Smith v Secretary, Department of Industry

Background

1. The applicant is 61 years of age. He claimed that, when he was approximately 31, he was diagnosed with a form of dyslexia. This disability had not hampered his capacity to perform his role as a Training Advisor, but it did mean that, sometimes, when dealing with new situations, he found that he was better able to communicate using images, like cartoons, than by using sentences. He claimed that he had done this for some years and, up until very recently, it had never been an issue.
2. On 22 July 2013, the New South Wales Administrative Decisions Tribunal handed down its decision in the matter of Smith v Department of Education and Communities [2013] NSWADT 162 in which the Tribunal found that the respondent department had unlawfully discriminated against the complainant, Graham Smith, on the ground of disability in contravention of subsections 49D(2)(b) and (d) of the Anti-Discrimination Act 1977 by refusing to permit him to return to work and earn his income on 9 August 2010 because satisfactory return to work arrangements were not in place. The respondent department was ordered to pay the complainant damages in the sum of $40,500.
3. According to the applicant, on or around 6 August 2015, he was elected as a workplace delegate of the PSA. He held that role up until 16 February 2018 when he resigned as PSA delegate. There was some debate during these proceedings about the applicant's status as a PSA delegate. However, by email dated 25 July 2017, David McKeough, PSA Organiser, confirmed to Mr Kempson that the applicant was one of two elected PSA delegates for State Training Services.

The applicant's "offensive" emails

1. According to the applicant, during the first half of 2017, he had raised with the Department's management on behalf of PSA members, a number of industrial issues. These were:

• restrictions on the taking of recreation leave on a part-time basis, for example for 2-3 days per week over a period of several weeks, due to "operational reasons";
• the lack of resources, in particular departmental vehicles, at the Parramatta office of TSNSW; and
• the advertising and filling of the position of Regional Manager, Western Sydney and Blue Mountains Region.

1. By way of example, an email dated 17 March 2017 from the applicant to PSA Member Support and to Peter Whitley, Director Regional Operations, TSNSW, Johanna Westbrook, Manager, Organisational Performance, People, Learning and Culture ("PLC") of the Department and David Collins, Executive Director, TSNSW, which concerned the advertising and filling of the Regional Manager role, contained the following: Dear Member Support, On Thursday 9 March 2017 NSW parliamentary secretary Catherine Cusack resigned. It was reported in the media that she wrote the following: 'If the situation was not already offensive enough … if you ever say again you made these decisions 'on merit', I swear I will resign from the Liberal Party and join the crossbench,' Ms Cusack reportedly wrote. This comment was directed to the new Premier Gladys Berjiklian's promotion of Don Harwin to cabinet. The question is: can the same statement be made of the Department of Industry- Economic, Skill & Regional Development, through the Hiring Manager; Dr Peter Whitley, Director Regional Operations? Job Reference No 492939, Clerk Grade 11/12 based at Parramatta, has been advertised externally on the I Work for NSW jobsite. The issue is that the job has not been advertised internally. However, an allegation has been put to me that the incumbent Acting Regional Manager Mr Glen Gallagher was notified of the position while other internal staff were not notified. The closing date is Tuesday 21 March 2017 Would PSA Member Services please call Dr Peter Whitley on 0427 643 925 or 02 9244 5535 and ask Mr Whitley to extend the closing date by two weeks to Tuesday 4 April 2017 to ensure that ALL STAFF HAVE EQUAL OPPORTUNITY TO APPLY FOR THE POSITION. Because on the face of it if the allegation has merit then it would appear that the incumbent Acting Regional Manager Mr Glen Gallagher can and may have received preferential treatment in relation to Job Reference Number 492939. Regards and best wishes Graham Smith
2. At the time when the applicant sent this email, Glen Gallagher was acting in the position of Regional Manager, Western Sydney and Blue Mountains Region, and was the applicant's manager.
3. In another email dated 24 March 2017 to various managers, including Mr Gallagher, the applicant complained about the lack of availability of departmental vehicles. The email, in part, stated "As you read this you must remember that there are many words I could use from a dictionary to describe this management decision process and indeed the managers themselves". The email included a cartoon of a slave ship with only two oarsmen and the caption "HEY, DON'T BLAME ME! YOU'RE THE ONE WHO WANTED TO RUN THE GOVERNMENT LIKE A BUSINESS". In a further email dated 27 March 2017 addressed to John Barlow, Senior Manager, Integrated Fleet Services, the applicant referred to Mr Barlow as "the person responsible for under resourcing the Parramatta centre".
4. On 12 April 2017, the applicant forwarded an email to Mr Gallagher, Dr Whitley, Mr Barlow and Mr Collins with the subject: "A never ending continuing story". Attached to the email was a document which the applicant had prepared which contained the following commentary interspersed with a series of graphics and cartoons, the punch lines from which are also set out below: The following story is for entertaining purposes only and any resembles to any person living, dead or who has failed is purely coincidental Once upon a time Story Once upon a time there was an organisation where it was OK to fail. Because the seeds of failure had been sown: Naturally it followed that failure is always an option… In time the seeds germinated and the demons of failure were smiling and waving to you in the wind. Soon senior management realised on reviewing PDP's Cartoon with punch line: "It's not that you're under-performing so much as you're over-failing." So as public servants they took the safe option Cartoon with punch line: "I'm forming a committee to create a task force to choose a team leader to assemble a board to hire the best people to determine the fastest way to deal with the problem." But the organisation knew a secret about failure and the blame game: Cartoon with punch line: "I know it's easy to blame others. That's why I do it." So what's the moral to the story - take leave: it's hard to be held accountable when failure occurs when you are on leave. Once Upon a time…. The End

May 2017 counselling interviews

1. On 12 April 2017, Dr Whitley forwarded an email to the applicant directing him to attend a counselling interview on 20 April to discuss a number of emails sent by the applicant to various managers within the Department. Attached to Dr Whitley's email was a list of the applicant's emails, relating to a number of items, which were to be the subject of discussion at the counselling interview. That list included those emails referred to at [13]-[16] above and other emails from the applicant generally concerned with the issues identified at [12] above.
2. Initially, the applicant challenged Dr Whitley's authority to direct him to attend a counselling interview. In an email dated 12 April 2017, the applicant sought from Dr Whitley "the discussion points" for the items listed in the attachment to Dr Whitley's email which was sent to the applicant earlier that day. The applicant's email concluded with "Failure to provide the above requested information will result in the Department forfeiting the meeting until such time as the information is provided". In a further email forwarded on the same day from the applicant to Dr Whitley, the applicant wrote: Dear Mr Whitley, I am a little confused by your email. You indicate: I am directing you to attend a counselling interview, you in the same paragraph state: rather it is an opportunity to discuss the range of matters. Later you state: Agenda - counselling meeting with Graham Smith So which is it Mr Whitley am I being counselled or are we having a chat? If counselling please provide the following information: There then followed a list of six categories of information sought by the applicant which related to the Department's definition of "counselling", policies and procedure or guidelines relating to counselling, an outline of the process followed to reach the decision that the applicant met the definition of requiring counselling, Dr Whitley's qualification transcripts that enabled him to be qualified to make the decision, and so forth. The email concluded: Please note, if you do not provide the above requested information you forfeit your right to a meeting. Mr Whitley if you want counselling (if that is what you intended) you will need to prove your case prior to any meeting. If it was your intention to have a chat then you and I can meet over coffee and have a chat at a time and location convenient to the both of us. Regards and best wishes
3. In the days that followed, further emails were exchanged between the applicant and Dr Whitley in which the applicant continued to challenge Dr Whitley's authority. In addition, the applicant forwarded to Mr Collins a formal complaint against Dr Whitley dated 18 April 2017 in which he, the applicant, sought a "declaration" from the Department that: • Mr Whitley has misrepresented himself by acting under pretext • Mr Whitley has not put any specific allegations to the PSA Union Delegate to enable him to know what case he had to answer. • Mr Whitley has taken disciplinary action against the PSA Union Delegate, because among other things, he is an officer of the PSA. Mr Kempson was subsequently informed by Mr Player that the applicant "has advised that he does not intend to proceed with the complaint at this time".
4. Eventually, on 4 May 2017, the applicant attended a counselling meeting with Dr Whitley, Mr Gallagher, Ms Westbrook and Bill Murray, Senior Industrial Relations Advisor of the Department. The applicant was supported by Mr Player of the PSA. During this counselling meeting, the applicant was taken through a number of emails which he had sent to various managers during March and April 2017, including those referred to at [13]-[16] above, and it was explained to him how the content of those communications was seen to denigrate, disparage or otherwise offend the managers referred to therein.
5. During a second counselling meeting on 26 May 2017, the applicant indicated that he had no intention to cause offence to anyone and that his dyslexia was the cause of the manner in which he communicated with staff and managers. The applicant provided those in attendance with a handout entitled "Characteristics of Adult Dyslexia" and a number of other documents dealing with this condition.
6. Following the second counselling meeting, the applicant was provided with the notes that Mr Murray had taken during the meetings. The applicant's email response of 22 June 2017 to Mr Murray contained the following: The question is were you so busy as a little beaver taking notes that your ears were set to selective hearing? ……………… You contradict yourself Bill, you indicate below the notes to be accurate but you state you summarise some of you comments. By your own admission you are being selective with the truth. ………………. Just because other people say something is so and so does not mean it to be true. My impression of Johanna from the meeting is that she would agree to anything you said to give herself confidence, to get support. In relation to Glen, let just leave it at the point that from my discussions as a PSA delegate with staff at Parramatta Glen does not have their confidence. ………………… I have highlighted the errors, omissions, misrepresentations and statement that should have started with the words: "Once upon a time".
7. On 12 July 2017, Dr Whitley issued the applicant with a letter in the following terms: I refer to our meeting held at 3pm on 4 May 2017 regarding the series of emails that you forwarded to staff, which were offensive and disparaging of colleagues within Training Services NSW (TS NSW) and the broader department. Present at this meeting were: yourself, Nick Player - PSA Industrial Officer, Johanna Westbrook - Manager Organisational Performance, Glen Gallagher - A/Regional Manager TS NSW Western Sydney and Blue Mountains Region, Bill Murray - Senior IR Advisor and myself. By prior agreement with Mr Player of the PSA, the contents of the emails were shown to you and explanations given of how the emails were disparaging and offensive in content. In 2 cases, the emails were considered to be bullying because of their repeated escalation and aggressive and belittling tone. Given that you had requested that you and Mr Player would not provide comment or a response at the meeting, it was agreed in the meeting that you would provide any written response by COB Friday 19 May 2017. Your subsequent request to provide a response verbally was agreed on Thursday, 18 May 2017. A meeting to hear your responses was held on 26 May 2017 with the same participants, where you gave your verbal reply. You provided 18 exhibits to explain dyslexia and indicated that you did not intend to offend staff and managers within TS NSW and the broader department. It is noted that you understand that sending those emails could be offensive to the recipients. It is also noted that with two of the emails, you escalated the emails to senior management with the purpose of undermining and insulting the subject persons of the email, namely Glen Gallagher, John Barlow and myself. Having considered all aspects of the material, I am concerned that conduct issues exist that warrant some form of intervention. In particular the nature and level of communication between yourself and other staff members is concerning. An important part of your role of Training Advisor is to monitor your own and other's non-verbal cues and adapt where necessary and represent the organisation in a professional manner. It is my expectation that you will continue to undertake these key aspects of your role. In addition, I expect you to communicate either verbally or in writing, with your supervisor, team leader or manager in a direct and collegiate manner to ensure that you are clear on work expectations and issues. You should seek to resolve matters without having to revert to emails of the types shown to you on 4 May 2017. I also expect that you will familiarise yourself with the following Departmental Policies: Code of Conduct (Policy: IND-P-184), Workplace Bullying Policy (TI-P-157), Information Communication Technology (ICT) Conditions of Use Policy (IND-I-193) and you are directed to complete the following on-line training courses from the Department's Learning@Industry (http://learning.industry.nsw.gov.au/index.php) site within two months: On line - Code of Conduct e learning module and On line - Prevention of Workplace Bullying e learning. You indicated in the second meeting that you would be agreeable to attend an assessment of your dyslexia. We have subsequently obtained advice from the Department's Work Health and Safety Unit - Health & Wellbeing team, to better understand what assistance or 'reasonable adjustment' can be provided. Based on this advice, an assessment will be organised through the Department's provider the Centre for Corporate Health, who will be in contact to arrange an appointment with a Clinical Psychologist. The report will be the property of the department and will be used for the purpose of assisting you in the workplace. You are directed to participate in these sessions and to give this process time, attention and personal commitment. This includes reflecting on your style of communication and appreciating the impact your messages have on the recipient. You indicated in the meeting of 29 May that a 'coping mechanism' you have is to seek the assistance from your supervisor and 2 colleagues, when reviewing your draft written material including emails, This issue will also be investigated with a view to developing the best way of assisting you, whilst it not being a disproportionate burden on your supervisor and colleagues. I am directing you to ensure that at all times you treat colleagues and members of the public with respect, fairly and consistently, in a non-discriminatory manner, with proper regard for their rights and obligations. It is particularly relevant that you must not act in a manner that is discourteous or that could be perceived as bullying or harassing. Any future communication from you which denigrates, disparages, or otherwise offends any staff member of Training Services NSW or the broader Department of Industry, after the attempts by the Department to address these issues through the processes outlined above, will not be accepted. I can assure you that any further incidents which are in breach of the Code of Conduct, Workplace Bullying or ICT Conditions of Use Policies will result in the commencement of formal misconduct action. ………………………… A copy of this letter will be placed on your employment file. Any inquiries relating to Organisational Performance matters including assistance with the on-line training courses may be directed to Johanna Westbrook, Manager Organisational Performance, on 02 9338 6703 or by email . Any enquiries relating to procedural matters arising from this counselling process may be addressed to Erica Machon, Director Organisational Performance on 02 9842 8025.
8. The applicant responded by sending an email to Mr Collins on 19 July 2017 requesting that the decision of the Administrative Decisions Tribunal of 22 July 2013 in the matter of Smith v Department of Education and Communities also be placed on his employment file (see [10] above).
9. In response to an email dated 21 July 2017 from Dr Whitley to the applicant, wherein Dr Whitley advised the applicant that his attendance at the counselling meetings in May had been pursuant to a "reasonable employment direction", the applicant, referring to himself in the third person, replied as follows: Subject: Re: Basis of authority for directive to attend a Counselling Interview Dear Mr Whitley In response to your email of 21 July Mr Smith responds as follows: Your directive did not fall within the ambit of the Code of Conduct. Mr Smith queries how it is possible for you to subject him to a Breach of the Code of Conduct due process when you have admitted there is no misconduct. Mr Bill Murray verified there was no misconduct by Smith Regards and best wishes
10. In an email exchange with Ms Westbrook, the applicant asked whether executives and directors were bound by departmental policies and procedures. Ms Westbrook referred the applicant to the PLC unit of the Department for advice. By email dated 24 July 2017, the applicant responded to Ms Westbrook in the following terms: Hi Johanna, This is interesting. As Manager of Organisational Performance you are indicating you do not know what policies cover which employees. Regards and best wishes
11. In a letter dated 25 July 2017 addressed to Dr Whitley, the applicant stated as follows, again referring to himself in the third person: Dear Dr Whitley, Ref: Your letter to Mr Graham Smith dated 12 July 2017. In response to your letter of 12 July 2017 Mr Graham Smith informs as follows: Your presumption is incorrect. Medical examinations are bound by Doctor-Patient confidentiality. As a third party the department does not have access. In relation to the fourth paragraph on page 1 of your letter Mr Smith queries how you: 1. Established intent when the evidence was to the contrary. 2. Established Glen Gallagher and John Barlow were insulted when no evidence was put before him to that effect. In relation to last paragraph on page 2 of your letter what is your basis for threatening Mr Smith? Even your letter does not make the finding that Mr Smith breached the Code of Conduct. This is in agreement with the email of 12 April 2017 where you state in Paragraph 2: This is not a misconduct matter….. Your only finding was his emails were offensive and disparaging of colleagues. Furthermore, you state your intent is to commence formal misconduct action against Mr Smith for a breach of the Code of Conduct for communications which denigrates, disparages or otherwise offends: actions which you have found not to breach the Code of Conduct. You cannot have it both ways Dr Whitley. A copy of this letter is to be attached to your letter 12 July 2017 and placed on Mr Smith's employment file. Yours faithfully (signed) Graham Smith
12. By letter dated 24 August 2017, Dr Whitley reminded the applicant of the directions he had been given in the letter of 12 July 2017, to familiarise himself with certain departmental policies and to complete a number of on-line training courses by 12 September 2017. The applicant did not complete the on-line training within that time frame. Dr Whitley also restated the offer to have an independent assessment conducted at the Department's expense to determine the impact of the applicant's dyslexia on his behaviour. This offer was not taken up by the applicant. Dr Whitley's letter also contained the following: I restate that any further communication from yourself that denigrates, disparages or otherwise offends any staff member of Training Services NSW or the broader department, after our attempts to address these issues through all these processes, will not be accepted under any circumstances.

Change in reporting lines at the Parramatta office

1. By email dated 7 September 2017, Mr Murray notified Mr Player of the PSA of a change in the reporting lines at the Parramatta office of TSNSW. That email was in the following terms: Hello Nick Please find enclosed a change in reporting lines for the Parramatta office of TS NSW. The Regional Manager, Glen Gallagher, advises the new teams and reporting lines will be implemented in a couple of weeks. As Simon indicated at the most recent LLS JCC meeting, we would not ordinarily provide a change in reporting lines where no staff members' employment are affected. However given some historical matters at the Parramatta office we are providing it in advance for your information and/or feedback. Happy to have a meeting or tele-hookup if you or member(s) have any concerns. Regards Attached to this email was an organisational chart showing the proposed make-up of the work teams at the Parramatta office. It does not appear that Mr Player responded to this email prior to the announcement to staff of the changes, which occurred several weeks later on Friday 13 October 2017.
2. One of the changes involved the applicant no longer reporting to Training Coordinator, Urano Angeli, but to Training Coordinator, Graham Robinson. These changes were announced by Mr Gallagher at a staff meeting on 13 October 2017, a day when the applicant was absent from work on leave. The applicant had been absent from work on pre-arranged leave commencing on Friday 29 September, returning to work on Monday 16 October 2017. When the applicant became aware that he had been moved from Mr Angeli's team, he protested about this change to Mr Gallagher on the basis that Mr Angeli and Howard Copley, another member of Mr Angeli's team, had been providing disability support to the applicant for many years.

The applicant's communications with Zoe de Saram

1. Zoe de Saram has been employed in the Department in the role of Deputy Secretary, Skills and Economic Development, since 3 July 2017. On 22 September 2017, Ms de Saram distributed an email to staff of the Department in the following terms: Colleagues As you know, the Secretary and the Executive Management Team are driving the piloting and roll-out of the "What Will it Take" (#WWIT) Culture Transformation Initiative at DoI. #WWIT Game Changers from each Division are being identified and will be trained to be local champions. Further details to follow on this process. Everyone, please get behind this important initiative. When we have #WWIT Game Changers identified and in place for SED, I expect that all managers will give these staff the time, space and support they need to be successful local champions. Requirements will be reflected in PDPs. Have a great day! Zoe
2. The applicant, who had neither met nor had any previous contact with Ms de Saram, replied to her on the same day by way of an email with the following attached: Dear Zoe, Somewhere out there in the Australian outback a place so remote that even time had forgot there was …nothingness….. and nothingness looked around and thought how can we be better today than we were yesterday because nothingness was observant and could see. Fate and hope would look and see only nothingness and from this nothingness stories developed and stories are who we are and because of this communication developed, But alas there were no rules and so we relied on emotions and emotions could not see so it developed humans to make sense of the words and stories. Humans evolved into Private employees and Public employees. Private employee 'Make Connections' and 'Tap into Successes' or when there is a problem, I 'Own It', 'Work Together' and 'Follow Through' ie Private employee recognise problems are a dime a dozen and start their day by saying which problem will we solve today to add value. Public employee have lost sight of nothingness's greater story - and created the conditions for disconnect between the department and the 2016 People Matter Employee Survey results because Public employee are career climbers and protection of your job position is paramount. Time is old and suffers from dementia and sometime in fleeting moments of clarity she remembers nothingness, she remembers the dreams, the things they wanted, their grand vision of: Their children asking the question. "How can we be better today than we were yesterday and how by solving problems can we add value. So Zoe through whose eyes do you see, Nothingness, Time, Fate or Hope and what do you see? There is a secret and solution in the above. so Zoe ---- do you see? Yes Zoe only if you see are stories powerful: So Zoe ---- do you see and what do you see?
3. Also attached to the applicant's email to Ms de Saram was a series of cartoons which appeared to provide a commentary on Ms de Saram's "What Will it Take" Culture Transformation Initiative. One of the cartoons appeared below the entry copied and pasted from Ms de Saram's email, which stated "As you know, the Secretary and the Executive Management Team are driving the piloting and roll-out of the "What Will it Take" (#WWIT) Culture Transformation Initiative at DoI." The accompanying cartoon image appeared to be a group of miners at the bottom of a deep shaft calling out and reaching up to a person on the surface who was waiving down to them. Another of the cartoons had an employee coming out of an office with the word "Editor" on the door and being asked by another employee "How was your appraisal?". In the first employee's hand was a piece of paper with the following printed on it: "Fcking incompetent twt. Useless c*nt". Beneath that cartoon, the applicant had written "Have a great day! Zoe". Ms de Saram referred this material to Mr Collins with a request that he call her to discuss. Ms de Saram responded by email to the applicant advising that his email "is noted".
4. On 16 October 2017, the applicant sent Ms de Saram another email in the following terms: Dear Zoe, On the 22 September I asked: Do you see and what do you see? The question remains: Do you see, what do you see and from what perspective do you see? What thoughts do you have in your mind at this instance? What stories do you carry in your mind and are those stories consistence with: 1: I have taken all of the feedback on board in one way or another. 2: Please be assured that I take this work extremely seriously and I will personally lead what needs to be done. Regards and best wishes
5. On 19 October 2017, the applicant attended a focus group meeting at the Parramatta office, at the end of which he handed to Ms de Saram a "submission" which comprised a series of cartoons which appeared to mock management and which were interspersed with comments by the applicant, such as: Do you see Zoe and what do you see? What stories are in your mind and who is the author of those stories you or your directors? And when you answer that question in your mind ask yourself the following question: Are you sure or do you just think you're sure? Do you really think me and others and going to, in the interests of openness, transparency and fairness, discuss issues with you in an open forum? What thoughts do you hold in your mind? Do you see Zoe: Do you see? …………………. What Distractions do you hold in your Mind DISTRACT YOUR MIND ………………….. Be Aware
6. One of the cartoons shows a person lying on a psychiatrist's couch saying "I had the dream about meaningful employment again last night". Another shows four people sitting around meeting table, with the person at the head of the table saying "Before you go any further, let me reiterate that I, for one, see nothing wrong with killing the messenger". Another is a depiction of a character from the animated television series "The Simpsons" next to the message "10 WAYS YOUR BOSS KILLS EMPLOYEE MOTIVATION".

