting Wasim in the presence of others and then use this to seek further action against Wasim.
Ms Long offered, and management accepted, WorkCover's support in running a training session with the Waste Services staff in regards to bullying and harassment.
Ms Long also indicated that she would respond to Mr Nagy and advise that Council had investigated his complaint against Mr Kotb and taken appropriate action. She would also suggest to him that he might want to request mediation with Mr Kotb, via Council, to resolve any conflict they had amicably.
There was an administrative hold-up in providing that training as WorkCover could not attend on weekends and the Council was running a seven day, 365 day operation. It was eventually arranged for March 2014, after the Applicant's termination. Mr Kludass pointed out, however, that every employee is required to undertake an induction program which covers the code of conduct, ethics and the like.
In relation to mediation, Mr Kludass could not recall who he was referring to when he stated "There was an email about mediation and not wanted to be participated in". Ms Grewal elaborated on that stating that there was a delay as the Respondent understood that Inspector Hogan was going to make that offer either to the Applicant or both he and Mr Kotb. She recollected that when it was subsequently clarified, both workers declined to participate.
Mr Kludass, during cross-examination, stated that Mr Kotb had admitted at that time that he had "pointed and prodded" at Mr Nagy.
The Applicant and his support person, Clayton Brown, met with Ms Grewal and Mr Kludass on 24 January 2013. Mr Nagy was concerned that the complaints against Mr Kotb had not been acted on by Council and also concerned about his unpredictable nature. He was advised that he could not seek the dismissal of another employee. He was advised that the complaints had been acted on but the action taken had to remain confidential. He was advised that he and Mr Kotb had been assigned work that would not bring them into contact with each other. Both he and Mr Kotb were asked to keep a minimum distance from each other in the depot at start and finishing times.
Mr Marslew made another allegation against Mr Kotb contending that the latter had shoved him outside the meal room at or about 12 noon on 27 November 2012. Ms Grewal noted that Mr Marslew's complaint regarding that incident occurred around the time that the Applicant raised his concerns about Mr Kotb. Mr Kludass reviewed the CCTV footage in December 2012 and there was no visual evidence of any altercation from the time Mr Kotb entered to the time that he departed the depot contrary to what was stated by Mr Marslew. Ms Grewal viewed the footage on 24 January 2013 and confirmed that there had been no altercation as described by Mr Marslew in his written statement to the Respondent.
In an email to Ms Kristie Bowerman, Human Resources Consultant, dated 22 February 2013, Ms Grewal recorded her concerns about the Applicant and Mr Marslew: The background to this is quite a serious issue Kristie, and there are a few worrying factors at play: The potential that Kris provided a false statement to support Alex Nagy's claim that Wasim Kotb assaulted/intimidated him The possibility that as Kris and Alex are both casual staff and Wasim is a permanent employee, that the aim was to displace Wasim from his position to create an opportunity of permanency for either Kris or Alex Kris ceased his claims against Wasim when he secured a permanent placement in late Nov 2012 Alex went on to involve Fairwork and WorkCover in his claims against Wasim. In our subsequent discussions with the WorkCover inspector in Jan this year, she implied that she felt that there was some basis for management to consider closely the motives and motivations of those who were making claims against Wasim. I will not support any employee who maliciously lies and hopes to in some way profit from being deceitful, while also manufacturing the termination of a co-worker.
The SMS was not produced during the proceedings. The Applicant stated that he had shown it to Acting Supervisor, Daryl Wells. Mr Wells was not called to give evidence in these proceedings. Nevertheless, Mr Kotb acknowledged that he sent the Applicant that SMS.
Once again there was a witness, Mr Barber, who supported the Applicant's version of events in relation to the incident outside the office.
Mr Edwards gave evidence that the Applicant attempted to get him to co-sign his complaint in relation to the incident at the boat ramp despite the fact that he told him that he had not witnessed the incident.
I accept the evidence of both Mr Kotb and Mr Cleland that it was just a "blast" - a fired up comment, and not a regular chat, an amicable banter as stated by the Applicant. During cross-examination, the Applicant accepted that Mr Cleland was an independent witness. The Sydney riots took place on 15 September. The incident at the boat ramp occurred on 21 September 2012. As can be seen later, the Applicant tried to make out that Mr Kotb was the closest person to him at the time (6 days after the riots) and that was why he tried to find out from him what had happened in the city because he had not read the newspapers or listened to the radio or watched TV. It is noted that the Applicant was off-siding a Council truck driver (Max ?). One would have thought that Max was closest to him on that day.
I accept that Mr Kotb made admissions to management in relation to "pointing [at] and prodding" the Applicant. I note that it was denied by Mr Kotb during oral evidence in these proceedings.
I am satisfied that Mr Kotb has been dealt with in relation to the part he played in that incident. He received a final warning in relation to that and two other incidents.
Ms Deborah Long, a WorkCover Inspector, interviewed the Applicant in relation to the complaint he lodged against Mr Kotb relating to this matter. I note the concerns she expressed as minuted by Ms Grewal on 8 January 2013. They are worth repeating: Deb expressed her concern that the conflict between parties was not yet resolved, based on Alex's comments. She was concerned that Alex may deliberately create a situation where Wasim will respond adversely by taunting Wasim in the presence of others and then use this to seek further action against Wasim. Inspector Long was not called to give evidence.
I accept that the Applicant deliberately set out to provoke Mr Kotb by attributing the rioting conduct of other Muslims in Sydney to a community to which he belonged.

