Zopf v Industrial Relations Secretary on behalf of the Department of Finance, Services and Innovation

Industrial Relations Commission (NSW)|2018-12-19

v Oxford Controls Co Ltd (1979) IRLR 133 Smith v Director General of Education (1993) 51 IR 204 Youssef v Western Sydney Area Health Service [2003] NSWIRComm 284 Category: Principal judgment Parties: Roland Zopf (applicant) Industrial Relations Secretary on behalf of the Department of Family and Community Services (respondent) Representation: Counsel: D Nagle (applicant) M Seck and B Byrnes (respondent)

Solicitors: McNally Jones Staff Lawyers (applicant) File Number(s): 2018/213585

Decision

The matter before the Commission is an application filed on 11 July 2018 by Roland Zopf brought pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("IR Act") ("the Application").

Procedural matters

The matter was conciliated by Commissioner Sloan on 30 July 2018; however the matter did not settle.
The Application, including the jurisdictional question, was heard by me on 18 and 19 December 2018 and 15 February 2019.
At the hearing, the applicant tendered into evidence: 1. two statements made by him: the first made on 8 October 2018 ("Exhibit A1"); and a statement made in reply to the respondent's evidence on 12 November 2018 ("Exhibit A2"); 2. letters from Centrelink to the applicant dated 19 November 2018 and 26 November 2018 and a payment summary from Centrelink ("Exhibit A3"); 3. an email from Ms Vanessa McNamara dated 1 June 2018 containing a recruitment notification for the role of Senior Spatial Technician - Grade 5/6 ("Exhibit A4"); 4. Verto Job Search Record for the period 15 June 2018 to 13 December 2018 ("Exhibit A5"); 5. Business Activity Statement for Bathurst Laser Skirmish for the period July to September 2018 ("Exhibit A6"); 6. Briefing Note for the Secretary, DFSI - "Make finding - allegations of misconduct Mr Roland Zopf, Senior Spatial Technician, Spatial Services, ICT and Digital Government" prepared by Simon Davies and signed and dated by the Secretary 8 May 2018 ("Exhibit A7"); and 7. Briefing Note for the Secretary, DFSI - "Proposed Action in response to Findings of misconduct against Mr Roland Zopf, Senior Spatial Technician, Spatial Services, ICT and Digital Government - Final Decision Required" prepared by Simon Davies and signed by the Secretary, DFSI on 30 May 2018.
The respondent tendered into evidence: 1. statement of Simon Davies made 29 October 2018 ("Exhibit R1"); 2. statement of Brenton Ray made 29 October 2018 ("Exhibit R2"); and 3. statement of Leanne Mills made 29 October 2018 ("Exhibit R3").
The applicant and the respondent's witnesses were cross-examined.
The parties filed written outlines of submissions.
The Commission has carefully weighed and considered all of the written material and oral evidence before it.

Background facts and assertions

The applicant commenced employment with the Central Mapping Authority ("CMA") in Bathurst on 23 February 1987 as a Cartographer.
From 1987 the CMA went through a number of name changes, including the Land Information Department, Land Information Centre, Department of Lands, Department of Information Technology and the Department of Land and Property Information.
The name of the area or team in which the applicant worked at the date of the Termination was referred to as "Spatial Services", a division of DFSI. The applicant worked in the "Environmental Spatial Programs team" of Spatial Services. The manager of the Environmental Spatial Programs team at the time of the Termination was Ms Mills.
There are two smaller teams within the Environmental Spatial Programs team: the Elevation and Water Programs team consisting of 10 people and the Imagery & Smart State Programs team consisting of eight people. At the time of the Termination, the applicant was a member of the Imagery & Smart State Programs team which was supervised by Mr Ray.
The applicant was promoted from Cartographer to Grade 5/6 Senior Spatial Technician in 1996 and worked as a Senior Spatial Technician until the Termination. The role of Senior Spatial Technician involves LIDAR (Light Detection and Ranging) survey, imagery capture and production, and examination of contractors' work.
In 2009 an incident occurred in which the respondent says the applicant threw his keyboard into the monitor of his computer. The applicant says he "reacted" to the slowness of his computer and did not throw the keyboard into the monitor but that he grabbed the monitor and shook it in frustration. The applicant says there was no investigation into this incident at the time.
On 20 April 2009, the Executive Manager, Department of Lands, Mr Warwick Beacroft, sent a memorandum to the applicant (the "20 April 2009 Memo") which stated: I refer to an incident that occurred in the Bathurst Office on 1 April 2009 where you caused damage to departmental property by throwing a computer keyboard into the monitor of the workstation you were operating. In accordance with the Department's Code of Conduct this behaviour is not acceptable. Your actions not only damaged public property but also caused those staff working in close proximity to be fearful for their own wellbeing. I have been informed that you may have been suffering a medical condition when the incident occurred and that the Department has now been advised that you are medically cleared to return to full duties. Accordingly, you are duly warned of the need to observe the Department's Code of Conduct at all times and that any further incidents may result in disciplinary action being taken. I have attached a copy of the Department's Code of Conduct for your information and understanding.
The applicant says that the 20 April 2009 Memo "unfairly misdescribed" the incident; and he was "not asked to respond to" the allegations and other matters in the 20 April 2009 Memo in 2009 or at the time of the Termination. Further, the applicant says that the 20 April 2009 Memo was placed on his desk while he was on leave and when he returned to work and saw it he did not know that he could do anything about it. The respondent relies on the 20 April 2009 Memo as a business record and Mr Ray and Mr Davies refer in their evidence to the incident which led to the issuing of the 20 April 2009 Memo. The respondent did not lead any direct evidence to establish the facts which the respondent asserts led to the issuing of the 20 April 2009 Memo.
The applicant complained for many years about the management and supervision of the teams in which he worked, including about Mr Ray and the type of work the applicant was required to undertake and the quality of the work performed by the contractors that he was required to review.
The applicant submitted his myPerformance Annual Review 2016/17 to Mr Ray on 23 June 2017 ("the 2017 Performance Review"). The applicant says that this was the first annual performance review he "had had in 31 years". The applicant's comments in the 2017 Performance Review included the response: "yep" under a number of headings; and in reply to the question "What do you think of your development?": "Load of crap".
On 25 July 2017 Mr Ray sent an email to the Elevation/SME team including the applicant informing the team of the KPIs he had set for the LIDAR category 1, LIDAR category 2, and photogrammetry category 3. The KPI for LIDAR category 2 "fix on the fly (LP360)" was 80 tiles per day. This KPI was to apply to the applicant.
Mr Ray says that all staff working on the category 2 LIDAR tiles were able to meet the KPIs except for the applicant.
On 17 August 2017, the applicant received an email from Mr Ray asking the applicant to meet Mr Ray for a "catch up" after lunch. Ms Mills was also a recipient of this email. The applicant replied to Mr Ray and Ms Mills asking: "What are we catching up?" and the applicant says Mr Ray replied "You will find out when you get there." However, the email from Mr Ray said "Just for a continuation of our discussion in the sprint meeting the other day. We want to work out what we can do to achieve the KPI for LIDAR Q/A". The applicant says he was not given an agenda for the meeting.
During the meeting which took place later on 17 August 2017 ("the 17 August 2017 Meeting"), there was an incident involving the applicant, Mr Ray and Ms Mills. The accounts of the applicant, Mr Ray and Ms Mills about the incident differ and these differences are considered below. The parties all agree however, that the applicant lost his temper at the meeting.
Following the meeting, Mr Bruce Thompson, Executive Director, Spatial Service, asked the applicant to go home and to return to work on the following Monday.
When the applicant returned to work on Monday 21 August 2017 he sent emails to Mr Ray and Ms Mills in similar form, stating: Sorry for the outburst on Thursday. It was not called for. It was not directed at you but at frustrations with work practices, production issues, training, exclusion from the group over the past 5 years. Unfortunately you were just sitting in the chair position at the peak of my frustration. With nowhere to turn with concerns I had just blew up. I hope I did not offend you, sorry again if I did. I hope you can accept my apology and that we can move on and improve our group's advancement. I will be happy to have a meeting later on when you are ready for any issues or to carry on.
Between 21 August 2017 and 14 September 2017 the applicant attended work.
The applicant says that on 30 August 2017 he and Mr Ray worked to complete the applicant's 2017/18 Performance Plan and the applicant submitted the 2017/18 Performance Plan on 31 August 2017.
During a meeting on 31 August 2017 between Steve Longhurst from DFSI Human Resources, the applicant, and Mr Ray the applicant was placed on a Performance Improvement Plan ("the PIP"). Mr Ray says that he was visibly nervous and apprehensive at this meeting.
On or about 31 August 2017 the applicant received a letter from Mr Thompson titled "Disciplinary inquiries of an allegation of misconduct" ("the Allegations Letter") which set out the following two allegations against the applicant: 1. Unprofessional and aggressive behaviour in the workplace On 17th August 2017 you verbally rebuked your team leader and manager in [a] meeting, and displayed physical acts of aggression towards the leaders. 2. Unauthorised modification of systems On 17th August 2017 approximately 50 tiles were completed inappropriately directly after the meeting of allegation one, that resulted in the leaders requiring the systems to be regressed to address the issue. (collectively "the Allegations").
The Allegations Letter also set out, amongst other things, the investigation process and possible outcomes of the investigation.
Mr Ray received an email from the applicant on 4 September 2017 which was Annexure BR-17 to Mr Ray's statement. The subject line of the email was "Troubles" and amongst other things the email said: From the meeting, you wanted to know what may be troubling me. … My Emma has left me and decided I can't see my Baby boy. Issues are trying to be resolved, but all seems to be going nowhere. I am trying to put on a brave face, but it is hard to hold things together. She has never forgive me that I was not at our ultrasound session where she really needed me, and a as I was at the compulsory My Performance/My Career session. My commitment at work has destroyed my family. That's why I don't want to look or talk about this MyPerformance thing as it hurts to even think about it. Think yourself lucky you can go home and see your kids every day. And that with other issues happening over the past 12 months, I think I'm lucky not to walk in front of the bus …
On 14 September 2017 the applicant was placed on special leave pending the outcome of the investigation into the Allegations.
On 27 September 2017, the applicant was referred for an independent medical assessment with Sonic Healthplus to establish: his capacity to carry out the inherent requirements of his position as a Senior Spatial Technician; and his fitness to participate in a misconduct investigation.
On 15 December 2017, the applicant was seen by Dr Peter Cook, Occupational and Environmental Physician and Dr Samuel Lim, Consultant Psychiatrist. Both medical practitioners found the applicant to be fit to perform the inherent requirements of his position and to participate in an investigation.
Dr Lim stated in his report: I do not feel that Mr Zopf presents with a diagnosable psychiatric condition. Over the period of time where the events were taking place, it does appear that Mr Zopf was experiencing additional stressors in his personal life. This included not only the arrival of his first and only child but that this was associated with the dissolution of his relationship with his child's mother. … From Mr Zopf's account, much of these stressors have been resolved, I do not feel there is any psychiatric reason why he would not be able to perform the inherent requirements of the role or to participate in a misconduct investigation.
