Sharma v Sydney South West Area Health Service

Legislative Framework

1. The Commission is required to consider whether the Respondent has satisfied the onus of establishing the misconduct. If the Commission finds that it has, then it is required to consider whether the Applicant has established that the dismissal was harsh, unreasonable or unjust - in other words, unfair for the purposes of s 84 of the Act: Macleay Valley Health Service v Jeffree (1994) 58 IR 187 at p 192.
2. The Commission needs to consider the following in assessing whether a dismissal was unfair: 1. Whether the applicant was informed of a reason for the dismissal; and 2. Whether the reason for dismissal had a basis in fact; and 3. Whether the reason justified termination; and 4. Whether previous warnings were provided to the Applicant; and 5. Whether the Applicant was provided with an opportunity to make out a defence; and 6. Whether the termination is still harsh, unjust or unreasonable.
3. If the Commission determines that the dismissal was harsh, unreasonable or unjust, then it must go on to determine the appropriate remedy to be awarded in the following order - reinstatement, re-employment or compensation: Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11.
4. In determining whether a dismissal was "unfair", the Commission may, if appropriate, take into account those matters set out in Section 88 of Ch 2 Pt 6 of the Industrial Relations Act 1996 (the Act) which relevantly provides: (a) whether a reason for the dismissal was given to the Applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
5. The Commission is required to make "a positive and specific finding" on each of the words in the expression "harsh, unreasonable and unjust": Bankstown City Council v Paris (1999) 93 IR 209. A dismissal may be harsh but not unreasonable or unjust; unreasonable but not harsh or unjust, or unjust but not unreasonable or harsh. Any one or more of those three adjectives may be able to be applied to a particular termination of employment.
6. Section 48 of the Workplace Injury Management and Workers' Compensation Act 1998 provides as follows: 48 Return to work obligations of worker (1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment. (2) For the purposes of this section, a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which: (a) the worker is waiting for the commencement of a workplace rehabilitation service that is required to be provided under an injury management plan for the worker, or (b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer, or (c) if the employer's response is that suitable employment or pre- injury employment will be provided at some time, the worker is waiting for suitable employment or pre-injury employment to commence.

The Evidence

1. The Applicant obtained a Certificate of Capacity certifying him fit for pre-injury duties for "4 hrs x 4 days/week" on 6 June 2012 which was upgraded to a full pre-injury duties Certificate of Capacity on 1 November 2012. Upon receipt of this certificate, the Respondent sent a letter to the treating GP explaining that 12-hour shifts had been introduced and providing information relating to the role of a Security Officer. Dr Shah, as a result, issued a full pre-injury duties Certificate of Capacity but for "6 hr x 5 days/week". That limitation remained valid until a full pre-injury duties Certificate of Capacity was once again issued.
2. On 4 June 2013, Mr Matthews, Consultant Psychologist, issued his report on an assessment he undertook of the Applicant on 24 May 2013. He reported, under the heading "Injured Worker's account of current situation" that the Applicant's preference was to return to part-time work due to his increased level of responsibility in caring of his children undertaking either his pre-injury Security Officer role or alternatively an administrative role. He also articulated a further option - that he had considered seeking to be made redundant and "taking a payout".
3. Mr Matthews had interviewed Dr Shah during the preparation of that assessment. Dr Shah advised that the Applicant was not currently receiving any psychiatric or psychological treatment and that the Applicant was currently "well enough to return to work". Mr Matthews noted "Dr Shah indicated that he understood Mr Sharma's pre-injury role to be that of Security Officer and he noted that he is fit to take part in all aspects of this role".
4. Mr Matthews also interviewed Ms Gail Miner, Return to Work Coordinator, Fairfield Hospital who reported that in September 2010, the Applicant was issued with a Certificate assessing him as fit for suitable duties. However, as a result of him being overseas at the time and because of some workplace matters, a return to work was not undertaken until February 2011 when he was engaged on administrative tasks at Fairfield Community Health Centre for 4 hours per day 4 days per week. The Applicant reportedly refused to sign the Return to Work Plan stating that the work was "beneath me". She stated that following failed attempts to explain to the Applicant the process of undertaking suitable duties and steps towards upgrades in fitness, no further suitable duties were identified at the time by his own rehabilitation provider. She advised that further difficulties arose even in that relationship resulting in no further return to work attempts being made.
5. The Applicant agreed that he received a WorkCover Certificate of Capacity from his doctor on or after 10 February 2015. In that Certificate, the doctor did not certify the Applicant as fit for pre-injury duties. The Applicant denied any knowledge of that inclusion.