Applicant's response to the change in reporting lines

1. After the applicant returned to work from leave on Monday 16 October 2017 and became aware of the change in reporting lines which had been announced to staff by Mr Gallagher on the previous Friday, there ensued an email exchange between the applicant and Mr Gallagher in which the applicant complained about the "significant changes to the teams at Parramatta" which did not accommodate his disability "even though accommodating adjustments have been in place with Urano's team for over ten years". The applicant requested that he be returned to Mr Angeli's team. Mr Gallagher responded by informing the applicant that he was happy for the applicant to "continue with your informal arrangement whereby Urano and Howard may check your written material". This response did not satisfy the applicant who then wrote a further email to Mr Gallagher in which the applicant alleged that Mr Gallagher had not complied the WHS Consultation, Cooperation and Coordination Code of Practice, the Work Health and Safety Act 2011 and the Anti-Discrimination Act 1977. The applicant indicated that, if Mr Gallagher did not reconsider moving him back to Mr Angeli's team, the applicant "may need to raise the matter with Safework NSW and the Ant-Discrimination Board for their advice and involvement".
2. The applicant then took a period of bereavement leave from 20 to 25 October followed by a period of sick leave returning to work on Tuesday 14 November 2017.

The misconduct allegations and the applicant's complaints against various managers

1. By letter dated 23 October 2017 from Simon Draper, A/Secretary of the Department, the applicant was advised of the first three allegations of misconduct by him, which are set out at [2] above. The applicant was required to respond within 14 days from the date of receipt of the letter. As the applicant was on leave at this time, the letter was not forwarded to him by email from Mr Murray until 8 November 2017. The reasons for this delay are explained below.
2. By way of an email to Ms de Saram dated 26 October 2017, the applicant forwarded a formal complaint dated 25 October against Mr Gallagher restating the matters referred to at [37] above. Ms de Saram referred the applicant's complaint to Mr Kempson in his role as A/Executive PLC and advised the applicant that she had referred his complaint to PLC for review. On the following day, 27 October 2017, the applicant forwarded a further email to Ms de Saram with a number of attachments, including a cartoon with the punch line "Zoe, someone calling themselves an employee say they want something called an open, transparent and fair investigation of a complaint". In that same attachment, the following appeared: So People Learning and Culture are going to investigate a complaint where People Learning and Culture played a significant part, in providing advice, that lead to the action that resulted in the complaint. So what does this say about People Learning and Culture - at a minimum there is conflict of interest as PLC has a vested interest in finding a null response to my complaint. ……………………………… So Zoe, The Mice are going to investigate the Mice - what odds would you give me that People Learning and Culture will indicate … "the Department's policies and procedures were complied with in relation to the complain," … "No further action should be undertaken in relation to the complaint"? 10 to 1, 100 to 1, perhaps a 1,000,000 to 1.
3. On 1 November 2017, the applicant distributed to all staff at the Department's Parramatta office a letter from him to Mr Gallagher in which the applicant invited Mr Gallagher to make a number of amendments to the minutes of the staff meeting held on 13 October 2017. In the letter, the applicant alleged that, based on information provided by the PSA, Mr Gallagher had misrepresented himself during the meeting with respect to consultation with the PSA about the change in reporting lines. That part of the meeting minutes which referred to consultation was as follows: 4. Reporting Lines • 3 x TSM's = 3 new teams. • New staff on board - effective Monday. Consulted Director PW, People Learning and Culture, Industrial relations and PSA. Roles are not changing just reporting lines.
4. On 3 November 2017, there were further email exchanges between Mr Gallagher and the applicant. In an email from Mr Gallagher to the applicant at 12.14pm on that day, Mr Gallagher stated: 3. … By way of explanation, I received advice from IR that the Department does not normally notify and consult with the PSA where there is a change of reporting only. However given some factors within the Parramatta office, it was agreed to provide notice of the proposed change in reporting lines. I am advised that this occurred in September and that an email and a copy of the Org Chart was forwarded to Nick Player plus there was a phone discussion.
5. Fifteen minutes later, at 12.39pm, the applicant responded with the following: Dear Glen Thank you for email at 12:14 pm In the staff meeting on Friday, 13 October 2017 you informed over 20 staff that you consulted with the PSA Thank you for confirming today that you did not consult with the PSA as alleged in your minutes of the staff meeting dated, Friday 13 October 2017. Thank you for confirming that you refuse to amend the minutes Regards and best wishes
6. Later on 3 November 2017, the applicant, who was still on sick leave away from work, distributed to all staff at the Parramatta office further correspondence from him to Mr Gallagher which contained the following: Dear Glen, Thank you for your email. Mr Simon Smith, Ms Zoe Da Saram and David Collins are all on record indicating openness, fairness and transparency is the cornerstone of the department; the key to showing respect for your colleagues, creating and maintaining confidence in managerial decisions and a reflection of the core values of both the manager and the organisation. When a manager's core values are not aligned with the Department's core values then it is obviously natural that staff will feel concerned. When allegations are raised and the manager's response is to confirmed the allegations then many of the staff may be left feeling quite challenged by the allegations raised and may also have a level of concern that they are feeling about these issues. I appreciate this is a difficult time for all those who are involved therefore, in the public interest of the office I release your email in full because I want to ensure PSA members, as the PSA Delegate, I will attempt to provide the right level of support for members who are feeling concerned as a result of the allegations and issues. Regards and best wishes
7. At 4.18pm on 8 November 2017, Mr Murray emailed to the applicant, who was still absent from work on sick leave, a letter dated 23 October from Mr Draper containing the three allegations of misconduct (see [39] above). In the covering email, Mr Murray stated that, ordinarily the Department's approach was not to send a misconduct letter to an employee on sick leave but, because the applicant had been "undertaking activity similar to the allegations contained in the misconduct letter using your work email address whilst on sick leave", it had been decided to email the letter to him. Later on that same day, the applicant emailed Ms de Saram requesting a response by 4.30pm on Friday 10 November 2017, to the applicant's formal complaint against Mr Gallagher which he had forwarded to Ms de Saram on 26 October 2017 (see [40] above).
8. By letter dated 10 November 2017, Ms de Saram responded to the applicant's formal complaint against Mr Gallagher of 26 October and stated that the decision to change reporting lines in the office "should have no effect on any current health condition" and that she was fully confident in the steps and processes carried out by PLC in relation to the complaint and to suggest anything else in reviewing the applicant's claims was unfounded. Ms de Saram also noted that the applicant had declined Dr Whitley's offer, contained in his letters to the applicant of 12 July and 24 August 2017, of an independent assessment of the applicant by a Clinical Psychologist.
9. Also, on 10 November 2017, Dr Whitley wrote to the applicant issuing him with a formal direction to cease sending emails to various managers and Parramatta staff whilst the applicant was off work on leave.
10. On 13 November 2017, the applicant wrote a letter to Mr Draper in response to his letter to dated 23 October, but not received by the applicant until 8 November. The applicant requested that a meeting occur where he could "present a verbal defence to the allegations". Also, attached to that letter was a further formal complaint by the applicant against Mr Gallagher dated 13 November 2017. That complaint contained the following: 9. The Parramatta PSA Union members position, through me as their PSA Union Delegate, are the allegations that Mr Gallagher as the most senior Department representative in Western Sydney and Blue Mountains Region has not only been dishonest with staff and misrepresented the PSA; he has acknowledges to all staff that he misrepresented himself and been dishonest with them and has refused to correct the Minutes of the Meeting to reflect reality. 10. The Members position is that such allegations of misrepresentation and dishonesty are not consistent with the ethical framework of the Department's Code of Conduct and the Secretary should initiate a Misconduct process by issuing Mr Gallagher with a Misconduct Letter stating the allegations of PSA Union Members and inviting Mr Gallagher to respond to the allegations.
11. On Tuesday 14 November 2017, the applicant returned to work. Mr Gallagher asked for a brief meeting with the applicant so that he could be handed printed copies of Mr Draper's letter of 23 October 2017, Ms de Saram's letter of 10 November and Dr Whitley's letter of the same date, together with the covering emails. These three letters had been emailed to the applicant while he was away from work on sick leave. The applicant declined the meeting and sent an email to Mr Player at the PSA requesting that he, the applicant, be provided with 24 hours' notice and an agenda for the meeting. Mr Murray, together with Mr Gallagher and Melissa Chetcuti, HR Graduate, then approached the applicant's workstation. Mr Murray handed the applicant an envelope with hard copies of the three letters and covering emails inside. The applicant proceeded to tear up the envelope and the three letters and emails and placed them in his rubbish bin.
12. On 16 November 2017, the respondent sent an email to the applicant regarding his response of 13 November to Mr Draper's 23 October letter. The respondent declined to meet with the applicant until he had responded to the misconduct allegations.
13. On 17 November 2017, Mr Gallagher found in his office a letter dated 13 November to him from the applicant, which the applicant had slipped under Mr Gallagher's office door. The letter stated as follows: Dear Mr Gallagher RE: PSA Parramatta members' allegations of misrepresentation and dishonesty Since the staff meeting on Friday, 13 October 2107, I as a PSA Delegate have received a number of complaints from PSA members alleging you have misrepresented yourself and have been dishonest. Such prevailing allegations are like a terminal cancer diagnosis for management. I could be wrong BUT it is difficult to see management recovering from that. Regards and best wishes Mr Gallagher's mother had recently passed away from terminal cancer and he believed that the applicant was fully aware of this.
14. On 20 November 2017, the applicant lodged with Ms de Saram a formal complaint against Mr Murray relating to the events of 14 November (see [49] above).
15. Further correspondence ensued between the applicant and the respondent concerning the manner in which the applicant should respond to the three misconduct allegations against him. Ultimately, by letter dated 29 November 2017, the applicant provided the respondent with his written response to the misconduct allegations. In that response, the applicant referred to his "multiple disabilities; both physical and psychological" and to the "local accommodating adjustments in place (now removed) which have both successfully supported and managed my disabilities in the workplace" from 2003 until 13 October 2017.
16. In relation to allegation (1), the applicant claimed that he had been unable, on 25 September 2017 and subsequently, to access the on-line training. The applicant stated that he would be on leave between 28 September and 14 December 2017, but would be happy to complete the training when he returned to work.
17. In relation to allegations (2) and (3), the applicant essentially blamed his disabilities for the manner in which he continued to communicate with managers and staff, in particular with Ms de Saram, after receiving the formal direction from Dr Whitley in the letter dated 12 July 2017.

Further allegations of misconduct and further complaints by the applicant against managers

1. On 8 December 2017, the applicant was provided with a letter dated 7 December from the respondent detailing "Further Allegations of Misconduct", being allegations (4) and (5) as set out at [2] above. He was asked to respond within 14 days. On 11 December 2017, the applicant responded by requesting "further and better particulars". Further correspondence then ensued between the parties, including a formal complaint by the applicant dated 13 December 2017 against Erica Machon, Director HR Business Partners of the Department, alleging that Ms Machon had intentionally withheld his complaint of 20 November against Mr Murray from the respondent. In addition, on 13 December, the applicant wrote to the respondent alleging that the respondent was "an accomplice to intimation, harassment and bullying activities (after the event)". The applicant further alleged that the respondent was "using the Office of the Secretary to effect this intimation, harassment and bullying activities (after the event)".
2. On 15 December 2017, Ms de Saram received a copy of correspondence from the Anti-Discrimination Board of NSW to the applicant in relation to a complaint made against the Department by the applicant to that body.
3. On 18 December 2017, the respondent wrote to the applicant and advised him that the complaints he had lodged against Mr Murray and Ms Machon were not being proceeded with on the basis that the conduct complained about did not amount to misconduct.
4. On 21 December 2017, the applicant provided his response to the two further misconduct allegations against him, in which he stated as follows: The allegations are not supported by a sufficient brief of evidence to sustain an allegation of misconduct being made. The unsubstantiated allegations appear to be nothing more than vested interests attempting to use the Office of the Secretary for their benefit of intimidation, harassment and bullying of me. It is difficult to see how such a complaint was made in good faith as the lack of evidence suggests the complaint was made with the expressed intent to hurt me and to besmirch my reputation.
5. As stated at [2]-[5] above, after receiving the correspondence entitled "Letter of Charge" dated 19 January 2018 from Mr Newsom, the applicant provided a written response to the misconduct allegations on 5 February and, supported by Mr Player, met with the respondent and Mr Kempson on 15 February 2018. The applicant was dismissed by letter dated 21 February 2018 entitled "Notice of Decision" from the respondent, part of which is extracted at [5] above.

Case for the applicant

1. The applicant was the only witness who gave evidence in the proceedings in support of his unfair dismissal application.
2. In his response dated 5 February 2018 to the Letter of Charge of 19 January, the applicant stated, in part, as follows: 11. It has often been said to me that I have a different or peculiar sense of humour, and that I appear to think somewhat differently to most people. It has often been said to me (and my parents since year 10 at school), that I may be on the "spectrum", which I understand to be the Autism Spectrum Disorder (in my case Asperger's syndrome). I have never been formally diagnosed as such, but I am currently being assessed for Asperger's Syndrome. I do have a form of dyslexia and this was reconfirmed around November 2017 (both visual and audio dyslexic). I accept that my communication style means that my intentions can sometimes be misunderstood. Where people have worked with me closely for a period of time I have been able to establish strong communication links and mutual understandings. My intentions are not misconstrued, and I believe that Mr Angelic's statement (Annexure "A") is a testament to that. 12. I am concerned that some of the matters that are raised as misconduct in the Letter of Charge are in truth more to do with misunderstandings arising from my style of communication. In none of the communications referred to in the Allegations have I meant to denigrate, disparage or offend anyone. If any of my communications have been perceived in that way or offended anyone, then I apologise unreservedly.
3. In response to allegation (1), the applicant admitted that he did not complete the on-line training he had been directed to undertake by 12 September 2017, but claimed that he simply forgot about the need to attend to it. He further claimed that, after he was reminded about the need to do the training on or around 25 September 2017, he attempted to log-on to the system but could not access the relevant part of the on-line training due to system faults.
4. In response to allegation (2), the applicant stated, in the first witness statement filed by him in these proceedings, as follows: 32. Shortly after she commenced in her role, Ms de Saram became the central person responsible for administering a change management program called What Will It Take (which was driven by the Corporate Plan). Broadly described, I understood that program was designed to identify issues within the Department that may be road blocks to performance, and to look at ways that the Department could become more innovative in the way it went about its work. 33. Ms de Saram was trying to facilitate engagement from staff as a part of that change management process. I was a PSA delegate and believed I could assist her in this endeavour. Ms de Saram was an 'outsider', by which I mean she had come from outside Training Services NSW. She was the second 'outsider' to come in and speak about changing the organisation (Dr Whitley was also an outsider who had come in and spoken in this way). She may not have had a full understanding of some of the historical issues between Training Services staff and previous management, that may have hampered people's willingness to participate in this exercise. I and the colleagues I spoke to about it at the time were very keen to participate in this process, in part because Ms de Saram was an 'outsider'. As I endeavoured to explain in my 29 November 2017 submission in answer to this allegation…, my email to Ms de Saram dated 22 September 2017 was my attempt to make a contribution to Ms de Saram's task. I did not disregard the direction in the July Letter to cease communicating in a way that "denigrates, disparages or otherwise offends any staff member", and I certainly did not intend to denigrate, disparage or otherwise offend anyone in my email to Ms de Saram on 22 September 2017. Ms de Saram certainly has never suggested to me that she found this communication offensive, and if she had I would have unreservedly apologised and endeavoured to explain myself. …………………… 35. I was trying to communicate negative things that had happened in the past, and put them in the open, but this was to enable them to be identified and then strategies developed to address them. My intention was to assist, not to hamper her efforts and not to offend anyone. By communicating via pictures or storyboard, I meant no offense. I have often found humour can be an effective way of communicating an idea, and again I meant no offense in using a cartoon to communicate in that way. In no way did I wish or intend to denigrate, disparage or offend anyone, or disregard the direction given in the July Letter. 36. In preparing my submission in response to a Letter of Charge, I noticed there were a couple of inappropriate words on one of the cartoons that I used in this communication. I did not notice them when I did it originally. Had I seen them at the time, I would have blacked them out or used a different cartoon. I apologised for that in my response to the Letter of Charge.
5. In response to allegation (3), the applicant stated as follows: 37. The document referred to in Allegation 3 was a submission I prepared for a focus group, chaired by Ms de Saram, to be held on 19 October 2017. Participants in the forum had been advised the focus groups were to facilitate free discussion and bring staff together across business units to share experiences and ideas… At the Parramatta office some staff spoke in the open forum, some spoke to Ms de Saram privately and some contributed by writing letters to her after the meeting. I attended the focus group. The focus groups were organised in grades, so that all grade 5/6 staff (such as myself), met with Ms de Saram together. I attended the 5/6 focus group but was late, so Ms de Saram specifically invited me to attend the 9/10 focus group. I was keen to participate so I attended. I made a contribution during the focus group. I also provided a written submission. I specifically advised Ms de Saram the submission I had was in the form of a cartoon, and asked if she would accept it. Ms de Saram took it without comment. Ms de Sararn has never suggested to me that she found this communication offensive, and if she had I would have unreservedly apologised and endeavoured to explain myself. Again, in preparing this submission via a cartoon it was not my intent to denigrate, disparage or otherwise offend anyone. 38. Again, I was intending to highlight concerns so they could be addressed. I felt I was giving a perspective to Ms de Saram of how staff may perceive what she was attempting to do. She was trying to develop a level of openness and good communication with staff. I was trying to work with what I saw was a positive endeavour on her part by making her aware of some of the departmental attitudes she may need to overcome. Again, in no way did I wish or intend to denigrate, disparage or offend anyone, or disregard the direction given in the July Letter.
6. In response to allegation (4), the applicant stated: 50. I do not deny sending Mr Gallagher the letter of 13 November 2017, but I deny by sending that letter I engaged in misconduct. 51. l had no idea at the time I sent my letter of 13 November 2017 that Mr Gallagher had lost his mother to cancer. I was not being insensitive to Mr Gallagher's loss. I am very sorry that my email upset him in this way. I lost my own mother in the not too distant past and would never intentionally insult someone in that way. There was no malicious intent on my part. 52. At no stage did I accuse Mr Gallagher of being dishonest. I was at the time a local PSA workplace delegate. In that capacity, in the period immediately prior to me sending the letter to Mr Gallagher, I had been approached by a number of members who had complained that Mr Gallagher was not being honest in some of his communications surrounding the recent reorganisations within the Department. 53. As I said in my letter "I as a PSA delegate have received a number of complaints from PSA members alleging you have misrepresented yourself and have been dishonest". I was not personally making an allegation. I was reporting to Mr Gallagher a concern that had been expressed to me. My reference to those sorts of "allegations" being like a cancer was me trying to make the point that when management, not specifically Mr Gallahger, are perceived in that way it erodes their perception in the eyes of those they are supposed to lead and it is difficult for management to recover from such a perception and effectively manage/lead. I was wanting to draw to Mr Gallagher's attention an issue in order that it may be addressed in some way (I would have imagined, by first investigating what these concerns were all about). 54. In no way did I wish or intend to personally denigrate, disparage or offend anyone - there is simply no accurate way to tell Mr Gallagher my members are complaining about him having misrepresented things and having been dishonest, without using those words.
7. Lastly, in response to allegation (5), the applicant stated: 55. As I said in my response to a letter of charge (described below), I genuinely do not understand how what is set out in Allegation 5 amounts to misconduct. 56. Mr Murray had sent me a copy of his letter dated 23 October 2017, containing the Initial Allegations, via email on 8 November 2017 whilst I was on leave. 57. I found the receipt of those Initial Allegations very distressing. As described above, there had been a very recent reorganisation within the Department which had meant that I lost some of the workplace supports that I had been afforded for many years, to enable me to manage my disabilities. In particular, I had lost the support of Mr Angelic, who had been acting as a disability support officer since 2006. The Initial Allegations made me feel increasingly anxious and demoralised because it, once again, appeared people had misunderstood my intentions when trying to communicate issues that I though Ms de Saram would need to understand if she was going to be effective in her role. 58. On the morning of 14 November 2017, to which Allegation 5 relates, I received a telephone call from Mr Gallagher He told me that Mr Bill Murray, Senior IR Adviser, was in his office and wanted to have a meeting with me. This was my first day back at work after sick leave. I had already received the Initial Allegations by email on 8 November whilst I was on sick leave. I wasn't aware of what this meeting with Mr Murray was supposed to be about, because I had had no notice of it, so I wanted to ensure I had a support person present. I asked Mr Gallagher to postpone the meeting so I could get a support person from the PSA and requested an agenda. I immediately sent an email to a contact at the PSA to organise a support person, and requested he contact Mr Murray to arrange a time convenient to them. 59. Mr Gallagher then came down to my workstation and said Mr Murray wanted to have a meeting now. I told Mr Gallagher I had already emailed the PSA and asked my contact at the PSA to communicate with Mr Murray to oragnise a convenient time, and I showed him the email. I asked for the meeting to await my support person. I strongly believe I should have been given fair notice and the chance to arrange a support person. Mr Gallagher left and didn't say anything further after I showed him the email. 60. Mr Gallagher returned shortly thereafter with Mr Murray and a third person (a woman) who I don't know. a. Mr Murray said words to the effect of: "I want to have a meeting with you now". b. I said: "I need 24 hours notice, and I would like the PSA there. I have already spoken to [my PSA contact], and asked him to talk to you". I showed Mr Murray the email I had sent to the PSA. c. Mr Murray then tried to call my PSA contact, but couldn't get through. d. Mr Murray then words to the effect of: "Look, I want to meet with you now". e. I repeated I want 24 hours notice and wanted the PSA present. I then asked what it was about. f. He said words to the effect of: "I want to give you some correspondence". g. I said: "correspondence about what?" h. He said: "A letter of allegations" and basically thrust the letter of allegations at me in an aggressive way. 61. My workstation is positioned so I sit in the corner of the room, basically facing into the comer of the room. Mr Murray and Mr Gallagher had positioned themselves so I was basically trapped in my workstation and couldn't walk away. Whilst I was in that position Mr Murray was speaking to me and thrusting the letter of allegations at me. He was very physically close to me - basically almost touching my shoulder. I believe I was sitting at the time, and he was standing to my right, leaning over me. 62. When Mr Murray approached me, to be quite frank, I felt under threat (not a threat of violence, but under threat). I found his conduct very aggressive and threatening. The whole episode left me physically shaking. After our exchange I spoke to Mr Angelic. I told him I wasn't well and I was going to go to the doctors. Mr Angelic suggested he would have someone take me to the doctors because he was concerned for my welfare, but I said I would be ok. 63. I was off work from 14 November to 14 December 2017, returning to work on 15 December 2017. I made a worker's compensation claim for this period of absence. 64. When Mr Murray handed me the letter, I knew it was the letter of allegations I had already received. I told Mr Murray I had already received them. I tore up the letter and put it in the bin next to my workstation. 65. I made a complaint about Mr Murray's conduct shortly thereafter (and before the Further Allegations were made). I received comments from some of my colleagues who witnessed this exchange between me and Mr Murray, indicating they thought Mr Murray had behaved very inappropriately. A copy of one email I received from a colleague who works in close proximity to my workstation, Mr Howard Copley, was attached to my response to the Letter of Charge, described below. I have since been provided with a copy of a statement taken from Mr Copley by a workcover investigator relating to a claim for workers compensation… 66. When Mr Murray handed me the letter, he told me it was a letter of allegations, which he had already emailed to me on the 8 November 2017. As I was already in receipt of the letter I tore it up by tearing it down the middle and across, and put it in a rubbish bin next to my desk. I was very distressed at the time, but I believe I said nothing at the time to Mr Murray about it, and was not being dramatic in doing so. I simply tore up a letter I had already received and put it in the bin. I do not believe I was being disrespectful or discourteous by tearing up a letter I had already received. I do not understand how what I did amounts to misconduct.
8. Amongst the annexures to the applicant's witness statement were statements by two of his colleagues, Urano Angeli and Howard Copley, which were obtained for the purpose of the applicant's workers compensation claim in early 2018. However, neither of these gentlemen was called as a witness in these proceedings.
9. The applicant also gave evidence as to the impact upon him personally and financially of the loss of his employment.
10. Although the applicant produced no medical evidence to support his claims as to the impact that his dyslexia had on his manner of communication with his managers, late in the proceedings a document was tendered into evidence which was authored by Michael Oerlemans of Macquarie University and dated 21 October 1987. In that document, the author referred to the applicant's inability to read and retain the meaning of new words and to pronounce words derived from print.