Incident on 1 February 2013

The Applicant contended that Mr Kotb drove up in his truck as he was alighting from his at approximately 10.15 am on 1 February 2013 at the Operations office lower yard. He could see from Mr Kotb's expression that he was angry and hostile and appeared to be mouthing obscenities as he taunted him.
In the complaint he provided to management, he wrote that Mr Kotb was in his truck with the window up pointing his fingers at Mr Nagy and with a "silly" grin on his face.
The Applicant stated that he had reported the incident to his supervisors who informed him that there was no CCTV evidence to support his allegation. Once again, he was denied a viewing of the tape on the basis that it had been lost.
Mr Kludass gave evidence, during cross-examination that he had actually acted on that complaint. He had conducted a telephone interview with the independent witness, Mr Barry Harding, who was Mr Kotb's passenger in the truck at the time of the alleged incident. Mr Harding confirmed that he neither heard nor saw Mr Kotb make any intimidating gestures towards Mr Nagy.

Incident on 11 February 2013

The Applicant contended that, as he was walking into the meal room to sign on for work at approximately 3.45 am on 11 February 2013, Mr Kotb was exiting the room and shoulder-charged him.
In his report to Kevin Clark, Operations Controller, the Applicant reported that he was standing outside the meal room looking out toward the yard when Mr Kotb shoulder-charged him as he walked past from the rear.
There were no witnesses to that incident. The Applicant said he had immediately reported the incident to a supervisor, Mr Bob Hilliard, pointing out that the incident would show up on the surveillance footage from the camera situated on the awning of the workshop. He contended that, to his knowledge, nothing was done about it by the Respondent.
Mr Kludass had watched the footage and advised the Applicant, on 21 March 2013, that it did not support his allegation. When Mr Nagy asked to view the footage, Mr Kludass requested a copy of it on DVD from SSC's security manager. The request was not attended to promptly causing Mr Kludass to chase it up on 11 April and again on 13 May 2013.
The Security Manager attempted to obtain the footage but by the time he received it and viewed it, the footage had been wiped. He advised Mr Kludass on 13 May 2013 that the footage had already been wiped. During cross-examination, Mr Kludass elaborated: Q: And he pursued the CCTV footage of that because of those particular allegations where there were altercations, or alleged altercations, with Mr Kotb, and that was the CCTV that was lost, wasn't it? A: Lost is probably not the best word, it self-erased, so it was never in possession and then physically lost, it was, it has a rewrite of 30 days, so the original date of the incident was 11 February, as stated, so by the time it was requested of Mr Nagy, to actually physically view it, after I had viewed it myself, at that time, without a physical recording of it but actually viewing it, it was, the time had passed, the 30 days, and there's an email thread there in my statement where I've requested that of the security department, and consequently through a change in staffing there, time elapsed.
The incident occurred on 11 February 2013. Mr Kludass watched the footage and advised the Applicant, on 21 March 2013 that it did not support his allegation. There was a paper trail which evidenced the fact that Mr Kludass had attempted to obtain a copy of the CCTV footage in order to show it to the Applicant.
I accept that the Security Company had not acted on the request promptly and the footage self-erased as it has a re-write of 30 days.
Nevertheless, the evidence of Mr Kludass, which I accept, is that the footage did not support the Applicant's allegation.

The Applicant The Applicant's submissions may be summarised as follows:

The decision to terminate the services of the Applicant was a decision made in the absence of proven facts, where assumptions and presumptions have been made about serious misconduct and where the primary decision maker had not set out the proper basis for the termination.
The termination letter concluded, firstly, that there was no conclusive evidence from the footage that supported the Applicant's allegation.
The second plank relied on for the termination is that the applicant is a racist who deliberately provoked Mr Kotb and fabricated incidents in an attempt to engineer his termination. Both allegations were denied by the Applicant.
There was a fundamental failure of due process in relation to the Applicant and the treatment meted out to him. Council had initiated a process under its policy to investigate the Applicant's complaint against Mr Kotb pursuant to the Council's Disciplinary Policy. If it formed a view adverse to the Applicant, then it was under a positive obligation, not only by its own policy but also the Local Government (State) Award 2010, to institute a fair process of investigating the allegations against the Applicant prior to any dismissal. No show cause letter was issued to the Applicant.
The video evidence was inconclusive in that, at the critical time when the truck drove into the Depot, two people were cut out of the screen shot. Once inside the cage area, Mr Nagy and his two companions were not observed on the screen except when they walked past the truck.
There was no material before the Commission which satisfied the common law tests like cogent proof and the Briginshaw standard which set a very high onus in instances where serious misconduct is alleged. This is so particularly in relation to the Applicant against who not only were allegations of serious misconduct made but also allegations of breach of the Racial Discrimination Act 1975 and the Anti-Discrimination Act 1977.
The first time the allegations were put to him in that fashion was in the letter of termination. He was, therefore, not provided with an opportunity to respond to them. The allegations "fly in the face of both the history of the relationship between the applicant and Mr Kotb and proven misconduct on Mr Kotb's part, where there have been findings by council in terms of his behaviour…. historically over a three year period".
The Respondent relied on confirmation that the Applicant had been soliciting other staff to sign a document seeking Mr Kotb's termination while he was on leave. What has been described by the Respondent as a "petition" is, in actual fact a complaint lodged by the Applicant in accordance with Council policy as a result of advice from his direct supervisor.
The Applicant denied that he wanted Mr Kotb's full-time position. The dissimilarity in treatment meted out to Mr Kotb and to the Applicant was stark. The complaints against Mr Kotb were independent and separate and included an instance of criminal assault on the facts, a complaint from a resident about ramming a moor and a complaint from Mr Karslew about excessive, obscene and angry language directed at him. As a result of a Council investigation into those allegations, he received a third and final warning.
The fact that disciplinary action was taken against Mr Kotb was not communicated to the Applicant despite acknowledgement from a senior bureaucrat from Council, in December 2012, that feedback needed to be given to him. In frustration, the Applicant lodged a complaint with WorkCover. Two of the agreed outcomes were mediation and training. Mediation, which may have solved the whole matter, was never forthcoming. The evidence indicates that training was not offered until 13 months' later.
The Council's Counselling and Disciplinary Policy gives effect to Clause 34, Termination of Employment, of the Local Government (State) Award and raises the bar in that the usual process is that employees must be put on notice in writing that they are at risk of summary dismissal prior to it being effected. That did not happen in the case of the Applicant. Unlike Mr Kotb, the Applicant was not provided with an opportunity to respond to the allegations against him - that of maliciously lying and hoping to gain from Mr Kotb's dismissal and that his motives and motivations were questionable.
It is open to the Commission to conclude that Mr Kotb gilded his evidence about his health in order to emphasise the events of 2012 in a self-serving way.
The history of the case is one of lost opportunities - particularly in relation to mediation and training, both of which, if they had been provided, may have obviated the need for these proceedings.
The Applicant and his witnesses, who attended to give evidence freely, were witnesses to be believed. Mr Kludass confirmed that he accepted that some events of a physical nature had occurred between Mr Kotb and Mr Nagy during the 2012 assault as evidenced by Mr Barber.
Finally, the Council failed to manage, in a proactive and effective way, the relationship issues that were emerging between the Applicant and Mr Kotb. Mediation should have occurred 12 months' prior to the dismissal occurring. The Council was warned by the WorkCover Inspector about the consequences if things were left to fester.
The termination has had an immediate financial impact on the Applicant as he had no income coming in and he was denied Centrelink benefits for 8 weeks as a result of the nature of his termination. He was not in a position to pay his rent. He was finding it difficult to obtain alternative employment given his age (63) although he was able to pick up some odd shifts from time to time. He has had to dip into his superannuation savings as well as borrow from family and friends to get by.
An email was tendered from Kristi Owen, Connected Communities Manager, to Mr John Rayner dated 17 December 2013 in which she nominated a crew, which included Mr Nagy, for Team of the Month. The crew had assisted in cleaning up a wetland area behind Engadine Railway Station.
Also tendered was correspondence from the General Manager to Mr Nagy dated 7 February 2014 acknowledging the staff's contribution towards organising a wonderful Australia Day celebration.
It was concluded that the dismissal was harsh, unjust and unreasonable. The Applicant was seeking reinstatement with full back pay. It was acknowledged that some matters would require attention in terms of managing the future relationship between the Applicant and Mr Kotb but that was not beyond the scope of a large employer such as the Respondent.

The Respondent The Respondent's submissions may be summarised as follows:

The Respondent asserted that dismissal was warranted.
Ms Grewal and Inspector Hogan of WorkCover had suspected, in 2013, that Mr Nagy was trying to damage Mr Kotb in his employment. It was considered that Mr Nagy had invented the serious allegations of misconduct by Mr Kotb on 7 February 2014 for the same reason and therefore his inexcusable behaviour justified his summary dismissal.
The Respondent had, contrary to the Applicant's contentions, investigated the three earlier allegations he made against Mr Kotb. Disciplinary action was taken against Mr Kotb in relation to the October 2012 allegation, however, the two which were made in February 2013 were found to be unsubstantiated.
The Respondent considered the allegation made by the Applicant in February 2014 to be the most elaborate as he had convinced two other workers to join in what turned out to be a false allegation.
The Respondent was faced with a situation where two workers (Mr Nagy and Mr Hewitt) were asserting one thing and Mr Kotb and Mr Cleland were asserting the opposite. Mr Dimitrovski signed the statement but was on leave at the time the investigation was taking place. The Commission was asked to draw inferences from the fact that Mr Dimitrovski was not called to give evidence on behalf of the Applicant.
It was entirely reasonable for Ms Grewal to principally rely on the video footage of the relevant occasion which demonstrated that the conduct of Mr Kotb as alleged in the complaint of 7 February 2014 did not occur. The footage was described as "crystal clear" in its depiction of the events at the Depot. It did not demonstrate any of the conduct alleged by the Applicant against Mr Kotb - there was no slowing down of the vehicle, gesticulation or yelling, nor any surprise, no startled looks, no break in the strides or objection to any action from the vehicle. They all appeared to disregard each other and proceed on their way uninterrupted.
The window of the vehicle was down when it was parked in the bin cage. Mr Nagy gave evidence that it was down as Mr Kotb drove past them and then was wound up. The Commission was invited to doubt the reliability of the evidence of the Applicant based on that inconsistency.
The Council's counselling and disciplinary policies and procedures do not require a prolongation of agony by prolonging the inevitable. Disciplinary action was taken before all the procedures were followed because the misconduct made it appropriate for the Respondent to do so.
Mr Kotb was asked to show cause in relation to the allegations made by the Applicant. What the Applicant did was far more serious than that and it was something for which no employee needs to be warned about - he had lied and sought to deceive the Council by fabricating serious allegations against a co-worker in order to obtain his dismissal.
The fact that the training did not take place as a result of administrative difficulties should not affect the termination as the sort of training contemplated would not have dealt with the extreme behaviour of the Applicant.
The only evidence regarding mediation was from Mr Kludass and Ms Grewal. The only evidence before the Commission was that it was offered and either one or both employees had declined it. Neither Mr Kotb nor Mr Nagy were examined about offers of mediation.
The Applicant was provided with an opportunity, at the interview on 21 February 2014, to view the CCTV footage and explain why he had fabricated his allegations against Mr Kotb. He did not acknowledge the video evidence and denied the allegations.
The Applicant was provided with a reason for his termination both at the meeting on 21 February 2014 and in his letter of termination. He was also provided with a reason for the refusal to reinstate him when he made such a request to Mr Hazeldine on 26 February 2014. He had fabricated false, malicious and dishonest allegations of misconduct by a co-worker for the purpose of securing that co-worker's dismissal. The fact that the Respondent instituted disciplinary proceedings against that co-worker aggravated that co-worker's depression requiring an ongoing increase in his medication. His summary dismissal was therefore neither harsh, nor unreasonable nor unjust and therefore the application has no merit and should be dismissed.
The Respondent considered that a pattern of behaviour had evolved which "amply justified" his summary dismissal.
In any event, it was the Respondent's view that there is plainly no prospect of restoring the working relationship between Mr Kotb, who is still employed, and the Applicant. The Commission was reminded that the Council was attempting to deal sympathetically with the difficulties faced by Mr Kotb.
If the Commission was minded to award compensation, then it was noted that he had substantially contributed to his predicament. It was also noted that he had mitigated his losses to a certain extent and those earnings should be taken into account if such an award is made.

Applicant's Reply

The Applicant relied on the following authorities in relation to the requirement to comply procedural fairness: Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 and to comply with procedural fairness and its own disciplinary procedures: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385.

Legal Framework

Clause 34, Termination of Employment, of the Local Government (State) Award 2010 relevantly provides: (b)(iii) In cases of serious misconduct, a council may summarily dismiss an employee following a proper investigation and provided the employee is afforded procedural fairness. Where an employee is summarily dismissed, sub-clause (iv) shall not apply. (b)(iv) The council shall give to an employee a period of notice of termination in accordance tithe following scale or by payment in lieu thereof:..
Part C, Procedures, of the Council's Counselling and Disciplinary Policy and Procedures states that it is based on a five step process with the initial step involving a verbal warning followed by writing warnings and the final step involving suitable disciplinary action. It is noted, however, Part B, relating to Rights and Obligations, the Policy relevantly provides: B. Employer's Rights and Obligations Notwithstanding the procedures contained below, a council shall: (iii) Be entitled to take other disciplinary action before and/or during the procedures in cases of misconduct or where the employee's performance warrants such action. [emphasis added] (iv) In appropriate circumstances be entitled to terminate an employee's services in accordance with the Termination of Employment clause in the Local Government and Shires (State) Award.