Submissions

1. The Applicant's submission may be summarised as follows: 1. The decision maker, Mr Tammekand, did not know how to devise, or participate in, a RTW plan. He made his decision to terminate, not on the basis of the medical reports, but on the advice he received from his staff. 2. While undertaking suitable duties, he was not given work that was compatible with his skills. 3. He was the type of person who stood up for his rights. He saw many General Managers, Human Resources Managers and Risk Managers come and go during his employment with the Respondent yet no one attempted to get him back to work. When he was not fit for work, everyone was quiet but when he was fit to return to work, money was offered to him to resign. He considered it to be harassment when the offer was made and rejected more than twice, particularly when the letter from the General Manager, Mr Tammekand, dated 4 July, threatened that if he elected to return to work that disciplinary action would be taken against him. The threat was demonstrative of the mindset of the General Manager and was not conducive towards getting him back to work. 4. His doctors were made aware of the threats and they agreed with him that, in view of his long absence from work, a graduated return to work was essential. 5. He is an honest person and if he were to seek alternative employment, he would have to respond truthfully to questions such as why he left his previous employment with Fairfield Hospital, why he had been on workers' compensation, and why would another employer engage him on suitable duties when his existing employer refused to do so? He refused to listen to advice from friends to tell lies in his job applications. 6. He was willing to seek alternative employment with another employer provided he was returned to work on suitable duties anywhere within the LHD in the interim. 7. He has been given custody of his children and he was not comfortable knowing that his children were seeing him sitting at home depressed all of the time. He started experiencing insomnia. 8. He admitted that he did think long and hard about the monetary offer made by the Respondent but considered that it would not last more than seven or eight months given the bills he had to pay. 9. He was prepared to undertake any suitable duties provided to him in security. He was aware of two security guards who had been hurt on duty and accommodated with suitable duties for a few months until they resumed full duties. 10. The Respondent failed, over a period of seven years, to calculate his back-pay correctly. It was calculated on the basis of day shift, Monday to Friday, when he had been working a seven day rotating roster, evening shift, night shift, ADO's, Public holidays, and so on. 11. The insurance company failed to heed his continued requests for re-training. He has only ever undertaken security work in Australia and private security work did not offer any prospect of long-term employment given the competitive nature of the industry. 12. He did not want to attend a meeting with management because he was concerned about being set up and accused of punching someone. He admitted that he had taken Mr Kumar with him as a support person in the past and his request for a postponement of the meeting to another date to suit Mr Kumar, had been acceded to by Ms Miner. Nevertheless, he did not feel that he could ask anyone, including his own children, to attend a meeting with him at 6 am. He conceded that he had not requested a change of time. 13. His repeated requests to speak directly to the Chief Executive Officer had been ignored.
2. The Applicant was seeking reinstatement to Fairfield Hospital. Alternatively, given that a lot of people within that hospital have "their daggers out", he was seeking re-employment anywhere within the LHD. If reinstatement or re-employment are not viable, then he is seeking maximum compensation calculated on the basis of $890.90 per week.
3. The Respondent submitted that it was a relatively simple case in that most of the relevant facts concerning the Applicant deliberately and knowingly failing to abide by directions for a considerable period of time was evidenced by correspondence tendered in the proceedings. It was pointed out that the Applicant had failed in meeting his obligation to make reasonable efforts to return to work in suitable employment or pre-injury employment at his place of employment or at another place of employment.
4. The Respondent also submitted that the Applicant's open defiance left it with no choice but to take disciplinary action by terminating his employment for misconduct effective 1 October 2013. On that basis, it conceded that it bore the onus of establishing the misconduct and submitted that it had met that onus. The onus, therefore, reverts to the Applicant to prove that the dismissal was unfair.
5. The Respondent noted that the Applicant's submissions were telling in that he accepted no ownership at all for his termination and implied that the whole problem was with others. The evidence reveals that a large measure of the problem rests on his shoulders.
6. The Applicant's submission regarding his desire to return to work to set an example for his children was entirely inconsistent with his conduct. Firstly, he ignored multiple letters and directions since 2007 to "drag him screaming back to work". Secondly, he declined the option, in 2011, of a suitable duties position and refused to sign a RTW program. He wanted the ability to determine what the position was, what duties he would perform and even who he would report to. Thirdly, anyone as desperate to return to work as he described, would have attended at 6 am or before "with bells on". Not only did he not show up, he did not provide Mr Tammekand with notice or effective notice that he would not be attending. Fourthly, he gave lame reasons for not attending - he did not have a uniform or a support person. It was pointed out that he needed to attend work in order for a uniform to be provided to him. In addition, on his own admission, he did not seek to alter the time of the meeting to ensure that he had a support person in attendance. It was noted that those defences were not referred to in the Applicant's response to the Show Cause letter. Instead, the Applicant referred to not receiving the letter by email when he conceded that he received a copy by registered post. He also referred to the medical certificate from Dr Sharah which certified him as fit for suitable duties from 9 August 2013. It was contended that the certificate provided no defence whatsoever to the decision by the Applicant not to attend the meeting.