Case for the respondent

1. Seven witnesses were called to give evidence in support of the respondent's opposition to the applicant's unfair dismissal application. They were:

• Mr Gallagher
• Dr Whitley
• Mr Collins
• Ms de Saram
• Mr Murray
• Mr Kempson
• The respondent, Mr Simon Smith

1. In addition, the respondent produced a Tender Bundle of documents comprising 3 folders or 1,262 pages. Many of these documents were reproduced multiple times.
2. The most relevant parts of the evidence of the respondent's witnesses are extracted below.

Mr Gallagher

1. Mr Gallagher's witness statement canvassed a range of issues. Extracted below are parts of the statement which deal with the recreation leave issue and the counselling interviews which occurred in May 2017: 18. In the months prior to March 2017, Howard Copley, a Training Advisor within the Parramatta office who was close to Graham, had applied to take recreation leave on a two day per week basis for six weeks. He would be effectively working for three days per week part-time during these six weeks. This arrangement was verbally approved by Howard's line manager, Urano Angeli, who held the position of Training Coordinator. 19. In this instance, I approved this six week arrangement for Howard, but I informed Urano that this type of arrangement would not necessarily be approved again, as a lot of work was required in order to ensure Howard's duties were covered while he was on leave for three days per week. This was because Howard still had a full-time load of work to be completed, but would only be working two days per week. I was verbally informed by my director, Peter Whitley, at or around this time that he would not endorse any request from me to replace a staff member on a part-time basis due to budgetary and operational reasons. However, Peter would endorse a request to replace Howard or other employees on a short term full-time basis. 20. After this six week arrangement ended, Howard then made another request to take recreation leave on a three day per week basis, except this time it would be over the course of six months. In this instance, after consulting with my director, Peter Whitley, I did not approve this request, as it would be too difficult to cover Howard's workload on a three day per week basis over the course of six months. I informed Howard of my decision by email at 4.54pm on 8 March 2017… 21. Shortly after I rejected this request, I announced in a staff meeting of the Parramatta office that I was happy for people to take recreation leave on a full-time basis (ie. five days per week), but would not be approving further requests for people to take leave on a part-time basis over the course of more than one week (in the same manner as Howard had requested) due to the operational issues Peter had informed me about in terms of not endorsing an application for a replacement for someone going on recreation leave part-time. In contrast, finding a request for a full-time replacement would be supported, and accordingly staff were still encouraged to take recreation leave on a full-time basis. Graham Smith was not present at this meeting. ……………………………… 57. The counselling session with Graham took place on 4 May 2017. I attended this meeting. During this meeting, a conversation was had to the following effect. Peter Whitley said "Welcome Graham, and thank you for attending. As you know, this is not a misconduct matter, but we are here to discuss a range of matters as outlined in my email of 12 April 2017 and to provide you with an opportunity to respond." Johanna Westbrook said: "Graham, I'm now going to now take you through the emails which were listed on the agenda for this meeting." 58. Johanna then showed Graham each of the emails which were attached to Peter's email to Graham of 12 April 2017. 59. During the meeting, it was explained to Graham why these emails were offensive and disparaging to others. 60. Graham did not provide a response during the counselling meeting, but instead said that he would provide a response at a later date. 61. A further meeting was held with Graham to hear his response on 26 May 2017. During the meeting, Graham handed out 18 pamphlets or printouts to explain dyslexia. Graham did not produce any medical evidence to support his claim of dyslexia. 62. During this meeting, Graham said words to the effect of "It's because of my dyslexia that I send these emails. Because of my dyslexia, I have Howard Copley and Urano Angeli review all of my emails before they were sent. However, they didn't review the emails that we're discussing today." 63. I did not understand this explanation, as I did not see how Graham could do his job if his dyslexia made him send emails which were of such an inappropriate nature. This was the first time I had heard about the arrangement between Graham, Howard and Urano. I had never seen it occurring in the office beforehand. 64. As the manager of the Parramatta office, I would have been aware if any formal disability arrangements had been put into place, such as Howard and Urano being asked to be Graham's disability support persons. 65. A letter was sent to Graham on 12 July 2017, to summarise the outcome of the counselling meeting process… Among other things, the letter provided that: You indicated in the second meeting that you would be agreeable to attend an assessment of your dyslexia. We have subsequently obtained advice from the Department's Work Health and Safety Unit- Health & Wellbeing team, to better understand what assistance or 'reasonable adjustment' can be provided. Based on this advice, an assessment will be organised through the Department's provider the Centre for Corporate Health, who will be in contact to arrange an appointment with a Clinical Psychologist. The report will be the property of the department and will be used for the purpose of assisting you in the workplace. You are directed to participate in these sessions and to give this process time, attention and personal commitment. This includes reflecting on your style of communication and appreciating the impact your messages have on the recipient. 66. To my knowledge, Graham never agreed to attend a medical assessment of his dyslexia as he was directed to in this letter.
2. Mr Gallagher also discussed the impact upon himself of the applicant continuing to send him emails and letters and distributing them to staff in the Parramatta office. The witness statement continued as follows: Graham Smith's performance at work 102. I did not consider Graham to be a strong performer, based on the fact that he seemed to spend so much work time sending antagonising emails that he didn't have any time to do work. 103. I was, during 2017, spending approximately one day per week managing Graham or dealing with the issues he caused, which was far out of proportion to what was required for all other staff members. Effect of Graham Smith on other staff members and me 104. Ever since Graham's employment was terminated, there has been an immediate improvement in morale in the office. …………………………… 106. The stresses caused by Graham's behaviour was affecting my home life last year, causing me to have issues with my wife. It felt like I had no escape from the pressure Graham was imposing on me. Reinstatement 107. I believe that my position at the Department would be untenable if Graham was reinstated. It would cause the impression that Graham's attacks on me were justified and acceptable. 108. Reinstatement for Graham would leave me feeling like I had no options for managing misconduct, as Graham would not be facing any consequences for his actions. 109. I would also have serious concerns about the impact Graham's reinstatement would have on other employees, who may be led to the belief that: a. they can also engage in offensive behaviour with impunity; and/or b. there is no utility in engaging in unselfish behaviour, when it appears that others can conduct themselves inappropriately or with disregard for their peers without consequences. 110. I would seriously consider resigning from my position or applying for a transfer to a position elsewhere within the Department if Graham were to be reinstated.