CONSIDERATION

Having found the allegations against the Applicant sustained, it remains for the Commission to find whether the Applicant's conduct warranted dismissal.
Mr Crowe took the Commission through the CCTV footage of the incident at Ethel Road Depot: CROW: No. Commissioner, all it's - what it demonstrates in my submission, and obviously in the opinion of the decision-makers of council, was that there was no sign of any of the conduct about which the applicant complained to council by Mr Kotb. The truck comes in the driveway. It doesn't appear to slow down or stop, much less stop. It goes straight past. There is no - it is not apparent that the window is down or up. There's no suggestion that he changed. The truck just kept on going. None of the three men walking appear to - one of the men drops something. I think Mr Millett said he was - or I don't know whether he said in the witness box but I think there is some mention somewhere by one of our witnesses perhaps that it appears to be Mr Millett who drops something just as the truck was passing, bent down to pick it up. But there's no suggestion apart from that of anybody stopping to respond or listen or react to anything happening from in the truck or as the truck is passing. The footage also commences before the truck actually enters. So it would cover any episode like the applicant said in the witness box this morning of it happening on approach rather than as it was drawing level. [emphasis added] Then we get to the bin cage area, which is the second piece of footage. You see the three men walking past, which included the applicant. They don't stop, as you would expect them to do if someone was hurling insults or making rude gestures to them from the truck area. You can't see any rude gestures from anybody working and loading the truck, who is Mr Kotb and his offsider. So in my submission the conclusion was reasonably available, or it will be, in my submission, the conclusion will reasonably be available for the decision-makers of council that the applicant invented the allegations. As my friend says, there is nothing remarkable about the footage at all. It's quite innocent and that's what we sacked him for, because he invented things.
The following exchange took place with the Applicant during cross-examination: Q. Now, can you tell me who was driving the truck? A. Mr Kotb. Q. Right and were you on his side of the road or the other side of the road? A. Yes, on the driver's side. Q. On the driver's side of the road? A. Which was the right-hand side of the truck. Q. All right so he's up there on the truck. What kind of truck is it? A. It's a - Q. A garbage truck? A. It's a dump truck type of thing. It's not quite - it's not very high at all. Q. So we'll see it obviously in the DVD? A. Yes. Q. So his window was open; is it electrical windows or automatic windows? A. No, electrical. Q. Electrical windows? A. Yeah. Q. So you saw him make hand signs at you? A. Yes. Q. You were looking? A. Yes, because I heard him as he's coming into the driveway then - we were only about ten metres away or less. Q. Can you show me the hand signs he was making? A. Oh, yeah, he was sticking his thumb up at me and going like this and I don't know what else, I can't remember, but they were the main couple. Q. All right so he was driving, he was doing that; you could see him, you were looking at him when he did all that? A. Yes, because I heard the tirade when he came into the yard so I looked around to see what was happening. Q. And you say all of you turned around in the evidence that you were giving Mr Crow - I'm sorry, Mr Murphy, you said all of you turned around to have a look? A. Yes, when he first came into the yard, yes, but - Q. And did you see that in the - A. No, it didn't. Q. --CCTV? A. I think it was just - I can't remember. One of us is still being turned around at that point, but it didn't show the three of us, no, because by that time the window had closed.
The following exchange took place during cross-examination of the Applicant: Crow: I see. Well, Mr Nagy, from watching the footage twice you would have been able to see whether Mr Kotb's arm was within the truck or poking out the window, wouldn't you? Nagy: By the time the camera shot that footage he'd pulled the window up, so I didn't - that's all I could see after that. Q. I see. So, is it your evidence that the events you are describing occurred before the truck even reached you? A. Yes. Q. I see. Well, the CCTV footage shows the truck passing the three of you, doesn't it? A. That's right. Q. And that would be the time when it would be - when he would have been closest to you, isn't that right? A. Could be. Q. That is the time when he called out to you, isn't it? A. No, it was before. Q. On your evidence? So, on your evidence you're saying that he started yelling things at you before the truck had even drawn near you and wasn't doing it when the truck was at its closest point, is that what you're saying? A. Yes. Q. I see. And is that why you say the TV footage doesn't record any sort of obscene gestures or yelling? A. Yes. Q. I see, I see. Now, you didn't make that explanation to Miss Grewal and Mr Kludass and Mr Evans on the meeting on 21 February, did you? A. I don't recall that. Q. How long did that meeting take? A. I don't know, approximately 45 minutes to an hour. Q. During that meeting you say you watched the TV footage and that took several minutes didn't it? A. Something like that. Q. In that meeting of 45 minutes or an hour, you had plenty of opportunity to give any explanation that you wished about your conduct didn't you? A. Yes. Q. And you didn't mention at the time that the gestures and obscenities or insults that you claim were made by Mr Kotb had occurred prior to the truck appearing into the field of view, did you? A. No I didn't but I was bamboozled by the three people in front of me. Q. Are you saying you were bamboozled for the whole of the 45 minutes or an hour were you? A. Yes, just about.