On 12 April 2018 the applicant provided an 11 page written response to the Allegations Letter ("the Applicant's April Response"). The Applicant's April Response included: 1. what the applicant referred to as "context and background including that he found the process "distressing" "a form of bullying" and "an act of intimidation" and the following statements: The Monday after "the meeting", after being told by the director not to turn up on Friday, I apologised to Brenton and Leanne in which they accepted and we all carried on with work as normal for the next three weeks. Surprisingly, the director was not happy with this, and wanted an enquiry. He held staff meetings all around the building stating this is the worst thing that's happened in DFSI and inquiry will be held. It appears that 98% of staff did not know of anything. And I had no idea what was so bad. All I did was to tell Brenton and Leanne to shut up and stop interrupting every time I answered their questions. The directors' actions were very disrespectful and of intimidation, stating to the staff that what happened was so bad that not even the union will want to get involved. He said that he felt that staff were not taking this seriously enough and the investigation will go ahead. Then after three weeks from the meeting, Thursday 31.08.17, Brenton and I had a My Performance Meeting where we discussed that more open communication is agreed. Following that meeting was a HR meeting with the Allegations. Friday was a flex. And Monday back at work, I sent some emails to Brenton (as he was away) regarding what we discussed the previous Thursday meeting. The next day, the director comes visits me and wants me to leave the building. Very strange. And he states that it is "Fair for All". So much for open communication. I find out three months later information from these emails were used to discredit me for my medical exam. Very strange indeed. 1. a long response to Allegation 1: "Unprofessional and aggressive behaviour in the workplace" in which the applicant asserted amongst other things: 1. he had asked Mr Ray and Ms Mills what the meeting was about and whether it was to discuss KPIs and he was told "you will find out when you get there"; 2. the LIDAR work had split into two groups, one group doing the capturing, and the rest doing the processing and examination of contractors' work, and the work allocation was uneven; 3. there were "questionable" decisions about selection of supervisors and other recruitment and work allocation; 4. the applicant had received a poor review from Mr Ray with which he disagreed. As a consequence the applicant asked if he could have a change in work as he had "been staring at these LIDAR dots for eight years". Mr Ray told the applicant that he wanted the applicant to continue doing the same work and to improve his performance before he would do other training or imagery work. The applicant considered this to be "some childish threat". Mr Ray said he would set out some KPIs so he could track the applicant's performance and later gave the applicant a new LIDAR job with the KPI figures he had worked out and the applicant says he said "okay I'll give it a go"; 5. the Imagery, Elevations, and SME teams were restructured into one group. As a consequence the applicant was asked to sit near the kitchenette which he found unbearable and he sought to move. A temporary fix was arranged; 6. the applicant had "no idea where [Mr Ray] got the [KPI] figures from"; 7. Mr Ray repeatedly told the applicant he was not meeting his KPIs. Mr Ray wanted 80 tiles completed every day. The applicant said he was lucky to complete 15 tiles some days due to the poor work of the contractors but Mr Ray did not listen to, or respond appropriately to these complaints from the applicant; 8. earlier on the day of the 17 August 2017 Meeting the applicant had a "stressful session" with his ex-partner while he had a "rare chance" to see his son; 9. on 31 August 2017 there were two meetings: a "My Performance" review meeting; and an HR meeting at which the applicant received the "investigation allegation inquiry". The applicant was confused by the Allegations, in particular what were the physical acts of aggression. He had no problem with the assertion that he had "rebuk[ed] [his] team leader"; 10. in November the applicant received from HR a letter to attend a medical examination which included "some awful, disrespectful made up statements from the director, such as [he has] a gun and want[s] to walk in front of a bus as well is having trouble remembering acronyms"; 1. the following statements with respect to Allegation 1 which provide the applicant's views about the conduct of the parties at the meeting: All the while we were talking they kept interrupting. With the frustration of being interrupted every time I talked, I ended up saying "shut the fuck up" and "shut up" again. I had to say this. It was the only way to stop these two interrupting my response to the questions. Every time I answered their questions they would interrupt and disagree to my answers. I could not even complete my answers to their questions I was interrupted that many times. They even "made up" answers for me stating the complete opposite to what I was saying. This was not a Managers meeting due to their behaviour. It had to stop! I could not get a word in, and just like the previous meeting with Brention (sic) where I could not get a word in. And just like the previous meeting where Brenton agreed to himself, this meeting was following the same pattern. I first tried to politely say "no" and "stop interrupting" but they would not stop. It was like two kids in a schoolyard bullying and trying to make someone else do something. I have never seen anything like this in the 31 years I have worked here. Eventually, the only way to stop them in their tracks was to say "Shut the Fuck up" And to my surprise, they didn't even stop …. They still kept hounding. Again, I had to say "Shut Up" "Stop it" "Stop it" I had to point my finger at them …. They still tried to talk… I pointed and said "Uhhh" "Stop it" This happened several times till they calm down and stopped. With all their interruptions, I may as well not have been at the meeting. I wanted to leave the meeting at this point. I was uncomfortable, intimidated, threatened, stressed by the way they conducted the meeting. So I got up out of my chair and proceeded to walk out of the room. Leanne said something about the end of the meeting. I turned around and sat down. I said Yes this is the end of the meeting. What's the point of a meeting when you don't want to listen to the answers? Bit like you don't want your staff to be involved in the group like in the past we would be trained up and working many tasks, now you don't want people in the group having the skills needed to do the tasks. Yes, this is the end of the meeting. I got up again and left the room. 1. later in the April Response in reply to Ms Mills' response but still in response to Allegation 1: I was not aggressive. I had to be assertive and pointed my finger to stop them interrupting my replies to the questions and accusations. I did not throw up piece of paper at Brenton's face. I tossed the open flat piece of paper back down on the table where it floated, skimmed and settled. I did not crumple the paper, but in review notice that it had handling/crumple/fold marks already on it. …. I did NOT say "Fuck off" at the time that I say "Fuck Off" is totally imaginative. I did say "Shut the Fuck Up" but that within context was last resort to stop them talking and interrupting me every time for their questions. Why a question when you don't want to hear the answer? I did not pace around the room, or stand over anyone, as Leanne said. I sat down at the meeting, talked and yes got agitated at Brenton's false accusation and secretive KPIs. I stood up and proceeded to stride out of the room… I did not yell at them, I have a natural loud voice. Many times I am asked to speak quite due to my natural loud voice…. I have not had violent episodes as Leanne claims, I have no idea what she is on about… Told them that I did not agree to Brenton's targets… There was no violence, aggression or hostility at the meeting. I had to be assertive and blunt, straight to the point. They just didn't like it. They the two were not holding the meeting correctly and were making false accusations. It had to stop. 1. a short response to Allegation 2: "Unauthorised modification of systems" denying any responsibility for the glitch and saying that there was nothing inappropriate about the matter and no data was lost.
On 8 May 2018 the applicant was informed by a letter from the Secretary, DFSI ("the Findings Letter") that one of the Allegations (Allegation 1) had been substantiated; "there was not sufficient evidence to substantiate Allegation 2"; and a finding of misconduct was made. The Secretary, DFSI informed the applicant " ... in relation to the finding of misconduct the action I propose to take is to terminate your employment (after being given an opportunity to resign)...".
On 24 May 2018 the applicant met with the Secretary, DFSI and provided him with a written submission in response to the Findings Letter ("the 24 May 2018 Submission"). The 24 May 2018 Submission: 1. contained a statement that the applicant was "deeply apologetic and regretful for the behaviours which [he] displayed in August 2017 towards [his] managers Brenton Ray and Leanne Mills"; 2. accepted that the Secretary, DFSI had deemed the applicant's actions in breach of the Code of Conduct; 3. reiterated complaints the applicant had previously made about management in the workplace and the KPIs set by Mr Ray; 4. contained a statement in the following terms: I myself have been a victim of these actions, being excluded from work tasks as being told I am too old, told I don't need to know, and they don't want me to know, and don't want me doing work tasks. There is an attitude from junior staff, including junior managers that older staff are too old to learn anything. I ask how to operate a task, and the response from the managers is, "that's just basic Arc everyone knows that", and "what do you want me to do, hold your hand?" Or even just look at me and roll their eyes. I have had the managers playing bongos on my baldhead in front of everyone, they thinking it's funny. My name is Roland, not Rollie, as they call me like a child. In the two years Leanne has been the temporary manager for Environmental, she has never talked to me about work. 1. asserted that the applicant was working well with his managers "resolving issues and moving forward with a positive attitude"; and 2. asked the Secretary, DFSI to consider downgrading the proposed action of termination to a lesser penalty such as the imposition of a fine, relocation to another unit and/or to attend positive workplace workshops.
On 25 May 2018 the Secretary, DFSI sent an email to Mr Davies stating, amongst other things: It is a difficult case and required careful consideration. Mr Zopf stated both in his written submissions and in person that the event was out of character, that he regretted it, and had apologised. I don't doubt his sincerity in making these statements. I was concerned in our discussion that I did not get a clear commitment that he wanted to work as a member of the team, and that he would in future respect the management roles of Leeanne (sic) and Brenton. Almost to the contrary, he spoke of the need to have HR provide an independent umpire he could take his complaints to, and who could decide between him and his manager. It was an approach that seemed to pre-suppose ongoing disagreement, if not conflict. I spoke earlier on Thursday 24 May with both Leanne and Brenton separately by phone. Both expressed to me significant concern, anxiety and even fear about future interactions with Mr Zopf. Brenton told me if he was working late, then before it got dark he would move his car closer to the building exit so that when he left he would not have to walk in the dark wondering if Mr Zopf was waiting for him. He also mentioned he avoided social events in Lithgow, where he lives, at which he thought Mr Zopf might be present. Leanne similarly mentioned that she would be anxious if Mr Zopf return to work, and also worried sometimes about running into him at Woolworths or the markets on the weekend. … The duty of care to other staff at that these comments raise is an important consideration in my decision. I advised Brenton that he should not hesitate to contact the police if he felt an actual threat.
On 31 May 2018, Mr Hoffman wrote to the applicant by letter titled "Final Decision - Finding of Misconduct" ("the 31 May 2018 Letter"). The 31 May 2018 Letter stated amongst other things: I refer to my meeting with you on 24 May 2018 … arranged at your request to give you with an opportunity to discuss my findings of misconduct (Findings), the action I proposed to terminate your employment as a result of the Findings (Proposed Action), (as set out in a letter to you dated 8 May 2018) … . … Whilst I acknowledge your apology … I need to balance this remorse with the safety and well-being of the other staff… I have a reasonable basis to conclude on the evidence before me, that there have been previously documented instances where you have been warned that your conduct was inappropriate and involved aggressive behaviour. Whilst in this instance the projectile was paper I cannot be certain, on a balance of probabilities, that if issues of conflict arise in future meetings, that there will not be a risk to the health and safety of fellow workers arising from your conduct. Notwithstanding, the Department must maintain a zero tolerance on any form of assault and action involving throwing an item at another employee that creates a risk to their health and safety. … I am also concerned that your view about the need for an independent umpire does not reflect a genuine acceptance of the serious nature of the matter or the ability to work as part of a team respecting the legitimate role of the manager. … … I have no alternative but to confirm the Proposed Action. My final decision as a result of the Finding is to terminate your employment (after being given an opportunity to resign) pursuant to s 69(4) of the Government Sector Employment Act 2013 (Act) as a consequence of the Finding. As a result of my final decision, given I have afforded you with an opportunity to resign, I am providing you with seven days (ie by no later than 8 June 2018) from receipt of this letter to, if you choose, submit your resignation to me via Simon Davies …. Your resignation will become effective the date that it is received and your last day of service will be recorded as 12 June 2018. I understand that this is not the outcome you were hoping for and understand that this will be a personally difficult and challenging time. …. … I wish you well in your future endeavours.
On 6 June 2018, the applicant sent a letter to Mr Hoffman resigning his employment with DFSI effective 12 June 2018 ("the Resignation Letter"). The Resignation Letter stated: It is with great reluctance and disappointment that I announce my resignation after 31 and a half years of dedicated service to the department with a wealth of experience in Topographic, Cadastral, Special Products, Imagery, and Lidar mapping services. It is unfortunate that the department has become an unsafe place for staff to work safely in, with the bullying, harassment, intimidation, exclusion, and sexual harassment issues. It is also unfortunate that staff here do not have the support to report or solve these issues. Although there is a window dressing campaign addressing these issues, in reality it is not the case on the floor. With disappointment I shall resign and try to find work with another organisation and continue my dedication in the mapping field. It is intended that my last day of service to be Tuesday, 12th June 2018.