Dr Whitley

1. Dr Whitley's witness statement contained the following: Advertisement of Regional Manager role 25. In or around early 2017, the previous Regional Manager of the Parramatta office retired. Mr Gallagher had been acting in the role for some time, as the previous Regional Manager had taken some long service leave. After discussions with Mr Collins, I decided to advertise the role. I prepared the role information and sent it to Jill Alford, Human Resources Coordinator, TSNSW. I understand that Ms Alford then prepared and posted the job advertisement on the jobs board and externally. Under rule 20(1) of the Government Sector Employment (General) Rules 2014 (NSW), the Department must externally advertise permanent employment positions. 26. At around that time, there was a change in process for advertising roles. It had previously been custom and practice, particularly when TSNSW was under the Department of Education, to send emails to all staff regarding job vacancies, as well as advertising them externally. In November 2016, a new practice was announced, where all jobs were advertised on a jobs board, which was accessible on the Department's intranet. This was announced by email from the Deputy Secretary of Finance, Strategy and Operations on 21 November 2016. After this change, no emails were sent to all staff regarding job vacancies, because they were available for everyone to access on the jobs board… 27. However, around this time, newsletters began to be sent on a weekly basis to all staff in the Department that included a link to the internal jobs board, as well as separate links to all departmental vacancies that were advertised externally, and all public sector vacancies advertised externally and internally across the sector… 28. Approximately two to three weeks before the job was advertised, I had a telephone conversation with Mr Gallagher during which I informed him that I had made a decision to permanently fill the role of Regional Manager for the Parramatta office. I did not tell Mr Gallagher the specific or approximate date that the role would be advertised, as I did not know. I told Mr Gallagher this as a courtesy, as he was currently acting in the role and any changes occurring as a consequences of the recruitment for permanently filling the role would directly affect him. This is a usual course of action for me to take when I decide to advertise a role in which someone is currently acting, and something I have done on other occasions in relation to other roles. Emails from Graham Smith 29. On 17 March 2017 at 3:53pm, I was sent an email from Graham Smith addressed in the body of the email to PSA Member Support. The email was also sent to "PSA Member Support", which I understand to be a mail distribution list for the Public Service Association of NSW (PSA) (of which Graham Smith is a member), Mr Collins, Dave Mckeough, PSA Union Official and Ms Westbrook. In the email, Graham Smith asserted I had not made the decision to appoint Mr Gallagher to the role of Regional Manager on merit. He also asserted that the role had been advertised externally but not internally, and that Mr Gallagher was notified of the vacancy but other staff were not. 30. In the email, Graham Smith said: "On Thursday 9 March 2017 NSW parliamentary secretary Catherine Cusack resigned. It was reported in the media that she wrote the following: 'If the situation was not already offensive enough ... if you ever say again you made these decisions 'on merit', I swear I will resign from the Liberal Party and join the cross bench,' Ms Cusack reportedly wrote. This comment was directed to the new Premier Gladys Berjiklian's promotion of Don Harwin to cabinet. The question is: can the same statement be made of the Department of lndustry- Economic, Skill & Regional Development, through the Hiring Manager; Dr Peter Whitley, Director Regional Operations?" 31. In his email, Graham Smith provided my mobile and business numbers to PSA members and requested that they contact me to "extend the closing date by two weeks to Tuesday 4 April 2017 to ensure that ALL STAFF HAVE EQUAL OPPORTUNITY TO APPLY FOR THE POSITION. Because on the face of it if the allegation has merit then it would appear that the incumbent Acting Regional Manager Mr Glen Gallagher can and may have received preferential treatment."… 32. In my view, this email was inappropriate for a number of reasons, being that: a. it undermined both me, and the process that I had engaged in to recruit Mr Gallagher; b. it undermined Mr Gallagher and suggested that he had not been given the job based on his merits; and c. it attempted to incite dissatisfaction among staff regarding the process I had engaged in to recruit Mr Gallagher and provoked staff to make complaints to me, about me, in a way that I thought was misplaced and unnecessary. 33. On 20 March 2017 at 1:59pm, I received another email from Graham Smith, addressed in the body of the email to me, and also sent to Mr Collins, Ms Westbrook, the Secretary, Garry Barnes (former Deputy Secretary Skills & Economic Development (Segment)), Michael Ross (Manager, Training Market Finance & Services) and all Parramatta office staff. The email said: "The PSA have requested I ask you directly for a response regarding an extension. Could you please inform me of your response so that I can inform the PSA." All TSNSW staff were copied to this email… 34. On 21 March 2017 at 10:31am, I received a further email from Graham Smith, addressed to me in the body of the email, and also sent to Mr Collins, Ms Westbrook and all Parramatta office staff. In the email, Graham Smith forwarded an email he had received from Nick Player, Industrial Officer, PSA, which in tum set out a response to Graham Smith's concerns about the job advertisement that Mr Player had received from Bill Murray, Senior IR Advisor, PLC. 35. In his email to me, Graham Smith asserted that Mr Murray was incorrect and suggested that there was impropriety in me telling Mr Gallagher about the role prior to it being advertised. He said: "The fact that Mr Murray verifies you told Glen Gallagher that the position would be advertised, before anyone else knew, has given Glen Gallagher an unfair advantage over other possible candidates. An extension is a simple request; perhaps an extension of a shorter duration would be more suitable to your disposition, Mr Whitley." ………………………… 37. In my view, the tone of Graham Smith's email was disrespectful, inappropriate and an attempt to undermine me, Mr Gallagher and Mr Murray. It was also inappropriate for Graham Smith to have copied all Parramatta office staff to his 20 and 21 March emails, as it was, in my view, an attempt to embarrass and ridicule me to staff, including those who report to me. I also considered that, by sending the email to the Secretary, Deputy Secretary and Executive Director, Graham Smith was attempting to challenge my authority and undermine me to my superiors. 38. After receiving Graham Smith's emails, to the best of my recollection, I consulted with Ms Westbrook and she advised me that an extension was not necessary, as the appropriate process had been followed. If I had received an individual request for an extension, I would have likely granted it. I did not receive any requests, so I did not consider a general extension to be necessary. 39. I received eighteen applications for the role of Regional Manager, and assessed them on their merits. A selection panel was convened which included Gina Perks, Manager Quality Assurance and Community Services, TSNSW, Matthew Williams, Director Strategic Project Delivery, Industry Development and myself, to both shortlist and interview the shortlisted applicants. The selection panel shortlisted six applicants and interviewed them on 3 May 2017. The selection panel then made a decision based on the merits of the candidates that we had interviewed, and we decided that Mr Gallagher was the best candidate for the role. Subsequent to the panel making the decision, I discussed our decision with Mr Collins, who indicated that it was his view that it was appropriate to appoint Mr Gallagher to the role. Direction to attend a counselling meeting 40. After receiving and considering the email correspondence that Graham Smith engaged in over the leave refusal issue and the advertisement of the Regional Manager role issue, I considered that his behaviour was inappropriate. I also considered some correspondence that Graham Smith had sent, which I was copied to, regarding the availability of fleet services on 24, 27 and 28 March 2017. These emails were offensive and disrespectful to John Barlow, Senior Manager, Integrated Fleet Services, and another example of Graham Smith inappropriately escalating an issue and dealing with it in an antagonistic way. I also considered that Graham Smith had inserted the title 'PSA Delegate' into his Department signature block on 20, 23 and 27 March 2017. 41. I formed the view that the Department needed to take action to ensure that Graham Smith was aware that his behaviour was not appropriate in the workplace, in particular his correspondence. 42. On or around late March or early April 2017, I consulted with Mr Collins, the Industrial Relations Unit (IRU) and Human Resources. We all agreed that Graham Smith's behaviour could not be allowed to continue. We decided that the best course of action was to manage Graham Smith's conduct through a counselling process. This would allow us to have discussions with Graham Smith about his conduct, explain to him why it was inappropriate and give him a chance to improve. We considered that, at this point, rather than going straight to a misconduct process, we wanted to give Graham Smith an opportunity to address his behaviour, and accordingly I considered counselling as the best alternative to a formal misconduct process to deal with it. 43. On or around 12 April 2017, I prepared an email to Graham Smith directing that he attend a counselling interview. I attached an agenda, which referred to the emails, with dates and arranged by subject, which were to be discussed at the meeting. 44. In the email, I stated that the counselling interview would be confidential and was to be convened with Derek Hennessey, Acting Director Regional Operations, Mr Gallagher and Ms Westbrook, and would be an "opportunity to discuss a range of matters". I said that it was "not a misconduct matter". I stated that Graham Smith was welcome to "bring an observer or union representative to the interview". 12 April email from Graham Smith - "A never ending continuing story" 45. Before I sent the counselling interview email, I received another email from Graham Smith, at 10.10am on 12 April 2017. The email was also sent to Mr Gallagher and Mr Barlow, and copied to Mr Collins. The email had the subject line ''A never ending continuing story". It attached a document which said: "The following story is for entertaining purposes only and any resembles to any person living, dead or who has failed is purely coincidental". An image of a story book then followed which stated "Once upon a time there was an organization where it was ok to fail". The document contained a series of phrases and cartoons with the suggestion that acceptance of failure and "the blame game" is entrenched in the culture of the Department. The document finished with the statement: "So what's the moral to the story - take leave: it's hard to be held accountable when failure occurs when you are on leave." … 46. I did not understand what the email meant, but it was clear to me that it was inappropriate, as it was disparaging, undermined the public service and indicated that the Department accepted failure. I decided to add it to the agenda of things to be discussed at the counselling interview. 47. At 2.32pm on 12 April 2017, I sent the counselling interview email to Graham Smith directing him to attend the counselling interview and attaching the agenda… Responses from Graham Smith to direction to attend counselling interview 48. After my email of 2.32pm on 12 April directing Graham Smith to attend the counselling interview, I received a series of emails from him challenging my authority to do so. These emails were offensive and antagonistic. They are as follows. 49. At 3:19pm on 12 April 2017, I received another email from Graham Smith, in which he said, among other things: "Seems to be a lot of you for what you describe as "an opportunity to discuss the range of matters". Safety in numbers? Do I need to bring my lawyer? Because you have stated "an opportunity to discuss the range of matters" there is no need for: "The participants will then discuss and agree on the department's expectations on behavior and respect for others which apply to all staff in the workplace .... Failure to provide the above requested information will result in the Department forfeiting the meeting until such time as the information is provided" ……………………… 51. At 4.42pm on 12 April, I received an email from Graham Smith in which he said: "I am a little confused by your email. You indicate: I am directing you to attend a counselling interview, you in the same paragraph state: rather it is an opportunity to discuss the range of matters. Later you state: Agenda- counselling meeting with Graham Smith So which is it Mr Whitely am I being counselled or are we having a chat?" 52. In his 4.42pm email, Graham Smith went on to make six demands, including that I outline the policy basis for me to be directing him to attend a counselling interview, and the process that I went through to determine that he required a counselling interview. At the end of the email, Graham Smith said: "Please note, if you do not provide the above requested information you forfeit your right to a meeting. Mr Whitely if you want counselling (if that is what you intended) you will need to prove your case prior to any meeting. If it was your intention to have a chat then you and I can meet over coffee and have a chat at a time and location convenient to the both of us." …………………………. 54. At 9.51am on 13 April 2017, I received a third email from Graham Smith in response to my 12 April email. It said: "As a PSA delegate I have recently raised various member issues with management seeking a response to provide feedback to my members to address their concerns. Because I have been undertaking activities pertaining to union business you have now writing to me to advise me that you wish to subject me to a performance/ disciplinary process in the form of a counselling interview. Because I am undertaking union business it is outside your authority to subject me to a disciplinary process for undertaking union business. As such your directive is unreasonable and invalid. However, as indicated yesterday if you wish to met with me to discuss any concerns you have then I am available to meet over coffee and have a chat at a time and location convenient to the both of us." …………………………. 56. I considered these emails to be inappropriate, in that Graham Smith was undermining my authority to direct him to attend a meeting, was suggesting that I and other Department staff were scared of him and was giving me an ultimatum. 57. Regarding the documents that Graham Smith demanded I provide, I had intended to provide him copies at the meetings. Also, I did not think it was strictly necessary to provide Graham Smith with copies of the emails, as they were emails that he had sent himself and should have had easy access to. I had detailed the dates of the relevant emails and their subject matter in the agenda, so that Graham Smith could find those emails in his records. Nonetheless, in an attempt to be conciliatory and resolve these matters amicably, I decided to provide the documents that Graham Smith had demanded. 58. On 13 April 2017 at 12.39pm, I sent an email to Graham Smith, confirming the details of the direction to attend a counselling interview to discuss the emails sent by him, and attaching copies of the relevant emails, as he had requested… 59. At 1.08pm on 13 April 2017, Graham Smith sent me an email in response to my 12.39pm email, which said: "It is outside your area of authority to direct me to attend a counselling meeting to discuss a number of emails that pertain to me undertaking union business on behalf of my members as a PSA Delegate. As I have indicate before should you wish to met with me in my capacity as a PSA Union Delegate to discuss any concern you have then I am happy to met with you at a time and location convenient to the both of us. [sic] Please be advised should you not accept my invitation to meet me as PSA Delegate to discuss any concerns you have, then any calendar notification will be decline which will be circulated to all and indicating you are acting outside of your authority. This can and may be embarrassing for you and undermine your position in the eyes of your staff" 60. At 1.19pm on 13 April 2017, I received a further email from Graham Smith which said: "I have now received you notification. I will grant you until 1:45 to consider my email and seek advice. Should you not accept my invitation or fail to respond I will decline your invitation for the reasons stated above." ………………………… Formal complaint against me - 18 April 2017 62. On or around 18 April 2017, I was informed by Mr Collins that Graham Smith had made a formal complaint about me. Mr Collins explained to me that the complaint was regarding the direction that I had given to Graham Smith to attend the counselling interview. I explained to Mr Collins the process that I had followed and that I had consulted with IRU and Human Resources. 63. Mr Collins told me he would let the complaint progress in the usual course and that he would be passing it on to PLC to manage. 64. I understand that the complaint against me was later withdrawn by Graham Smith and it did not progress. 4 May counselling interview 65. On 4 May 2017 at 3:00pm I attended a counselling interview for Graham Smith. Also in attendance were Mr Player, Ms Westbrook, Mr Gallagher and Mr Murray. The purpose of the meeting was to discuss the series of disparaging and offensive emails Graham Smith sent to colleagues within the Department, as had been set out in my 12 April email and agenda… 66. At the commencement of the meeting, the following comments were made: Mr Player said: "An agreement has been reached on the approach taken in this meeting. Management will refer to each of the emails and outline their issues of concern. Graham will not respond today, but will be given an opportunity to respond". Mr Murray said: "We agree with that approach. Ms Westbrook said: "The aim today is to discuss the issues with these emails, to reiterate, this is a counselling meeting, not a misconduct process." Graham Smith said: "I suffer from deafness and dyslexia". 67. Mr Murray handed out copies of the agenda and the emails to be discussed, which corresponded with the agenda items. 68. During the meeting, Ms Westbrook, Mr Murray and I went through each of the emails on the agenda and explained to Graham Smith why the Department considered them to be disparaging and offensive. In my view, we very clearly and precisely explained why we considered the emails to be disparaging and offensive. We explained to him the requirements and obligations for staff under the Department's Code of Conduct. We also related Graham Smith's email correspondence to his role responsibilities.
2. Dr Whitley's witness statement then dealt with emails circulated by the applicant on 13 and 20 March 2017, concerning the issue of excess recreation leave. The witness statement then continued as follows: 70. The second email on the agenda was in relation to Graham Smith's complaint about the advertising of the Regional Manager role, sent by Graham Smith on 17 March 2017. In relation to this, the following comments were made: Ms Westbrook said: "This is your email dated 17 March 2017 to PSA Member Support, Peter Whitley, me and David Collins. Your email included a quote made in the media critical of the NSW Premier's promotion of a NSW member to cabinet and then stated 'can the same statement be made of TSNSW Hiring Manager in relation to the recruitment of the vacant Grade 11/12 Regional Manager role at Parramatta. Why didn't you raise this question with the Hiring Manager or through his PSA Official? Instead you sent an email which was rude to Peter Whitley, likening him to criticism of an unrelated matter in the NSW Parliament. This is another example of an 'over engineered' email which was disparaging towards TSNSW Management. And why was it sent to Executive Director TSNSW David Collins? The role description of a TSNSW Training Advisor refers to having the capability to monitor your own and others verbal and non-verbal communications. This capability is not being met, given the rude tone of your emails.... " Mr Murray said: "Your email was rude, disrespectful and disparaging of Peter Whitley and this was a breach of the Code of Conduct."
3. Dr Whitley continued to relate the discussion which occurred during the 4 May counselling interview about a number of other emails sent by the applicant. The witness statement then continued as follows: 76. After discussing these items that were on the agenda, Mr Murray made the following additional comments: Mr Murray said: "Some additional emails have come to our attention after the initial meeting request was sent to you on 12 April. We are advised that the emails were sent directly to the Executive Director, David Collins, which seemed to refer to matters from past issues and which implied a threat against Peter Whitley. I caution you about sending such emails, as they appear to be of a bullying nature. Also, it is unusual and irregular to send emails direct to an Executive Director." 77. Throughout the meeting, Graham Smith asked a lot of questions and consistently sought clarification on almost every issue that I or my colleagues raised with him. I interpreted this as a deliberate strategy to derail the conversation and put obstacles up to prevent us from dealing with the issues regarding his behaviour. 78. At the end of the meeting, the following comments were made: I said: "The aim of this meeting was to reach an amicable resolution and end this pattern of behaviour before it progresses to disciplinary action. Graham, I reiterate that I want you to be a collaborative, reasonable and valuable employee." Mr Murray said: "Graham, you clearly enjoy your work and we haven't been advised of any work performance issues, rather just behavioural issues." Ms Westbrook said: "There are policies and information that will assist you in becoming up to date on the Department's Code of Conduct, e-learning topics and relevant policies, such as the bullying and harassment policy and the IT access policy." 79. Graham Smith and Mr Player declined to provide a response during the meeting, and asked if they could provide a written response to anything discussed in the meeting by close of business on 19 May 2017. I consented to this request. 80. During the meeting, Mr Murray took notes. I have reviewed those notes and they are an accurate record of what was said during the meeting, to the best of my recollection… 26 May counselling interview 81. Further to the counselling interview with Graham Smith on 4 May 2017, on or around 18 May 2017, Graham Smith advised me that he would provide a verbal response rather than a written response as previously agreed. I recall that Graham Smith corresponded with Mr Murray to arrange this. 82. On 26 May 2017, a further counselling interview was held with Graham Smith, in order for Graham Smith to give his response to the issues raised during the 4 May counselling interview. Also in attendance were Mr Player, Ms Westbrook, Mr Gallagher and Mr Murray. The meeting went for approximately 3 hours. 83. At the meeting Graham Smith presented a series of exhibits to demonstrate his dyslexia and indicated that he did not intend to offend staff or managers in the TSNSW and Department. He said words to the following effect: "I have dyslexia. I have no intention to cause offense to anyone. I want to give you a training session in dyslexia to give you an insight into how the disability affects me." "I do not seek to cause offense but I accept that sometimes I do so." 84. Graham Smith gave everyone present a copy of a document which contained 14 separate documents about dyslexia, which were marked by Mr Murray from 1 to 14. Graham Smith spoke to each one of the documents and explained how his dyslexia affected him, with reference to each of the documents… 85. During the presentation, Graham Smith said that he had informal arrangements in place for his supervisor, Mr Angeli, and other colleagues and former colleagues in the Parramatta office, Howard Copley and Mark McKenna, to check all of his correspondence before he sent it, because of his dyslexia. He said words to the following effect: "I have been assisted by Mark McKenna and Urano when I need help writing emails. Urano says to me "what are you trying to say" and then helps me rewrite it. But I don't seek Urano or Mark or Howard's assistance when I am writing an email as a PSA delegate." "Mark and Urano have helped me for nine and a half years, they read and review my emails and explain if what is written could be taken to be offensive. Glen Gallagher will become more aware of this as he has more access to my work." "Howard [Copley] would help because he is an ex-English teacher, and then Urano and Mark would review." 86. At no point did Graham Smith provide evidence from a medical professional about his dyslexia. However, he did request that the Department provide him with paid training or therapy sessions to manage his dyslexia. 87. During Graham Smith's dyslexia presentation, Ms Westbrook said words to the following effect: "Department staff who have medical conditions are referred to the Work Health and Safety Unit's Health and Wellbeing team, for advice. The Health and Wellbeing team work with the employee's treating doctor or a health professional to develop a plan, for example, a return to work or a reasonable adjustment." 88. After Graham Smith's presentation, Ms Westbrook said words to the following effect: "I will seek advice from the WHS team so that we can obtain a better understanding and then we will have a further discussion about next steps." 89. Graham Smith did not object to this course of action. On the basis that he did not object, I assumed that Graham Smith was in accord with the suggestion that he have an independent medical assessment regarding his alleged dyslexia. 90. During the second counselling meeting, Mr Murray again took notes. I have reviewed those notes and they are correct to the best of my recollection… 12 July Counselling Letter to Graham Smith 91. On 12 July 2017, I sent a letter to Graham Smith detailing the conclusions from the counselling interviews and my directions to him regarding "conduct issues". Formal directions 92. In that letter I issued formal directions to Graham Smith as follows: "I am directing you to ensure that at all times you treat colleagues and members of the public with respect, fairly and consistently, in a non-discriminatory manner, with proper regard for their rights and obligations. It is particularly relevant that you must not act in a manner that is discourteous or that could be perceived as bullying or harassing. Any future communication from you which denigrates, disparages, or otherwise offends any staff member of Training Services NSW or the broader Department of Industry, after the attempts by the Department to address these issues through the processes outlined above, will not be accepted. I can assure you that any further incidents which are in breach of the Code of Conduct, Workplace Bullying or ICT Conditions of Use Policies will result in the commencement of formal misconduct action "... "I also expect that you will familiarise yourself with the following Departmental Policies: Code of Conduct (Policy: IND-P-184), Workplace Bullying Policy (TI-P-157), Information Communication Technology (ICT) Conditions of Use Policy (IND-1-1 93) and you are directed to complete the following on-line training courses from the Department's Learning@lndustry () site within two months: On line- Code of Conduct e learning module and On line- Prevention of Workplace Bullying e learning." Medical assessment 93. I also set out the following in relation to a medical assessment for Graham Smith's alleged dyslexia: "You indicated in the second meeting that you would be agreeable to attend an assessment of your dyslexia. We have subsequently obtained advice from the Department's Work Health and Safety Unit- Health & Wellbeing team, to better understand what assistance or 'reasonable adjustment' can be provided. Based on this advice, an assessment will be organised through the Department's provider the Centre for Corporate Health, who will be in contact to arrange an appointment with a Clinical Psychologist. The report will be the property of the department and will be used for the purpose of assisting you in the workplace." ………………………… 21 July email to Graham Smith regarding counselling interview 101. On 21 July 2017 at 11:45am, in response to an email from Graham Smith, I sent an email to him telling him that my direction to attend the counselling meeting in May was a "reasonable employment direction". 102. In my email I advised Graham Smith that "I was concerned that behaviour and conduct issues existed that warranted some form of intervention. In particular the nature and level of communication between yourself and other staff members was concerning. You were directed to participate in these sessions to reflect on your style of communication and the impact your messages have on recipients". Further, it was my responsibility that Graham Smith was "clear on work expectations and issues and the workplace is free from bullying". 103. At 1.59pm on 21 July 2017, Graham Smith responded to my email, copying Ms Westbrook, Mr Murray and Mr Gallagher and said (referring to himself in the third person): "Your directive did not fall within the ambit of the Code of Conduct. Mr Smith queries how it is possible for you to subject him to a Breach of the Code of Conduct due process when you have admitted there is no misconduct. Mr Bill Murray verified there was no misconduct by Mr Smith." 104. I found this email to be offensive and inappropriate, as Graham Smith appeared to be questioning my authority directing him to attend the meeting back in May, and suggesting that I was acting inappropriately. ……………………….. 25 July response from Graham Smith to Counselling Letter 106. On 25 July 2017, I received a letter from Graham Smith in response to my letter of 12 July 2017. In this letter, Graham Smith: a. asserts that the Department cannot have access to his medical information; and b. queries how I established his intent regarding the offensive and disparaging email correspondence and that Mr Gallagher and Mr Barlow were offended. 107. Graham Smith also says in this email: "In relation to the last paragraph on page 2 of your letter what is your basis for threatening Mr Smith? Even your letter does not make the finding that Mr Smith breached the Code of Conduct. This is in agreement with the email of 12 April 2017 where you state in Paragraph 2: This is not a misconduct matter..... Your only finding was his emails were offensive and disparaging of colleagues." ... "Furthermore, you state your intent is to commence formal misconduct action against Mr Smith for a breach of the Code of Conduct for communications which denigrates, disparages or otherwise offends: actions which you have found not to breach the Code of Conduct. You cannot have it both ways Dr Whitley." 108. I was surprised and concerned that Graham Smith's letter demonstrated no recognition that his emails could have been offensive… 24 August letter to Graham Smith 109. On 24 August 2017, I sent a letter to Graham Smith in response to his letter of 25 July 2017. In this letter I stated that I believed my letter of 12 July 2017 ''provided clear advice on the outcomes of the counselling meeting processes and a range of strategies which are designed to assist you". 110. I also stated the following in response to the points raised by Graham Smith: a. that he initiated the request to have an Independent Assessment to determine the impact of his existing condition of "Dyslexia"; b. the series of emails Graham Smith circulated to the Department contained offensive material that was designed to undermine and insult me, Mr Gallagher and Mr Barlow; and c. the purpose of the counselling meeting "was to address the matters of you sending the offensive emails via a counselling process, with the objective of you working with colleagues in a respectful, fair and consistent matter". 111. In my 24 August letter, I again repeated my formal direction that: "...any further communication from yourself that denigrates, disparages or otherwise offends any staff member of Training Services NSW or the broader department, after our attempts to address these issues through all these processes, will not be accepted under any circumstances. " 112. Further, I advised that Graham Smith's assertion that two colleagues assisted him in drafting and reviewing the written materials would be investigated further. Reminder of formal direction regarding online training 113. I also reminded Graham Smith of the other formal directions set out in my 12 July letter: 1. Direction to familiarise yourself with the Department Policies of Code of Conduct, Workplace Bullying, Information Communication Technology Conditions of Use, (Ref: Para 2 of my letter of 12 July). 2. Direction to complete on-line training courses of Code of Conduct e learning module and Prevention of Workplace Bullying e learning (Ref: Para 2 of my letter of 12 July) within two months (ie to be completed by 12 September 2017). 114. I reminded Graham Smith of these directions regarding the online training courses because I had been advised that he had not yet attempted to access them on the Department's intranet. …………………….. Refusal to attend medical assessment for alleged dyslexia 116. As noted in [87] and [88] above, during the 26 May counselling meeting, a professional medical assessment for Graham Smith's alleged dyslexia was raised. In his 25 July letter, Graham Smith indicated that he would not consent to a medical professional providing a medical assessment to the Department. 117. In my 24 August letter, I said the following: "The Independent Assessment is to obtain an independent opinion regarding your claims that the mentioned inappropriate behaviour was a result of your Dyslexia. If you choose not to proceed with the assessment - outlined on the next page - then it will be noted that you declined the Department's offer of assistance and any future instances of inappropriate emails and offensive behaviour/ breaches of the Code of Conduct will be dealt with as misconduct. If you agree to participate in an independent assessment, a copy of the report will be provided to you. The Department will consider the advice and recommendations from the report and discuss with you. I require you to complete the Acknowledgement at the end of this letter which you should sign, date and return to your Regional Manager, Glen Gallagher, within seven (7) days of the date of this letter. " 118. At the end of the letter was an acknowledgement for Graham Smith to sign and return regarding the medical assessment, which said: "I acknowledge receipt of this letter and agree to participate fully in an Independent Health Assessment by a Clinical Psychologist. I understand that I will be provided with a copy of the report. " 119. Graham Smith refused to sign and return the acknowledgement and refused to attend a medical assessment to have his alleged dyslexia assessed. Accordingly, the Department was unable to understand his alleged disability or put any reasonable adjustments in place to assist him. …………………….. Formal Direction to Graham Smith on 10 November 2017 135. From late September, through October and November 2017, Graham Smith took a significant amount of leave, for various reasons. He was absent as follows: a. 29 September to 13 October 2017 on recreation leave; b. 20 October on bereavement leave; c. 23 and 24 October on unexplained leave; and d. 25 October to 13 November on sick leave. 136. During this time, Graham Smith continued to send a series of emails to management which I considered to be disparaging, denigrating and offensive. These were: a. two emails to Ms de Saram on 26 and 27 October, submitting a formal complaint against Mr Gallagher and a further complaint about PLC reviewing the formal complaint against Mr Gallagher; b. an email to Mr Gallagher on 1 November which requests that Mr Gallagher amend the minutes of the meeting of 13 October, which said ""based on the information provided by the PSA you have misrepresented yourself to staff and misrepresented the PSA ... Not a single PSA member who contacted me and who also attended the meeting can recall any involvement in a consultative dialog with you regarding the changes prior to the announcement of the changes at the staff meeting on Friday, 13 October 2017"; c. an email to Mr Gallagher on 3 November which said "In the staff meeting on Friday, 13 October 2017 you informed over 20 staff that you consulted with the PSA. Thank you for confirming today that you did not consult with the PSA as alleged in your minutes of the staff meeting dated, Friday 13 October 2017. Thank you for confirming that you refuse to amend the minutes"; and d. an email to Mr Gallagher, copying all TSNSW Parramatta office staff, forwarding the email chain between himself and Mr Gallagher between 1 and 3 November, which said: "When a manager's core values are not aligned with the Department's core values then it is obviously natural that staff will feel concerned. When allegations are raised and the manager's response is to confirmed the allegations then many of the staff may be left feeling quite challenged by the allegations raised and may also have a level of concern that they are feeling about these issues ... in the public interest of the office staff I release your email in full". 137. I was very concerned about the content of these emails, as they appeared to be accusations aimed at undermining and belittling myself, other management and the processes of government. I was offended by what I considered to be inflammatory and misplaced allegations of wrongdoing against myself, Ms de Saram and Mr Gallagher. ………………………… 139. Mr Gallagher forwarded these emails to me for my advice. I considered that these emails were inappropriate, particularly the ones to Mr Gallagher between 1 and 3 November, as they appeared to me to be an attempt to undermine Mr Gallagher's management to all staff. The emails made direct accusations of misrepresentation in a confrontational and antagonistic tone. If Graham Smith had concerns about Mr Gallagher he should have raised them directly with me and should not have shared those concerns with the whole Parramatta office. 140. I consulted with Mr Murray and Terry Burgess, Principal Industrial Relations Advisor, IRU, and together we drafted a letter directing Graham Smith to cease sending emails while he was on leave. We considered that, since he had already received a direction not to send disparaging, denigrating and offensive emails, a further direction needed to be given to prevent him from sending further emails while on leave. 141. On 10 November 2017, John Pas, HR Business Partner, sent an email to Graham Smith attaching the letter that I had prepared and signed. In my letter, I issued a formal direction to Graham Smith to cease sending emails to management and staff when on leave. I reminded Graham Smith of my previous directions to him on 12 July 2017 and 24 August 2017 addressing his offensive and inappropriate emails and requesting that he reflect on his style of communication and the impact they have on the recipients. I issued a formal direction to Graham Smith that he: "cease sending emails to various managers and Parramatta staff whilst on leave. Your only communication via email should be with your line manager on your leave status and misconduct process. Please note that if you fail to adhere to this direction, the Department can modify your work email access to allow you to communicate with your line management only. In addition, further misconduct action may be commenced for failing to follow a lawful direction." 142. Further, I requested that Graham Smith provide medical certification to support his period of sick leave from 25 October 2017 given his leave was initially provided to attend a funeral. I instructed Graham Smith that if he did not forward the required supporting documentation, by close of business on 15 November 2017, the Department may consider placing him on leave without pay for the next pay period. ……………………… Reinstatement 144. In my view, Graham Smith should not be reinstated to his position because his actions are divisive and do not contribute to the harmonisation and team culture that the Department is striving to create in the Parramatta office and more broadly within TSNSW. Given that the Regional Manager and the Director Regional Operations have followed due process, guided by the advice from IR and HR departmental officers Mr Smith's reinstatement would undermine the integrity of both positions and make those officers ongoing tenure near impossible. 145. If he was reinstated, I would also be concerned about the amount of time and resources that would have to be used in managing him and his over-escalation of issues. Graham Smith's behaviour had an extremely detrimental impact on the culture of his team at the Parramatta office and on his colleagues personally, and if he were to be reinstated, I believe he would continue to have the same impact.