Mr Nagy attended the meeting on 21 February 2014 without a support person. He claimed that he had been bamboozled by the three management staff present at that meeting. During examination-in-chief, Mr Kludass commented on Mr Nagy's demeanour at that meeting: Q: Can you think of anything that occurred in the meeting which causes you to believe that he was not feeling bamboozled? A: I guess I was sitting alongside Mr Nagy during that meeting, and I didn't notice anything that would, he appeared quite steely faced during the meeting and, yeah, that remained pretty much the same throughout the whole meeting. Q: Did he speak during the meeting? A: Did he speak? Yes, yes. Q: How often did he speak? A: When asked the appropriate questions. Q: Yes, and how did he - in what sort of manner did he express himself? A: Quite straightforward and responsive to the questions.
Ms Grewal gave the following evidence in examination-in-chief regarding her observation that the Applicant did not appear to be bamboozled at that interview: Q: Can you think of anything about his conduct or statements in the meeting that demonstrates your opinion or illustrates your opinion? A: Mr Nagy held his own in the conversation. He was clear in the questions that he asked of us, in as much as the responses that I provided in explanations I provided as well as Mr Kludass and as well as Mr Evans. We showed him CCTV footage. He asked to view that. We showed that to him on more than one occasion. He looked at that, he seemed to understand certainly very clearly the conversation and dialogue where we were drawing to his attention that the events that he claimed to have occurred were simply not captured on the video evidence and he could offer us no explanation as to why it was not so. Q. Can you think of anything that occurred in the meeting which causes you to believe that he was not feeling bamboozled? A. I guess I was sitting alongside Mr Nagy during that meeting, and I didn't notice anything that would, he appeared quite steely faced during the meeting and, yeah, that remained pretty much the same throughout the whole meeting.
The Applicant confirmed that he had been provided with an opportunity to have a support person accompany him to that meeting. If no one at work wanted to accompany him, he could have brought in a family member or friend to attend with him. It was ultimately his choice to attend the meeting on his own.
In my view, the CCTV footage was quite clear. I note that the footage commenced before the truck entered the site and therefore would have been able to pick up any reaction by the three men if there was any yelling out of obscenities prior to coming within view of the security camera.
In relation to the alleged abuse in the cage, the following exchange took place with the Applicant during cross-examination: Q. Then you say that Mr Kotb made more or carried on with this behaviour near the bin cage, is that correct? A. In the bin cage, yes. Q. Well were you in the bin cage or was he? A. He arrived first and then we walked past him to about 15 metres in front of him while he was loading bins. Q. And that appears on the TV footage doesn't it? A. I think so. Q. At what point in that part of the TV footage do you say that he repeated the sort of conduct that you have complained about? A. Well when I've walked past the truck to get to the position I was in and then also when we started work in front of the truck which is 15/20 metres in front. Q. So if that's correct it must have been shown in the TV footage? A. It doesn't show that. Q. I see. So you agree with me that the TV footage of the bin cage area doesn't show any of the conduct that you've described?A. No. Q. Sorry, can I clarify that?.... A. Sorry, yes. I agree with you, yes not in the.
There is no doubt that the CCTV footage clearly demonstrates that the complaints made by the Applicant are not justified. Even if there was any doubt about the first part of the footage, which I do not accept, the second part is unmistakable. There was no incident to complain about. In addition, Mr Cleland (a person who the Applicant agreed in cross-examination was an independent witness) did not see or hear what the Applicant alleged to be rude gestures and a tirade of obscenities levelled at him.
In relation to the altercation at the Woronora Boat Ramp, the following exchange took place with the Applicant during cross-examination: Q. Your first written complaint related to a series of events that began with an altercation at the Woronora boat ramp didn't it? A. It's not an altercation, it was just a chat. Q. Well that's what you say in paragraph 16 of your statement isn't it, you say it was an amicable discussion? A. That's exactly right. Q. Well Mr Nagy you initiated the discussion about Muslim riots in the centre of Sydney didn't you? A. Yes. Q. Why did you do that? A. Because I was just interested in finding out why, what was going on and what was it all about. Q. Why did you think Mr Kotb would be able to help you? A. Well because he, he obviously knew about the riots and that. Q. How do you know that? A. Because I asked him. Q. Why did you think to ask him? A. He was the closest one at that point. Q. Closest one of what? A. Closest person to me at that point. Q. Well why did you need to discuss it at all with him? A. I just wanted to know what was eventuating there, what was going on. Q. Why would you not go to the newspaper or the radio, why ask him? A. Because I hadn't read the newspaper or saw the radio, the TV or anything. Q. Mr Kotb has an offsider doesn't he? A. Yes. Q. Mr Cleland? A. That's right. Q. Why didn't you ask Mr Cleland about it? A. Well he wasn't close. Q. Or why didn't wait for Mr Cleland to come? A. Did I have to wait for him I just wanted to ask him there and then, it was an amicable discussion. Q. Well Mr Nagy the case is that you asked him because you thought he was a Muslim, isn't it? A. No, not at all. Q. You thought that he might - you wanted to speak to him as a Muslim about that? A. I just wanted some facts that's all. Q. What facts did you get? A. Facts were that the riots were over the westerners not understanding the easterners and that was about it like - Q. Why do you think Mr Kotb would be able to give you that information? A. I don't know. Q. I don't know. You don't know, you have got no reason for picking Mr Kotb to ask that question? A. Not really. Q. Now it was not an amicable discussion as you say was it Mr Nagy? A. Yes it was. Q. Mr Cleland says it was not an amicable discussion and he's an independent observer isn't he? A. He was an independent observer, yes. Q. So we're entitled to accept his opinion about it, aren't we? A. I don't know. Q. Indeed you were seeking to provoke Mr Kotb by attributing the rioting conduct of other Muslims in Sydney to a community to which he belonged weren't you? A. No.