Was there a 'dismissal' for the purposes of s 84 of the IR Act?

The jurisdictional prerequisite for the Commission to entertain an application under s 84 of the IR Act is that an employee has been "dismissed": sub-section 84(1) of the IR Act.
The IR Act does not contain a definition of the term "dismissed". However, sub-s 83(5) of the IR Act provides that a "dismissal" includes: (a) the threat of dismissal, and (b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.
At common law a "dismissal" occurs when an employee is "sent away or removed" from employment by the employer without the employee's consent: Smith v Director General of Education (1993) 51 IR 204 at 219.

The respondent's submissions that there has been no dismissal

The respondent says that the Secretary, DFSI "did not send away or remove the applicant". Rather, the respondent says that the applicant provided a written resignation by email, which was accepted by the Secretary, DFSI. The respondent says this occurred pursuant to, and under the authority of, sub-s 69(4) of the GSE Act.
The respondent concedes that in some circumstances, a resignation by an employee may constitute a dismissal where the employee is forced to resign: see Allison v Bega Valley Council (1995) 63·IR 68 ("Allison") at 72. However, the respondent refers to the Full Bench's comments in Allison at 72 that in some situations where an employer has made a threat of dismissal there will not be a finding of constructive dismissal: For example, an employer may demand a resignation with a threat of dismissal, negotiations may ensue, and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.
The respondent says further, that in Allison, and other cases involving constructive dismissal, the choice of resignation or dismissal is not mandated under legislation; whereas the position under the GSE Act is different.
Employment and discipline in the Public Service is regulated by the GSE Act and the respondent says the actions taken by the Secretary, DFSI in this case accord with the procedure outlined in the GSE Act and the Government Sector Employment (General) Rules 2014 (NSW) ("GSE Rules") and need to be seen in that context. The GSE Act and the IR Act share a field of operation in that the GSE Act authorises disciplinary action, including termination, and the IR Act provides the Commission with jurisdiction to determine claims of "unfair dismissal".
Where the person exercising the employer functions, in this case the Secretary, DFSI, has formed the view that an employee has engaged in misconduct they may remove or discipline an employee pursuant to sub-s 69(4) of the GSE Act which provides a comprehensive catalogue of disciplinary actions, with the most severe penalty "terminate (without an opportunity to resign)" as the first option; and the least severe penalty "caution or reprimand" as the last option.
Sub-section 69(4)(b) of the GSE Act expressly provides for a person exercising employment functions to give an employee an opportunity to resign before taking the action of termination. The respondent says that as a matter of construction, resignation in these circumstances is distinct from the action of "terminating the employment of the employee" as the termination by the person exercising employment functions can only occur after the opportunity to resign has been afforded. The respondent says that relevantly, the Secretary, DFSI did not proceed to terminate the applicant's employment. The Secretary simply accepted the applicant's resignation.
In relation to understanding whether or not a resignation, which is explicitly authorised to be given as an alternative to termination under sub-s 69(4)(b) of the GSE Act, can be a "dismissal" for the purposes of s 84 of the IR Act, the respondent refers to the High Court's consideration of the issue of implied repeal and the interaction between s 84 of IR Act and the Police Act 1990 (NSW) ("the Police Act"), in Commissioner of Police v Eaton (2013) 252 CLR 1 ("Eaton") and the interaction between the Police Act 1998 (SA) and the Industrial and Employee Relations Act 1994 (SA) in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 ("Ferdinands").
The respondent accepts that a court or tribunal can always strive to give effect to a presumed intention that the legislation should be read together and not in conflict. The respondent also accepts that s 85 of the GSE Act has similarities to s 218 of the Police Act, which governs the relationship between it and the IR Act. However, the respondent says that where the IR Act and the scheme of the GSE Act cannot be read harmoniously, then the rule of implied repeal may apply, with the GSE Act being the Act later in time.
The term "resign" is not defined in the GSE Act and thus has its ordinary legal meaning. The respondent says that by contrasting the two actions of "termination by the employer" and "resignation by the employee" within sub-s 69(4)(b) of the GSE Act, the legislature was intending to refer to these terms' ordinary meanings with their ordinary legal consequences.
The respondent says that because the word "resign" in sub-s 69(4)(b) of the GSE Act bears its ordinary meaning this has a bearing on the correct interpretation of the meaning of the word "dismissal" in an harmonious reading of s 84 of the IR Act.
The respondent submits that a person resigns from employment when he or she advises the employer that they will no longer work in that employment from a particular date: Bigg v SAS Trustee Corporation [2016] NSWCA 236, [34]. At law, a resignation means that an employee has left employment voluntarily and thereby initiated the dismissal. A resignation is the opposite of dismissal because the employer is the party who initiates the termination in a dismissal. The respondent submits further, that a resignation, which is given its ordinary meaning, pursuant to sub-s 69(4)(b) of the GSE Act, cannot be anything more than a resignation; cannot be a termination at the initiative of the employer; and consequently cannot be a "dismissal" for the purposes of s 84 of the IR Act. I note parenthetically that the respondent's submissions did not deal with construction of sub-s 83(5)(b) in particular, "dispensing with the services of" a Public Sector employee.
In support of his construction, the respondent points to the predecessor to sub-s 69(4) of the GSE Act, sub-s 42(1) of the Public Sector Employment and Management Act 2002 (NSW) (the "PSEM Act"), which referred to the taking of "disciplinary action" which was defined to mean: a. dismissal from the Public Service, b. directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time, c. if the officer is on probation - annulment of the officer's appointment, d. except in the case of a senior executive officer- reduction of the officer's salary or demotion to a lower position in the Public Service, e. the imposition of a fine, f. a caution or reprimand.
The respondent submits that the PSEM Act similarly drew a distinction between "dismissal" and "allowing" someone to resign but that the PSEM Act also provided for the agency head to take disciplinary action "directing the officer to resign". The respondent says if the agency were to direct the employee to resign then this would be a termination at the initiative of the employer and would be a dismissal for the purposes of s 84 of the IR Act. The legislature has removed this language from the GSE Act and retained the "opportunity to resign" which the respondent submits is not a "dismissal".
The respondent referred to a decision of Chief Commissioner Kite, Fidawy v The Sydney Opera House Trust [2017] NSWIRComm 1077 ("Fidawy"), in which the Chief Commissioner considered whether decisions authorised by sub-ss 69(4)(e) and 69(4)(f) were actions constituting dismissal or threat of dismissal, in support of his argument that the statutory scheme of the GSE Act requires the Commission to treat the terms "dismissal" differently from terminations of employment not effected pursuant to the GSE Act.
The respondent's written submissions expand on the effect of a resignation in support of his preferred construction: Where an employee is offered the opportunity to resign and accepts it, the person exercising employment functions does not take the action of 'terminating' the employment. The legal characterisation of the action is a 'resignation' and this is recorded on the employee's employment separation certificate. This is not a mere 'label' but carries with it all the ordinary legal consequences of a 'resignation'. In using the word "resign" in s 69(4) of the GSE Act, there is nothing to suggest that Parliament did not intend it to have its ordinary meaning and legal effect. By taking advantage of the opportunity to resign, the employee obtains the benefit of maintaining their reputation internally and externally and this is a useful asset when seeking new employment in the marketplace. It distinguishes this disciplinary action from termination (without opportunity to resign) under s 89(4)(a) of the IR Act [I believe this should be sub-s 69(4)(a) of the GSE Act]. Further, having obtained the benefits associated with the legal characterisation of the end of their employment being a 'resignation' it is not consistent with the statutory scheme for an employee to then also claim that they were dismissed. When the respondent gave the applicant an opportunity to resign it was acting consistently with the statutory scheme set up by s 69(4) of the GSE Act. The evidence shows that Mr Davies spent a considerable amount of time discussing the benefits associated with resigning rather than the Secretary terminating the applicant's employment prior to him making the decision to resign. Against this statutory context, the applicant's resignation more squarely falls within the category of cases where the resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Accordingly, the applicant's resignation made pursuant to s 89(4)(b) of the GSE Act and validly accepted by the Secretary of the Department is not a 'dismissal' for the purposes of s 84 of the IR Act. (footnotes omitted)
In addition to the primary submission on construction, an alternate submission is apparent in the above extract, that the content of the Resignation Letter and the evidence of Mr Davies disclose that the resignation was "given freely and without any undue influence being brought to bear by the employer" (Allison at 72 and, regardless of the construction of sub-s 69(4)9b), the Termination is not a constructive dismissal because the facts do not bear this out.
In oral submissions, consistent with this alternate submission, Counsel for the respondent conceded there may be an "intermediate point" where someone resigns pursuant to sub-s 69(4)(b) of the GSE Act, but was coerced or compelled to resign and that these circumstances may be a "dismissal" for the purposes of s 84 of the IR Act. The respondent says that the applicant's circumstances do not amount to such a case.
The respondent says that the applicant was aware of the proposed action of termination with the option of resignation as early as 8 April 2018. The applicant then spoke with two Human Resources officers at DFSI, firstly with an officer who was replacing Mr Davies on 4 April 2018, and, then subsequently he had a discussion with Mr Davies on 15 May 2018.
The respondent says that the applicant had more than one month to consider the option of resignation and to contemplate whether or not he wanted his employment to be terminated or whether he wanted to resign with the benefit of advice from the Public Service Association on the issue. Consequently, the Commission should determine that the applicant was not coerced or undue pressure was brought upon him to resign from his employment and should find that the applicant was given the opportunity to resign and that DFSI was at pains to try to make sure that the applicant understood that option and the consequences of that option.
Accordingly, the respondent says that there has been no forced resignation as the employee has willingly ended the employment relationship and there is no "dismissal" to enliven the Commission's jurisdiction.

Applicant's submissions that there was a "dismissal" for purposes of s 84 of the IR Act

The applicant points to the 31 May 2018 Letter in which Mr Hoffman said: I have determined that the misconduct is of a very serious nature and in breach of the DFSI Code of Ethics and Conduct (Code) as well as your obligations as an employee under the Work Health and Safety Act 2011. … Regrettably therefore, I have no alternative but to confirm the Proposed Action. My final decision as a result of the Finding is to terminate your employment (after being given an opportunity to resign) pursuant to s69(4) of the Government Sector Employment Act 2013 (Act) as a consequence of the Finding.
The applicant says that the 31 May 2018 Letter makes very clear that the applicant no longer had a position available in the Environmental Spatial Program as a result of a determination made by Mr Hoffman.
The applicant says that it is abundantly clear that as of the 31 May 2018 DFSI provided an ultimatum to the applicant, that ultimatum being that he either resign or be terminated, but, either way as at the 31 May 2018 the respondent had determined that the applicant's employment was "deceased". The applicant agrees that Mr Davies explained "what the difference between the opportunity to resign and dismissal would be" but says this is the "classic constructive dismissal".
The applicant says that Eaton and Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 ("Ferdinands") dealt with different legislative schemes and that the GSE Act does not establish remedies for employees in the way that the Police Act does and therefore it is not helpful to use Eaton to assist with construction of the GSE Act.
The applicant says that the respondent cannot succeed for two reasons. First, even if the harmonious reading proposition is accepted, the terms of s 84 of the IR Act are clear that dismissal includes "threatened dismissal". Secondly, the letter of the 31 May 2018 Letter made no provision for any negotiation nor for differing resolutions which would ultimately affect the applicant's employment status; the 31 May 2018 Letter made it plain that the applicant's employment with DFSI was going to end on 12 June 2018. Accordingly, in the circumstances, the jurisdictional objection taken by the respondent should be dismissed.

Consideration and conclusion as to whether there was "dismissal" for purposes of s 84 of the IR Act