Mr Collins

1. In his witness statement, Mr Collins stated as follows: Graham Smith's behaviour 8. In my experience working with Graham Smith, he conducts himself in an antagonistic and confrontational way. He has a pattern of questioning people's decisions and actions at every step. His communication style, most evident in his written correspondence, is confrontational rather than conciliatory or approachable. In my view, his style of communication is not conducive to creating or fostering good working relationships with his colleagues and managers. There has been a pattern of this type of behaviour over a number of years. For example in August 2016, Mr Smith forwarded me an email he sent to his then Regional Manager, Brod Binns, and Mr Gallagher, who had been relieving as Regional Manager, questioning Mr Binns' management decisions and accusing both of being economical with the truth… 9. Graham Smith's correspondence typically has a general tone of malevolence which I find distasteful, particularly in a professional environment. Graham Smith's behaviour has caused me to be wary of him, because I am never sure how he will react or respond to something that I do or say, or a decision that I make. I do not trust him to interact with me in a respectful or friendly way, because of my experiences with him interacting with me. 10. Throughout my years of working with Graham Smith, I have observed that he frequently escalates issues that do not require escalation. In my experience, Graham Smith's behaviour frustrates and demoralises his colleagues and managers. He often refuses to accept departmental changes, new policies and actions or decisions by people in positions of authority. 11. Since 2015, the Department and TSNSW have shifted the focus of TSNSW regional staff on customer service, instead of simply just carrying out a regulatory function. TSNSW has assumed responsibility for managing the training market and we have worked with staff in regional centres to promote broader training opportunities to the employers we are supporting with apprenticeship regulatory services. The Department has also tried to increase professionalism and provide services in an efficient and effective way. In my view, Graham Smith did not adapt well to these changes. He continued to work narrowly on apprenticeship and traineeship regulation in the traditional regulatory style, and only wanted to carry out the basic functions of his role. He did not want to improve or change or adapt to find new ways to provide better service to his customers. The way he responded to the What Will it Take initiative is an example of this.
2. Mr Collins then went on to discuss the emails from the applicant regarding the advertisement of the Regional Manager's role which are dealt with at paragraphs 29-38 of Dr Whitley's witness statement (see [76] above).
3. Mr Collins' witness statement then continued as follows: Complaint from Graham Smith regarding operational reasons for refusing leave - March 2017 21. At 4.47pm on 20 March, I was copied into an email from Graham Smith to Ms Westbrook. Also copied to the email was Mr Gallagher, Dr Whitley, John Pas (Senior Advisor Organisational Performance) and Kim Vea (Workforce Planning Officer). From reviewing the email chain, I understood that the email was in relation to Graham Smith's concern that Mr Gallagher had refused a request for leave from one of Graham Smith's colleagues in the Parramatta office for operational reasons. 22. In his email to Ms Westbrook, Graham Smith refers to the policies and Award provisions. He then repeats a request that Mr Gallagher be contacted in relation to his questions concerning the "operational reasons" that were preventing staff from taking leave. Graham Smith also said: "All staff are seeking from Mr Gallagher is for him to engage in meaningful communication with staff outlining his management methodology in dealing with staff, because if he cannot then how is he going to cultivate a culture of responsiveness and continuous improvement in the Parramatta office". 23. In my view, this email was inappropriate because it directly undermined and criticised Mr Gallagher, suggesting that he was not managing his team or communicating effectively. It was also inappropriate to direct this criticism to Ms Westbrook, who was not in a role of supervision or management over Mr Gallagher and was not in a position to take any action regarding Graham Smith's comments. ………………………. 25. I did not respond to Graham Smith's emails or become involved in discussions about how to deal with this issue, as I trusted that Dr Whitley, with Ms Westbrook, was managing it. 28 March email from Graham Smith 26. At 2.28pm on 28 March 2017, I received an email from Graham Smith, copying Dr Whitley, Mr Gallagher and John Barlow, Senior Manager, Integrated Fleet Services for the Department. In the email, Graham Smith referred to the Apprenticeship and Traineeship Act 2001 (NSW) and said: ''Are training advisers able to lodge complaints against Department of Industry Managers who impede an industry training officer in the exercise of the officer's functions under this Act by failing to provide sufficient resources for a training adviser to carry out their functions under the Act?" ………………………… 28. At 3.54pm on the same day, Graham Smith forwarded the email to me again, this time attaching a document and again copying Dr Whitley, Mr Gallagher and Mr Barlow. In the document, he raised an issue about the availability of fleet vehicles: "While I had hoped that our Regional Manager would address this issues it does not appear to be the case. Because of that I write to you as a PSA Delegate outlining members concerns. David, we want to undertake the work to assist you, Mr Whitely and TSNSW meet it objectives, all we ask is that we have the necessary resources to help you achieve your priorities... Vehicles have been removed from the Parramatta STS centre and are impact on the ability of Training Advisors to perform their functions under the Act." (sic) …………………………. Discussion with Dr Whitley 30. On 28 March 2017, I had a discussion with Dr Whitley about Graham Smith's 28 March email to me. 31. During my discussion with Dr Whitley, he also showed me an email that Graham Smith had sent on 24 March 2017 to Urano Angeli (Graham Smith's immediate supervisor), Mr Gallagher and Mr Barlow. Dr Whitley told me that Mr Gallagher had forwarded the email to him. 32. The subject line of the email was "Parramatta TSNSW staff unable to service clients because of lack of departmental resources." In the email, Graham Smith complains that there are no vehicles available to him the following week. He said: "As you read this you must remember that there are many words I could use from a dictionary to describe this management decision process and indeed the managers themselves. But I do not need to: Because The following picture expresses it in a way I could never capture in writing." 33. The word "Because" was in extremely large font compared to the rest of the font in the email. Graham Smith then includes a cartoon critiquing the idea of running government like a business, which said "Hey, don't blame me! You're the one who wanted to run the government like a business." 34. At the end of the 24 March email, Graham Smith said: "By the way when you look at the picture ask yourself this question: How much would prioritising and time management solved the problem in the picture?" ……………………….. 36. Dr Whitley also showed me another email from Graham Smith, which he also said Mr Gallagher sent him. The email was from 27 March 2017, to Mr Barlow, Mr Gallagher and Natasha Khwaly, Customer Service Officer, Parramatta. In this email, Graham Smith forwarded his 24 March email and said to Mr Barlow: ''As the person responsible for under resourcing the Parramatta centre, could you please make arrangements to have a car available for me to meet an appointment at 9:00am on Tuesday morning 28 March 2017. 37. Dr Whitley and I discussed that, on the day that Graham Smith was complaining about, there had been fleet vehicles available at Parramatta in the Department's Smartpool system (an online system that allows Department staff to find and book fleet vehicles). It appeared that Graham Smith had failed to use the Smartpool system properly and that he had confronted Mr Barlow about there being no cars available for him when in fact, there were cars available. I considered this to be an example of Graham Smith inappropriately escalating an issue and dealing with it in an antagonistic way, when it could have been easily resolved if he had used the Smartpool system. I considered that Graham Smith's emails were offensive and inappropriate, because it was disrespectful to Mr Barlow and attempted to belittle him. 38. After reviewing and considering Graham Smith's 24, 27 and 28 March emails, Dr Whitley and I decided that Dr Whitley should deal with all the emails from Graham Smith regarding the fleet availability issues, including the 28 March email to me. …………………………. Response to Graham Smith 40. On 29 March 2017 at 9.04am, I replied to Graham Smith's 28 March emails and told him that I had asked Dr Whitley to follow up his emails. 41. At 9.37am on 29 March 2017, I received a further email from Graham Smith in response to my reply, in which he thanked me and said, among other things: "We just need the tools of our trade to assist you, Mr Whitley and TSWNSW to meet its priorities and objectives. Whilst we respect and understand the job that Mr Barlow has we are not certain that his objectives are in alignment with the priorities and objectives of TSNSW. I understand that Mr Whitley is already getting excuses why the work cannot be completed and as such we have identified and wish to remove an impediment so that we can get TSNSW's work done." …………………………. Decision to hold counselling meeting 43. I had a discussion with Dr Whitley about Graham Smith's emails in or around early April 2017. We discussed the emails regarding the leave refusal issue, the advertisement of the Regional Manager role and the availability of fleet vehicles. We also discussed that on 20, 23 and 27 March, Graham Smith had sent emails in which he had inserted the title "PSA Delegate" into his Department signature block. 44. Dr Whitley and I decided that Graham Smith's behaviour was inappropriate and should not be allowed to continue unchecked. We were both of the view that we should explain to Graham Smith why we thought his conduct was not appropriate and give him an opportunity to respond. We wanted to be fair to Graham Smith and give him a chance to rectify his behaviour. We decided to hold a counselling meeting, in which the Department could make clear its expectations about Graham Smith's behaviour and direct him that it could not continue. 45. At the conclusion of this discussion, I was confident that Dr Whitley would appropriately manage the situation, with the assistance of Human Resources and the Industrial Relations Unit. I was not involved in directly managing the matter any further.
4. Mr Collins then dealt with 12 April 2017 email from the applicant, "A never ending continuing story", which is set out at [16] above and is referred to at paragraphs 45-46 of Dr Whitley's witness statement (see [76] above). Mr Collins then stated: 48. I interpreted Graham Smith's document as a deliberate effort to show contempt for the Department as an organisation and for the processes of government. In my view, it was directly criticising and attacking Mr Gallagher and Dr Whitley. The language in the document was totally contemptuous of Graham Smith's manager and director. Sending this type of material is not what I expect of people in the Department. I also thought this document was bizarre, because of the form it took, being pictures and statements with the clear intention of ridiculing the Department, Mr Gallagher and Dr Whitley. 13 April email from Graham Smith - threats against Dr Peter Whitley 49. At 1.44pm on 13 April 2017, I received an email from Graham Smith regarding Dr Whitley. The email forwarded a chain of emails between Graham Smith and Dr Whitley, in which Dr Whitley directed Graham Smith to attend a counselling meeting and Graham Smith challenged Dr Whitley's authority to direct him to do so. I understood from reviewing the email chain and Graham Smith's email to me, that while he was challenging Dr Whitley's authority to direct him to attend a counselling meeting regarding his conduct, he wanted Dr Whitley to meet with him in his capacity as a PSA Delegate to discuss matters on behalf of PSA members. 50. I was extremely concerned by the malevolent tone and veiled threats to Dr Whitley and to me, that were contained in Graham Smith's email. In particular, I found the following statements very concerning: a. "I have no desire to harm Mr Whitley or the Department for that matter and I will pursue members interst [sic] in my capacity as PSA Delegate''; b. "David you are Mr Whitley superior and have been cc in the emails to keep you informed. As you aware the responsibility for any conflict within the division resides with you and as I have indicate to you at the ADT we should not be her and you agreed with me [sic]"; c. "Mr Whitley needs to seen to maintain his authority and I want to help him to achieve that at around 1:45pm I will be responding to Mr Whitley and my response will not please him [sic]"; and d. "David please call Mr Whitley and suggest to him it would be a really great idea for all parties for him to accept my invitation to met with me as a PSA delegate to share and discuss our concerns. The alternative David is that you may again be held accountable and I do not wish to see that happen because David you are just trying to live your life and provide for your family and that my friend is a noble gesture [sic]." 51. At 1.58pm on 13 April 2017, I forwarded the email from Graham Smith to Simon Kempson, Director Industrial Relations, for his advice. Mr Kempson replied at 2.19pm on 13 April 2017, telling me that Graham Smith should be directed to comply with Dr Whitley's reasonable request. Mr Kempson expressed the view that Graham Smith's emails were misguided and inappropriate, and that they should be included in the planned counselling meeting with Graham Smith… 52. Mr Kempson also stated in his email that the PSA had confirmed that Graham Smith was not a PSA delegate. Formal complaint regarding Dr Peter Whitley - 18 April 2017 53. At 1.34pm on 18 April 2017, I received an email from Graham Smith, lodging an internal formal complaint with me regarding Dr Whitley. The email said, among other things: "I have received advice it would be unwise for the both Mr Whitley and the Department to continue with any counselling interview whilst the complaint remains on foot. May I suggest you inform the convenor of the meeting, Mr Johanna Westbrook in words to the effect: the proposed counselling session is postponed to a later date to be advised." 54. I forwarded the email and complaint to Mr Kempson, Terry Burgess, Principal Industrial Relations Advisor, and Mr Murray from Department's Industrial Relations Unit for advice (IRU). On the IRU's advice, I responded to Graham Smith at 9.21am on 19 April 2017, informing Graham Smith that Dr Whitley is the appropriate line manager to conduct a discussion with him about his conduct in the workplace. I also informed him that, due to Dr Whitley's leave commitments, the meeting would be postponed until he returned. 55. At 12.36pm on 19 April 2017, I received a further email from Graham Smith, asking me to ''please verify the contents" of my 9.21am email. I thought that my 9.21am email was clear and direct and did not require any further explanation or clarification. Upon obtaining further advice from IRU, I responded to Graham Smith at 4.12pm, confirming that my 9.21am email was self­explanatory and informing him that I would not engage in any further correspondence on this issue with him… 56. In my experience, Graham Smith continues to challenge and escalate issues inappropriately. I have often found that even if l respond clearly and directly to a query from him, he continues to challenge and query the answers that I provide. Discussion with Dr Whitley about complaint 57. On or around 18 April 2017, after receiving the complaint from Graham Smith against Dr Whitley, I had a conversation with Dr Whitley about the complaint. I asked Dr Whitley what process he had followed in directing Graham Smith to attend the counselling interview. Dr Whitley explained the process and told me that he had consulted with Industrial Relations and Human Resources. 58. I was satisfied by Dr Whitley's explanation but I passed the complaint on to PLC and let it progress in the usual course. Withdrawal of complaint against Dr Whitley 59. I am aware that on 4 May 2017, a counselling meeting with Graham Smith took place which Graham Smith, Dr Whitley, Ms Westbrook, Mr Murray, Mr Gallagher and Mr Player attended. I am aware that at that meeting, Graham Smith's email correspondence regarding the leave refusal issue, the advertisement of the Regional Manager role, the fleet availability issues and the PSA delegate emails, were discussed. 60. On 5 May 2017, I received an email from Mr Kempson, advising me that Graham Smith would not be proceeding with the complaint against Dr Whitley… 61. Given the complaint was withdrawn, I did not take any further action in relation to it. 19 July email from Graham Smith 62. I am aware that, following the 4 May counselling meeting, another counselling meeting took place on 26 May 2017, with the same people in attendance. I was informed by Dr Whitley on or around 26 May, that at the meeting that day, Graham Smith raised an alleged disability, dyslexia, as the reason that his email communication may have been offensive. This was the first time that I had heard of Graham Smith alleging that he had dyslexia. It had not been raised formally with me, or the Department, so that the Department could make allowances for Graham Smith, if necessary. I was also surprised it had not been raised at the ADT, where Graham Smith had raised his spinal injuries. Where staff have disabilities which impact on their employment, I would expect that the employee would provide the Department's senior management and human resources with evidence or at least formal confirmation of the condition, so that the Department can understand staff needs, capabilities and ensure the health, safety and wellbeing of staff. 63: I am also aware that, following the 4 and 26 May counselling meetings, on 12 July 2017, Dr Whitley sent a letter to Graham Smith which contained the following direction (Counselling Letter): "Any future communication from you which denigrates, disparages, or otherwise offends any staff member of Training Services NSW or the broader Department of Industry, after the attempts by the Department to address these issues through the processes outlined above, will not be accepted. I can assure you that any further incidents which are in breach of the Code of Conduct, Workplace Bullying or ICT Conditions of Use Policies will result in the commencement of formal misconduct action". 64. On 19 July 2017, I received an email from Graham Smith in which he said the following: ''In his letter to me dated 12 July 2017 Mr Whitley indicated a copy of his letter would be placed on my employment file. After reading that it occurred to me that the ADT's decision in: Smith v Department of Education and Communities has not been placed on my employment file. Attached is the ADT's decision in Smith v Department of Education and Communities [2013] NSWADT 162. Please have it placed on my employment file." 65. Given the length of time since the decision had been handed down, the fact that Graham Smith had recently received the Counselling Letter from Dr Whitley referring to potential formal misconduct action, and the fact that he had raised an alleged disability, I got the impression that he was raising the ADT decision as a way to intimidate and threaten me. I felt that it was his way of trying to remind me that he had won a case before and warning that he expected to win a case again if the Department decided to pursue a formal misconduct process against him. 66. I interpreted Graham Smith's tone in the email as malevolent and threatening, and therefore entirely inappropriate… 24 July email from Graham Smith to Johanna Westbrook 67. On 14 July 2017, Graham Smith sent me an email in which he asked "Do the Departmental policies and procedures bind directors and executives of the Department. I.e are directors and executives required to adhere to the Departmental policies and procedures." I replied on 18 July 2017, copying Ms Westbrook and Mr Murray, indicating that PLC should advise. 68. At 2.25pm on 24 July 2017, Ms Westbrook responded to Graham Smith and me, copying Mr Murray, indicating that the application of policies is varied, and referring him to the corporate governance team. At 2.31pm on 24 July 2017, Graham Smith responded to Ms Westbrook, copying me and Mr Murray, saying "This is interesting. As the Manager of Organisational Performance you are indicating you do not know what policies cover which employees."… 69. The email was an inappropriate attack on Ms Westbrook. I considered this to be an example of Graham Smith's pattern of antagonistic and undermining behaviour. Graham Smith's continued inappropriate conduct 70. Though I was not directly involved, Dr Whitley informed me that after that he had sent the Counselling Letter to Graham Smith on 12 July, Graham Smith had continued to send offensive, disparaging and denigrating emails, in defiance of Dr Whitley's direction not to do so. 71. Graham Smith's offensive emails included an email to the Deputy Secretary, Ms de Saram on 22 September 2017, which was a series of cartoons interspersed throughout an email she had sent to all staff and some commentary. Among other things, the email said: "Public employee have lost sight of nothingness's greater story - and created conditions for disconnect between the department and the 2016 People Matter Employee Survey results because Public employee are career climbers and protection of your job position is paramount" ... There is a secret and solution in the above. so Zoe---do you see?" (sic). 72. One of the cartoons in Graham Smith's email contained the words "Ft useless c*nt". 73. Graham Smith also failed to comply with Dr Whitley's direction in the Counselling Letter to complete online training modules regarding the Department's Code of Conduct and workplace bullying and harassment. Dr Whitley sent a further letter to Graham Smith on 24 August reminding him to complete the online training and offering him an assessment with a psychologist so that the Department could assess his needs and capabilities given his claim that he had dyslexia. 74. Despite being reminded to do so, Graham Smith failed to complete the online training modules by the 12 September deadline that had been set out in Dr Whitley's 12 July Counselling Letter. He also refused to attend a psychological assessment, which meant that the Department was unable to assess his needs and capabilities in relation to his alleged dyslexia and put any adjustments in place for him. In fact, Graham Smith directly challenged the Department's ability to review an employee's medical assessment and sent a series of emails to Dr Whitley challenging this issue. …………………….. Reinstatement 92. In my view, reinstating Graham Smith to his employment with the Department would be very detrimental to the Department. His behaviour would continue to be disruptive, antagonistic, challenging, disparaging and disrespectful. His constant challenging of authority and processes is destabilising, damaging to his colleagues morale and to the Department's culture. 93. It is my view that the systematic program of emails that were central to Graham Smith's misconduct was consistent with his ongoing workplace behaviour. The volume of activity and detailed nature of Graham Smith's email correspondence, and the way in which he engages with a variety of people, multiple times about the same issues, including very senior people in the Department, is disruptive of the effective functioning of the Parramatta office. I am of the view that through such correspondence Graham Smith has sought to undermine the authority of all recent Parramatta office managers. 94. I am also of the view that the work time Graham Smith spends preparing email correspondence rather than attending to his responsibilities is costly to the Department and places an undue burden upon other staff of the office. His engagement with senior staff of the Department through escalation of issues is costly in time and resources, and undermines the reputation of the other staff at Parramatta. Graham Smith's behaviour in this regard costs the Department significant time and resources, both in respect of his time spent raising these issues and time spent managing him and the issues he inappropriately escalates. If he was reinstated, I would be concerned that Graham Smith would continue to be disruptive and I would not have confidence that he would behave consistently with the culture we are trying to develop. I am also concerned that he would not be efficient or effective at performing his role, because he would continue to spend his time preparing such correspondence and challenging issues within the Department.

Ms de Saram

1. Ms de Saram's witness statement contained the following: 22 September email from Graham Smith 5. When I commenced my role as Deputy Secretary, the Department had commissioned a key initiative for cultural change called What Will It Take (WWIT). WWIT is a cultural transformation initiative, aimed at improving the Department's culture to embrace four key attributes - customer experience; ownership (of work); innovation and collaboration. As part of my role, I was one of the people responsible for driving actions under the WWIT initiative. 6. On 22 September 2017, at 8.10am, I sent an email to all staff who report to me regarding WWIT, in which I asked everyone to get behind this important initiative. At 10.42am on 22 September 2018, I received an email from Graham Smith, which attached a document containing a letter to me and a series of cartoons (22 September Email). To the best of my recollection, prior to receiving the 22 September Email, I had not interacted with Graham Smith… 7. My immediate reaction upon reviewing the contents of the 22 September Email was that it was very weird. I was shocked at the contents of the 22 September Email. It appeared to be a series of cartoons cobbled together and interspersed throughout my 22 September email about WWIT, accompanying a letter containing what I thought was incoherent ranting. Among other things, the letter said "Public employee have lost sight of nothingness's greater story - and created conditions for disconnect between the department and the 2016 People Matter Employee Survey results because Public employee are career climbers and protection of your job position is paramount" (sic). It also said "There is a secret and solution in the above. so Zoe---do you see?" At the end of the letter, in bold, it said "So Zoe --- do you see and what do you see?" One of the cartoons contained the words "Fcking incompetent twt useless c*unt". 8. I could not understand what the letter and the cartoons meant for me personally, or how they were connected to my email encouraging staff to get behind WWIT. I considered the 22 September Email to be highly inappropriate and an attempt to mock the content of my 22 September email to all staff. I recall showing the email to my Executive Officer, Amanda Bruce, and discussing it with her. ……………………. 16 October email from Graham Smith 15. On 11 October 2017, I sent another email to all staff who report to me about focus groups which I had arranged to discuss the latest People Matter Employee Survey (PMES) results for my Division. The PMES was a survey conducted by the NSW Public Service Commission, which surveyed NSW public service employees about their experiences with work and working with their team, managers and organisation. I had received the PMES results for my Division (including TSNSW) and I wanted to better understand some of the scores that they had recorded and the issues they had raised, so I arranged to hold focus groups with all staff, with an independent facilitator. 16. I am aware that from 29 September 2017, Graham Smith was on leave, returning to work on 16 October 2017. 17. At 10.50am on 16 October 2017, I received an email from Graham Smith in response to my 11 October email, following up on his 22 September Email (16 October Email). The email said: "Dear Zoe, On the 22 September I asked: Do you see and what do you see? The question remains: Do you see, what do you see and from what perspective do you see? What thoughts do you have in your mind at this instance? What stories do you carry in your mind and are those stories consistence with: I: I have taken all of the feedback on board in one way or another. 2: Please be assured that I take this work extremely seriously and I will personally lead what needs to be done." 18. Again, I did not understand what the 16 October Email meant, or how it was connected to my email about the focus groups. 19. I found the contents of the 16 October email offensive and deeply disrespectful. I was trying very hard, through the focus group process, to give all staff the opportunity to have their say, in a 'safe space' and directly to me, on issues that mattered to them, and therefore to the Department. The email was inappropriate and it really concerned me that Graham Smith chose to continue to send emails in breach of the direction given to him. I did not tell Graham Smith directly that I considered his email to be offensive and inappropriate, and to desist, because the case was being managed by the Director of Industrial Relations. …………………….. 19 October submission 25. On 19 October 2017, I attended two focus group meetings at the TSNSW Parramatta office. The independent facilitator that I had arranged to facilitate all the focus groups was unavailable that day, so we had a representative from the Department's People, Learning and Culture (PLC) team, Jane Latimer, assisting me with the process. PLC is the human resources team within the Department. Ms Bruce also attended and assisted and I played a lead facilitator role during these focus group meetings. The focus groups were not "chaired". 26. In the metro area, in which the TSNSW Parramatta office is located, the focus groups were arranged by grade level, for example, grade 1/2, 3/4 and 5/6 employees were in one focus group and more senior staff were in another focus group at each location. This allowed for a mixing of business units, and was intended to facilitate open discussion in peer groups. 27. Graham Smith enrolled to attend the first focus group of the day, for grade 1/2 to 5/6 staff. He arrived at that focus group meeting very late (towards the end of the meeting) and approached me and introduced himself. As he was late and had missed a substantial part of the group's discussion, I suggested that he attend the next focus group that afternoon, to which he agreed. 28. Graham Smith then attended the focus group session that afternoon. At the end of the session, Graham Smith handed me an envelope and his business card; he called it a submission. At the time that I took the envelope from him, I did not know what it contained. I am aware that at paragraph 37 of Graham Smith's statement filed on 22 February 2018, Graham Smith said he asked me if I would accept a submission in the form of cartoons. Graham Smith did not ask me whether I would accept a submission in the form of cartoons. 29. The envelope contained another series of cartoons and images, interspersed through the text of the letter that was contained in the 22 September Email (19 October Submission). Among others, the cartoons and images were: a. the words "Be Aware" in very large font, taking up a whole A4 page; b. a full page picture with the text "what distractions do you hold in your mind"; c. a picture of Mr Bums from The Simpsons, with the words "10 ways your boss kills employee motivation"; d. a cartoon of people in a boardroom, with the words "I for one, see nothing wrong with killing the messenger"; and e. a cartoon of a boss screaming at an employee. 30. I was deeply disturbed by the contents of the 19 October Submission. I thought it was contrary to the values of the organisation. I did not understand what it meant for me personally. For these reasons, I thought the contents of the envelope constituted a communication which denigrated, disparaged or offended, in breach of the direction. I was particularly concerned about the "Be Aware" and the references to killing. ……………………… 27 October email from Graham Smith 48. At 12.51pm on 27 October 2017, I received a further email from Graham Smith, attaching two copies of the same document (27 October Email). As set out in paragraph 37 above, Graham Smith was on leave on this date… 49. In the document attached to the 27 October Email, Graham Smith appeared to question PLC's involvement in the review of the Formal Complaint (by the applicant against Mr Gallagher). Among other things, the document said: "On the 22 September 2017 I sent you and email in response to your email dated, 22 September 2017 Re: #WWIT Game Changers. In the attachment to the email I said: "....Public employee have lost sight of nothingness's greater story -- and created the conditions for disconnect between the department and the 2016 People Matter Employee Survey results because Public employee are career climbers and protection of your job position is paramount .... "... So People Learning and Culture, PLC, are going to investigate a complaint where People Learning and Culture played a significant part, in providing advice, that lead to the action, which resulted in the complaint. So what does this say about People Learning and Culture -- at a minimum there is conflict of interest as PLC has a vested interest in finding a null response to my complaint. " "So Zoe, The Mice are going to investigate the Mice - what odds would you give me that People Learning and Culture will indicate (see point 2 above) "the Department's policies and procedures were complied with in relation to the complaint" (see point 4 above) ''No further action should be undertaken in relation to the complaint"? 10 to 1, 100 to 1, perhaps a 1,000,000 to 1." 50. It also contained a cartoon of a woman sitting at a desk and a man standing in her doorway, with the comment "Zoe, someone calling themselves an employee say they want something called an open, transparent and fair investigation of a complaint". ………………………. 52. I thought that this email was inappropriate and a repeated instance of sending communication which denigrated, disparaged or offended staff, in breach of the direction. Integrity, transparency and fairness are values that I uphold and I was offended that Graham Smith was alleging otherwise. ………………………… Reinstatement 90. In my opinion, it would be disruptive to the Parramatta office for Graham Smith to be reinstated. This is based on my observation that, prior to Graham Smith's dismissal, there appeared to me to be a lot of tension and discord in the Parramatta office. However, since Graham Smith's dismissal, I have observed that fewer issues have arisen and the tension has eased. In my view, based on conversations I have had with Parramatta office staff and feedback I have received, Graham Smith's pattern of challenging and antagonising decisions put pressure on his colleagues and manager in the Parramatta office, and that pressure has now eased without his presence and email correspondence. In this way, I have observed that the relationships between staff in the Parramatta office has improved in Graham Smith's absence. Therefore, I believe that, because of his history of denigrating, disparaging and offensive behaviour, reinstating him to that office would be disruptive and damaging to the culture that is now being fostered there. 91. I believe that, if he was reinstated, either in the Parramatta office or elsewhere in the Department, Graham Smith would continue to send correspondence which denigrates, disparages and offends his colleagues. I believe this because, throughout the misconduct process, Graham Smith has not acknowledged or appeared to understand that his correspondence does in fact denigrate, disparage and offend people. He continually refused to acknowledge that his behaviour constituted misconduct, which indicates to me that he would continue to engage in the same behaviour if he was reinstated.

