Industrial Relations Commission of New South Wales CITATION : Hyland v Ethnic Communities Council [2002] NSWIRComm 48 APPLICANT: Wayne Hyland PARTIES : RESPONDENT: Ethnic Communities Council of NSW, Inc FILE NUMBER: IRC 28 of 2001 CORAM: Boland J CATCHWORDS : Unfair Dismissal - Applicant refused to participate in mediation to resolve grievance filed by colleague - Employment terminated on the basis of continued failure to meet behavioural standards - Respondent found to have taken reasonable and proper steps to resolve conflict - Found applicant not unfairly dismissed - Application for relief pursuant to s 84 of Industrial Relations Act 1996 refused. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Turner v Decke Sheetmetal (unreported, IRC NSW, Buckley C, 2232 of 1996, 12 May 1997) HEARING DATES: 08/20/2001; 08/21/2001; 02/12/2002 DATE OF JUDGMENT: 03/19/2002 APPLICANT: In Person LEGAL REPRESENTATIVES: RESPONDENT: Mr K Godfrey Agent for Ethnic Communities Council of NSW, Inc JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J 19 March, 2002 Matter No IRC 28 of 2001 Wayne Hyland and Ethnic Communities Council of NSW, Inc Application by Wayne Hyland re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 The applicant, Wayne Hyland, was dismissed from his employment with the respondent, the Ethnic Communities Council of NSW, Inc. ("the ECC") on 15 December 2000. Mr Hyland alleged that, pursuant to s 84 of the Industrial Relations Act 1996, his dismissal was harsh, unreasonable or unjust and has sought compensation under s 89(5) of the Act. Background 2 The ECC is a non-government body representing people from ethnic communities throughout New South Wales. Mr Hyland was employed as the Community Settlement Service Coordinator – Western Sydney, a position funded by the Department of Immigration and Multicultural Affairs (DIMA). Mr Hyland commenced his employment with the ECC on 24 January 2000. 3 The evidence in this matter revealed that the applicant had a number of concerns in respect of his employment, including concerns about his work program, how the ECC was functioning and the security of his position. A principal concern related to the activities of the Western Sydney Community Forum (WSCF). This was another community organisation with which the applicant was required, under the terms of his employment, to develop and maintain an effective relationship. The applicant appears to have taken the view that the WSCF had the potential to undermine his position. A difference of opinion about the role of the WSCF and the effect its operations were likely to have on ECC projects led the applicant to have an altercation with one of his work colleagues, Upekha Nadarajah, who was the ECC's Community Settlement Services Coordinator for South Western Sydney. The confrontation occurred at the ECC's premises on 16 October 2000. The termination of the applicant's employment followed attempts by the ECC to resolve the differences between the applicant and Upekha Nadarajah following that altercation. 4 During the time the applicant was employed, the ECC was attached to the Premier's Department. The evidence reveals that 2000 was a difficult year for the ECC. The State Government did not provide funding for the ECC in June 2000 and as a result 5 core staff members were retrenched on 30 June 2000. It is also clear from the evidence that there was considerable uncertainty about future employment among staff in the first half of 2000, as the ECC unsuccessfully attempted to secure funding for the coming financial year. 5 Throughout his evidence the applicant highlighted concerns he held about the financial position of the ECC. He described how in late December 1999, soon after receiving his letter of appointment to the position at the ECC, he read an article in the Sydney Morning Herald in which the funding problems and the need to lay off staff at the ECC were reported. The applicant said that he wondered why he had been employed by the ECC at a time when there were real fears the organisation would need to lay off staff and, further, why he was not informed of the funding problems during his interview. 6 It appears, however, that as his position was funded directly by DIMA the applicant was not a member of ECC core staff and as such his employment would not have been terminated if State Government funding did not eventuate. In any event, I accept that the environment in the ECC during the early part of 2000 was one of uncertainty in respect of future employment and that the applicant felt stressed by this uncertainty. 