If the respondent's submissions on the construction of s 84 of the IR Act and sub-s 69(4)(b) of the GSE Act are correct then when an employee takes up an opportunity to resign offered pursuant to sub-s 69(4)(b) of the GSE Act, then, regardless of the actual circumstances that gave rise to, or were a consequence of, the decision as to the disciplinary action, and the long recognised principle of constructive dismissal and the authorities on the meaning of "dismissal" in s 84 of the IR Act such as Allison, the relevant termination of employment would be excluded from review pursuant to s 84 of the IR Act. It is necessary to determine if the Parliament intended this.
A number of well-known principles exist to assist the Commission to determine whether the Parliament intended that sub-s 69(4)(b) of the GSE Act impliedly repeal Pt 6 of Ch. 2 of the IR Act to the extent that a dismissal for the purposes of s 84 cannot include a matter whereby an employee accepts an offer to resign made pursuant to s 69(4)(b) of the GSE Act.
Firstly, the GSE Act and the IR Act must be construed in a way that best achieves an harmonious result: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ("Project Blue Sky") at 381 - 382 [70]. The task of the Commission when dealing with the application of two related statutes is to ascertain the legislative intention extracted from all available indications: Eaton at [45]. Deciding whether and how the two statutes can "stand or live together" in the relevant respect "requires the construction of, and close attention to, the particular provisions in question": Ferdinands at [18].
An Act must be construed as a whole. As the High Court put it in Project Blue Sky (at [68]): "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed".
The Commission should not construe the meaning of a specific provision in an Act without considering the sections which surround it, and the structure and meaning of the Act as a whole. It is also not correct to construe the interaction of sub-s 69(4)(b) of the GSE Act and s 84 IR Act without taking into consideration the context of each. Further, just as an Act should be read as a whole, each provision of an Act should be read as a whole and it is presumed that every word in a provision has work to do, so that each word should be given effect as far as possible: Plaintiff M702011 v Minister of Immigration and Citizenship (2011) 244 CLR 144 at [97].
The Commission should also, where possible, interpret provisions of statutes in the way that best promotes the express or implied objects of the Acts, avoids internal inconsistency, and avoids absurdity or inconvenience.
The High Court in Eaton found that the objects of the Police Act include the maintenance of the integrity and discipline of the New South Wales Police Force (at [43]). The objects of the GSE Act are set out at s 4 and include the establishment of the Public Service as the general service within the government sector and the establishment of an ethical framework for the government sector comprising core values and principles.
There are similarities in the objects of the GSE Act and the Police Act. However, the statutory scheme under the Police Act considered in Eaton is different from the statutory scheme under the GSE Act. The GSE Act, the Government Sector Employment Regulation 2014, and the GSE Rules regulate aspects of the employment of the Public Service, and to some extent, other government sector employees. The remedies available to Public Service employees in respect of unfair dismissal and public sector discipline matters are found in the IR Act, not in the GSE Act. The Police Act, in addition to regulating the appointment and terms of police officers, contains a scheme for review of disciplinary orders (s 174 of the Police Act) and removal orders (s 181D of the Police Act). The provisions of this scheme, and the inconsistencies between it, in particular the Commissioner's powers to appoint and remove officers and the provisions of Pt 9, compared with the provisions of Pt 6 of Ch. 2 of the IR Act, informed the High Court's finding of an implied repeal in Eaton. Similarly in Ferdinands, the High Court found an indication of legislative intention was present in the extent to which the Police Act 1998 (SA) dealt with the topic of dismissal. That Act dealt exhaustively with the dismissal of police officers and therefore impliedly repealed the earlier Industrial and Employee Relations Act 1994 (SA).
Looking at the GSE Act as a whole, the legislature determined that certain industrial and legal proceedings should be excluded for executive and non-executive employees employed pursuant to the GSE Act. Section 58 of the GSE Act relevantly provides: 58 Industrial or legal proceedings excluded (1) In this section, executive employee means the Secretary of a Department or other Public Service senior executive, and non-executive employee means a Public Service employee other than an executive employee. (2) In this section, a reference to the employment of an executive employee is a reference to: (a) the engagement of, or failure to engage, a person as an executive employee, or (b) the assignment or re-assignment of the executive employee to a role in a band, or (c) the removal, retirement, termination of employment or other cessation of employment of an executive employee, or (d) any disciplinary proceedings or action taken against an executive employee, or (e) the remuneration or other conditions of employment of an executive employee. (3) The employment of an executive employee, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (4) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of an executive employee. (5) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of executive employees. This subsection does not prevent the regulations or other statutory instruments or any contract of employment from applying the provisions of any such industrial instrument to the employment of an executive employee. (6) The engagement of, or the failure to engage, a person as a non-executive employee, or any matter, question or dispute relating to any such engagement (or failure to engage), is not an industrial matter for the purposes of the Industrial Relations Act 1996. (7) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. (8) Nothing in this section prevents any of the following proceedings from being brought by an employee of a Public Service agency in relation to the employment of another employee of any Public Service agency: (a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part, (b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act.
The legislature has excluded the circumstances of some terminations of employment of Public Service employees from review by the Commission pursuant to s 84 of the IR Act. Sub-section 58(4) excludes executive employees from the operation of Pt 6 of Chap 2 of the IR Act, which includes s 84 of the IR Act.
The legislature was clear in s 79 that Pt 6 of Ch. 2 of the IR Act would not apply to the removal of Statutory Officers as follows: 79 Operation of this Part (1) This Part prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a person. (2) Parts 6 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the removal of a person from office under this Part. (3) This Part applies to a person appointed to a statutory office even though the Act concerned excludes the application of this Act, unless it expressly excludes the application of this Part. (4) This Part applies to persons holding office at the commencement of this Part, as well as to persons appointed to an office afterwards.
Further, the legislature determined that the GSE Act was not to effect the operation of the IR Act, save for ss 58 and 74. Sub-section 85(1) of the GSE Act is in the following terms: 85 Operation of industrial relations and superannuation legislation (1) This Act does not affect the operation of the Industrial Relations Act 1996. This subsection does not limit section 58 (Industrial or legal proceedings excluded) and section 74 (Excess employees - jurisdiction of Industrial Relations Commission).
The High Court has often observed that the search for legislative meaning begins with the statute, and ends with the statute (FCT v Consolidated Media Holdings Ltd (2012) 87 ALJR 98, at [39], per curiam citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]).
In this instance, the legislative intention as to the effect of the GSE Act on the operation of the IR Act is set out in s 85 of the GSE Act; the effect being that other than as set out in s 58 and s 74 of the GSE Act, the operation of the IR Act is not affected. The respondent has not pointed to anything in the GSE Act, like the scheme set out in Pt 9 of the Police Act which limits Pt 6 of the IR Act (Eaton at [90]), which would require the Commission to read s 85 of the GSE Act in any other way than a plain reading.
I do not consider that there is any relevant inconsistency between the GSE Act and the IR Act which creates an implied repeal of, or limits the operation of, s 84 of IR Act and the common law in respect of constructive dismissals brought pursuant to the IR Act.
I turn now to the respondent's submissions that the Chief Commissioner's "recognition of the statutory framework", including sub-s 69(4) of the GSE Act and s 84 of the IR Act in his decision of Fidawy supports the respondent's construction of the relevant sections of the GSE Act and IR Act. In Fidawy, the Chief Commissioner said: 21 In my view application of that authority [Clarke v Pittwater RSL Club Limited (1998) 84 IR 309] in this case demands recognition of the statutory framework relating to this employment. In particular the clear distinction drawn between termination of employment and reduction in grade.
The Chief Commissioner then went on to compare Pt 7 of Ch 2 of the IR Act which provides for public sector disciplinary appeals and Pt 6 of Ch 2 which provides for unfair dismissals. 23 For completeness it is appropriate to note that s 84 of the Act is found in Ch 2 Part 6 of the Act. Ch 2 Pt 7 provides in s 98 for appeals to the Commission against certain public sector disciplinary decisions. The section relevantly provides: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. The term 'appealable decision' is defined in s 91 as follows: appealable decision means a decision of a kind referred to in section 97 (1). In turn s 97(1) provides: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. (Emphasis added) 24 The parallels with s 69(4) of the GSE Act are evident. 25 Moreover, ss 83 and 84 of Ch 2 Pt 6 relevantly provide: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or … 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. … (5) In this Part: dismissal includes: (a) the threat of dismissal, and (b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. 26 The principles of statutory construction, recently revisited in Kaldas v Barbour [2017] NSWCA 275 (Bathurst CJ at [116]), include a requirement: that the statute must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at [42]. 27 There is no justification to construe "dismissal" in s 84 differently from the way that word is used in s 97(1) at least in relation to a public sector employee. I am reinforced in that view by the terms of s 84(5)(b) of the Act. Although the definition is expressed to be inclusive, in my view it is clear that the concept of dismissal for public sector employees is confined to termination of the employment. 28 I conclude therefore that a reduction in grade (or demotion) in accordance with s 69(4) of the GSE Act is not a dismissal within the meaning of s 84 of the Act.
The Chief Commissioner's decision considered the statutory schemes in the course of determining whether a demotion or reduction in grade is a dismissal for the purposes of s 84 of the IR Act. The Chief Commissioner's decision that a demotion is not a dismissal in these circumstances is not inconsistent with a finding that dismissal can include a termination of employment by means of a resignation following an offer pursuant to s 69(4)(b) of the GSE Act.
If there is no "implied repeal" in respect of the meaning of dismissal in s 84 of the IR Act created by sub-s 69(4)(b) of the GSE Act then there is no difference from the employer's perspective between the effect of sub-s 69(4)(a) and sub-s 69(4)(b). While the employee will receive the benefits of accepting the offer to resign pursuant to sub-s 69(4)(b), if the construction advanced by the respondent is rejected then the employer may, subject to the specific facts, remain at law, the "initiator of the termination" for the purposes of s 84 of the IR Act. However, this is no different from the circumstances of any other employer who offers an employee who the employer has determined to be guilty of misconduct, the opportunity to resign before the employer acts to dismiss him or her.
Further, I do not consider this offends the principle of statutory construction that requires the Commission to strive for a construction that gives every word meaning, as the power to offer and accept a resignation before terminating an employee's employment is different from a power to terminate the employee's employment, regardless of whether the employee has a right of review pursuant to s 84 of the IR Act under either or both provisions of the GSE Act.
I find that there is no implied repeal effected by s 69(4)(b) of the GSE Act and the GSE Act does not require the Commission to treat a resignation effected as a consequence of an offer from the person exercising the employer powers pursuant to sub-s 69(4)(b) differently from a resignation by an employee not subject to the GSE Act.
The question next to be determined is whether there was no "dismissal" because, despite the decision of the Secretary, DFSI to take action pursuant to sub-s 69(4) of the GSE Act and the 31 May 2018 Letter, the applicant's resignation was freely given such that the applicant was the real and effective initiator of the Termination, not the Secretary, DFSI. Sheffield v Oxford Controls Co Ltd (1979) IRLR 133, R v Prince Alfred College (1979) 46 SAIR 598, Allison v Bega Valley Council (1995) 63 IR 68.
The applicant's evidence in his statement of 8 October 2018 about his decision to resign is: 48. If it was my decision I would still be employed by DFSI. However, The Termination Letter offered no alternative except the termination of my employment. I would not have resigned if the termination letter did not say "if you choose not to resign, your employment will terminate effective 12 June 2018". I believed I had no option. In the circumstances I believed I should resign.
The evidence of Mr Davies regarding his discussions with the applicant about whether the applicant would resign is contained in his statement of 29 October 2018: 10. On 15 May at 10:52 AM I called the applicant on his mobile phone. The call lasted 498 seconds. … 11. Throughout the course of the phone conversation with the applicant a discussion surrounded the misconduct finding, the submissions process and the final decision then being made. We discussed the following: Me: You should speak to your union with regards to avenues of redress available through the "IRC" as it is not my place to do so Applicant: What does the proposed action to terminate my employment after first being given an opportunity to resign mean? What will the difference between resignation and dismissal be? Me: in either case accrued and untaken recreation and extended leave would be paid to you. If you should choose to resign, "the record" would reflect resignation as the reason for exit. Resignation would be displayed on any final paperwork and a statement of service showing resignation could be provided. This would mean if you are seeking employment, you could advise any prospective employer that you had left for personal reasons and resigned Applicant: So say if I went for a job in Water mapping I could say I wanted a career change after almost 30 years at Spatial. Me: that's correct. If you choose not to resign, you would be dismissed and the above documentation would state "dismissal" as the reason for exit. Please remember to provide any written submissions for the consideration of the Secretary.
The applicant's statement in reply says: 5. Paragraph 11: Mr Davies refers to a conversation he had with me on 15 May 2018. By then I had been on special leave for 8 months. Such a long time had passed by then and I was really concerned about what was happening with the investigation. I was worried about my employment future but I still believed they should not be dismissed so even if the possible outcomes Mr Davies discussed with me included resignation it was not my intention to resign.
The applicant was cross-examined about his decision to resign. The applicant agrees that he received advice from the PSA between receiving the Findings Letter on 8 May 2018 and submitting his resignation on 6 June 2018, and the applicant does not disagree with Mr Davies' evidence that Mr Davies spoke with him about the effects of resignation, nor does he disagree that he spoke with another HR officer of DFSI about resignation. However, the applicant says, and I accept, that between 8 May 2018 and the meeting with the Secretary, DFSI on 24 May 2018, the applicant concentrated on the 24 May 2018 Submission and not on whether he would accept an offer to resign if the Secretary, DFSI did not change his mind on the proposed disciplinary action.
It was only once the applicant received the 31 May 2018 Letter that the applicant was aware that the Secretary, DFSI would not change his mind about the disciplinary action and thus the applicant must choose whether to accept the offer to resign in the seven days he was provided. I do not agree with the respondent that the applicant had more than one month to consider the offer to resign.
In Allison at 74-75, the Commission referred to R v Prince Alfred College, a decision of Olsson P in the South Australian Industrial Court in which the applicant, having been formally dismissed, was allowed to substitute his resignation for a dismissal. In discussing the question of constructive dismissal, Olsson P cited the following passage from the judgment of the Employment Appeals Tribunal in Sheffield v Oxford Controls Co Ltd: … where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such cases … the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation later or to be willing to give, and to give, the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then … he resigns because he is willing to resign as the result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory. Therefore we think that the finding that Mr Sheffield had agreed to terms upon which he was prepared to agree to terminate his employment with the company - terms which were satisfactory to him - means that there is no room for the principle and that it is impossible to upset the conclusion of the tribunal that he was not dismissed.
Olsen P continued in R v Prince Alfred College, referred to in Allison at 75: There is, as I see it, a fundamental factual difference between the situation which arose in Sheffield's case and that now before me. In the case at bar there is no suggestion that the applicant terminated his employment after negotiation of terms which were satisfactory to him. Nothing changed from the moment of actual original dismissal to the time of alleged constructive dismissal - other than the fact that the employer permitted the substitution of a resignation for the dismissal which had preceded it. There is no doubt, as Mr Bollen QC for the respondent suggested, that in tendering his resignation the applicant meant what he said. But in substance and in fact he had no real choice in the matter. The substitution of the resignation for the dismissal was simply, as it were, an act of clemency accorded him by the respondent; so as to minimise the prejudice to him in obtaining other employment later on. Viewed realistically, the applicant was in exactly the same position as at the time when he tendered his resignation as he would have been if the employer had said to him "We will dismiss you if you do not resign of your own accord". The fact that the act of resignation subsumed the act of dismissal does not alter the essential character of the transactions between the parties. By virtue of the implicit waiver of the original act of formal dismissal by the employer, the applicant was, in reality, in a position in which he had resigned because he had been given virtually no option but to do so - on pain of the formal dismissal remaining in force and acting to his prejudice at a later point of time. For these reasons I am compelled to the view that, at the time at which his employment was terminated, the applicant was constructively dismissed by the respondent. " (p614-617)
The circumstances in Allison set out above have commonality with the circumstances of the applicant. The cause of the applicant's resignation was the threat of termination. The time that elapsed between the applicant being given the opportunity to resign and effecting his resignation is explained by the applicant seeking to change the mind of the decision-maker through his written submissions and the meeting with the Secretary, DFSI. The information given to the applicant by the HR officers of the respondent about the effect of a resignation did not "alter the essential character of the transactions by the parties".
This was not a case where the applicant was offered, negotiated and/or accepted terms which were satisfactory to him and for which he agreed willingly to resign. The decision to resign was not brought about by considerations other than the threat. Although the terms of the Resignation Letter refer to the applicant finding another job, I accept the evidence set out at paragraph [48] of the applicant's statement of 8 October 2018 that he "believed [he] had no option. In the circumstances I believed I should resign."
The causation of the resignation was the threat of termination of employment by the Secretary, DFSI: Sheffield v Oxford Controls Co Ltd (1979) IRLR 133 cited in Allison at 74. The Termination was initiated by the employer, the threat of dismissal remained the operative factor in the applicant providing the Resignation Letter and the termination is a "dismissal" for the purposes of s 84 of the IR Act.