The Applicant was distinctly unconvincing in relation to the reason he approached Mr Kotb for information on the riots.
The Applicant contended that the Respondent did not take action in relation to his complaint about Mr Kotb. The following exchange took place during cross-examination: Q. And then you talk about Mr Kotb's reaction a week later and then in paragraph 18 you say, "On Monday 10 December I did have a meeting with management and they said, 'The CCTV footage was inconclusive, they intended to take no action as a result'". Do you see that? A. Yes. Q. And that's wrong isn't it? They did take action? A. No they didn't. Q. Well you had a meeting with Ms Grewal and others on 24 January 2013 about it, didn't you? A. Yes. Q. And at that meeting they discussed your concerns and you had Mr Clayton Brown present as your support person. A. Yes. Q. And they discussed with you the outcome of that investigation didn't they? A. I don't remember. Q. I see. Have you seen the witness statement of Ms Grewal which has been filed in these proceedings? A. Yes I have. Q. Do you recall seeing a file note made by her of that meeting which she sent by email to several other employees or officers of council? A. I don't recollect that one. Q. In your second witness statement Mr Nagy you responded to paragraph 6 of Ms Grewal's statement but only paragraph 6 don't you? In your paragraph 10 of your second statement you reply to Ms Grewal's paragraph 6? A. Yeah. Q. And you haven't responded to the file note which I have just told you about which is annexed to her witness statement? A. File note, pardon? Q. No it's all right, I withdraw that question. So reverting to your paragraph 18 of your first statement now Mr Nagy, go back to your first statement, paragraph 18? A. Yeah, "On Monday December 2012" that one? Q. Yes? A. Okay. Q. You were told in a meeting on 24 January 2013 that there would be action in respect of your complaint but that they weren't going to divulge matters personal to Mr Kotb to you? A. That's right. Q. But they didn't say that they intended to take no action, did they? A. I don't remember. Q. Well if you don't remember why did you put that sentence in your paragraph 18? A. I don't remember. Q. So should we take that sentence out? A. Well to my best recollection I must have meant that. Q. Well are you saying that your recollection has been lost since you signed this statement? A. I just didn't remember all of that.
The riots occurred six days earlier than the chance meeting between the Applicant and Mr Kotb. The Applicant had, on his admission, already heard about the Sydney riots. If he indeed had not watched the TV or read the daily papers or listened to the radio, then he must have heard about the riots from someone. He could have obtained the details from that someone. In addition, the Applicant would have come across a lot of people (workmates and friends) in that time from who he could have sought further information. I do not accept his explanation as to why he picked on Mr Kotb to supply that information.
The Applicant asked Mr Edwards to co-sign his complaint regarding the Woronora Boat Ramp after Mr Edwards advised him that he was not there.
I am satisfied that the Respondent advised the Applicant that disciplinary action had been taken against Mr Kotb but for privacy reasons did not advise what that action was.
The Applicant denied any knowledge of the reasons for his dismissal. Q. You are not aware of that, no all right then. Now Mr Nagy in that meeting on 21 February this year where you were given notice or told about the termination of your employment, in that 45 minutes or one hour long meeting, you insisted on the truth of your complaint in the face of the or despite the CCTV footage that you were shown of those events, didn't you? A. That's right. Q. And by doing so you were in that process or in discussion you were aware of what it was that council considered you to have done by way of misconduct didn't - would you? A. No. Not at all. Q. Well you were aware that council considered that you had fabricated your complaints of conduct by Mr Kotb? A. That's what they told me. Q. That's right. So you were on notice of what it was that council was concerned about? A. Yes. Q. And you knew that the council officers were relying upon the CCTV footage in disagreeing with you? A. Yes. Q. And also they told you that they'd had a statement by Mr Kotb denying the allegations you'd made, didn't they? A. No they didn't tell me that. Q. Well you have now seen that document haven't you, as part of these proceedings? A. No. Q. Well you say that you haven't been given a copy of the witness statements for the council in this matter? A. Yes I think I have, yes. Q. And you've seen as an attachment to I think it is Mr Kludass' statement, page 45 of Mr Kludass' statement, annexure Q, a response by Mr Kotb to your allegations in which he denies them? A. I don't recall that. Q. So when you were told about the termination of your employment at the end of that meeting you had no doubt what it was that council was concerned about and the reason it had for your dismissal? A. Well I did have doubt. Q. What could you have possibly have doubted in the circumstances of the CCTV footage and that conversation of an hour? A. Because all of the statements that I wrote were true and I couldn't believe that I was dismissed because I was telling the truth. Q. I see, so your concern was that they didn't believe you? A. Exactly. Q. But you knew what it was that they believed? A. Not really.