7 Perhaps related to the funding crisis at the ECC, a problem emerged whereby on occasions wages were not paid to employees on time. The applicant complained about this situation to the management of the ECC in writing, and says he also encouraged other staff to do the same. 8 Other aspects of the ECC's management concerned the applicant. As I have already noted, the applicant was employed by the ECC but his employment was funded by DIMA. A condition of the DIMA funding was that the ECC employ a "funded worker" to implement a DIMA work program. This work program identified, among other things, a number of objectives, along with time frames for their achievement and methods of measuring those achievements. As a condition of the funding agreement the work program could only be altered through the execution of a "Deed of Variation". This required the agreement of both DIMA and the ECC before any alteration to the DIMA work program could be made. 9 The applicant became concerned that the ECC was asking him to take on roles that made it difficult for him to achieve the tasks required of him by the DIMA work program. Among the tasks the applicant considered was threatening his DIMA work program were directions that he attend community consultations organised by the WSCF. 10 The role performed by Ms Nadarajah was similar to that of the applicant except that the area upon which she was to focus was South Western Sydney, a region bordering that for which the applicant had responsibility. The community consultations and other activities of the WSCF overlapped the Western Sydney and South Western Sydney regions. 11 At some time before 16 October 2000, although exactly when is not clear, the applicant became increasingly concerned about the activities of the WSCF and what he considered to be Ms Nadarajah's interest in his work program in respect of that organisation. At around this time the applicant said Ms Nadarajah engaged him in a conversation in which she told him the WSCF was generally a good agency. 12 On 16 October 2000 the issues between the applicant and Ms Nadarajah came to a head when they engaged in an argument in the ECC offices. Frances Milne, who was the Administration Officer at the ECC at the time, gave the following account of the incident in her evidence: On Monday 16 October 2000 I heard such a commotion in the open-plan office area outside my office that I rushed outside to find out what was happening…. I found Wayne Hyland yelling out of control at Upekha Nadarajah, one of his two work colleagues who was very flustered and upset. 13 The applicant's description of the incident is described in his evidence as follows: This discussion originally began with myself and Upekha Nadarajah (this lasted a few minutes) and then Francis Milne joined in. Essentially, my position in this discussion was a belief that Upekha Nadarajah's then work activities had the potential to negatively affect the CSSCWS work program's outputs. 14 The applicant describes the incident variously as "a very simple and time limited discussion" and "acting up behaviours" on the part of Ms Nadarajah. 15 As is clear on both versions of the evidence, Frances Milne became involved in the incident between the applicant and Ms Nadarajah before the initial confrontation had concluded. It was from this point on that Ms Milne, on behalf of the ECC, attempted to resolve the dispute. 16 The applicant claimed that the attempts by the ECC to resolve the dispute were flawed, as he was not afforded procedural fairness. The respondent, on the other hand, submitted that it sought to resolve the matter in a lawful and fair manner, but that the applicant refused to participate in its attempts and thus frustrated the entire dispute resolution process. 17 When Frances Milne intervened in the confrontation between the applicant and Ms Nadarajah on 16 October 2000 it quickly came to an end. Ms Milne then took time to attempt to understand why there had been disagreement between the two employees. 18 The following morning, Ms Milne informed the Chairperson of the ECC, Mr Paul Nicolaou and two other members of the management committee, of the events of the previous afternoon. Ms Milne then met with the applicant and later with Ms Nadarajah. 19 At around midday on 17 October 2000 the applicant and Ms Nadarajah had another altercation, the applicant telling Ms Nadarajah that he would not apologise and that it was up to her to deal with him. Following this incident Ms Nadarajah informed the respondent that she was lodging a formal grievance and that she wanted the respondent to have the applicant apologise and to be assured there would be an environment in which employees could work as a team. 20 In a further meeting on 18 October 2000 the applicant told Ms Milne that he would not apologise, that he wanted any allegations of abuse and intimidation made against him to be in writing, that he would not be drawn into any discussions about personality, that such discussions constituted a form of abuse and that he would not meet with any person who wished to maintain