7. The Respondent relied on the letter to the doctor dated 31 July and the medical certificate dated 12 August in which his doctor replied: Is Mr Sanjay fit for his duties? I've been seeing Mr Sanjay Sharma for years. I have noted the situation that has existed for him and for you and the problem he is having with his employment. However, he has manifested a desire to return to work and from what I hear he has been curtailed in his efforts to obtain his former or other positions at the hospital. Alternate duties? I don't see any physical or psychological restrictions that need to be placed upon him or taken into account. It's my assessment of him that if he was to be returned to work in an accepting environment he would do very well. Question 3 It is probably in the best interests of Mr Sharma to return to work on a gradual basis, considering that he hasn't been given work for some time. Question 4 …. I see no restriction on his abilities and performance in the future. It was pointed out that it was not correct that the Applicant was curtailed in his efforts to obtain his former or other positions at the hospital. It was also pointed out that the response to Question 3 was certainly not a diagnosis. The Respondent proposed, in July/August 2013, that the Applicant meet with senior management, then commence work on a gradual roster, undergo reviews and then resume full-time work. The Applicant failed, for reasons still unknown, to grasp that opportunity.
8. The Respondent pointed out that the history of the applicant's employment, as it has been unfolded from the history, paints a picture of a person who was not keen to return to work.
9. The Respondent pointed out that the Applicant's substantive position was as a security guard - a position of trust. One of the inherent criteria for the position is the possession of "negotiation skills and conflict resolution skills". The Respondent concluded, following a lengthy history of tolerating his outbursts and disobedience, that he did not possess that inherent skill and therefore posed a risk both to himself and others as he could not control himself and could not resolve conflict he had with others in the workplace.
10. The Respondent also pointed out that the Applicant had been certified by his long standing general practitioner, who was aware of all his issues and history, as fit for pre-injury duties for over 12 months prior to his termination. That certification had been supported by more recent independent expert assessments.
11. The Respondent relied on the following: firstly, the Applicant's lengthy and difficult employment history with the Respondent; secondly, the Applicant's failure to follow direction; thirdly, the Applicant's arguments with co-workers and supervisors which, on at least one occasion, resulted in him being physically violent towards another worker; fourthly, the numerous failed efforts to re-integrate him into the workplace after his absences; fifthly, the Applicant's failure to obey a direction to return the work; sixthly, the Applicant's repeated uncooperative and disobedient conduct undermined the necessary mutual trust and confidence required to sustain the employment relationship; seventhly, the response provided by the Applicant to the Show Cause letter did not give the Respondent any confidence that he would comply with reasonable and lawful directions in the future; and eigthly, the dismissal was procedurally fair.
12. In relation to the underpayment of wages issue, the Respondent pointed out that the Applicant never provided any particulars of that alleged underpayment. Whilst the Respondent does not have to respond to any underpayment of wages issue in these proceedings, it was still willing to review any alleged underpayment so long as it is particularised. It was pointed out that an offer was made, and accepted, in a private conference before Bishop C on 3 April 2007 to settle for the sum of $25,000, subject to taxation deductions.
13. The Respondent concluded that there was no basis for the Applicant's claim and it ought to be rejected. If the Commission was against the Respondent on that, then it was submitted that reinstatement or re-employment are not practicable given the following: 1. The Applicant's demeanour in the witness box and throughout the hearing; 2. The matters raised in the Procare report; 3. It would be unsafe not only for the Applicant but for the employees and clients of the Respondent to return him to employment given: 1. The Applicant's total lack of confidence in the Respondent; and 2. The Applicant's belief that the Department of Health is corrupt and has ruined his life.
14. The only order available to the Commission is one of monetary compensation but even that is problematic as there is no evidence before the Commission that the Applicant has suffered any loss. He has continued to receive workers' compensation payments and he had not made any attempts during the first 12 months to mitigate his loss.
15. The Commission was invited to infer that the documents the Applicant absolutely refused to produce in response to the Notice to Produce would have been prejudicial to his position in relation to the post-termination limb of the case.
16. The Respondent submitted that the issue of costs should be considered following the decision in this matter.