Applicant's case

The applicant asserts that the Termination was harsh, unjust and unreasonable.
The applicant says that the Termination was unjust because: the physical act of violence established by the employer in Allegation 1 never occurred; and therefore, the verbal rebuke of Mr Ray and Ms Mills (which on the applicant's version was his saying "Shut the fuck up"), in the context of 31 years of employment, is not sufficient to dismiss the applicant in the circumstances.
The applicant asserts that the Termination was unreasonable for various reasons arising from or in relation to the 17 August 2017 Meeting including the following: 1. he was given no agenda or other information to prepare himself for what the meeting was to be about and when he asked he was told by Mr Ray "You will find out when you get there"; 2. the meeting turned out to be a performance review meeting; 3. he was subjected to extreme bullying and harassment, disrespectful, aggressive, unfair and intimidating behaviour by Mr Ray and Ms Mills; 4. he lost his temper; 5. Mr Ray's and Ms Mills' conduct directly caused him to lose his temper; 6. he denies that he acted aggressively towards Mr Ray and Ms Mills, says he acted assertively towards Mr Ray and Ms Mills in response to their aggressive behaviour towards him and it was Mr Ray and Ms Mills who caused the outcome of the meeting as it unfolded; 7. he denies saying "Fuck Off' but he does not deny he used the words "Shut up" and "Shut the fuck up" and "Stop interrupting" and he said those words because Mr Ray and Ms Mills would not stop interrupting him, cutting him off mid-sentence and not let him finish what he was saying; 8. he denies throwing a piece of paper or a projectile at Mr Ray's face but admits tossing an open piece of paper onto a table; 9. he denies standing over Ms Mills or pacing around the room but he admits standing up and attempting to leave the meeting to escape the unreasonable pressure caused by Ms Mills and Mr Ray.
The applicant submits that his evidence supports the contention that Ms Mills and Mr Ray caused the "pressure cooker" situation of the 17 August 2017 Meeting.
The applicant says that the holding of the 17 August 2017 Meeting, which he says was a performance review, at short notice without providing the applicant with an agenda or other information regarding what the meeting was to be about, was a denial of procedural fairness.
The applicant says that the Termination was harsh because dismissing him from employment was disproportionate to the misconduct that was found against him because: 1. he was employed by DFSI for more than 31 years before his dismissal on 12 June 2018; 2. all of that employment was in Bathurst in a specialised position; 3. he is now aged 53; 4. he has not found work since his dismissal; 5. his prospects of regaining employment in a similar role for which is qualified, other than with DFSI, is very remote; 6. he has a young son, his only child, with whom he shares custody with his former partner who resides in Bathurst. Consequently, he is unable to travel to Sydney or the other big cities for work because he will lose contact with his child; 7. the respondent was aware that on the morning of the 17 August 2017 Meeting, the applicant had a meeting with his ex-partner involving his young child which had not gone well and he carried some of that emotional burden with him into the meeting and it may have contributed to his subsequent reactions; and 8. the applicant was employed on a salary was $89,781.00 and he is a member of the First State Super Defined Benefits Scheme. His evidence is that his projected superannuation on retirement was $890,000 but that if he is not reinstated his superannuation will be reduced to $320,000. The loss of income and decreased superannuation will have a devastating financial effect on him and his young son.
It is the applicant's position that there is no reason why reinstatement was impracticable. The applicant seeks an order re-instating him together with consequential orders for lost pay and maintaining continuity of service.

Respondent's Case

The respondent says that the reason for the applicant's dismissal was that an allegation of misconduct against him, that the applicant had "verbally rebuked his team leader and manager in a meeting and displayed physical acts of aggression towards leaders", was substantiated and that there is sufficient material before the Commission to support this finding of misconduct.
The respondent's written submissions say that the evidence shows that: 1. the 17 August 2017 Meeting was an informal meeting to discuss the setting of a KPI for the Elevation Team and to discuss ways to assist the applicant to meet the KPl; 2. the applicant was informed about the nature of the meeting, which was a follow on from previous discussions Mr Ray had had with the applicant about him not meeting his KPl; 3. Mr Ray and Ms Mills remained seated, calm and professional throughout the meeting; 4. the applicant paced the room, yelled, pointed his finger over Ms Mills and yelled 'you, you, you'; 5. the applicant crumpled up Mr Ray's KPI calculations and threw the paper in his direction despite the applicant's admission that he tossed an open piece of paper onto a table; 6. the applicant admits that he said "Shut Up" and "Shut the Fuck up" and "stop interrupting"; 7. the applicant also yelled "fuck off" and "get fucked"; 8. the applicant admits he lost his temper. Mr Ray states it was 'well beyond losing his temper, it was a ranting rage'; 9. the door was unlocked and unobstructed and the applicant could have left at any time; 10. following the meeting, both Mr Ray and Ms Mills were shaking and upset and Ms Mills burst into tears; and 11. Ms Mills has noted that it looks as though her apology had been "copied and pasted" due to the similarity in wording between the apology to her and to Mr Ray. Mr Ray has stated that he does not "deep down" consider he should have to accept an apology for such disrespectful behaviour.
The respondent submits that the applicant's misconduct is of a very serious nature because it was an act of aggressive insubordination towards his superiors against a context of nonperformance of his duties due to excessive personal internet usage during work time. It caused Ms Mills and Mr Ray to feel frightened, intimidated and scared to perform their responsibilities as manager and supervisor respectively. It is not unreasonable to infer that other employees would also feel scared to interact with the applicant knowing that he had behaved in that manner.
The respondent states that the applicant's persistent denial that he acted in an aggressive manner shows a complete lack of insight and contrition into his own behaviour. Supervisors and Managers are entitled to have discussions with their employees about their performance without being subjected to acts of aggression and intimidation.
The respondent says that in describing Mr Ray and Ms Mills' conduct as 'extreme bullying, harassment, disrespectful and aggressive, unfair and intimidating' without providing any particulars of this in circumstances where the applicant admits 'he lost his temper', swore at them, told them to 'shut up' and threw paper at them is simply not plausible on the evidence before the Commission.
The respondent asserts that the applicant's misconduct is a clear breach of the DFSI Code·of Ethics and Conduct, which relevantly provides: How do I treat colleagues. customers, clients and stakeholders? All government sector employees are to treat their colleagues, customers, clients and stakeholders in their agency and in other agencies, and the government of the day by: • Considering people equally without prejudice or favour • Acting professionally with honesty, consistency and impartiality • Taking responsibility for situations, showing leadership and courage • Appreciating difference and welcoming learning from others • Building relationships based on mutual respect • Communicating intentions clearly and inviting teamwork and collaboration • Taking responsibility for decisions and actions • Observing standards for safety
The respondent says that when the applicant received a written warning for unacceptable behaviour (throwing a keyboard into a computer monitor causing people working in close proximity to be fearful for their own wellbeing) DFSI specifically brought to the applicant's attention the Code of Conduct operational at the time. The following passages appear in the Code of Conduct operational in 2009: Respect for people ... colleagues should be treated with dignity and respect and in a fair and consistent manner. This involves: • Performing your professional duties with honesty, integrity and fairness and to the best of your ability; • Having respect for people's rights and obligations in all of your personal and professional dealings; … • Avoiding behaviour which might reasonably be perceived as workplace harassment, sexual harassment, bullying or intimidating. Your Responsibilities As an employee of the Department, you are expected to adhere to the following standards: • Respect for people You must treat all people with dignity and respect and in a fair and consistent manner.
The respondent says that the applicant's misconduct was also in breach of the applicant's obligations as an employee under the Work Health and Safety Act 2011 (NSW) ("the WHS Act"). This is because his acts of aggression unreasonably and unnecessarily placed the business as well as the health and safety of other employees at risk.
The applicant was provided with a letter setting out the Allegations which the respondent says was in accordance with the GSE Rules. The applicant was provided with an opportunity to provide submissions in response to these allegations, which he did. He also provided further submissions in response to the Findings Letter. At the applicant's request, the Secretary, DFSI met with the applicant on 24 May 2018 to discuss the applicant's responses. The respondent says that the Secretary, DFSI considered the mitigating circumstances that the applicant pressed.
In circumstances where there was a thorough investigation, where the applicant was afforded an opportunity to provide submissions in response to the Allegations and the proposed disciplinary action, where the applicant had a previous warning for a similar act of aggression (throwing a computer keyboard at a monitor), the respondent says that the applicant's dismissal was not unreasonable or unjust.
The respondent says that the following other factors justify dismissal: 1. the applicant spent large amounts of work time on FaceBook and on the telephone conducting his Lazer Tag Business and attending to his Fencing Club responsibilities and two rental properties; 2. the applicant had not been meeting his KPI of 80 tiles per day. The applicant was the only one in the team unable to meet this KPI, and Mr Ray believes this is due to the applicant's use of the internet, including FaceBook, during work hours; 3. The applicant had not been producing the same level of output as other team members for many years; 4. in August 2018, the applicant filled out the Development part of his performance review with: 'load of crap';
The respondent says that the applicant's misconduct must be seen against the context of the applicant's dereliction of duty and refusal to cooperate with management's efforts to assist him meet his KPI.
The respondent says that the applicant was also responsible for over-riding 137,839 tiles on the "Job Tracker'' to complete shortly after the meeting on 17 August 2018 and just after he was told he had to go home for the afternoon. The respondent says that the timing of this incident, which the applicant claimed to be a mistake is more than just a coincidence and the applicant has never made this kind of "mistake" before.

Not Harsh

The respondent accepts that the applicant has 31 years of service and at the time of the hearing was 52 years old (now 53). However, he owns and operates a Lazer Tag Business and has two investment properties that he rents out. He therefore does not solely rely on the income from his employment with DFSI.
The respondent appreciates that the applicant is dealing with personal issues related to his ex-partner and son and that on the morning of 17 August 2017 he had had a meeting with his ex-partner that had not gone well, but rather than this mitigating the applicant's behaviour, the respondent says that there is a risk that the applicant will act aggressively towards staff (or property) again when he is under stress and frustration from non-work related issues in his life. There is no evidence to suggest that the situation with the applicant's ex-partner and son is likely to no longer be a source of stress for the applicant into the future.
The respondent says the Secretary, DFSI has an obligation to protect the health and safety of all employees and this needs to be weighed against any perceived harshness to the applicant of this outcome.
The respondent says that the applicant's dismissal was not harsh in circumstances where he had been previously warned about acts of aggression in the workplace not being appropriate, he had mistakenly overridden 137,839 tiles shortly after being told to leave the office without apologising, and he had been failing to perform satisfactorily due to excessive personal internet usage.
Further, the applicant has not shown any insight into the seriousness of his conduct and the impact that it has had on Mr Ray and Ms Mills. While he provided apologies to Ms Mills and Mr Ray, it appears one of these was 'copied and pasted' as the wording is identical, which demonstrates a lack of sincerity. Further, he did not try to speak to either Ms Mills or Mr Ray to apologise.
The respondent says that the applicant has sought to shift the blame onto them by making baseless accusations of bullying and harassment. This lack of insight, acknowledgment of wrongdoing and true remorse means that the Commission cannot be confident that the applicant would not behave similarly in the future, subjecting other employees to the risk of feeling intimidated, threatened and frightened.
The respondent submits that there has been compliance with the statutory obligations under the GSE Act and the GSE Rules including: 1. the applicant was advised of the details of the allegation of misconduct, and the action that may be taken under section 69(4) of the GSE Act against him; 2. the applicant was given a reasonable opportunity to make a statement in relation to the allegation; 3. the applicant was notified of the respondent's decision; 4. the applicant was notified in writing of the finding of misconduct; 5. the applicant was notified of the proposed action to be taken; 6. the applicant was given a reasonable opportunity to make submissions in relation to the proposed action; and 7. the respondent considered those submissions.

Was the Dismissal harsh, unjust and/or unreasonable?

The Commission must determine whether the Dismissal was harsh and/or unreasonable and/or unjust, having regard to section 88 of the IR Act, and make a positive finding to that effect: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 and Bankstown City Council v Paris (1999) 100 IR 363.
Section 88 of the IR Act sets out matters that the Commission "may, if appropriate, take into account" in determining the Application. These matters include whether a reason was given for the Dismissal, and whether such reason "had a basis in fact, and whether the applicant was given an opportunity to make out a defence for his or her behavior or to justify his or her reinstatement or re-employment": sub-ss 88(1) and 88(2) of the IR Act.
As the applicant's employment was terminated for misconduct pursuant to s 69 of the GSE Act, the respondent must establish, on the balance of probabilities as framed in Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw"), that the conduct amounts to misconduct.
If the Commission determines that the Dismissal was harsh, unreasonable or unjust, it must then determine the appropriate remedy. As the primary remedy is reinstatement, and the applicant seeks reinstatement, the Commission must also determine whether reinstatement or re-employment is impracticable: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 ("Perkins"). If reinstatement or re-employment is impracticable, the Commission may decide to order compensation and, if so, must determine the amount of that compensation.
The Commission is obliged to determine any issues before it on the civil standard of proof, that is, the balance of probabilities. The Commission is also obliged to approach the matter in a manner consistent with the principles in Briginshaw; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALJR 170.
The oral evidence and the demeanour when giving such evidence, of witnesses, including the applicant, are matters which are relevant to the Commission's consideration and determination of this matter.
I found the applicant to be a defensive witness who is aggrieved by his perceived treatment by the employer during his employment going back many years, and in respect of the Termination. The applicant's grievances with his employer and supervisors are evident in the Applicant's April Response and the 24 May 2018 Submission and his evidence to this Commission. The applicant's frustrations with his work and his lack of career progression and development were also evident in his response to the 2017 Performance Review submitted to Mr Ray on 23 June 2017. The applicant's frustrations with various matters, including the KPIs and his perceived treatment by the employer, contributed to the applicant losing his temper on 17 August 2017.
In answering questions under cross-examination and from me about: the 2017 Performance Review; when he made notes about the 17 August 2017 Meeting; what he did with those notes; and the KPIs set by Mr Ray, the applicant was at times, evasive. However, in answering questions about the events of 17 August 2017 the applicant was in the most part direct, seeking to establish the veracity of his memory of the events of that day over those of the respondent. It was not apparent to me that the applicant sought deliberately to mislead the Commission with respect to the differences between the respondent's witnesses' versions of the facts and the applicant's evidence and the content of the Applicant's April Response with respect to the events at the 17 August 2017 Meeting. Nevertheless, the applicant was in an agitated state and his agitation and feelings of resentment may have impacted his memory of events and there are differences between the applicant's version and the respondent's version, which I have determined against the applicant for the reasons set out below
Mr Davies was responsible for drafting the Allegations Letter and undertaking the investigation on behalf of DFSI in which he concluded that "on 17th August 2017 [the applicant] verbally rebuked [his] team leader and manager in meeting, and displayed physical acts of aggression towards the leaders".
Amongst other things, Mr Ray gave evidence about the data obtained about the applicant's internet usage, the 17 August 2017 Meeting including as to whether the applicant threw a scrunched up A3 size piece of paper at Mr Ray and whether the applicant was offered a support person, the applicant's PIP, and whether he could work with the applicant again.
Mr Davies and Mr Ray are not disinterested witnesses, they each have interest in my not overturning the decision of the Secretary, DFSI, and in respect of the assertion that the applicant threw a scrunched up piece of paper at Mr Ray's head, Mr Ray was unwilling to concede matters that did not support his assertion. I do not suggest that the evidence of either Mr Ray or Mr Davies is deliberately untruthful.
Ms Mills similarly does not wish to work with the applicant again. However, I found Ms Mills to be an honest witness who made appropriate concessions under cross-examination. Ms Mills acknowledged in cross-examination that in hindsight she could have: commenced the conversation at the 17 August 2017 Meeting differently; "probably" she should have told the applicant to go away and gather his head when he became agitated at the meeting; and that the meeting should have stopped earlier than when it did. Ms Mills also accepted when put to her that: she could have approached the meeting differently, for example she could have met with the applicant without Mr Ray and offered a support person to the applicant; and she would have rescheduled the meeting if she had known that the applicant was distressed by his personal circumstances prior to the meeting.
The applicant says that he wrote down his account of the 17 August 2017 Meeting on the weekend of 18 and 19 August 2017 but that he subsequently transcribed these notes onto his computer and later burnt these notes. I accept that the applicant made notes about the 17 August 2017 Meeting shortly after the meeting on the advice of his union or lawyer, I also accept the applicant's explanation of the disposal of his notes by putting them in a pile of waste paper used to fuel his fire. It is probable that these notes may have assisted the applicant to prepare the Applicant's April Response. However, these notes were not able to be produced to the Commission, whereas the contemporaneous notes of Mr Ray and Ms Mills were annexed to their statements and are before the Commission, and given the inevitable imperfections of human memory, the contemporaneous notes have been accorded significant weight. Where the accounts of factual matters differ between the witnesses, and there is no corroborating evidence and there are no contemporaneous notes or there are conflicting contemporaneous notes then the evidence of Ms Mills has, in the most part, been preferred.