Based on the evidence, the Respondent formed the view that the Applicant engaged in serious misconduct. I do not cavil with that view. In Corrective Services NSW v Fraser (No 2) [2015] NSWIRComm 10, the Full Bench, having found that the Respondent engaged in misconduct, went on to consider the character and severity of the misconduct in order to determine "whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the Respondent".
In Byrne v Australian Airlines Limited Airlines Limited [1995] HCA 24; 185 CLR 410 at 465 McHugh and Gummow JJ stated; It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
The Applicant, in my view, deliberately attempted at the Woronora Boat Ramp to provoke a reaction from Mr Kotb who, maybe out of shock or surprise, did not react on that occasion. However, he must have mulled over it in order to react the following day and receive a final warning for it (when compounded with two other complaints about him). I note that the Applicant was not disciplined for provoking Mr Kotb on that occasion.
Also in my view, having been advised that Mr Kotb had been disciplined as a result of his reaction on that occasion, proceeded to fabricate another complaint against him in relation to the Ethell road Depot incident. There was no incident. There was no interaction with Mr Kotb. Mr Kotb gave evidence that he was aware he was on a final warning and wanted to make sure that his family was not affected by him losing his job.
Mr Kludass investigated the 11 February 2013 complaint made by the Applicant regarding being shoulder-charged by Mr Kotb. He viewed the CCTV which, unfortunately, because of the time delay, had self-erased. Nevertheless, I accept that the complaint was investigated. I also accept the evidence of Kludass that the footage did not support the Applicant's allegation.
Mr Kludass had also investigated the 1 February 2013 complaint made by the Applicant that Mr Kotb had taunted him from the cabin of his truck. An independent witness, Mr Harding, who was the passenger in the truck, confirmed that he neither saw nor heard Mr Kotb make any intimidating gestures/remarks to the Applicant.
It is a shame that training was not able to be arranged any sooner than it was. I accept, from a reading of the evidence provided, how a misunderstanding could have occurred as to who was to arrange for the training and the mediation. Mediation could not be arranged because one or both parties rejected the concept. Mediation cannot work if both parties are not committed to participating in good faith, recognising their faults and achieving an acceptable outcome.
Australia is populated by persons from across the globe. They come to Australia or are born in Australia from parents who have migrated to find peace and make a life for their offspring here. All persons, irrespective of their chosen careers, are entitled to go to work in a safe environment that is free from such things as bias, bigotry and religious vilification. The evidence demonstrates that the Applicant was not going to be satisfied until Mr Kotb was sacked from his position with the Respondent. Mr Kotb, whilst I accept that he was on medication probably before the Applicant commenced employment with the Council, had his dosage increased by his doctor as a result of the angst he was feeling as a result of the interactions with the Applicant as described above. The Applicant's termination cannot be considered to be unreasonable.
Apart from the contention that fair process was not afforded to the Applicant and the fact that he will find it very difficult to obtain alternative employment given his age (63), no other mitigating circumstances were raised before the Commission. It is noted that the Applicant held a casual position with Council - a position which he commenced on 17 November 2010 and from which he was dismissed on 21 February 2014 - only 3.25 years. Those factors, when balanced against his seriousness of his misconduct, lead to the conclusion that the dismissal was not harsh.
No complaint was lodged against the Applicant. There was therefore no reason for the Applicant to be provided with a show cause letter. It was the Applicant who lodged a complaint against Mr Kotb which was investigated by the Respondent. The complaint was found to be unjustified. In the process, the Respondent formed the view that the Applicant had deliberately fabricated the complaint and got two co-workers to sign the complaint.
The Applicant was invited to attend the meeting and invited to bring a support person with him. It is noted that he had a support person at the meeting regarding the incident at the Woronora Boat Ramp. It was the Applicant's choice to attend on the latter occasion without a support person - he could have brought a family member or friend or legal adviser. The meeting took approximately 45 minutes during which the Applicant asked, and was shown the CCTV footage on a number of occasions. He was advised of the conclusion management had reached regarding his motives.
The Respondent confirmed information, during the course of the meeting, that the Applicant was attempting to get Mr Edwards to co-sign his complaint regarding the Woronora Boat Ramp after being advised that the latter was not present during the exchange between he and Mr Kotb.
The Applicant has not shown any contrition nor has he resiled, despite the evidence, from his contentions regarding Mr Kotb. The Applicant's termination cannot be considered to be unjust.
I am satisfied, on the balance of probabilities, that the allegations against the Applicant are proven. I am satisfied that he engaged in the misconduct described in the charges above. The Applicant's dismissal was not harsh, unjust nor unreasonable.
In view of all of the above, the Commission declines to intervene to overturn the decision to dismiss the Applicant.

ORDERS

Matter IRC 170 of 2014 is hereby concluded by dismissal of the application.

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: 28 September 2015

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Judgment (14 paragraphs)

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Cases Cited (4)