Submissions on credit

1. The Respondent urged the Commission to make adverse findings as to the Applicant's credit based on an independent assessment of the following - the plausibility of his evidence; the honesty and reliability of his evidence as discerned from the manner in which he gave evidence; whether his evidence contained fabrications, misrepresentations or contradictions; whether any inconsistencies in his evidence have been honestly explained or whether his evidence was embellished; and, finally, whether any explanations provided in relation to contradictions in his evidence have been explained adequately.
2. It was noted that much of his evidence, particularly during cross-examination, was clearly contrary to the documentary evidence, untruthful on multiple occasions and exaggerated. In addition, he attempted to disparage his colleagues.
3. On the Respondent's assessment of the above, the Applicant's tone of voice and demeanour while giving evidence was arrogant and patronising. He attempted to make submissions, to avoid answering the questions and to attack the questions. He constantly could not recall matters in cross-examination which he had addressed in his own witness statement.
4. In addition, the Applicant's fabrications in his own evidence were manifest, particularly when he asserted that medical certificates he was relying on for his non-attendance at work had been omitted from his evidence or that the advice from his doctors was oral.
5. Inconsistencies in his evidence were laid at the feet of his solicitors and/or Mr Grace who, the Applicant contended, were not acting in accord with his instructions.
6. Even where the Applicant was confronted with plain contradictions, he failed to make any concessions or accept any blame.
7. It was contended that the Applicant exaggerated his explanations whilst portraying himself as the victim.
8. It was also contended that the Applicant's evidence in these proceedings was clearly inconsistent in some respects - firstly, it was inconsistent with Exhibit B2 when responding to a question from the Commission in relation to Exhibit B1 and, secondly, with his submission to the Full Bench in his appeal regarding a job interview in May 2014.
9. In conclusion, it was noted that the Respondent's witnesses gave their evidence openly and without arrogance or contempt albeit they were affected by the usual human frailties. It was noted that the Applicant never suggested that they had told any untruths.
10. The Applicant rejected the submission that he lacked common sense, and knowledge of human behaviour. He also rejected that his evidence and that of his witness were not corroborated.
11. The Applicant agreed that, at times, he had difficulty understanding Counsel's questions put to him and provided the following reasons: The relevance of the question; Time had diminished his memory of details of the incident and he was relying solely on memory in responding to questions about incidents from 8 years' ago; He had been suffering from depression, anxiety and insomnia for a lengthy period of time and had not fully recovered; and The dealings he had with his legal representatives and the Area Health Services representatives in 2007 were not in contention.
12. He was not allowed to check the facts from the Respondent's documents prior to responding in cross-examination, particularly in relation of Exhibits B1 and B2.
13. He does not have a legal professional background.
14. He answered all questions to the best of his knowledge, understanding and truthfully. He struggled to respond to distinguish between questions when asked simultaneously.
15. Any contradictions with his witness were regrettable as the Applicant was not aware of the facts and he had presented his case to the best of his knowledge and honesty. His contended that his integrity and standing in the community were beyond reproach.
16. The Applicant could not comprehend why he was being cross-examined on issues already proven before the Commission or not investigated by the Commission in previous matters. He believed that Counsel for the Respondent was disgruntled because he had been unsuccessful in the appeal before the Full Bench and took the opportunity to have another swipe at him.
17. The Applicant contended that Counsel for the Respondent was very unprofessional and unethical. He had harassed, intimated, belittled, humiliated and threatened him, made rude and uncalled for comments, shouted, used a threatening tone, stared at him while addressing the Commission and gestured at him during cross-examination. Counsel was visibly upset when he did not get the answers he was seeking from him. He contended that Counsel was in breach of parags 57 (a) and 60 (c) of the NSW Barristers' rules (January 2014).