Reason for the Dismissal - the 17 August 2017 Meeting

The reason given to the applicant for termination of his employment was his misconduct at the 17 August 2017 Meeting at which, the Secretary, DFSI found he had "verbally rebuked his team leader and manager … and displayed physical acts of aggression towards leaders".
The Secretary, DFSI found this misconduct to be of a very serious nature and in breach of the DFSI Code of Ethics and Conduct and the applicant's obligations under the WHS Act. The Secretary, DFSI determined that the applicant's misconduct "unreasonably and unnecessarily has placed the business as well as the health and safety of other Spatial Services employees at risk". In coming to this conclusion the Secretary, DFSI found "a reasonable basis to conclude … that there have been previously documented instances where [the applicant] was warned that [his] conduct was inappropriate and involved aggressive behaviour".

Does the reason for the dismissal have a basis in fact?

The applicant admits that he lost his temper and shouted "shut the fuck up" at Mr Ray and Ms Mills at the 17 August 2017 Meeting. Whether the applicant said "shut the fuck up" or also said "fuck off" is disputed between the parties. However, the applicant accepts that his actions could be described as "verbally rebuk[ing]" Mr Ray and Ms Mills.
The "physical acts of aggression" are not clearly particularised in the Allegations Letter and the applicant denies that he displayed physical acts of aggression towards leaders. The applicant's case proceeded on the basis that the physical act of aggression alleged against the applicant was throwing the sheet of paper at Mr Ray which he says was not scrunched up and thrown at Mr Ray but was tossed onto the table.
The applicant also denies the conduct, the subject of the warning given in the 20 April 2009 Memo and set out at paragraph [20]. This denied conduct being the "previously documented instance of the applicant being warned that his conduct was inappropriate and involved aggressive behaviour" contained in the Findings Letter which partially informed the concern of the Secretary, DFSI about the health and safety of Spatial Services employees.
If the employer intends to rely on any matter against the applicant as a reason for termination of employment, then the matter must be proven in evidence before the Commission. Where a claim is made that something occurred and the evidence of the applicant is that he denies it or explains the conduct, and there is no other evidence in relation to an allegation the Commission must accept the applicant's evidence that the allegation did not occur or the applicant's explanation for the conduct.
The respondent says that the acts of physical aggression are not limited to the issue of the throwing of the paper. The respondent also relies on the applicant: standing, raising his voice, and pointing at Ms Mills in the meeting; and striding out of the room as the other physical acts of aggression.
I have considered the evidence of the three witnesses at the 17 August 2017 Meeting, the applicant, Mr Ray, and Ms Mills, about the applicant's physical behaviour including: as to whether the applicant tossed or threw the paper and the aggression with which this action was done; and about the verbal rebuke.
The applicant consistently denied scrunching and throwing the piece of paper. He says in the Applicant's April Response: I did not throw a piece of paper at Brenton's face. I tossed the open flat piece of paper back down on the table where it floated, skimmed and settled. I did not crumple the paper, but in review notice that it had handling/crumple/fold marks already on it.
In his statement made 12 November 2018 the applicant says in reply to Ms Mills' statement: 33. … I did not throw a piece of paper at Mr Ray's face. I harmlessly tossed a page onto a table.
In his statement made 12 November 2018 the applicant says in reply to Mr Ray's statement: 81. … I did not throw a piece of paper at Mr Ray. I simply tossed the page on the table. To describe this as "an act of aggression" is another exaggeration by Mr Ray. It was nothing of the sort.
The applicant was cross-examined about the piece of paper he threw or tossed and the following exchange occurred with Counsel for the respondent: Q. So in your statement you say, "I tossed the open sheet of paper to the table, where it floated and settled. I couldn't read them anyway." Do you see that? It's halfway down page 39? A. Yes. Q. You understand Mr Ray and Ms Mills give a different account of what you did with the piece of paper? A. Yes. Q. They say that you took the piece of paper, scrunched it up and threw it in the direction of Mr Ray. You understand that's the evidence which Ms Mills and Mr Ray give, correct? A. There was - I think they made an allegation. … Q. You see Mr Ray has a different account. Do you agree Mr Ray's account is that he says you took the piece of paper, scrunched it up and threw it in his direction. It didn't hit him but it fell short and landed on the table. Do you accept that? His account is-- A. No. … Q. Do you agree that Mr Ray's account of what occurred is different from yours? I think the answer is yes? A. Yes. … Q. Do you agree that you quickly scrunched up the piece of paper? A. No. Q. Do you agree that you threw it in the direction of Mr Ray? A. No. Q. Do you agree it fell short of him? A. No. Q. So you agree that the account - your account is set out on page 39 of tab I of exhibit A1. You say you tossed an open sheet of paper, where it floated and settled? A. Yes. Q. "I couldn't read it anyway." Assuming your - let's take your version of what occurred. Do you accept that, even on your version, that is, picking up the piece of paper and tossing it on the table, was inappropriate in the context of the meeting? A. I should've placed it onto the table maybe, rather than tossing it, in reflection. Q. When you tossed it, you were shown that you were contemptuous of what was contained in the piece of paper, right? A. What was on the paper? Q. Yeah? A. Yes, because I was confused with what was on - the information. Q. You said, "I could not read it anyway," and you said in part that's because you didn't have your glasses with you? A. Yes.
As set out at paragraph [108] the applicant, denies saying "Fuck Off' but he does not deny he used the words "Shut up" and "Shut the fuck up" and "Stop interrupting" and he said those words because Mr Ray and Ms Mills would not stop interrupting him, cutting him off mid-sentence and not let him finish what he was saying. The applicant denies standing over Ms Mills, ranting or pacing around the room but he admits standing up and attempting to leave the meeting to escape the unreasonable pressure caused by Ms Mills and Mr Ray. The applicant's version of events is set out in the Applicant's April Response and his statement made 12 November 2018. The applicant says he was the one who was frightened.
The applicant was cross-examined about pointing at Ms Mills and whether he said "you, you, you" and "shut the fuck up" and the following exchange occurred: Q. And you said you at least used one "you" but you can't remember and you can't deny that you may have used more than one "you" in saying that and directing your hand movements towards Ms Mills? A. But I'm sure I did not go, "You, you, you," but I did say about "you" and what was happening with the group. Q. Did Ms Mills say to you, "Settle down"? A. Sorry? Q. Did Ms Mills say in response to you words to the effect, "Settle down"? A. Brenton I think said that actually. Q. Do you remember either Mr Ray or Ms Mills saying, "That is inappropriate"? A. Yes. Q. And in response you said to either Ms Mills or Mr Ray, "You shut the fuck up"? A. Say it again? Q. In response to the comment that, "That is inappropriate," you responded with words to the effect, "Shut the fuck up"? A. No. I only said the words, "Shut the fuck up," to stop the two of them from talking and interrupting. I did not use a profanity after that point. Q. When you say "up to that point", are you saying-- A. After that point. Q. "After that point"? A. Yeah, after that point.
In his statement made 29 October 2018 Mr Ray says: 59. [The applicant] then picked up the paper which was the calculations ("the BR-5") which set out how I had calculated the KPI target, the same that I had previously shown to Shawn Ryan. He quickly scrunched it up and threw it in my direction. It did not hit me as it fell short and landed on the table. While the paper did not hit me, it was an act of aggression directed towards me and one of disrespect when I was attempting to provide the clarification he wanted regarding the KPI figure. 60. I felt threatened and I was lost for words and I did not trust that he would not escalate to further violence. I tried to move the discussion back to the performance review. I said, "excuse me?" 61. The applicant said, "I'm done talking to you". I said "let's talk about your performance review. We did discuss you meeting your KPI actual performance review". He said, "I didn't agree with that". … 64. The applicant would not listen and shouted at us to "shut up" and "shut the fuck up" and dismissively "get fucked" and would not listen to anything we were saying to answer his concerns. 65. The applicant then went over to Ms Mills, stood over her and shouted "you, you" while [he] was pointing his finger at her. He said words to the effect of "you give the opportunity to capture to people outside the group, and forget about the people in it" that "Phil Ireland Liz and I were left and forgotten about". He expressed to Leanne "you never gave feedback for my EOI for a sensor operator position". Leanne asked him to "settle down", she was told to "shut the fuck up". I said, "that is inappropriate" and the applicant responded with "you shut the fuck up".
When Mr Ray was cross-examined by the applicant's Counsel about the paper that the applicant threw or tossed the following exchange occurred: Q. Thank you. Now in relation to 17 August 2017, the meeting that occurs between yourself, Mr Zopf and Ms Mills, could you just go to BR15 please, which is the picture of the room that the meeting occurred in? A. Yes. Q. Do you have that? A. Yes. Q. Thank you. Do you say that Mr Zopf threw a piece of paper at you? A. Yes. Q. A single piece or multiple pieces? A. One piece of A3 paper. Q. A3 paper? A. Yes. Q. Thank you. Where was he when he threw it? A. Standing up from his chair. Q. And how do you say he threw it at you? A. Loosely. It was harder to explain than demonstrate-- Q. Have you got a single piece of paper there sir? A. Yes. Q. Well show the Commission. A. So it was loosely scrunched as he stood up and thrown back in my direction. Q. What you've just done is fold it over singularly with your hand. Is that how you-- A. No I didn't want to scrunch it there, I'm sorry. Q. No scrunch the paper up, like you say that he did, yes, and how did he throw it at you? Thank you. For the record that's gone from the witness box and it's, at my invitation of course, has hit the box where the monitor is sitting. You were seated at the table were you sir? A. I was also not standing as Mr Zopf was and it was thrown in my direction at the table as my, at me as the. Q. Landed and finished on the table did it? A. It did, yes. Q. Thank you. Do you accept that the distance from that table is shorter than the distance that you've just thrown for example? A. Yes, I'm creating a partition and I'm not standing. Q. Thank you. So if you were standing it would've gone further wouldn't it? A. No, not necessarily. It depended on the trajectory it was thrown. Q. But you say that it was thrown at you? A. No I didn't say it was thrown at me-- Q. You didn't say that it was thrown at you-- A. I said it was thrown in my direction. Q. Was it thrown at your head? A. It was not thrown at my head - Q. Are you sure about that? A. It was thrown in my direction. Q. Was it thrown at your head? A. I don't recall if it was thrown at my head. Q. You can't say under oath that it was thrown at your head? A. I can't say it was thrown at my head, no. Q. You can't say under oath it was thrown in the direction of your head? A. It was thrown at the direction of my body at, of me. Q. It landed on the table? A. It did land on the table. Q. It stayed on the table? A. It did stay on the table. Q. I'm going to suggest to you that he didn't screw it up, he just threw the open piece of paper onto the table? A. No it was definitely scrunched up. Q. It was definitely scrunched up. You accept that a scrunched up piece of paper being thrown goes further than a flat piece of paper being thrown? A. Yes. Q. Well sir I've put it to you, but I'll put it to you again, it was an open piece of paper thrown down onto the table, lands on the table, stays on the table, what do you say? A. Incorrect, it was a scrunched piece of paper. Q. But you don't say it was thrown at your head? A. No.
In her statement made 29 October 2018 Ms Mills says: 34. It was at this point it was like a switch flick in the applicant and he started getting agitated. He started yelling that he "had not received any opportunities". Mr Ray explained to the applicant that he had agreed as part of his performance review that if he met agreed targets for 3 months, then Mr Ray would train the applicant in new tasks. It was in this part of the conversation that the applicant threw the KPI sheet of paper towards Mr Ray's face. … 35. The applicant's behaviour then turned very aggressive, he was pacing around the room and yelling, and asked him to "settle down". The applicant accuse me of "cutting him off" and told me to "shut the fuck up". Mr Ray said that was inappropriate, and the applicant told him to "shut the fuck up". 36. The applicant's aggression further increased. He walked over to where I was seated and started yelling and repeating "you", "you", "you" and pointing his finger at my face. I found this particularly frightening and was concerned for Mr Ray and myself. It is common knowledge throughout the building that the applicant had a violent episode in the workplace in the past where he threw a computer keyboard into a monitor which contributed to my concern. 37. The applicant claims that we tried to stop him leaving the room. This is not correct. We remained calm and seated the entire time and the door was not obstructed. He could have left at any time. 38. The applicant sat back down however he was still incredibly angry and started talking about an Expression of Interest …
In cross examination Ms Mills said: Q. You then said it was in this part of the conversation that the applicant threw the KPI sheet of paper towards Mr Ray's face? A. Correct. Q. How did he do it? A. Just threw it. Q. Just on frisbee motion, if I can? A. I believe so, yes. Q. Fair to say that if it was scrunched - so, just for the record, you've done a palm up with your fingers curled in towards you a bit. Do you accept that with that sort of motion what's more likely is that it was with an open sheet of paper and not a scrunched up piece of paper, if that's how you recall it? A. I don't recall and I didn't say it was a scrunched up piece of paper. Q. Yes. But your evidence is that he threw it at Mr Ray's face? A. Yes. Yes, he did. Q. And yet it lands on the table and stays on the table, yes? A. Yes. Q. What size was the paper, do you recall? A. It was an A4 sheet of paper.
The respondent's Counsel appropriately conceded that the evidence that the paper was thrown is unsatisfactory and there is a divergence in the evidence between Mr Ray and Ms Mills on that issue. On the balance of probabilities, I find that the paper was not scrunched up and thrown but it was tossed onto the table. The evidence of Ms Mills about the size of the paper and whether it was scrunched or not is consistent with the evidence of the applicant. Further, Mr Ray's and Ms Mills' re-enactments both indicated that the paper was not scrunched and that a flick of the wrist was used rather than a throwing motion.
The act of flicking the paper across the table on its own could be seen as an act of low level aggression by a man who admits that he was frustrated and angry at the time. The case advanced by the applicant is that this was the sole physical act of aggression and this conduct on its own does not support a decision to dismiss an employee, especially given the applicant's circumstances at the time of the 17 August 2017 Meeting. However, the respondent asserts that the reason for Termination extends beyond the scrunching and throwing of the paper and that with the exception of the evidence about the scrunching and throwing of the paper, the evidence of Ms Mills and Mr Ray is largely the same.
On the balance of probabilities I accept that the applicant was yelling and was talking in a manner that could be perceived to be ranting as described by Mr Ray, because this is consistent with Ms Mills' evidence and the applicant's own description of his behaviour in the Applicant's April Response which portrayed the applicant as losing control.
The applicant was of the belief that he was not being listened to and therefore he told Ms Mills and Mr Ray to "Shut the fuck up", words he admits saying.
The applicant said under cross-examination that "Get fucked" and "Fuck off" are qualitatively more serious than "Shut the fuck up" and an element of his case is that the use of the offensive term was limited to the period in the meeting when he was being spoken over by Mr Ray and Ms Mills and they were not listening to him and he was trying to make them listen. However, the applicant also said under cross-examination that "Fuck off" and "Shut the fuck up" are equally offensive. I have interpreted the applicant's evidence as him seeking to establish that he used the offensive language because he could not get Ms Mills and Mr Ray to be quiet and listen to him, or as he argues "Mr Ray and Ms Mills' conduct directly caused him to lose his temper".
Despite the accounts of Mr Ray and Ms Mills differing as to the exact words used by the applicant, and the applicant's denial that he used the words "Fuck off" or "Get fucked" Counsel for the applicant did not cross-examine either Ms Mills or Mr Ray as to whether they were mistaken or which version was correct.
I have determined on the balance of probabilities, based on the portions of the contemporaneous notes of Ms Mills and Mr Ray which dealt with the use of these terms and these not being tested in cross-examination, and that the applicant was in an admitted state of anger at this time that the applicant said both of the phrases "Fuck off" or "Get fucked" as well as "Shut the fuck up".
The applicant says he was not being listened to and was being cut off. I accept that the applicant paced around the room. I accept Ms Mills' evidence, supported by Mr Ray's evidence that the applicant walked over to Ms Mills and pointed in her face and said "You" at least twice. I do not consider that whether the applicant said "You" twice or three times to be relevant because what is relevant is that the words were used more than once and they were said to Ms Mills while the applicant was angry and standing over her. I accept that Ms Mills was frightened by the applicant's behaviour in pointing and shouting, including telling her to "Shut the fuck up" and his general level of anger and hostility.
I find that the applicant engaged in a verbal rebuke as set out above and physical acts of aggression beyond the flicking of the paper: standing over and pointing at Ms Mills; pacing the room while in a state of anger; and leaving the room in anger.
Further, the decision to terminate was made not only on the bases of the verbal rebuke and the physical acts of aggression but also on the concern of the Secretary, DFSI about the health and safety of Spatial Services employees. This concern was informed by the applicant's behavior on 17 August 2017 and "the previously documented instances that the applicant was warned about his inappropriate and aggressive behaviour" contained in the 20 April 2009 Memo.
The applicant admits that he received the 20 April 2009 Memo and the Code of Conduct in force at that time. However, the applicant says that the incident was "unfairly misdescribed".
As there was no evidence before the Commission that the event occurred other than the existence of the warning, as Counsel for the respondent put it a "business record", the Secretary, DFSI was not able to rely on the conduct referred to in the 20 April 2009 Memo as a reason for termination.
Relevantly, it was not the conduct in the 20 April 2009 Memo on which the Secretary, DFSI purported to rely in the 31 May 2018 Letter but rather his conclusion as set out below: on the evidence before me, that there have been previously documented instances where you have been warned that your conduct was inappropriate and involved aggressive behaviour. Whilst in this instance the projectile was paper I cannot be certain, on a balance of probabilities, that if issues of conflict arise in future meetings, that there will not be a risk to the health and safety of fellow workers arising from your conduct.
There is no evidence before the Commission of any challenge by the applicant to the warning in 2009, although the Commission notes that the applicant says he did not know he could challenge the warning.
The Secretary, DFSI had work health and safety obligations which included exercising due diligence to ensure that the DFSI ensured as far as reasonably practicable, the safety of the DFSI employees while at work in the business or undertaking: ss 19 and 27 of the WHS Act. In exercising his statutory obligations, the Secretary, DFSI was required to take into consideration the existence of the 20 April 2009 Memo and it is relevant to whether the Secretary acted reasonably in deciding that he held fears about the safety of the DFSI employees arising from the applicant's conduct.
The applicant has pointed to various matters which are set out at paragraphs [108] to [110] that he says make the Termination unreasonable. I do not consider that the Termination was unreasonable and I set out below my consideration of the matters raised by the applicant.
The applicant was frustrated by the circumstances in which he was working. He was frustrated by years of performing the same duties. He was also frustrated by his perception of unequal treatment at the workplace. The conduct of Mr Ray and Ms Mills on 17 August 2017 was not the reason the applicant lost his temper.
On the balance of probabilities I do not accept that the applicant was "ambushed" or did not know the reason for the 17 August 2017 Meeting. As set out at paragraph [26] the applicant was informed of the reason for the meeting by Mr Ray by email. The applicant was also informed of the KPIs as set out at paragraph [24] and the manner of calculating these. The evidence of Ms Mills and Mr Ray confirms that the purpose of the meeting was to discuss the applicant's performance against his KPIs and to talk about ways to help the applicant meet the KPIs. The applicant was told that the meeting would be a continuation of an earlier meeting on the same subject. In the circumstances, I do not consider that an agenda was necessary, and not providing the applicant with an agenda was not a denial of procedural fairness in this circumstance.
Mr Ray considered that the applicant's use of FaceBook contributed to the applicant not meeting his KPIs and Mr Ray had collated evidence of the applicant's Facebook and other internet usage to present to the applicant at the meeting. During the 17 August 2017 Meeting, the applicant was faced with evidence that on days where his Facebook usage was highest, his ability to meet his KPI was most negatively affected which implied that the reason he could not meet his KPIs was not because the KPIs were unreasonable but because he was distracted. In the circumstances where the purpose of the 17 August 2017 Meeting was to discuss the reasons for the applicant's inability to meet his KPIs and to find ways to improve the applicant's performance and it was not to discipline the applicant or to move to a formal performance improvement program, I do not consider the failure to provide this evidence in advance procedurally deficient.
I do not accept that the applicant was subjected to bullying and harassment or unfair, aggressive or intimidating behaviour by Ms Mills or Mr Ray. Other than the applicant's assertions there is no evidence to support this. There is also no evidence to support the applicant's assertion that his age was a contributing factor to his termination.
The applicant was already upset when the 17 August 2017 Meeting commenced but he did not tell Mr Ray or Ms Mills this. I accept Ms Mills evidence that if she had known about the applicant's circumstances that she would have rescheduled the meeting. Ms Mills cannot be criticised for not acting on knowledge she did not possess.
The applicant's conduct was inappropriate and was misconduct and in breach of the DFSI Code of Ethics and Conduct as set out at paragraph [118] and [119].
The applicant was given a reason for the Termination which had a basis in fact and he was given an opportunity to give an explanation for his conduct.
I agree with the respondent that the applicant was provided with a letter setting out the Allegations which the respondent says was in accordance with the legislative requirements. The applicant was provided with an opportunity to provide submissions in response to the Allegations and the Findings Letter, which he did, and the Secretary, DFSI met with the applicant on 24 May 2018 to discuss the applicant's responses.
In circumstances where there was a thorough investigation, where the applicant was afforded an opportunity to provide submissions in response to the Allegations and the proposed disciplinary action, where the applicant had a previous warning for an act of aggression, the Termination was not unreasonable or unjust.