rage for its own sake. 21 Having met with the parties, Ms Milne reduced to writing a record of the events. This was forwarded to the applicant and Ms Nadarajah in the form of a memorandum dated 19 October 2000. The memorandum outlined Ms Milne's understanding of the events, recorded her approach to resolving the matter up to that point and finally suggested further methods by which resolution might be achieved. Her suggested methods of resolution included an informal mediation, and in the event that failed, a more formal mediation process with an independent mediator to conduct the proceedings. Ms Milne said that if the parties rejected formal mediation she would take the matter to the Management Committee and ask the Committee to decide what to do. Finally, Ms Milne asked both parties to contact her to address any inaccuracies in her account and, further, to offer any preferred methods of resolution. 22 After receiving Ms Milne's memorandum of 19 October the applicant told her that he believed the document put him in an awkward legal position, that he would not modify another person's record of events, and as a consequence of those two matters he would no longer respond to the Nadarajah matter. In her evidence Ms Milne said that she recalled the applicant's response was "I will not be part of mediation" and "It goes not (sic) further for me". On either version of events it is clear that at this point the applicant refused to be involved in the respondent's efforts to deal with Ms Nadarajah's grievance. 23 On 27 October the applicant and Ms Milne attended a meeting with the Chairperson of the respondent, Paul Nicolaou, at his office. The applicant was given an opportunity to discuss with Mr Nicolaou the problem involving Ms Nadarajah and his concerns about his work program and DIMA funding. The applicant described the meeting with Mr Nicolaou as a "long and unnecessarily circular" discussion. The applicant also said in his evidence that during the meeting he told Mr Nicolaou that, in regard to the Nadarajah matter, "My position is that the matter has been resolved to my personal satisfaction. I do not wish for the matter to go on. I suggest you talk to Upekha to see how her needs will be satisfied. I can't satisfy them". The applicant then went on to tell Mr Nicolaou that he took full responsibility for his actions and would appreciate if the meeting were brought to an end. 24 On his own evidence the applicant stated that Mr Nicolaou repeatedly asked him to "give me something to work with". Notes of the meeting produced by Ms Milne accord substantially with the applicant's recollection, although rather than the phrase "give me something to work with" the notes refer to Mr Nicolaou saying the applicant was not "giving me room to move". Mr Nicolaou encouraged the applicant to speak to a union representative or lawyer or any other person he needed to consult, and gave the applicant the opportunity to again meet with him to see if matters could then be resolved. 25 On 6 November Ms Nadarajah submitted a formal grievance in writing to Mr Nicolaou and Ms Milne, setting out her version of the incidents involving Mr Hyland. Ms Nadarajah described Mr Hyland's demeanour as "aggressive, hostile and abusive". Ms Nadarajah said of the applicant that he was: · Unapproachable in terms of discussing most work issues. · Uncooperative and unwilling to engage in a civil or democratic dialogue regarding work issues. Also unwilling to work in a team with Amanda and myself. · Incoherent, ambiguous and convoluted when speaking. He often is unable to clearly articulate or convey his points, ideas or issues. · Aggressive in his approach when communicating and is often intimidating, hostile and uncompromising. He is generally unwilling to acknowledge that his behaviour is negative and unproductive and generally unprofessional. He is unwilling to change his behaviour. 26 Ms Nadarajah complained that the applicant's behaviour had left her "stressed and anxious". Ms Nadarajah's reference to "Amanda" in her complaint was to Amanda Shrock, Regional Coordinator for Central and Eastern Sydney. Ms Shrock also provided a report to Mr Nicolaou and Ms Milne regarding the applicant's behaviour. She variously described the applicant as "unapproachable and unwilling to discuss most work issues", "aggressive and stubborn when communicating", "uncooperative", and that "he has alienated his co-workers and made no attempt to work co-operatively with them." 27 Following receipt of Ms Nadarajah's complaint Mr Nicolaou met with her to discuss the matters raised in her memo. 28 On the afternoon of 7 November 2000, Ms Milne had a conversation with the applicant, again asking him to participate in mediation with Ms Nadarajah. In a letter of 8 November 2000 the applicant responded to Ms Milne's proposal in