18. The Applicant contended that the questions in cross-examination were in regards to the contents of the Respondent's witness statements to which he had no access whilst in the witness box.
19. The Applicant conceded that he had failed to attach some evidence to his statement, including medical certificates referring to the fact that the matter was first listed in February 2014 (sic).
20. The Applicant conceded that he had legal representation and assistance during the preparation and submission of his first statement and during exchange of documentation between the parties.
21. The Applicant could not fathom how the Respondent can recall a verbal instruction given to him during a verbal discussion with Mr Grace in 2007. He had not brought up the subject of Mr Grace in his statement and only recalled Mr Grace when he saw the name in the Respondent's documents.
22. The Applicant denied that he had portrayed himself as the "victim" even though he was a victim of bullying and harassment because he was being honest and upfront in his dealings with the Respondent and because he refused to be forced into accepting what he did not do or say.
23. The Applicant wondered whether the Respondent was questioning the capability of the Full Bench of the Commission pointing out that the issue of job interview was never the subject of questioning by either the Respondent or the Full Bench.
24. The Applicant complained about Counsel's unethical and unprofessional conduct contending that he had assisted the Respondent's witnesses in the following way: 1. He coughed out loud when the Applicant asked difficult questions of his witnesses; 2. He made hand gestures to his witnesses who continually looked towards him when responding to the Applicant's questions. He reminded the Commission that he, on numerous occasions, directed the witnesses to look at him when responding to his questions; and 3. Constant interruptions from Counsel during his cross-examination both to make objections even when the Applicant had not asked a question and when the witness was about to respond to a question.
25. Two different responses were provided by two of the Respondent's witnesses regarding who had drafted the "return to work" plan which they both signed.
26. Finally, the Respondent's witnesses were evasive in their responses to questions on matters set out in their statements. They either responded "I don't know" or "It was not my job".
27. The Commission cannot accept that the Respondent's witnesses were evasive in their responses. They answered the questions to the best of their ability given the nature of the cross-examination. I accept that the Applicant has no legal background. It appears in the transcript that Mr Britt made allowances for that too but had to object in instances when more than one question was put at once to the witness, or the questions were irrelevant or misleading or had already been put and answered. No criticism is made of the Applicant as such questions are to be expected from lay persons.
28. Exhibit B1 was the Notice to Produce and Exhibit B2 was the Applicant's email to Ms Alice Paul dated 18 February, 2015 (7 days before the hearing) during which he refused to provide copies of his bank statements or credit card statements on the basis of relevance. Those matters had been the subject of 9 pages of debate by the representatives from the bar table and had been the subject of correspondence between the parties prior to the commencement of the proceedings. The Applicant cannot argue that he was not allowed to check the facts in those documents or that time had diminished his memory of those details.
29. Counsel for the Respondent had been caught in a severe rainstorm on his way to the first day of the proceedings and had been thoroughly drenched. It is on record that the Commission, as currently constituted, turned the air-conditioning off and allowed Counsel to remove his jacket so as "not to catch his death of cold". On the second day of the hearing, Mr Britt was struggling with a cold and cough. The Applicant was aware of that fact. It is incorrect to say that Mr Britt was coughing deliberately when he asked the Respondent's witnesses difficult questions.
30. The Commission did not observe Mr Britt, at any time, gesturing towards the Respondent's witnesses. At one point, the Applicant asked Mr Tammekand not to look at Mr Britt [line 12 T26/02/15]. Mr Tammekand pointed out that he had been looking at his statement and could not even see Mr Britt. The Commissioner was observing the witness and there was no untoward behaviour between the witness and his Counsel.