Mr Murray

1. Mr Murray's witness statement contained the following: Counselling meetings in May 2017 14. In or around April 2017, I was informed by Glen Gallagher, then Acting Regional Manager Training Services NSW - Western Sydney and Blue Mountains Region of concerns arising from Graham's conduct in March and April 2017 in sending a range of emails containing offensive messages and attached cartoons. Following discussions with Peter Whitley (Director Regional Operations of the Department), Nick Player and me, it was agreed that the Department's concerns would be initially raised with Graham by way of a counselling meeting, rather than a formal disciplinary or misconduct process. The goal of the counselling process would be explain the issues to Graham and to provide him with an opportunity to respond, with a view to assisting Graham with operating and behaving appropriately in his employment with the Department. …………………………. 17. On 4 May 2017, I attended the counselling meeting which was arranged to discuss the concerning behaviour that Graham had been engaging in. Also present at the meeting were Graham, Nick Player, Johanna Westbrook (new title of Manager HR Business Partner of the Department), Glen Gallagher, (Regional Manager of the Department) and Peter Whitley. 18. I took notes during this meeting, which were later distributed to all attendees at the meeting… My notes are consistent with my recollection of what was said during the meeting. 19. On 26 May 2017, a second counselling meeting was held with the same participants, for the purpose of giving Graham and/or Nick Player (on Graham's behalf) the opportunity to provide a reply. Graham had indicated his preference to provide a verbal reply to what was discussed at the first meeting. During this meeting, Graham provided 14 exhibits in relation to his claims of his behaviour being affected by dyslexia, but he did not provide any medical evidence of him being diagnosed with dyslexia… 20. I also recall that throughout the meeting on 26 May 2017, Graham Smith raised many questions and attempted to raise issues to try to prevent the DOl from dealing with the issues arising from his behaviour. 21. I again took notes during this meeting, which were later distributed to all attendees at the meeting… My notes are consistent with my recollection of what was said during the meeting. Graham indicated his verbal agreement to accept an offer of assistance and management representatives indicated that we would seek advice from the Department's Health & Wellbeing team on the appropriate medical or health provider. 22. On 27 June 2017 at 1.03pm, I sent a copy of my notes from the 26 May 2017 meeting to Graham Smith. On 28 June 2017 at 9.27am, as part of an email exchange about these notes, Graham sent me an email which provided as follows: With respect I took detailed notes of your verbal responses. The question is were you so busy as a little beaver taking notes that your ears were set to selective hearing? Then I typed these up and used plain english to describe /summarise some of your comments. You contradict yourself Bill, you indicate below the notes to be accurate but you state you summarise some of you comments. By your own admission you are being selective with the truth. Secondly both Johanna and Glen reviewed my typed up notes and nil changes were made and both considered the notes to be accurate. Just because other people say something is so and so does not mean it to be true. My impression of Johanna from the meeting is that she would agree to anything you said to give herself confidence, to get support. In relation to Glen, let just leave it at the point that from my discussions as a PSA delegate with staff at Parramatta Glen does not have their confidence. If you wish to provide a written response then of course you are free to do so. I have already done so. I have highlighted the errors, omissions, misrepresentations and statement that should have started with the words: "Once a upon a time". …………………………. Letters of 12 July 2017 and 24 August 2017 23. On 13 July 2017, Peter Whitley held a meeting, with Ms Tracy Morton as HR Business Partner as witness, when he hand delivered to Graham a letter (which I had co-authored with Peter) signed on 12 July 2017 which gave the outcomes of the counselling meetings. The letter outlined a series of expectations and set out a number of formal directions. The letter noted that Graham had verbally agreed at the 26 May 2017 meeting to attend an assessment of his dyslexia and advised the Department's WHS Unit would seek advice from a NSW Government-contracted health provider and then arrange an assessment for Graham with the appropriate health clinician… 24. On 25 July 2017, Graham sent a letter to Peter in response to the letter of 12 July 2017… This letter provided, among other things, "Your presumption is incorrect. Medical examinations are bound by Doctor-Patient confidentiality. As a third party the department does not have access." 25. On or around 25 July 2017, Kyleah Hayes, Manager Health & Wellbeing, verbally informed me that she had obtained advice that the Department should offer Graham to have an independent assessment to be conducted with a Clinical Psychologist (further to Peter's 12 July 2017 letter, which had advised Graham that the Department's WHS Unit would seek advice from a NSW Government-contracted health provider). 26. On 24 August 2017, Peter sent Graham a second letter (which I had co-authored with Peter) to respond to Graham's letter of 25 July 2017. Among other things, Peter's letter also formally offered Graham an independent assessment to be conducted with a Clinical Psychologist. The purpose of this appointment was to ascertain formally his diagnosis and seek advice on what appropriate accommodations should be afforded to Graham to assist him meeting the requirements of his job. Graham never responded to this offer. This letter also confirmed the formal directions set out in the 12 July 2017 letter regarding Graham being required to: a. treat colleagues and members of the public with respect, fairly and consistently, in a non­discriminatory manner, with proper regard for their rights and obligations; b. not communicate with other staff in a way which denigrates, disparages, or otherwise offends them; and c. familiarise himself with a number of Department policies, and that he complete identified online training within two months (ie. by 12 September 2017). Letter of 23 October 2017 27. On 23 October 2017, an allegations of misconduct letter addressed to Graham was signed by Simon Draper, the acting Secretary of the Department at the time. The allegations of misconduct were each concerned with failures to follow formal directions contained in Peter's letter of 12 July 2017… 28. As was the Department's usual practice, it was intended that this letter would be hand delivered to Graham to give him 14 days to provide a written response. However, Graham had commenced a period of absence from work on 20 October 2017. Graham advised his colleagues at the Parramatta office that a close friend passed away on the 19 October 2017. He then had a period off work until 13 November 2017, using three days of his own leave to attend the funeral, with the remainder being an absence of three days followed by 11 days' sick leave, a total of 14 days supported by medical certificates. As it was the Department's usual practice to not send misconduct correspondence while an employee is on sick leave, the Department initially refrained from sending Graham the allegations of misconduct letter of 23 October 2017. 29. However, while Graham was absent from work on sick leave from 25 October 2017, he continued to use the Department's email facilities, IT access and mobile phone facilities to send a range of emails and complaints. For example: a. on 1 November 2017, Graham sent an email with an attachment to Glen Gallagher and all staff at the Parramatta office, alleging that Glen had "misrepresented [himself] to staff and misrepresented the PSA", in response to Glen saying that he had engaged in proper consultation about the changes to reporting lines…; and b. on 3 November 2017, Graham forwarded an email that Glen had sent to him earlier that day to the entire Parramatta office, claiming that he was doing so "in the public interest of the office staff". Among other things, the email provided that: "When a manager's core values are not aligned with the Department's core values then it is obviously natural that staff will feel concerned. When allegations are raised and the manager's response is to confirmed the allegations then many of the staff may be left feeling quite challenged by the allegations raised and may also have a level of concern that they are feeling about these issues." 30. On 3 November 2017, Glen rang me shortly after Graham sent the email referred to at paragraph 29.b. I was shocked that Graham had sent this email to the entire Parramatta office, as: a. Graham had undermined Glen as a manager by: • forwarding a confidential email from him to the entire Parramatta office, without Glen's consent; and • asserting that Glen's core values were not aligned with the Department's core values; and b. effectively disclosed to the whole office that Graham was subject to a counselling process by the Department, despite the Department's efforts to keep the matter confidential. 31. Due to Graham emailing other Department staff despite being on sick leave, I was asked by Simon Kempson to email Graham a copy of the allegations of misconduct letter signed on 23 October 2017. I did so on 8 November 2017... My email provided, among other things, that it was being sent to Graham despite him being on sick leave due to Graham "undertaking activity similar to the allegations contained in this misconduct letter using your work email address and whilst on sick leave". The email also reminded Graham about his obligations regarding leave and medical certificates to cover his current period of absence, and warned that "Consideration will be given to placing you on leave without pay, if you fail to provide medical certificates for these absences." Change to reporting lines within the Department's Parramatta office 32. In or around September 2017, Glen Gallagher (who had now been permanently appointed as the Regional Manager responsible for managing the Department's Parramatta office, where Graham was based) was consulting with me in relation to his proposal to change reporting lines in the Parramatta office. 33. As no-one's role or responsibilities was going to change as part of these changes, the Department was not required to consult with the PSA about the change. 34. However, as a gesture of good faith, I emailed Nick Player of the PSA at 12.13pm on 7 September 2017 about the proposal… 35. I did not receive a response from the PSA to my email of 7 September 2017. Nick Player later sent me an email on 1 November 2017 at 3.37pm acknowledging that I had sent him the 7 September 2017 email… Hand delivery of allegations of misconduct letter 36. While Graham had been on sick leave from 25 October 2017 to 13 November 2017, Graham had been emailing other staff within the Department about a number of other matters, including lodging a formal complaint against Glen Gallagher on 25 October 2017. The formal complaint was investigated and the outcome letter was emailed to Graham on 10 November 2017 by Zoe de Saram, the Deputy Secretary of the Department… Graham was sent an email from John Pas on 10 November 2017 which attached a directions letter signed by Peter Whitley, which directed Graham to stop sending emails to various managers and Parramatta staff while on sick leave… 37. Glen Gallagher, Regional Manager, rang me on 14 November 2017 to advise that Graham had returned to work that day at the Parramatta office. 38. Given that Graham had already been emailed the three letters on 8 and 10 November 2017 (as outlined in paragraphs 31 and 36), I advised Glen that Graham should be hand delivered an envelope containing hard copies of the three letters (including the cover emails for each of the letters). The normal practice is for an employee to be hand delivered (not emailed) a copy of any conduct-related letter by his or her manager, accompanied by a HR Representative. Usually at such a meeting, the management and HR representatives hand deliver a printed copy of the letter(s), provide the employee with an opportunity to read the letters, and to give the employee the opportunity to ask any questions in a confidential and private setting. In Graham's case, in this instance, the Department had emailed him the three letters due to him continuing to email others while on leave. The decision to hand Graham hard copies of the letters was made as a courtesy and to ensure that he had received each of the three original letters. 39. After my discussions with Glen Gallagher and while I was still with Glen Gallagher, he called Graham and asked him to attend at his office for a brief, private meeting for the purpose of hand delivering a copy of each of the three letters. Graham declined this offer. 40. After further discussing the situation with Glen, we agreed to hand deliver to Graham an envelope with a printed copy of the three letters. I asked our IR Graduate, Melissa Chetcuti, to accompany me and Glen, to witness the hand delivery of the envelope to Graham. 41. I approached Graham at his work station accompanied by Glen and Melissa for the purpose of delivering an envelope with a copy of the three letters. Graham was at his work station. When we arrived, Glen said words to the effect of "Hi Graham, do you have a minute?" Graham pointed to his computer screen, which showed that he had either sent or was about to send an email to the PSA Official, Nick Player, requesting 24 hours' notice and an agenda for our "meeting" with him. 42. I said to Graham words to the effect of "Okay, I will give Mr Player a call to discuss this situation." Glen, Melissa and I adjourned to a different location on the same level of the building and I attempted to contact Nick on his mobile phone. Nick did not answer the phone and I subsequently left him a voice message. I then said to Glen words to the effect of "because Graham has already been emailed these letters, it will be appropriate to hand over the envelope with the printed copies to him now." 43. We then returned to Graham's workstation. I advised Graham that I had attempted to contact Nick, but he had not answered my call. I said words to Graham to the effect of "Graham, I am handing you an envelope with a printed copy of the three letters and two accompanying emails which had been emailed to you in the previous week, purely as a courtesy". I handed over the envelope to Graham. Graham immediately ripped up the envelope and placed it in his bin. I recovered the ripped up envelope and contents from his bin. Graham became angry and said something to the effect, "Get out of my work space." I replied with words to the effect of "Thank you for your courtesy." 44. I subsequently took two photographs of the ripped up envelope, letters and emails. I have retained the ripped up envelope and contents. I then returned to my workstation in my nearby office building and sent a file note of this incident in an email dated 1:35pm on Tuesday 14 November, 2017, which included two photographs… 45. I contacted my Director, Simon Kempson to inform what had occurred between Graham and me. I was upset by Graham's aggressive behaviour towards me, during what should have been a routine handing over of an envelope. 46. I subsequently emailed the Nick Player at 4:20pm on 14 November, 2017 to outline what had happened with Graham earlier in the day… ………………………. Terminal cancer letter 49. On 17 November 2017, I received an email from Glen Gallagher attaching a letter he had received from Graham earlier that day, which made a reference to "prevailing allegations [being] like a terminal cancer diagnosis for management". Glen's mother had recently passed away from cancer. Glen's email provided, among other things, that "With the recent passing of my mother to terminal cancer (of which Grahams fully aware) I find this letter distasteful, offensive and threatening in its nature."… 50. Glen then rang me to discuss the letter. I said to Glen words to the effect of "I'll escalate this to Simon [Kempson], for him to consider adding it to the allegations of misconduct against Graham." Prospect of reinstatement 51. In my opinion, Graham has been a very difficult, argumentative and belligerent employee to deal with in all of my dealings with him, ranging back to late 2015. I have formed the view that Graham uses tactics of defending and deflecting his actions by counter responding with a range of emails, complaints and grievances. 52. In my opinion, Graham has on repeated occasions, been disrespectful, offensive and disparaging to senior managers and staff with his emails and attached cartoons. When directed to cease such activities in letters from Peter Whitley, dated 12 July and reminded again in 24 August 2017, Graham continued to repeat his behaviours in his emails and cartoons which became subject to formal misconduct processes commencing in October 2017. In short, Graham continued to disregard formal directions. 53. In addition, it is also my opinion that Graham has bullied and harassed his senior managers including Glen Gallagher, Peter Whitley, David Collins, by the tactic of resending and escalating emails to higher level executives including Deputy Secretary and Secretary for the apparent aim of applying pressure and causing distress to these people. 54. I am aware through my dealings with Graham in the two counselling meetings held in May 2017, that he was offered assistance including referral at the Employer's cost to an appropriate health provider, a Clinical Psychologist. As stated during the meeting with Mr Smith, the Department encouraged him to seek professional medical assistance to help understand, manage and develop coping mechanisms etc regarding his statement that he suffers from dyslexia. Mr Smith chose not to respond to the Department's offer to arrange and fund an independent assessment. Any assessment would need to understand the workplace environment that Mr Smith operates within inclusive of the type of work, skills and expectations to complete the full functions of his role. Clearly the Department wished to work with Mr Smith in assisting his well-being and workplace functions that help maximise his quality of life & work output. 55. Graham responded to offers by debating and arguing about issues, such as whether the appointment and report was confidential to himself. It was explained to Graham that the employer initiated report was to identify and then provide possible solutions. Clearly the Department wished to work with Mr Smith in assisting his wellbeing and workplace functions that help maximise his quality of life and work output. He did not accept the offer of assistance. It is apparent he had no intention of accepting an independent assessment. He did not provide any report on his claimed condition during this counselling process and only provided it with his complaint to the Anti-Discrimination Board and his worker's compensation claim. 56. During my dealings with Graham Smith since late 2015, I have become aware of the distress Graham has caused to his Executive Director - David Collins, new Regional Manager - Glen Gallagher, and former Director Chris Davis. Each person has described how difficult and distressful Graham has been with his relentless personal attacks, repeated bullying and belligerent behaviours. Glen has advised me of the stress Graham causes to many of his fellow staff at the Parramatta office, apart from his small circle of supporters including Urano and Howard. I was also advised that Graham's alleged behaviour towards a former Commissioner of State Training Services led to that person suffering a great deal of distress, which caused him to take a period of absence. 57. In my view, Graham's actions have caused an irretrievable breakdown of the employment relationship with the Department's management and staff in his Training Services NSW Parramatta office, due his belligerent and aggressive attitude and relentless counter attacking actions on every occasion a matter of behaviour is raised with him. I believe no employer should be stuck with such an appalling and troublesome employee, who has failed to follow lawful and reasonable directions. Graham has declined offers of assistance. 58. For these reasons, I believe that if Graham was to be reinstated, it would have very negative consequences for the Department. I do not believe that Graham would cease or amend his disrespectful, offensive and disparaging behaviour. He has not shown any capability to control his relentless barrage of responses, complaints and actions. The offensive and derogatory emails and cartoons would continue. In contrast, reinstatement would, in my view, only affirm to Graham and to his small circle of supporters that his previous and repeated conduct and behaviours were acceptable, which they are not.

Mr Kempson

1. In his witness statement, Mr Kempson stated: 37. On 19 January 2018, Paul Newson, Acting Secretary of the Department, signed a brief which I had prepared which recommended that he sign a letter of charge to Graham, following on from the letters of allegations of misconduct of 23 October 2017 and 7 December 2017. The letter provided, among other things, that the Acting Secretary had "now formed the opinion that you have engaged in misconduct by breaching the Department's Code of Conduct, specifically, the obligations associated with personal and professional behaviour." The letter also provided that the severest penalty that the Acting Secretary would consider regarding Graham's misconduct was termination of Graham's employment… 38. On 19 January 2018, the Letter of Charge was sent to Graham from Paul Newson, who was Acting Secretary of the Department at the time… 39. On 24 and 25 January 2018, Graham, Nick Player of the PSA and I exchanged several emails regarding issues raised in the Letter of Charge and the invitation for Graham Smith to attend a meeting with the Acting Secretary… 40. On 5 February 2018, Graham provided his response to Letter of Charge, by way of a letter of that date… In this letter, Graham accepted the opportunity to meet with the Secretary, as was offered to him in the Letter of Charge of 19 January 2018. Also, in this letter, Graham, among other things: a. denied that the allegations against him constituted misconduct: paragraph 13 provided "On the assumption that you have found all the conduct in Allegations 1 to 5 amount to "misconduct", I should start by making the formal submission that none of this conduct amounts to "misconduct" in the statutory sense."; b. wrote that "In none of the communications referred to in the Allegations have I meant to denigrate, disparage or offend anyone. If any of my communications have been perceived in that way or offended anyone, then I apologise unreservedly.": paragraph 12. I did not find this apology to be sincere, as: i. Graham was also denying that he had engaged in any misconduct; and ii. Graham was effectively placing the blame on how others perceived his communications, rather than on the way he had expressed himself; and c. said that he was sorry that his letter of 17 November 2017 to Glen Gallagher which had referred to "terminal cancer" had "appear[ed] to have upset him in this way", as he "had no idea at the time ... that Mr Gallagher had lost his mother to cancer": paragraph 27. I did not believe Graham's assertion that he did not know that Glen's mother had passed away due to cancer, as I was aware it was well known within the Parramatta office that Glen's mother had been sick with, and eventually died from cancer. 41. The meeting between Graham and the Secretary took place on 15 February 2018. Simon Smith, Secretary of the Department, Graham, Nick Player, Industrial Officer of the PSA, and I were present during the meeting. I took notes during the meeting… 42. During the meeting of 15 February 2018, a conversation was had to the following effect. Graham said: "I am highly intelligent and have the ability to think differently from others. I am able to discover problems which others are not able to. I gather the various pieces of information and put them together to form conclusions that others don't see." Simon said: "How do you think you're able to do this?" Graham said: "I have special abilities. When I trigger these abilities, I can access higher level skills that others do not possess." Simon said: "OK." Graham said: "I probably shouldn't say this, but I'm aware that senior managers fear me, including David Collins. David has a physical reaction every time he comes into contact with me. I'm sure that others fear me as well. The Department's going to find itself in trouble because I know certain information about the testimony David has previously given in court. There are many other code of conduct issues in the Department I could tell you, you're just not being told about them, like the Water inquiry." Simon said: "Graham, are you a team player?" Graham said: "I have special abilities. I have run investigations which have recovered millions of dollars." Simon said: "Is there anyone we could ring to check your contributions?" Graham said: "Call Chris Davis, Marie Minslow and Bill Trewlynn. They know about me" 43. At no point during this meeting did Graham: a. apologise for his actions; b. show any contrition regarding his actions; or c. indicate or suggest that he would change the way he operated in the workplace. 44. Nick Player did not say anything during the meeting. I have been in approximately twenty similar employee misconduct meetings with Nick in the past. In my experience, Nick always spoke at some point during each of those other meetings in support of the employee. In this meeting he did not say a word. I found this significant as there was no defence mounted by the PSA of Graham's actions. 45. I have participated in hundreds of similar employee misconduct meetings in the past in my capacity as Director Industrial Relations. However, I have never observed an employee who was the subject of these meetings behave as Graham did that day. Graham was dismissive and was in no way willing to accept any responsibility for his actions, or for the consequences of his actions. Mr Kempson then recounted how he had made contact with Mr Davis and Ms Minslow and reported the content of the conversations he had with those two people to the respondent. Mr Trewlynn was not contacted as he had only recently started with the Department. Mr Kempson's witness statement then continued as follows: Relevant training, policies and procedures 60. When Training Services staff were on-boarded into the Department in July 2015, all staff were invited to participate in training sessions which covered behaving appropriately in the workplace in accordance with the Department's Code of Conduct. I presented some of these sessions at certain Training Services offices in conjunction with HR business partners. 61. The following policies, procedures and legislation were relied upon, used by or referred to by the Department in relation to Graham Smith, prior to or in the course the disciplinary process that resulted in his dismissal: a. The Department's Code of Conduct…; b. the Human Resources Manual of Authority…; c. the Government Sector Employment Act 2013 (NSW) (GSE Act); and d. the Government Sector Employment (General) Rules 2014 (NSW) (GSE Rules). 62. The GSE Act provides the framework for the Department to conduct a disciplinary process for its employees when allegations of misconduct are made. 63. As the Director Industrial Relations of the Department, I have delegated power under the Human Resources Manual of Authority to, among other things: a. when dealing with an allegations of misconduct, conduct such inquiries as are appropriate for the purposes of determining whether the misconduct has occurred (pursuant to clause 39(1) of the GSE Rules); and b. ensure a written record is kept of the proceedings and actions taken in respect of any allegation of misconduct (pursuant to clause 39(1) of the GSE Rules). Prospect of reinstatement 64. I believe that if Graham was to be reinstated, it would have a profoundly negative effect on the Department. Graham's conduct was engaged in over a long period of time, and he did not show contrition or regret at any time. If he was reinstated, I believe that Graham would continue to engage in the behaviour that led to his dismissal, and would be emboldened by the fact that the Department's disciplinary action against him was ineffective. An emboldened attitude has been displayed previously when he used previous proceedings to threaten management. He drives a combative work environment of distrust and creates anxiety for those that interact with him. I believe this would be the case irrespective of where he worked within the Department. I would be particularly concerned for the health and well-being of David Collins, Glen Gallagher and many other staff in the office at Parramatta who would be adversely affected by the return of Graham Smith.