the following way: Dear Frances This letter addresses matters that arose on a conversation I had with you yesterday afternoon (i.e. Tuesday 7th November, 2000). When you approached me about having a discussion with you yesterday you originally indicated to me that the discussion would be about a Work Program Output related to the development of the Western Sydney Migrant Forum. However, this was not the case, the matters you raised with me on Tuesday 7th were in fact: (a) a proposal that I have a mediation session with Upekha Nadarajah to deal with a contrived work place problem that appears to revolve around Upekha's sense of insecurity in her workplace relationships. [I state now, as I have previously stated, I will not participate in any mediation session with Upekha to satisfy Upekha's needs. I now state that I will not have any discussion with you, or any other person, in relation to Upekha's inability to cope with other personalities and behaviours which do not match her own personality or behaviours. If Upekha wishes to deal with her sense of insecurity in the workplace may I suggest she seek help from a person that provides these types of personal services]. … 29 The applicant went on in his letter to discuss a proposal to alter his work program and his adamant refusal to change his work program in the absence of a deed of variation approved by DIMA. 30 Ms Milne responded to the applicant's letter with a note in which she told the applicant to continue with his current work program until any changes were incorporated in a deed of variation. 31 On 20 November, having received advice from Mr K Godfrey, the respondent's Management Committee resolved to give the applicant a written direction to attend a mediation session to resolve the issue with Ms Nadarajah. In the event Mr Hyland confirmed that he would not do so, it was resolved to proceed with a disciplinary process that might ultimately involve the dismissal of the applicant. 32 Consequently, Paul Nicolaou wrote to the applicant on 22 November 2000. In this letter the applicant was informed that the respondent considered the most appropriate way to resolve the dispute was through mediation, that Ms Nadarajah was willing to participate in a mediation, and that the respondent's management directed him to attend. Mr Nicolaou then wrote that should the applicant continue to refuse to participate in mediation, a disciplinary process would lead to the applicant's dismissal. Mr Nicolaou informed the applicant that the respondent did not share the view that the resolution of the issue was solely Ms Nadarajah's problem and gave the applicant seven days to inform the respondent if he was prepared to attend a mediation session. Finally in his letter, Mr Nicolaou appealed to the applicant to reverse his decision on the mediation issue, as he would be most unhappy if the respondent was forced to dismiss him. 33 This letter was given to the applicant the same day, and the following morning the applicant returned it to Ms Milne. On returning the letter he again refused to participate in mediation. 34 At the end of November 2000 Mr Salvatore Scevola replaced Mr Nicolaou as Chairperson of the respondent. On 5 December 2000 Mr Scevola met with the applicant and asked him to attend mediation. 35 On 6 December the applicant telephoned Ms Milne and told her the respondent was to let the matter rest or dismiss him. That evening a Special Management Committee meeting was held at which it was resolved that the applicant be given two weeks' notice of termination of employment and that a second warning letter be attached. 36 On 7 December 2000 the applicant wrote to Mr Scevola and made the following request: Rather than continue to escalate a manufactured problem I request that by 9 am Tuesday 12th December, 2000 the ECC's Management or Management Committee: resolve to fully and unreservedly hand back to Upekha Nadarajah's her problem to action as she feels fit in a place or a forum outside the ECC (given the problem is not resolvable by ECC's management); or, if the ECC's Management proposes to terminate my employment on the basis of Upekha Nadarajah's and Frances Milne's perceptions of acceptable behaviours then it should do so and cease subjecting me to contract frustration, psychological abuse and threats of some loss. 37 Mr Scevola responded on the same day. As had been resolved at the previous evening's Management Committee meeting, the applicant was given two weeks' notice of the termination of his employment, and attached to the notice of termination was a formal warning. The notice of termination gave as reasons for the applicant's termination the continued failure of the applicant to meet behavioural standards. 