31. During cross-examination, the Applicant confirmed that he prepared the s 84 application and provided it to his Solicitors at the time to read and edit: As I explained before, I wrote that statement. I give it to the solicitors. She asked me few question, like, "What do you want to put here? What do you want to put here?" I correct it and then I send it back.
32. He gave evidence that he proofed the final version of the application. He was shown a copy of that s 84 application and taken to page 8 where, in the Reasons for Application, it was stated: In approximately June 2013 the applicant received a WorkCover certificate of capacity from his general practitioner stating that he was fit for pre-injury duties.
33. From my observation, the Applicant was very evasive, deliberately exasperating and unhelpful during cross-examination on that point: Q. Do you recall saying that? A. Which - where is it? Q. Just answer my question. Do you recall saying that sir? A. No. I didn't. Q. You don't recall saying that? A. It's not there. Q. I'm asking you a question, sir. Do you recall saying that? A. Saying what? Q. That: "The applicant received a Workcover Certificate of capacity from his general practitioner stating that he was fit for pre-injury duties without a restriction regarding the hours"? A. Who did I say this thing to? Q. You have no recollection of that being in this document, sir? A. I have - as I'm saying, I'm not depending on this document because this was prepared by some solicitor and she's not working with me anymore.
34. The Applicant refused to respond to any question unless a document was put in front of him that he could consider first, even when those documents were his documents and even when the documents were already in evidence and to which he had received access prior to the proceedings. Even when documents were provided to him, he was evasive in his responses and, in my view, deliberately exasperating. For example, he had received a WorkCover Certificate of Capacity from his doctor on or after 10 February 2015 in which he was certified as fit for pre-injury duties. The Applicant denied any knowledge of that inclusion: Q. Well you've seen many of these documents sir … A. I did. I did, yes .. Q. .. and you know that's one of the questions? A. I have no idea. Q. That's your answer on oath? A. I have, I have .. Q. You have no - no sir just let me answer (as said) the question sir, your answer on oath .. A. Yes, and I .. Q. … sorry sir, let me ask the question. Commissioner Q. Listen to the question .. A. Commissioner .. Q. Listen to the question .. A. I request you, Mr Britt don't have to lose his temper. I don't like that .. Q. Mr Sharma .. A. .. and I am .. Q. .. Mr Sharma all right don't be exasperating and he will not lose his temper. Just answer his question. A. I did... Q. We will get through this a lot quicker and you will do yourself a lot of justice. A. Okay. Q. Listen to the question, answer the question to the best of your ability. A. Yes. Britt Q. Your answer on oath that you don't know that the WorkCover New South Wales Certificate of Competency doesn't contain a reference to being fit for pre-injury duties, is that your position? A. Yes. Q. Notwithstanding providing these certificates for some seven years? A. Yes. Q. Notwithstanding the fact that you've attached a number of these types of certificates to your statement? A. I think I did, yes, one or two. Q. To the best of your recollection you've only attached one or two? A. Yes. Q. Well I want to put to you that your doctor didn't certify you on 10 February 2015 as being fit for pre-injury duties? A. I haven't seen that, I can't say now. Q. Well it's only two weeks ago sir, have you forgotten? A. I don't know what I done last week? Q. That's your evidence on oath, you don't know what you did last week? A. Yes. Q. But you ask the Commission to believe what you did in 2007. Eight, nine, ten, eleven, twelve? A. That's in written form, that's why I'm asking Commission to take notice of that. I'm asking Commission to take my word for it. I'm asking Commission, which I wrote it down.
35. Mr Britt was forceful in his cross-examination and was loud when he had to talk over the Applicant who would not wait for Mr Britt to finish his question. I accept that the Applicant, given that he was unrepresented, would become defensive. Nevertheless Mr Britt did not lose his temper.