Was the Termination harsh?

The assessment of harshness involves a balancing or weighing exercise whereby an evaluation is required to be made, on the one hand, of the gravity of any misconduct giving rise to the Termination against any mitigating circumstances: Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at [35]-[47].
In this instance the question is whether, in light of all of the relevant circumstances, the verbal rebuke, the physical acts of aggression and the concerns held by the Secretary, DFSI about the safety of DFSI employees, are sufficient to terminate the employment of the applicant after 31 years' service in a specialised position in a regional centre where the impact of the Termination also has an impact on the applicant's defined benefit superannuation.
The applicant is 53 years of age, he has worked in Bathurst, a regional centre, in a specialised role for over 31 years with the one employer. The applicant has ties to Bathurst where his young son lives. The evidence before the Commission is that the applicant's laser skirmish business lost money in the period July to September 2018 and he is in receipt of Centrelink Newstart allowance payments. The applicant has sought to obtain other employment and undertaken a Responsible Service of Alcohol ("RSA") course but his prospects of gainful employment in his chosen field in Bathurst are limited.
There is evidence before the Commission that the applicant's performance was deficient as against his KPIs and as against his peers, and there was evidence of one reported incident of aggression before 17 August 2017, and there was no evidence of the facts of that incident before the Commission.
There is also evidence that the applicant's attitude to his development is poor and he does not take responsibility for matters within his control, and seeks to blame others for his poor performance. The applicant apologised to Mr Ray and Ms Mills for his conduct at the 17 August 2017 Meeting. These apologies were in identical form, which on its own is not necessarily indicative of the applicant not being genuinely contrite. However, the applicant's unwillingness to accept that he is at fault, the fact that in the apologies he said that his outburst was not directed at Mr Ray and Ms Mills and yet in the Applicant's April Response and the applicant's evidence and submissions to the Commission the applicant says his outburst was in response to the behaviour of Mr Ray and Ms Mills, combined with the identical forms of the apologies, give rise to a question as to the extent of his contrition. I accept that the applicant was, and is, genuinely contrite that he lost his temper on 17 August 2017 which led to the Termination. It is apparent nonetheless that the applicant considers that he has been hard done by and has little to no insight as to his conduct on 17 August 2017 or his ongoing poor performance.
As the investigator concluded that there was not sufficient evidence to substantiate Allegation 2 and therefore it was not a reason for the Termination I have not taken this into consideration in weighing matters going to the harshness or otherwise of the Termination.
Given the low level of violence involved with the flicking of a piece of paper, the safety of other employees and the applicant while at work at the business or undertaking, although a relevant and necessary consideration, may have been able to be protected to a reasonably practicable standard, without requiring the termination of the applicant's employment.
The Secretary, DFSI accepted the fears of Ms Mills and Mr Ray were deeply and legitimately held and did not consider the rationality of these fears. Ms Mills says she fears running into the applicant in the street and that she has had no contact with the applicant since the 17 August 2017 Meeting, even while the applicant remained at work. Mr Ray says he fears running into the applicant at events in Lithgow and Bathurst and after he received the email which is BR-17 to Mr Ray's statement that he moved his car in the carpark if he was working back to avoid any risk of running into the applicant in the carpark at night. These matters are considered below in the determination of whether reinstatement is impracticable.
Despite the applicant's misconduct and the relevant consideration of safety of other employees, the mitigating factors such as the applicant's length of service, the lack of future career prospects generally and specifically as a cartographer, the applicant's age, his ties to Bathurst as well as the impact on the applicant's financial position due to the penalty to his superannuation defined benefit make the consequences of the Termination harsh in the sense that the punishment was "too harsh a consequence" for the established misconduct of the applicant, in the sense that this expression was used by Watson J. in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at p 233.
Accordingly, the applicant is entitled to relief pursuant to s 84 of the IR Act.