Mr Simon Smith

1. In relation to the meeting with the applicant which occurred on 15 February 2018, the respondent, Mr Smith, gave the following evidence in his witness statement: 57. At the beginning of the 15 February Meeting, Graham Smith did not offer information that I should take into account in making my decision (which was the stated purpose of the opportunity). On several occasions he challenged the processes that had applied, rather than addressing the allegations against him. I asked him a number of times to talk about what he had contributed to the Department as I wanted to give him an opportunity to talk about his achievements, as I have found in the past that this enables staff to gain confidence and present their side of the story. However, he could not articulate practical outcomes resulting from his service in recent years. He said that he has "special powers" and "can spot things others cannot see" and referred to two investigations he worked on while he was employed by the Department of Education being the Hungry Jacks investigation and an investigation involving Ash Pty Ltd. When I asked who we could speak to that could confirm the contributions he had made, he also suggested two of his former colleagues, being Marie Minslow and Chris Davis. 58. In the 15 February Meeting, Graham Smith also made disparaging remarks about one of my executive team, David Collins. Graham Smith said words to the effect of "it probably would not be helpful for me to say this but I am aware that senior managers fear me." When I asked him who was afraid of him, he replied "David Collins" and then said "he has a physical reaction every time he comes into contact with me." I then asked why Graham Smith thinks David Collins is afraid of him, to which he responded with words to effect of "because I have something on David Collins as he gave false evidence in court." He also made reference to the Department's inquiry and said words to the effect of "I know there are code of conduct issues in the Department and that you are not being told about many of these issues Simon." 59. The 15 February Meeting concluded at approximately 1.30pm. I left with the impression that Graham Smith was someone who was threatening, not doing any useful work, was a risk for the department when engaging with external parties, and who was very likely to be having a negative impact on his colleagues and the performance of his team. ……………………… Reinstatement 68. In my opinion, Graham Smith should not be reinstated to the Parramatta Office or anywhere else in the Department. Graham's behaviour, both in sending the emails and documents which resulted in the allegations of misconduct being made against him, as well as his argumentative and evasive conduct during the process of him responding to those allegations, was completely unprofessional and inconsistent with what is expected of a public servant. 69. In my opinion, his conduct and communication style indicates that he could not be relied upon to represent the Department professionally in dealings with internal or external stakeholders. 70. My assessment is that there was significant discord created by Graham Smith's inappropriate conduct which brought down the performance of his colleagues and hence the whole team in which he works. I could not see evidence of a positive contribution that could in any sense justify the cost or offset such impacts. 71. If he came back to work in the Department he would also pose a risk to the Department's staff who have been negatively affected by his conduct. This would be true even if he was placed outside of Training Services, as he could easily continue to send inappropriate emails to those staff. Given his pattern of conduct, there is a high risk he would continue to do so. 72. I have no confidence that Graham Smith has what it takes to be a public servant, to demonstrate the standards of conduct expected of all staff, the commitment to service or the ability to work with other people in the Department as required by Government or deserved by taxpayers.

Case in reply for the applicant

1. In reply, the applicant filed and served a lengthy witness statement comprising 349 paragraphs or 62 pages plus 122 pages of annexed documents. In that reply witness statement the applicant essentially restated his previous "defences" to the misconduct allegations and updated his personal circumstances following his dismissal.
2. The applicant filed a further, shorter reply witness statement in which he dealt with his role as a PSA delegate and a statement which updated his personal circumstances..

Was the dismissal of the applicant harsh, unreasonable or unjust?

1. In addition to the evidence, both documentary and oral, placed before the Commission, both parties filed extensive written submissions to which counsel for each party spoke on the final day of the hearing. I have considered that evidence and those submissions in coming to a decision in this matter but, given the volume of material which this case has generated, I have attempted to confine my remarks which follow to those aspects of the material which I regarded as significant in coming to the conclusions which I have reached.
2. I accept the submission put on behalf of the applicant to the effect that his performance as a Training Advisor was satisfactory, despite there being a number of hearsay statements in the respondent's evidence to the contrary. I attach no weight to those statements.
3. However, the applicant was not dismissed for poor performance. The applicant was dismissed as a consequence of a finding of five sustained allegations of misconduct by him which are set out at [2] above.

March/April 2017 - Government Sector Rules not a straightjacket

1. A submission was made on behalf of the applicant to the effect that the counselling meetings involving the applicant which occurred on 4 and 26 May 2017, which were followed by the letters to the applicant from Dr Whitley dated 12 July and 24 August, were conducted in breach of the provisions of Part 8 - Misconduct of the Government Sector Employment (General) Rules 2014 ("GSE Rules") made pursuant to sections 12 and 69(3) of the Government Sector Employment Act 2013 ("GSE Act"). This submission stated in part: The arrangement with the PSA was designed to avoid the application of the GSE Rules. The arrangement was always intended to result in the Applicant being "issued a warning-type letter to direct him to cease engaging in the concerning behaviours". The May 2017 counselling and the July 2017 Letter were, and were plainly intended to be, a "caution or reprimand" taken in complete defiance of the GSE Rules. The Respondent cannot simply choose to follow the GSE Rules or not at its whim (whether the PSA agrees or not). Those rules are designed to ensure that a public sector employee has an understanding of the allegations against them, including how it is alleged the conduct is said to amount to misconduct (GSE Rule 38(3)), and to afford them a "reasonable opportunity" to be heard once so informed (GES Rule 38(4)), and to then have the opportunity to be head again once findings are made, reduced to writing and given to the employee (GSE Rule 40).
2. I reject this submission in its entirety and emphatically. The GSE Rules are not a straightjacket which obliges management to proceed down a formal misconduct path on every occasion when the conduct of an employee, which may fairly and properly be regarded as misconduct, is seen as at least requiring some form of less punitive intervention, as was the case with the applicant's conduct in March and April 2017. Some examples of that conduct are set out at [13]-[19] above and are dealt with at paragraphs 29-60 of the witness statement of Dr Whitley (see [76] above) and at paragraphs 21-41 of the witness statement of Mr Collins (see [81] above).
3. Aspects of the applicant's conduct during this period, which I have no difficulty in regarding as misconduct, include:

• the email of 17 March 2017 to PSA Member Support, suggesting, without the slightest basis in fact, that the appointment to the role of Regional Director would not be based on merit and that Mr Gallagher may have received preferential treatment (see [13] above);
• the email of 21 March 2017 to Dr Whitley and others, alleging that Mr Gallagher had been given an unfair advantage over other candidates for the role of Regional Manager, which amounted to an allegation of corrupt conduct on the part of Dr Whitley, without a shred of evidence to support it (see paragraphs 34-35 of Dr Whitley's statement at [76] above);
• the email of 12 April 2017 to Mr Gallagher, entitled "A never ending continuing story" with attached cartoons (see [16] above)..

1. In my opinion, faced with these and other instances of misconduct by the applicant, the Department would have been justified in commencing formal disciplinary proceedings against the applicant at that stage. The decision of the Department to go down a less punitive path, in the hope that the applicant might address the manner in which he communicated with his managers, does not constitute a "complete disregard of the GSE Rules".
2. The direction to the applicant that he attend a counselling session was entirely proper, reasonable and lawful. That the PSA was willing to participate and assist the applicant through this process, no doubt in the hope that the fate which eventually befell the applicant might be avoided, should be commended not criticised.
3. The applicant's belligerent defiance of Dr Whitley's direction only served to compound the seriousness of his misconduct.
4. In any event, the applicant's complaints about non-compliance by the Department (and by the PSA) with the GSE Rules are completely lacking in substance and disclose a level of nit-picking pedantry which characterised so much of the applicant's conduct and his interactions with his managers.
5. Prior to the meeting on 4 May 2017, the applicant was given advanced notice of the emails which had caused concern and which were to be discussed. At the meeting, each aspect of those emails which was regarded by management as inappropriate and/or offensive was identified and the reasons why it was so regarded were explained to the applicant (GSE Rule 38(3)). The applicant was given a reasonable opportunity to respond, which he did on 26 May 2017 (GSE Rule 38(4)). No findings of misconduct by the applicant were made following the two counselling sessions, so GSE Rule 40 did not come into play. What did occur was that the Department's expectations with respect to the manner in which the applicant communicated with his managers, were clearly spelled out to him, as were the potential consequences of his failure to meet those expectations.
6. Despite having been provided with a more than fair opportunity to mend his ways, instead of grasping this opportunity, the applicant's nonsensical criticism of Mr Murray's notes of the May counselling sessions (see [22] above) and his contemptuous "You cannot have it both ways Dr Whitley" response to the letter of 12 July 2017 (see [27] above), clearly demonstrated that the applicant's conduct was fixed on a trajectory that was always going to end badly for him, as it ultimately did.
7. There was no breach of the GSE Rules or the GSE Act by the respondent in this matter.

The applicant's dyslexia

1. Before dealing with each of the five sustained misconduct allegations against the applicant which led to his dismissal, I will give consideration to the applicant's claim that his condition of dyslexia had a causal connection with the conduct which led up to, and formed the basis of, misconduct allegations (2) and (3).
2. In his evidence in these proceedings, the applicant claimed that his disability "does mean that sometimes when dealing with new situations I have found I am better able to communicate using images, like cartoons (which I obtain from newspapers and the like), than in sentences. I have done this for some years, and up until very recently it has never been an issue".
3. The applicant raised his dyslexia as a cause for his style of communication during the counselling interview on 26 May 2017. However, the material produced by him on that occasion, which was tendered into evidence by the respondent in these proceedings, falls far short of providing any explanation for the applicant's conduct. For example, within those documents was the following definition of dyslexia: Dyslexia is a specific learning disability that is neurological in origin. It is characterised by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities. These difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction. Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.
4. Whilst this material might go some way towards an explanation for the applicant's use of cartoons as a communication tool, it goes nowhere near explaining or excusing his use, by way of example, of the following words, which are clearly offensive, in his "submission" of 19 October 2017 to Ms de Saram (at [35] above): Do you see Zoe and what do you see? What stories are in your mind and who is the author of those stories you or your directors? And when you answer that question in your mind ask yourself the following question: Are you sure or do you just think you're sure? Do you really think me and others and going to, in the interests of openness, transparency and fairness, discuss issues with you in an open forum? What thoughts do you hold in your mind? Do you see Zoe: Do you see?
5. In relation to the issue of medical evidence being considered as a mitigating circumstance in an unfair dismissal proceeding where the dismissal was based on misconduct, I note the following passage from the decision of the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 (per Boland J, President, Staff J, Backman J): [57] We have considered whether there are any mitigating factors in relation to the respondent's conduct. The evidence about that is not very clear. On the one hand, there was the evidence of Dr Tony Robinson who had a doctorate in clinical psychology and practised as a clinical psychologist. Dr Robinson stated: There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time. [58] On the other hand, Dr Robinson said in a later report that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." Further, the respondent had undergone a series of sessions of "focussed psychosexual treatment". [59] If there had been reliable medical evidence that the respondent's conduct had been caused or contributed to by mental or physical illness that may have been a factor to be taken into account in mitigation: see Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14; Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57. However, there was no medical evidence (a clinical psychologist is not a medical doctor nor a psychiatrist) and even if Dr Robinson's evidence could have been regarded as such, it was inconclusive for the purpose of any consideration about mitigation. [60] We do note the magistrate who convicted Mr Danwer of the offence expressed the opinion at the time that the respondent was not likely to re-offend. However, that opinion was not based on medical evidence. Nor was the observation by Colefax DCJ that the respondent's conduct was aberrational.
6. I cited this passage from Danwer in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036, a case where there was reliable medical evidence that the applicant's conduct was caused by, or contributed to by, mental illness that he was suffering at the time of the incidents which led to his dismissal.
7. By contrast, in the present case there is no medical evidence at all to support the applicant's claim that his dyslexia caused him to communicate with his managers in the manner which led to misconduct allegations (2) and (3). The document referred to at [70] above does not constitute medical evidence and, in any event, does not support the applicant's claim that his dyslexia caused him to communicate in the manner in which he did with Ms de Saram. There was nothing to prevent the applicant from placing medical evidence in support of his claim before the Commission if such evidence existed or could have been obtained.
8. Further, although there is some dispute as to the detail of what was agreed to by the applicant during the counselling interview on 26 May 2017, it is clear that the Department offered to have the applicant's condition assessed by a Clinical Psychologist (see paragraphs 87-89 of Dr Whitley's statement at [78] above; paragraph 21of Mr Murray's statement at [84] above; letter of 12 July 2017 at [23] above; letter of 24 August 2017 referred to at [28] above). This offer to the applicant, if accepted, could have established if there was any connection between his alleged disability and his behaviour, and what adjustments, if any, could be put in place to assist him. The applicant rejected the Department's offer on the spurious ground that medical examinations "are bound by Doctor-Patient confidentiality. As a third party the department does not have access" (see [27] above).
9. By his own action, the applicant denied himself the opportunity of establishing, on the basis of reliable medical evidence, that his dyslexia did have some connection with his misconduct. He also denied the Department the opportunity of putting in place measures to assist him.

Lack of consultation over the change in reporting lines and composition of work teams

1. Following the change in reporting lines and the composition of the work teams at the Parramatta office, which was announced by Mr Gallagher at the staff meeting on 13 October 2017, the applicant was not happy. Initially he complained to Mr Gallagher about his removal from Mr Angeli's team and the loss of the "accommodating adjustments" which had been in place for over ten years. Mr Gallagher advised the applicant that he was happy for the applicant to "continue with your informal arrangement whereby Urano and Howard may check your written material". This response did not satisfy the applicant (see [37] above).
2. The applicant made a formal complaint to SafeWork NSW and embarked upon a campaign, ostensibly as the PSA workplace delegate, of accusing Mr Gallagher of effectively lying to the staff about the PSA having been consulted about the change in reporting lines and composition of the work teams. When properly analysed, this accusation by the applicant is without foundation (see [41]-[44] above).
3. Nevertheless, in the written submissions filed on behalf of the applicant, reliance was placed upon part of a report from a SafeWork NSW Inspector which followed the formal complaint from the applicant to SafeWork NSW concerning the "failure to properly consult about the restructure of the work teams…".
4. I note that subsection 49(d) of the Work Health and Safety Act 2011 is in the following terms: 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters: …………………….. (d) when proposing changes that may affect the health or safety of workers,
5. As part of the investigation into the applicant's complaint, the Inspector met with Graham Irvine, Director Work Health Safety of the Department. In her report, the Inspector stated: It is my understanding that the Department of Industry advised Mr Smith on 17 October 2017 (after the changes taking effect) That the informal arrangements that were in place with Mr Smith's support person could continue and would not be effected by the changes. These changes occurred some time ago, and I have received documentation from both Department of Industry and Mr Smith in relation to what consultation did/did not take place at the time. Mr Irvine advised me during our meeting on Monday 12 February 2018 that the department would support Mr Smith's return to work and all supports for Mr Smith that were in place prior to the changes of reporting lines would remain in place for him. I advised Mr Ervine that It is important to distinguish that consultation is not a matter of 'telling' but rather putting something forward and allowing workers to express their views and raise any WHS concerns. I note that in an email to the PSA on 7 September 2017, feedback is invited however, the meeting that took place on 13 October 2017 with workers was to 'notify staff of the changes'. The latter is not consultation. It must also be noted that not all workers are members of a union therefore, consultation with the union only, is not sufficient to discharge a PCBU'sduty to consult with workers. ………………………………. I do find that consultation should have taken place on this ocassion or at the very least, Mr Smith advised of the changes and how they would impact him and assurance given that his supports would not be lost as a result of the changes. This would have given him the opportunity to have his concerns addressed and may have prevented psychological injury which appears to have flowed from the action taken.
6. The submissions of the applicant relied, in particular, upon that paragraph of the Inspector's report cited immediately above.
7. With the greatest of respect to the SafeWork NSW Inspector who conducted the investigation into the applicant's complaint, it is clear that the Department gave the PSA ample notice of the proposed changes at the Parramatta office, and invited feedback well before those changes were implemented (see email of 7 September 2017 from Mr Murray to Mr Player reproduced at [29] above). There is no evidence that the PSA responded to this invitation during the five week period leading up to the day when the changes were announced to staff, Friday 13 October 2017.
8. It is difficult to conceive how a manager, such as Mr Gallagher, could have anticipated that changes in reporting lines and the composition of work teams could possibly affect the health or safety of workers. There is not the slightest shred of evidence, nor is it suggested, that these changes had, or could have had, any adverse impact upon the health or safety of any other affected employee, apart from the applicant. Indeed, there is no reliable medical evidence before the Commission that the changes affected, or could have affected, the applicant's health or safety. There is no evidence of any other employee making a complaint to SafeWork NSW, or otherwise raising any health or safety issue about these changes. The only employee who raised such an issue was the applicant who was, at the time, the PSA workplace delegate. If there was a lack of communication between the PSA and its delegate and other members about the proposed change in reporting lines and composition of the work teams, that is not a matter that can be sheeted home to the Department.
9. I reject entirely the criticism as to the lack of consultation by the Department over the change in reporting lines and composition of the work teams. That SafeWork NSW ultimately took no action in response to the applicant's complaint speaks volumes as to its lack of substance. Unwarranted criticism of the Department about the alleged lack of consultation over a change in workplace arrangements which, on any view, was highly unlikely to have any effect at all on the health or safety of any worker, only serves to encourage those, like the applicant in this case, who would misuse the processes established under legislation designed to protect the health and safety of workers in order to pursue their own agendas.

The misconduct allegations

1. I will deal with each of these allegations in which, in my opinion, is the descending order of seriousness. To my mind, allegations (2) and (3) are the most serious and they will be considered first.