Consideration

1. I have assessed the claim on the evidence before the Commission and my observations of the demeanour of the witnesses during oral evidence.
2. It is noted that the Applicant's submissions traced the history of his employment back to the year 2003 when he acted in the role of union delegate in an effort to demonstrate that he was the victim of bullying and harassment as a result of his union activities.
3. The Applicant signed the Respondent's Code of Conduct on 25 May 2004. Clause 8 states: Employees and visiting practitioners will not wilfully disobey or disregard lawful orders or requests given by their supervisor, department, divisional manager or a person with authority to make or give an order or request. Employees or visiting practitioners who disagree with the order or request can discuss the matter with the department manager or general managing director, but shall comply with the order or request until the outcome of the appeal has been decided.
4. I accept the Respondent's submission that also, as an employee, it was an implied duty of his contract of employment to obey the lawful and reasonable directions of his employer.
5. I also accept that a direction by the General Manager to attend a meeting to discuss a RTW program is a lawful and reasonable direction: Harvey v Department of Education and Training of New South Wales [2009] NSWIRComm 1076 at [45].
6. The Applicant failed to comply with 5 directions to attend for work. The Respondent was attempting to comply with the Commissioner's Orders. The Applicant neither complied nor provided any written explanation for his non-compliance. He was clearly in breach of the Commissioner's orders which he had successfully obtained. He made it clear that he did not intend to return to work until the issue of his back-pay had been resolved satisfactorily. That condition was clearly not contemplated in the Commissioner's orders. The Applicant's non-compliance with those lawful and reasonable directions was blatant and deliberate. The Respondent wrote to the Applicant on 16 March 2007 in which he was cautioned that any future absenteeism would be considered a failure to comply with a lawful and reasonable direction and "may result in disciplinary action which may include the termination of your employment". I am satisfied that the Applicant had been warned about the consequences of his refusal to comply with lawful and reasonable directions.
7. The Applicant was certified fit for pre-injury duties as a Security Guard at Fairfield Hospital on 5 June 2012 until the present. Four further attempts were made to get him back to work on a gradual basis given the length of his absence. Those attempts were unsuccessful. His work capacity was confirmed by an independent expert assessment. Mr Tammekand wrote to the Applicant on 26 August 2013 asking him to show cause why a recommendation should not be made to the Chief Executive that his employment be terminated. The correspondence traced the number of times and the nature of the directions with which the Applicant failed to comply (on 4 July, 8 July and two on 25 July 2013).
8. The Applicant responded on 6 September 2013 addressing each of the issues contained in the Show Cause letter. In my view, the Applicant was provided with an opportunity to make out a defence yet he did not include some of the matters he raised in these proceedings - such as, the fact that the meetings were set at 6 am. It is noted that if that was an issue at the time, the Applicant conceded that he had not made any attempts to seek to change the times suggested for the meetings.
9. The letter of termination dated 16 September 2013 clearly set out the grounds upon which the Respondent relied for terminating the Applicant's employment repeating the failure of the Applicant to comply with the directions of Mr Tammekand as stated immediately above.
10. There is no doubt, therefore, that the Applicant was informed of the reason for the dismissal - that is, his failure to comply with a number of lawful and reasonable directions.
11. I consider that the Respondent has satisfied the onus of establishing that the misconduct occurred.
12. Bishop C, on 30 November 2006, issued a decision reinstating the Applicant to his previous position and awarding back pay on certain conditions being met. Those conditions were confirmed by Boland J, then Vice-President, on 20 December 2006 and again by Wright J, then President, on 22 December 2006. The Applicant did not comply with the conditions laid down by Members of the Commission until 23 January 2007 when he provided a Statutory Declaration. However, that Declaration did not address the conditions - how long he had been overseas and his earnings during the period of his dismissal up to his reinstatement.
13. The Applicant was directed to return to work on 5, 13, 26 February, 6 March and a last chance on 12 March 2007 but he refused to do so until his back pay had been calculated to his satisfaction although he had still not provided the information required in the conditions in order for a proper calculation to be made.
14. The Applicant provided another Statutory Declaration on 16 February 2007 but, once again, it lacked clarity as to the income he had earned during his dismissal. He provided yet another Statutory Declaration on 28 February 2007.
15. He was paid $28,584.64 in back pay on 11 March 2007 but he disputed that as was his right and had the matter returned before Bishop C during which a conciliated settlement was achieved regarding the back pay on 3 April 2007.
16. The Applicant had access to advice from his union, the HSU. The Union withdrew in relation to the s 84 claim only as it had formed the view that the case had no reasonable chance of success. The Applicant made it clear throughout the proceedings that he had access to advice from his Solicitors. He could have returned to work while the back pay issue was being pursued by his Solicitors. He did not return to work until 3.5 months after the Commissioner's decision despite repeated directions from the Respondent to do so.
17. The Applicant complied with a direction to return to work on 19 March 2007 and worked some training shifts. However, he became involved in an altercation with another Security Guard which was investigated by management. He refused to accept a first and final warning in relation to that incident and ceased work on 6 August 2007 - the last day on which he worked as a Security Guard with the Respondent.
18. Following a successful workers' compensation claim, the Applicant returned to work on suitable duties in an administrative capacity upon being cleared to work 4 hours per day x 4 days a week. He was no longer offered administrative work as from 3 May 2011 as a result of his attendance record and his attitude towards the work which he considered to be below his capabilities and the fact that he walked out on 2 May 2011 dissatisfied with the work he was doing.
19. His Supervisor was convinced to give him another chance to undertake suitable duties. He was provided with a new RTW plan and advised that he would commence on 23 May 2011 for 2-3 months. He was cautioned on 1 June and again on 21 June 2011 that the work would be withdrawn if he did not accept it. The Applicant made his acceptance of the RTW plan conditional on two demands being met - one being a change in supervision which was not possible.
20. The evidence indicates that the Applicant made no positive attempts to achieve a return to work on suitable duties. Rather, the evidence in regards to the Applicant's conduct demonstrates that he put obstacles in the path of any proposal that would result in a return to work, in breach of his obligations pursuant to s 48 of the Workplace Injury Management and Workers Compensation Act 1998. I accept that the Applicant was seeking to "run his own race" to his eventual detriment.
21. There is no doubt, given the detailed history outlined above, that the reason for the Applicant's dismissal had a basis in fact.