Is reinstatement or re-employment impracticable?

The applicant seeks reinstatement. In unfair dismissal proceedings such as these, the primary remedy, consequent upon a finding that a dismissal was harsh, unreasonable or unjust, is reinstatement. It is only where the Commission considers that it would be impracticable to reinstate an applicant that the alternate available remedies are considered.
The Commission has considered whether reinstatement is impracticable in the applicant's circumstances in light of the Full Bench's decisions in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 ("Burge") and Youssef v Western Sydney Area Health Service [2003] NSWIRComm 284 ("Youssef") and the Industrial Relations Court of Australia's guidance in Perkins. It is clear that each case must be decided on its own merits and the level of mutual trust and confidence needed in each employment relationship will depend on the circumstances.
As in Youssef, the determination of an appropriate remedy in this matter is not without difficulty. In assessing whether reinstatement is practicable and sufficient trust in the relationship between the parties may be restored quickly, the Commission must examine the rationality of any attitude taken by a party: Perkins at p. 191.
Both Ms Mills and Mr Ray say they are afraid of the applicant and do not want to, or cannot, work with the applicant again. Counsel for the respondent submitted: The Commission would have to find that their expressions of how they felt lacked genuineness. Now, some people will have a level of robustness which is different to other people. How people may respond to it, rationally or otherwise, will differ from individual to individual.
Turning to the evidence, Ms Mills says that she fears running into the applicant in Bathurst and she fears that the applicant would lose his temper again and therefore she would feel unsafe in the workplace if the applicant was to return. Ms Mills also says: 57. If the applicant came back to work, it would send a message to other staff that it is okay to behave aggressively, okay to be disrespectful and also okay to not do any work. I do not want to be part of any such workplace.
Mr Ray says that the team's morale has improved since the applicant left and he fears that the team's feelings about their workload would be negatively impacted. Mr Ray says: 99. … I hate going shopping in Bathurst for fear of running into him. I changed my route to work after 14 years driving the same was after this event to avoid passing his residence. The thought of running into him worries me as I cannot trust that he will be set off and act in a similarly aggressive manner again or make up further allegations. 100. If the applicant returned to the workplace, I would feel insecure and worried not only for myself but for the members of the team I manage, who I cannot always be around for and the situations they would be put in.
Mr Ray was asked in cross-examination about his fears for his safety and the email he received from the applicant on 4 September 2017 referred to in paragraph [35]: Q. Now let's just go over the page to BR17, I'll just move along. Is this the email that you say caused you real concern about Roland and why you couldn't work with him any more? A. It did provide me with a lot of, yeah-- Q. Thank you, because you've picked up on what line of "Think yourself lucky, you can go home and see your kids every day"? A. Yes. Q. Can you read the entire paragraph that that's contained in, please, sir, which is the third paragraph down? I'm going to ask you some questions on it? A. Okay, "My"-- Q. No, no, sorry, my fault; just to yourself? A. Yes. Q. Do you think maybe you've taken it slightly out of context, sir, that it was never a threat to you? A. In my opinion, that's how it made me feel, that it was a threat. Q. That's how it made you feel, but let's just analyse the paragraph, shall we? He's talking about not being able to see his baby boy; do you accept that? A. Yes. Q. He was pretty distressed about it, wasn't he? A. Yes. Q. He was having a massive - he wasn't married, but it was a massive relationship breakdown? A. Mm-hmm. Q. Correct? A. This was the first I'd heard of it, yes. Q. And are you aware that the child in question was his only child? A. Yes. Q. His new baby? A. Yes. Q. Did you ever think that maybe he was just saying something like, "I can't see my kid. Think yourself lucky that you're in that position because I'm having a hell of a time"? Did it ever occur to you that that's the complexion to this and it's not a threat to you? A. Obviously that is a possibility and, after going through what we had, that isn't how I felt. Q. Right, well, let's continue because then, in the next line, he says, "All that with other issues happening over the past 12 months, I think I'm lucky not to walk in front of a bus"? A. Yes. Q. Real estate issues, where tenants do a runner. Not pay rent, while smashing up the house. House falling down and ceiling collapsing. Asbestos. Dog getting attacked. Having to move his de facto to a new house. Car issues. Three relatives and his cat's dying. You're his supervisor, right? A. Yes. Q. Did you read this and think, "Maybe he's had a really bad year and he's really quite depressed"? A. Most certainly, which is-- Q. Well then how do you take from this that it was a threat to you, sir? A. Well, this is why my first - as soon as I got this, I was in the car heading to Sydney. I called HR to find out whether I should call but, as I'm not trained in dealing with - if he's feeling like this and walking in front of a bus, I didn't want to make the situation worse, so I handed it off to HR to handle correctly and properly. And that was what I was advised to do. Q. Tell the Commission, what's threatening in this to you? A. "Think yourself lucky to go home and see your kids every day". That, to me-- Q. Is a threat? A. --made me feel very - like, obviously, I can see that he is very upset and I really felt compassion for him and I wanted to help, which is why I contacted HR and put it as a matter of priority. Q. And which is why you said that you're not going to accept his apology and you'd never work with him again, is that right? A. No, the apology was well before this. Q. Yes but you've said that this was the catalyst for you not actually - for you going back and saying, "No, I'm not really going to accept it and I don't want to work with him because he's threatened me", that was what you said at the beginning of your evidence today; you accept that or not? A. It's not there's one piece, it's the entire - what's the word? Q. Entire milieu. The entire brunt of events, is what you're going to say? A. Yes. Q. Yep? A. Yes.
I have weighed the evidence of Ms Mills and Mr Ray about their fears against the actions and behaviour of the applicant on 17 August 2017 that was the subject of the misconduct finding and the other actions and conduct of the applicant that the respondent says is a basis for the fears, in particular the email that is attachment BR-17 against the fact that Mr Ray supervised the applicant for a number of weeks without incident following 17 August 2017.
With the exception of BR-17, no evidence was presented to the Commission that indicated that the applicant has engaged in any threatening or aggressive behaviour towards Mr Ray or Ms Mills after 17 August 2017. BR-17 was a cry for help, and I accept that the words "Think yourself lucky you can go home and see your kids every day" was not a threat but a statement reflecting the applicant's inability to do the same.
Mr Ray gave evidence that the applicant had not sworn at him other than at the 17 August 2017 Meeting. The only evidence that the applicant has engaged in any behaviour that would indicate a pattern or a likely repetition of the conduct on 17 August 2017, other than the 20 April 2009 Memo, was a complaint about food smells in the kitchen and calling out at Mr Ray about needing a supervisor when Mr Ray exited a room.
I have considered the medical evidence, in particular, the report of Dr Lim. Dr Lim did not diagnose any psychiatric condition nor identify any restrictions on the applicant's fitness for work.
I have considered the concerns about Work Health and Safety raised by the respondent.
On the basis of the evidence before the Commission, the respondent has not established that there is a pattern of aggressive behaviour or that it is likely that the applicant will act aggressively again.
I accept however, that Mr Ray and Ms Mills fear that a similar incident may occur with the applicant and as his supervisor and manager they are concerned that they would be required to deal with such an incident as well as the legitimate apprehension of having to manage a poor performing employee who does not accept the legitimacy of the metrics that have been established to measure the team's and his performance. I also accept that Mr Ray and Ms Mills feel apprehension about coming into contact with the applicant in Lithgow or Bathurst. The fact that they live with that fear or apprehension whether the applicant is at work with them or not does not diminish their fears of seeing the applicant in the workplace and being required to supervise or manage him.
The applicant effectively denies personal responsibility for his loss of temper and asserts that Mr Ray and Ms Mills were responsible for the "pressure cooker situation" at the 17 August 2017 Meeting. Further, the applicant does not accept the KPIs that have been established for his role and has long-held negative views about the supervision and management of the Environmental Spatial Programs team. In the Applicant's April Response the applicant accuses the Director of having "meetings all around the building" as set out at paragraph [40(1)]. I have taken this to mean that the applicant considers that the Director was stirring up a matter that the applicant considered was resolved. This lack of insight and acceptance of personal responsibility of the applicant weighs significantly against his reinstatement.
Further, the content of the Resignation Letter and the Applicant's April Response, and the applicant's attitude to completing the MyPerformance document establish that the applicant's trust in the employment relationship and his supervisor and manager before the Termination was limited and this weighs against the practicability of reinstatement.
Countering this is the evidence that following 17 August 2017 Mr Ray worked with the applicant and established the PIP for the applicant. This supports the applicant's contention that he can return to work and contribute, and weighs against accepting Mr Ray's assertion that he could not work with the applicant in the future. The email correspondence between Mr Ray and the applicant which are BR-3 and BR-4 to Mr Ray's statement indicate that Mr Ray and the applicant were able to work together after 17 August 2017 and there is nothing in these emails that evidences fears held by Mr Ray. However, I accept that Mr Ray was supported by Mr Longhurst at the meeting setting the PIP and that Mr Ray displayed fear at that meeting.
The applicant's performance and his inability to meet the KPIs was the reason for the 17 August 2017 Meeting. The respondent submits that the applicant's poor performance is a significant factor against reinstatement. This submission has weighed heavily on my consideration of this matter. As has the fact that the applicant's employment ended because of misconduct and not because of his poor performance, and the PIP had only just begun when the applicant was removed from the workplace, thus he did not have an opportunity to improve his performance under a formal process. Relevantly, if reinstatement of the applicant were ordered it would be on the same terms and conditions that applied to his position on 12 June 2018 which includes the PIP established on 31 August 2017. The applicant would be required to comply with the PIP or be dealt with in accordance with s 68 of the GSE Act and cl 36 of the GSE Rules. However, the Applicant's April Response, provided approximately eight months after the PIP was established did not evidence an acceptance by the applicant of the KPIs or a willingness to work within the PIP and improve his performance.
I have considered the applicant's stated contrition and his emotion in the witness box. This does not outweigh the applicant's lack of acceptance of the KPIs and the circumstances of his workplace, his ongoing challenge to the legitimacy of his supervisors' and managers' decisions, and his misconduct on 17 August 2017 to support reinstatement.
After weighing each of the matters set out in this section, I find that reinstatement would be impracticable, as on the balance of probabilities, there will not be sufficient trust to make the relationship viable and productive Perkins at p 191.
There was no evidence before the Commission to support re-employment and the applicant did not put a case for re-employment.

Compensation

The Commission has found the Termination was unfair and that reinstatement is impractical and no case has been put for re-employment. Accordingly, the consideration in this matter is of compensation.
Sub-section 89(5) of the Act provides that the maximum compensation that may be awarded is "six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed".
Sub-section 89(6) provides: When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment.
The Commission's task in assessing compensation was summarised in Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084: [27] Section 89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer: Henderson v Rural Lands Protection Board (1997) 74 IR 142 at p.150. [28] Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. Section 89(6) does not prescribe a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work: D and R Commercial Pty Limited v Flood (2002) 113 IR 344 at p.363. The only jurisdictional limitation is the six month ceiling in s 89(5): the rest is a matter for the Commission's discretion.
All cases must be decided on their own merits, but the Commission has had regard to the quantum of compensation awarded in the Commission's earlier decisions, and in particular to the Full Bench's determinations in Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48; Dissanayake v State Transit Authority [2016] NSWIRComm 10, Department of Health v Kaplan (No 3) [2010] NSWIRComm 170 and Commissioner Murphy's decision in Paulson v Industrial Relations Secretary (Department of Justice) [2017] NSWIRComm 1037 which the Full Bench determined was not infected with error: see Paulson v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1004, in order to determine the quantum of compensation that is appropriate.
The evidence before the Commission is that the applicant has not been employed since the Termination and has been in receipt of Centrelink Newstart benefits. Further, his laser skirmish business made a loss for the period July to September 2018. The applicant has made some efforts to find new employment and has undertaken an RSA course.
In addition to the matters outlined above, and the matters which the Commission has determined rendered the Termination harsh, the Commission has taken into account the following in determining the appropriate amount of compensation: 1. the formal PIP was commenced approximately a fortnight before the applicant was placed on special leave; 2. the applicant was on special leave from 14 September 2017 to 12 June 2018; 3. the applicant's age (53) and his length of service (over 31 years); 4. the applicant was offered and accepted the opportunity to resign before his employment was terminated; and 5. the length of time that has elapsed since the Termination (approximately 13 months).
The Commission orders compensation in favour of the applicant in an amount equivalent to 12 weeks' pay at the rate which the applicant was being paid at the time of the Termination, as just and fair in all of the circumstances of this case.

Orders

In this matter I make the following order: 1. The respondent is ordered to pay to the applicant, within 21 days of today's date, a sum equivalent to 12 weeks' pay calculated at the rate of pay applicable to the position occupied by the applicant immediately before the Termination on 12 June 2018. N J Constant Commissioner

Amendments 21 April 2020 - [102] reference to R v Prince Alfred College (1979) 46 SAIR 598 included. 15 November 2022 - Correction of typographical error in [49] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2022

Industrial and Employee Relations Act 1994(SA)

Public Sector Employment and Management Act 2002(NSW)

Government Sector Employment Act 2013(NSW)ss 50, 58, 68, 69, 79, 89

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