2. Failure to adhere to a formal direction given to you by Dr Peter Whitley, Director Regional Operations, in a letter dated 12 July 2017 to cease sending inappropriate or offensive communication that might denigrate, disparage or otherwise offend any staff member. On 22 September 2017, you sent an email to Ms Zoe de Saram, Deputy Secretary Skills and Economic Development, which was inappropriate in content and was against the direction provided to you by Dr Whitley.
3. The context in which this allegation must be considered requires a review of the circumstances which preceded the letter of 12 July 2017 from Dr Whitley to the applicant. This review necessarily involves consideration of the applicant's communications which caused Dr Whitley to direct him to attend the counselling interviews in May 2017 which preceded the 12 July letter.
4. The email from the applicant of 17 March 2017, which is reproduced at [13] above, suggests that the appointment by Dr Whitley of a person to the role of Regional Manager would not be based on merit and that Mr Gallagher had been advantaged over other potential applicants by having been given advance notice that the position was to be advertised and filled. This constitutes an allegation of corrupt conduct on the part of Dr Whitley which is unsupported by the slightest shred of evidence. According to the unchallenged evidence of Mr Gallagher, he learned that the position had been externally advertised from a member of the public. Regardless of this, there is absolutely nothing untoward about an employee, who is acting in a role, being told that the job is going to be advertised and filled before the advertisement is published. This is common courtesy and for the applicant to raise such an issue, which is so lacking in substance, speaks volumes of his belligerent antagonism towards management and, in particular, towards Mr Gallagher. Further, despite the applicant's entreaty to the PSA to seek a two week extension for the closing date for applications for the position, there is no evidence that the union took up this issue or that any individual potential applicant sought such an extension.
5. The recreation leave issue, which was pursued so doggedly by the applicant, involved a directive from Mr Gallagher to the effect that recreation leave on a part-time basis over the course of more than one week would not be approved (see paragraphs 18-21 of Mr Gallagher's witness statement at [74] above). There was absolutely nothing unreasonable about this directive from Mr Gallagher. The underpinning concept of annual or recreation leave is that it is to be taken in a block or blocks of time each year, not spread out over months by taking two or three days leave each week. Nevertheless, the emails generated by the applicant over the recreation leave issue contained unnecessarily confrontational statements such as the following, which was in an email sent by the applicant to Ms Westbrook on 20 March 2017 (see paragraph 22 of Mr Collins' statement at [81] above): All the staff are seeking from Mr Gallagher is for him to engage in meaningful communication with staff outlining his management methodology in dealing with staff and how he discharges his responsibility in providing direction to staff, because if he cannot then how is he going to cultivate a culture of responsiveness and continuous improvement in the Parramatta office.
6. On the following day, 21 March 2017, the applicant sent a further email to Dr Whitley, Ms Westbrook, Mr Collins and the staff of the Parramatta office about the filling of the Regional Manager role which contained the following: Dear Mr Whitley ……………………. In his response Mr Murray states: "I am advised that the Director Regional Operations had informed the A/Regional Manager that the above level assignment would cease when the role is filled and_that it would be advertised in the near future." (The emphasis is mine) ………………………. Mr Murray confirms that that you advised Glen Gallagher that the position would be advertised before the position was advertised on the Iworkfor.nsw website. It is foreseeable that Mr Gallagher would have been aware that he needed to prepare his application before any other possible candidates were informed. Therefore, Mr Bill Murray's first statement as stated above, indicates that there is impropriety. The fact that Mr Murray verifies you told Glen Gallagher that the position would be advertised, before anyone else knew, has given Glen Gallagher an unfair advantage over other possible candidates.
7. This was followed by a further email from the applicant to Ms Westbrook on 23 March 2017 concerning the recreation leave issue which contained the following: I look forward to working with you to progress this matter to closure and at the moment it is difficult for the both of us to progress this to a successful conclusion as Mr Glen Gallagher has provided no evidentiary bias for operational reasons. I can understand how Mr Gallagher exercising his option to not provide clarify concerning his decision making process is placing you and others such as Mr Whitely and Mr Collins at a disadvantage and would explain why no one has come out to support Mr Gallagher. ……………………. Naturally, as you read this you will become increasing aware that the longer the time period that Mr Gallagher unjustly frustrates due process the higher becomes the probability that his alleged management abilities become completely devoid of credibility.
8. The applicant's email of 24 March 2017 regarding the unavailability of departmental vehicles, which is referred to at [15] above, is another example of the applicant's confrontational approach when dealing with issues. This email was followed by another email from the applicant to Mr Barlow on 27 March 2017 which stated: Dear Mr Barlow As the person responsible for under resourcing the Parramatta centre, could you please make arrangements to have a car available for me to meet an appointment at 9:00 am on Tuesday morning 28 March 2017. Regards and best wishes
9. In a further email to Ms Westbrook dated 29 March 2017 concerning the leave issue, the applicant wrote: I note with interest that Glen Gallagher provided no evidence to support his allegation that there are operational reasons in force at Parramatta. I note with increased interest that there is no evidence that Mr Gallagher's decision is supported by his superiors. I note with elevated interest Mr Gallagher provided no evidence that he has engaged in meaningful communications with staff outlining his management methodology in dealing with staff and how he discharges his responsibility in providing direction to staff. I note with heighted interest allegations of Mr Gallagher's untasteful intimidation interaction with staff at the Chatswood office resulting in his alleged forced relocation to Oxford Street and allegations of his frenzied tirade explosion which blasted Mr Tabone when he was unsuccessful in a job interview for a position at Chatswood.
10. The "A never ending continuing story" email from the applicant on 12 April 2017, which is referred to at [16] above and at paragraphs 45-46 of Dr Whitley's witness statement (see [76] above) is yet another example of the applicant's open hostility towards the Department and its managers. By this stage, it was inevitable that there would need to be some form of intervention in relation to the applicant's conduct.
11. I pause at this point to consider the submission put on behalf of the applicant to the effect that his communications which preceded the May counselling interviews and the 12 July 2017 letter were directed to particular issues or directed at particular individuals and were different in tone to his later communications with Ms de Saram because the applicant "doesn't single anybody out" in those communications. I reject this submission. The "A never ending continuing story" email from the applicant generally denigrated the Department's management and was couched in the same type of sarcastic language which would characterise his later communications with Ms de Saram. I do not accept that any of the applicant's communications can be properly described as being "an attempt at humour which miscarried".
12. The applicant's response to the direction that he attend a counselling interview, which is dealt with at paragraphs 48-60 of Dr Whitley's witness statement (see [76] above), again discloses a belligerent antagonism and disrespectful contempt on the part of the applicant towards Dr Whitley.
13. I reject entirely the notion that this conduct on the part of the applicant could somehow be excused on the basis that he was acting in the capacity of a PSA delegate. Workplace union delegates play an important role in representing the industrial interests of workers. With that role comes the responsibility to conduct themselves in a conciliatory and cooperative manner with management. The status of "union delegate" is not a shield to hide behind while hurling abuse and unfounded allegations against managers or for conducting personal vendettas.
14. After the counselling interviews of 4 and 26 May 2017, the applicant's conduct did not improve. It deteriorated.
15. In an email to Mr Murray on 27 June 2017, the applicant effectively accused Mr Murray of selectively and dishonestly taking and producing notes of the counselling meetings, with statements by the applicant such as "The question is were you so busy as a little beaver taking notes that your ears were set to selective hearing?" (see [22] above).
16. In the letter from Dr Whitley dated 12 July 2017, which is reproduced at [23] above, the applicant was given clear warning that his manner of communicating with managers and staff of the Department would no longer be tolerated. He did not heed this warning as his letter to Dr Whitley of 25 July 2017, which is reproduced at [27] above, demonstrates. In relation to this piece of correspondence from the applicant, the submissions filed on behalf of the respondent contained the following, with which I fully agree: 2.49 The Applicant's lack of recognition about the offensive nature of his conduct on emails is abundantly clear from this letter. The clear upshot of the communications from the Applicant following the May meetings and the 12 July Letter was that he was refusing to take responsibility for his actions and did not consider that he had to abide by the formal direction that had been issued to him.
17. The applicant claimed, at paragraph 35 of his first witness statement, that he did not intend to disregard "the direction given in the July Letter" (see [64] above). This is not true. The applicant's response of 25 July to Dr Whitley's letter of 12 July demonstrates clearly that the applicant never intended to comply with the direction given to him by Dr Whitley in that letter. His contemptuous comment "You cannot have it both ways Dr Whitley" is entirely consistent with the applicant's attitude of belligerent defiance towards management. The applicant's subsequent conduct confirmed that he always intended to disregard the direction given to him by Dr Whitley in July and August 2017 because he did not accept Dr Whitley's authority to give such a direction.
18. Despite a further warning letter from Dr Whitley dated 24 August 2017, which is referred to at [28] above, less than one month later, on 22 September, the applicant sent Ms de Saram, who was the recently appointed Deputy Secretary, Skills and Economic Development, with whom the applicant had had no previous contact, the material which is referred to at [32]-[33] above and dealt with at paragraphs 6-8 of Ms de Saram's witness statement (see [83] above).
19. In his oral evidence in chief, the applicant was questioned by his counsel about this material. The following exchange occurred: Q. What were you trying to say to Ms de Saram in this e-mail? A. First of all, I'd like to draw your attention to page 68. Q. Yes? A. What a wonderful opportunity we had to say something to a brand new person in the department that knows nothing. Right? Q. When you say "knows nothing", knows nothing of what? A. She doesn't know any of the history. She doesn't know any - that's why I refer to her as "nothingness". She is brand new in the department and she wants to help us and she wants to make it a better place. I thought that was a wonderful opportunity and I responded. What I wanted to show is - it says here, "Do you see? And what do you see?" I'd like to refer you to page 69. At the bottom of page 69, this cartoon, you have a number of people down in the bottom. You have a person up the top that's waving to you. Here is Ms de Saram who is saying, "You guys are at the coalface. This is the primary source of information. Tell me what the issues are so we can make it better." Q. My learned friend in his opening described that image as intending to communicate that employees were being kept in the dark. What do you say to that idea? A. That's not true. These people are at the coalface. They know the issues and Ms de Saram said, "I want to know the issues." This is a primary source of information. It is the best source of information you can get, and here we have someone that is approaching us and saying, "Hey, tell us what the problems are so we can make it better." I thought that was a fantastic opportunity for staff. Q. So you've described you saw this as a fantastic opportunity. What were you trying to say to Ms de Saram by this e-mail? A. What I was trying to say to Ms de Saram is that there are a number of issues that she needs to be aware of. First of all, she's dealing with people in the department and some of those people are going to be supportive of what she wants to do and other people are not going to be supportive, and how do you tell the difference? How can we be better today than we were yesterday? And how, by solving problems, can we add value? If you find people within the organisation that ask you a question like that, then you know you've got the people who are going to help you in your endeavours. She talks about training local champions. With the local champions, if those local champions are people that say, "How can we be better today than we are yesterday?", you are going to get absolutely fantastic results. Some of the issues is what you-- Q. Can I pause there for one moment. On page 70, the image on page 70, it was described in the opening that that was an intention to mock the process. What do you say to that? A. No, it's not. It's here - here we have somebody who is going to be a local champion that comes to us and they said - the question is we've seen all this before. So the question is, "Really? Do you really want to help us?" It's not a mocking of the process. It's asking the question. We're really excited about this because she's brand new in the department
20. I reject this evidence of the applicant in its entirety. The tone of the material sent by the applicant to Ms de Saram was, at best, mocking and highly offensive and, at worst, sinister and menacing. Public servants, including executives such as Ms de Saram, are entitled to come to work and do their job without being subjected to this type of creepy, confronting rubbish.
21. The cartoon which contained the words "Fcking incompetent twt. Useless c*nt" is highly offensive (see [33] above). The applicant claimed that he did not notice these words in this cartoon when he sent it to Ms de Saram. I do not believe him. If the offending words had been blacked out, as the applicant suggested he would have done had he noticed them (paragraph 36 of the applicant's witness statement at [64] above), the cartoon would have lost its meaning. It is clear to me that the applicant's messages, and the cartoons which he sent to Ms de Saram, were carefully selected by him to have maximum impact on her. The offensive and insulting nature of these communications was entirely consistent with the disrespectful and disparaging tone of his previous communications with Dr Whitley, Mr Gallagher, Mr Barlow and Mr Murray.
22. As already stated, I reject the claim that this type of conduct was somehow connected to the applicant's dyslexia. Apart from the applicant's own unsupported claim, there is no evidence before the Commission to sustain such a proposition. The applicant rejected the offer by the Department to have an independent assessment of his condition conducted by a Clinical Psychologist. Even if there were some connection between the applicant's condition and the material he sent to Ms de Saram on 22 September 2017, which I don't accept there is, he had recently received two written warnings that these types of communications by him would not be tolerated, and yet he went ahead and did it anyway, in deliberate defiance of the direction he had been given.
23. Allegation (2) has been made out to the requisite standard on the evidence before the Commission. The actions of the applicant, which form the basis of this allegation, constitute serious misconduct and justify his dismissal.

3. Failure to adhere to a formal direction given to you by Dr Peter Whitley, Director Regional Operations, in a letter dated 12 July 2017 to cease sending inappropriate or offensive communication that might denigrate, disparage or otherwise offend any staff member. At a Focus Group meeting on 19 October 2017, you introduced yourself as a union representative to Ms Zoe de Saram, Deputy Secretary Skills and Economic Development and provided a 'cartoon' submission which was inappropriate in content and was against the direction provided to you by Dr Whitley.
4. The material given by the applicant to Ms de Saram at the focus group meeting on 19 October 2017 constituted another instance of the applicant's defiance of the direction he had been given by Dr Whitley in the letter of 12 July and reinforced in the letter of 24 August 2017.
5. The cartoons, some of which are described at [36] above, were disparaging of management. The messages from the applicant, which are set out at [35] above, are nothing more than another attempt to insult and humiliate Ms de Saram.
6. Ms de Saram stated, in her evidence, that she found this communication from the applicant to be offensive and deeply disrespectful. I agree with her assessment.
7. The applicant claimed that he was intending to highlight concerns so they could be addressed, that he felt he was giving a perspective to Ms de Saram of how staff may perceive what she was attempting to do and that he was trying to work with her with what he saw was a positive endeavour on her part by making her aware of some departmental attitudes she may need to overcome. I reject this claim entirely. There is nothing in this communication that comes anywhere near the construction which the applicant has now attempted to place on it. It is nothing more than another example of the applicant's belligerent defiance of the direction given to him by Dr Whitley in July and August 2017.
8. This form of upwards bullying of a manager by someone who, in other contexts, purports to be acting in the capacity of a union delegate, has no place in the workplace and does the union movement a grave disservice.
9. The descriptions given to the applicant's communications to Ms de Saram of 22 September and 16 and 19 October 2017, in the written submissions filed on behalf of the respondent, were:

• "fuelled by negativity and derision";
• "inappropriate, disrespectful and offensive in content";
• "a very clever but incredibly disrespectful and offensive response"; and
• "disturbing, disparaging, offensive or otherwise inappropriate" These phrases somewhat understate the position. To those descriptors I would add "confronting", "sinister", "menacing" and "malevolent".

1. Allegation (3) has been made out to the requisite standard on the evidence before the Commission. The actions of the applicant, which form the basis of this allegation, constitute serious misconduct which, without more, justified his dismissal.

4. On 13 November 2017 you signed a letter to Mr Glen Gallagher, Regional Manager, accusing him of dishonesty and it also included the sentence "Such prevailing allegations are like a terminal cancer diagnosis for management" in the knowledge that Mr Gallagher's mother had recently died due to terminal cancer…
5. The applicant claimed that he was unaware that Mr Gallagher's mother had passed away due to terminal cancer and that his reference to "a terminal cancer diagnosis for management" was not connected to Mr Gallagher's mother's death. Even if this were true, which is highly unlikely, the letter, which is set out at [51] above, accuses Mr Gallagher of misrepresenting himself and of being dishonest.
6. The applicant claimed that, at no stage, did he accuse Mr Gallagher of being dishonest. He claimed that he was acting in his capacity as the local PSA workplace delegate and was reporting to Mr Gallagher concerns that had been expressed to him by others. Despite certain concessions obtained by counsel for the applicant during cross-examination of the respondent to the effect that a "delegate doing their job would have to raise concerns like that" and "the delegate should say what they have been told", I reject this "defence" in its entirety. The observation relating to the "prevailing allegations" being "like a terminal diagnosis for management", even if completely unrelated to the death of Mr Gallagher's mother, was the applicant's own observation, no one else's. By expressing himself in this way to his manager, despite the previous warnings, the applicant has, in my opinion, seriously misconducted himself.
7. But the applicant's letter of 13 November 2017, which was written only a few days after he had received the 23 October misconduct letter on 8 November, and which he slipped under Mr Gallagher's office door after returning to work on 14 November, was just the latest in a long line of attacks by the applicant on Mr Gallagher which were motivated by personal malice and had nothing to do with representing the views of PSA members. These included:

• the applicant's email of 17 March 2017 to PSA Member Support, suggesting that the appointment to the role of Regional Director would not be based on merit and that Mr Gallagher may have received preferential treatment (see [13] above);
• the applicant's email of 20 March 2017 to Ms Westbrook and others, complaining that all the staff are seeking from Mr Gallagher was for him to engage in meaningful communication and questioning how he was going to cultivate a culture of responsiveness and continuous improvement in the Parramatta office (see [123] above);
• the applicant's email of 21 March 2017 to Dr Whitley and others, again alleging that Mr Gallagher had been given an unfair advantage over other candidates for the role of Regional Manager (see [124] above);
• the applicant's email of 23 March 2017 to Ms Westbrook and Mr Gallagher, alleging that Mr Gallagher had provided "no evidentiary bias for operational reasons" in relation to the leave issue, that he lacked the support of other managers on the issue and that the longer that he "unjustly frustrates due process the higher becomes the probability that his alleged management abilities become completely devoid of credibility" (see [125] above);
• the applicant's email of 29 March 2017 to Ms Westbrook and Mr Gallagher, in which he refers to Mr Gallagher's "untasteful and intimidation interaction with staff at the Chatswood office" (see [127] above);
• the applicant's email of 12 April 2017 to Mr Gallagher, entitled "A never ending continuing story" with attached cartoons (see [16] above);
• the applicant's email of 17 October 2017 to Mr Gallagher, threatening to raise matters with SafeWork NSW and the Anti-Discrimination Board (see [37] above);
• the applicant's formal complaint against Mr Gallagher of 25 October 2017, concerning the changes announced at the staff meeting on 13 October and the minutes of that meeting (see [40] above);
• the applicant's email of 1 November 2017 to Mr Gallagher and distributed to all staff in the Parramatta office, alleging that Mr Gallagher had misrepresented himself during the staff meeting on 13 October 2017 (see [41] above);
• the applicant's email of 3 November 2017 to Mr Gallagher and distributed to all staff in the Parramatta office, thanking Mr Gallagher for confirming that he had not consulted with the PSA as alleged in his minutes of the meeting of 13 October 2017 (see [43] above);
• the applicant's email of 3 November 2017 to Mr Gallagher and distributed to all staff in the Parramatta office, forwarding the email chain between himself and Mr Gallagher between 1-3 November and claiming that Mr Gallagher's values were not aligned with the Department's values and that it was natural that staff would feel concerned (see [44] above);
• the applicant's further formal complaint against Mr Gallagher dated 13 November 2017, again concerning the changes announced at the staff meeting on 13 October and the minutes of that meeting (see [48] above).

1. This campaign of attacks by the applicant on Mr Gallagher, which preceded the letter which is the subject of allegation (4), was as unrelenting as it was unwarranted.
2. I also note that, despite the applicant's plea along the lines that he was only firing bullets from guns that others had cocked and loaded, there is no direct evidence before the Commission, apart from that given by the applicant himself, that anyone else within the Department had accused Mr Gallagher of any dishonesty at all.
3. In this respect, there is some evidence before the Commission that the applicant actively solicited members of the "Parramatta Management Team" to "confirm if you were excluded from the consultation process regarding the reporting line and team restructure at Parramatta as announced by Glen on 13 October 2017". This solicitation was contained in emails from the applicant to "Josh", "Robbo", "Urano", "Deb" and "Edwina". Copies of these emails were annexed to the applicant's first witness statement. There is no direct evidence before the Commission that any of the recipients of the applicant's emails responded to this approach from him.
4. Also annexed to the applicant's first witness statement was a statement prepared by Urano Angeli, Training Coordinator, on 29 January 2018, for use in a workers compensation claim being pursued at that time by the applicant. In that statement, Mr Angeli makes reference to the change in reporting lines and to lack of consultation. As Mr Angeli was not called as a witness in these proceedings, I attach no weight to this statement.
5. Similarly, in a statement prepared by Howard Copley, Training Officer, on 31 January 2018, for use in the same workers compensation proceedings, a similar complaint about lack of consultation was made. Previously, on 15 November 2017, Mr Copley had forwarded to Ms de Saram an email in which he complained about the "dismemberment of the team" in which he, the applicant and Mr Angeli were part, without explanation from, or discussion with, Mr Gallagher. Again, as Mr Copley was not called as a witness in these proceedings, I attach no weight to his statement or to his email to Ms de Saram.
6. For the reasons outlined at [111]-[119] above, I reject the complaint made on behalf of the applicant as to lack of consultation over the change in reporting lines, which was announced to staff by Mr Gallagher on 13 October 2017.
7. However, the allegation against Mr Gallagher, which is contained in the applicant's letter to him dated 13 November 2017, is one of dishonesty (see [51] above). It is couched in language which is highly offensive but it totally lacks any basis in fact. The relevant notation in the minutes of the staff meeting of 13 October 2017 is "Consulted… PSA" (see [41] above). Mr Murray's email to Mr Player of 7 September 2017 which enclosed the new reporting lines and also contained an offer to have a "meeting or tele-hookup if you or member(s) have any concerns", which is reproduced at [29] above, satisfies me that the meeting minutes were not inaccurate and certainly not dishonest in relation to the notation concerning consultation with the PSA. The applicant's relentless pursuit of Mr Gallagher, by way of this false allegation of dishonesty on his part, had little, if anything, to do with the industrial interests of PSA members, but everything to do with the applicant's personal interest in opposing the change. In this regard, I note that the applicant's initial representations to Mr Gallagher in October 2017, after the applicant had become aware of the change in reporting lines, were all about his own personal situation and his desire to return to Mr Angeli's team. No mention was initially made of the interests of other potentially affected employees (see [37] above). That came later when the applicant did not get his own way in relation to returning to Mr Angeli's team.

5. On the morning of Tuesday, 14 November 2017 you were approached by Mr Bill Murray, Senior Industrial Relations Advisor and personally handed correspondence at your workstation at 16 - 18 Wentworth Street, Parramatta relating to allegations of misconduct as approved by the A/Secretary in a letter dated 23 October 2017. In receiving this correspondence you then ripped up the envelopes and place them in the rubbish bin.
6. The applicant has admitted that he tore up the envelope containing the letters when he was given it by Mr Murray and placed the pieces of paper in his rubbish bin. He has claimed that this did not constitute misconduct on his part.
7. If this act by the applicant does constitute misconduct, it is misconduct at the lower end of the scale of seriousness. On its own, this conduct would not constitute misconduct that would warrant serious disciplinary sanction.
8. However, the conduct of the applicant on this occasion was entirely consistent with his attitude of contemptuous disrespect towards management that is so starkly evident from his behaviour which formed the basis of allegations (2), (3) and (4).
9. Allegations (4) and (5) were set out in a letter dated 7 December 2017 which was emailed to the applicant on 8 December. The following is a narrative of the applicant's responses to receiving that letter, which I have extracted from the written submissions filed on behalf of the respondent (footnotes omitted): 2.87 On 8 December 2017, the Respondent emailed a further letter of allegations to the Applicant (dated 7 December 2017) concerning the Terminal Cancer Letter and his actions in tearing up the correspondence on 14 November 2017. Following delivery of this, the Respondent received further complaints and correspondence from the Applicant, including: a) An email on 11 December from the Applicant to the Secretary claiming the allegations were frivolous and/or vexatious; b) A letter via email on 12 December from the Applicant to the Secretary demanding that the Secretary provide his initial assessment of the allegations; c) A letter via email on 13 December from the Applicant to the Secretary accusing the Secretary of being "an accomplice to intimidation, harassment and bullying activities (after the event)" and that the Secretary was "using the Office of the Secretary to effect this intimidation, harassment and bullying activities (after the event);" d) A complaint by the Applicant against Erica Machon and Mr Murray; e) A complaint to the Anti-Discrimination Board of NSW, which the Applicant hand delivered to Ms de Saram on 15 December 2017; and f) A further letter from the Applicant to the Secretary on 19 December objecting to the Secretary's response to his complaint against Ms Machon and Mr Murray and instructing the Secretary that he could not disclose the contents of the Applicant's letter without the Applicant's permission. 2.88 The Applicant's only response to the further allegation letter of 7 December was received by the Secretary on 21 December 2017. The response did not contain any substantive response to the allegations and merely stated, in the Applicant's opinion, the allegations were not supported by sufficient evidence.
10. These responses by the applicant to serious allegations of misconduct by him are entirely consistent with his attitude of belligerent defiance towards management which had been so manifestly evident in his communications over the previous ten months.

1. Failure to adhere to a formal direction given to you by Dr Peter Whitley, Director Regional Operations, in a letter dated 12 July 2017 and restated in a letter dated 24 August 2017 to complete the Code of Conduct and Prevention of Workplace Bullying e-learning modules by 12 September 2017 (i.e. within two months).
2. There is a modicum of plausibility in the applicant's response to this allegation. Initially he claimed to have simply forgotten about the requirement that he undertake the on-line training and then, after he was reminded about it, he claimed that he was unable to access the training due to system faults.
3. I do not regard this misconduct allegation as having been made out on the evidence.

Conclusion

1. I have given serious consideration to the personal circumstances of the applicant and I readily accept that, given his age and financial situation, the loss of his employment will cause him a great deal of hardship. However, balanced against this consideration is the conclusion which I have reached that the applicant was the architect of his own demise. He was given multiple opportunities to correct his behaviour and chose not to. His misconduct was extremely serious and occurred over a protracted period of time. His belated offer to resign as PSA delegate was too little and far too late.
2. This is not a case where the practicability of reinstatement or reemployment arises for consideration. However, were it otherwise, I would have no hesitation in finding that there was no prospect of re-establishing any form of viable employee/employer relationship between the applicant and the respondent for the reasons given by the respondent's witnesses, which I readily accept (Mr Gallagher at paragraphs 107-110 at [75] above; Dr Whitley at paragraphs 144-145 at [78] above; Mr Collins at paragraphs 92-94 at [82] above; Ms de Saram at paragraphs 90-91 at [83] above; Mr Murray at paragraphs 51-58 at [84] above; Mr Kempson at paragraph 64 at [85] above; and Mr Smith at paragraphs 68-72 at [86] above).
3. I do not find that the dismissal of the applicant was harsh, unjust or unreasonable.

Order

1. The unfair dismissal application of the applicant, Graham Smith, is dismissed. John Murphy Commissioner

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