Was the Dismissal Harsh, Unreasonable or Unjust?

1. It remains for the Commission to determine whether the dismissal was harsh, unreasonable or unjust. In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 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.
2. The Applicant, as has been indicated earlier, was guilty of the misconduct on which the Respondent acted and, on that basis, the dismissal cannot be held to be unjust.
3. The dismissal was not unreasonable, given the factual matrix detailed above.
4. Was the dismissal harsh, given its consequence for the personal and economic situation of the Applicant? The Commission notes the following: 1. The Applicant was in receipt of workers' compensation payments both prior to, and post, his dismissal; 2. The Applicant did not take any steps to mitigate his losses during the first 12 months following his dismissal; 3. The Applicant knowingly and blatantly refused to produce documents sought in the Notice to Produce that go directly to post termination earnings.
5. The Applicant was put on notice at the commencement of the proceedings as to the dangers his refusal posed to his case.
6. The Commission was invited by the Respondent to draw an inference that such documents, if produced, would have been prejudicial to the Applicant's position.
7. The Applicant had previously participated in s 84 proceedings before Bishop C and therefore the requirement to prove mitigation and the claim for monetary compensation was nothing new to him. As indicated earlier, he had received in those proceedings an order as to back pay subject to proof being provided to the Respondent as to the period of time he had spent overseas and also as to monies earned during the period after his dismissal and up to the date of his reinstatement. That order had resulted in over 4 months of disputation with the Applicant refusing to supply those details or refusing to supply the details in sufficient clarity to allow the Respondent to calculate his entitlements. He insisted on providing statutory declarations only.
8. The Applicant argued, over 9 pages of the transcript at the commencement of the proceedings, against providing the information insisting on conduct money if he had to produce the documents and offering, instead, to provide a statutory declaration stating that he had not worked. He stated that he received legal advice on the subject: I don't have those documents and I'm not willing to produce. No matter if we have to finish the case here, we can finish here, but I'm not willing to produce because in my opinion, and I done research on this and I get legal advice from a person, he's a solicitor, and notice of produce he said, "it's up to you, you want to produce or you don't want to produce".
9. In the absence of any proof of personal or economic loss, the Commission is unable to make a finding that the dismissal was harsh.
10. The Applicant has not established that the dismissal was harsh, unreasonable or unjust.

Costs

1. The Respondent is seeking costs against the Applicant. Section 181 (2)(c) of the Act provides that the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair Dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious.
2. The settlement offers I am aware of and detailed above are those made to the Applicant prior to his dismissal and in order to achieve a parting of the ways. I am not aware of any offers made to settle the s 84 claim, the subject of these proceedings and therefore cannot grant costs with respect to one arm of the s 181 (2)(c).
3. In addition, the parties have not addressed the Commission in relation to the claim being frivolous and/or vexatious. The Respondent is at liberty to apply to have that matter dealt with separately if it is still pursuing costs in the matter.

Decision

1. Having regard to the provisions of Section 84 of the Industrial Relations Act 1996, I do not regard that the dismissal of Mr Sanjay Sharma was harsh, unreasonable or unjust. Matter No 137895 of 2016 (IRC 827 of 2013) is hereby dismissed.
2. Leave is reserved in relation to a claim for costs.

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: 05 May 2016