38 Following the issue of the notice of termination, Mr Scevola left Australia temporarily. Mr Raymond Arraj became the Acting Chairperson of the respondent. On 8 November 2000 the applicant had a discussion with Mr Arraj and Bill Jegorow, a member of the respondent's Management Committee, at a DIMA function. During this conversation both Mr Arraj and Mr Jegorow told the applicant they did not want him to leave the respondent, but that the applicant needed to be flexible in his approach to the resolution of the issues with Ms Nadarajah. 39 The applicant's response to the conversation with Mr Arraj and Mr Jegorow took the form of a letter dated 11 December. The applicant delivered this letter to Edna McGill, a fulltime volunteer worker for the respondent (and past Chairperson). The letter was addressed to Mr Arraj. In the letter the applicant suggested a framework for the resolution of the issues with Ms Nadarajah. The applicant also raised allegations against the respondent of workplace discrimination against the applicant based on his gender and resulting in him being the subject of unfair treatment. 40 The applicant's suggested path to resolution of the problem was as follows: (1) The ECC inform Upekha Nadarajah that it has attempted to resolve the "conflict" without success, as a consequence. (2) The ECC advise Upekha Nadarajah that she may have to consider other options (outside the ECC) to more adequately satisfy her complaint. (3) The ECC informs Upekah Nadarajah that it will not object to action she may wish to settle her complaint at some Court or other formal forum, but that she would need to be aware that such action would be her sole decision and sole responsibility. (4) Upekha Nadarajah, as I will then agree, not to take action against the ECC to satisfy a complaint the ECC is unable to resolve. (5) The ECC will be impartial and fair to both workers (hence, there will be no economic benefit/support, process consultation, or legal advice given by the ECC to any worker) should either employee initiate any action to settle a grievance that could not be settled within the workplace. (6) The ECC unconditionally withdraw (without prejudice) its 7th December, 2000 letter to me (the letter informed me my employment would be terminated on the 22nd December 2000). (7) The ECC unconditionally withdraw (without prejudice) its 6th December, 2000 letter to me (the letter, which was only received by me as an attachment to the previously mentioned letter that informed me of my dismissal). 41 The applicant informed Mr Arraj that if the respondent was not willing to take the course suggested in this letter he would leave his employment on 15 December rather than 22 December. 42 The applicant then went on under the subheading 'summary' to say: Within this document is a framework that will allow the ECC to resolve Upekha Nadarajah's grievance to its best ability. Essentially, that framework requires the ECC to state it is not in a position to deal with the matter any further and that the disputants will be asked to responsibly settle the matter in a place or forum of their choosing. I am sure - no Court in Australia would hold an employer to task or find them liable for some staff matter that the employer attempted to resolve fairly, impartially and with all due regard to the facts (however presented) of some dispute. I cannot tell the ECC what to do, however, the ECC itself must accept that there are going to be times when no matter what it does to "help" it may not be able to "help" satisfy someone's sense of wrong. 43 Following receipt of the applicant's letter the respondent told the applicant the decision to terminate his employment would not be changed. On 15 December the respondent wrote to the applicant rejecting his suggested course of action and accepting that the date of termination of the applicant's employment would be 15 December, 2000. The Proceedings 44 It is necessary for me to refer to the course of the proceedings given the applicant's allegations that he was not treated fairly. 45 The applicant represented himself in these proceedings. In all proceedings before the Commission, except the initial directions hearing, Mr K Godfrey, as agent, represented the respondent. 46 The applicant filed his application on 3 January 2001 and the application was subsequently listed for directions on 11 January 2001. The applicant was asked if he intended to seek legal representation and he made it clear he did not. He was informed that should he change his mind he was free to seek legal advice at any time. As the respondent was unavailable for conciliation the following day the matter was set down for conciliation on 12 February 2001. Attempts to resolve the matter by conciliation were unsuccessful, and after again making the applicant aware that it was open to him to seek advice or assistance with the conduct of his case, the matter was set down for hearing on 20 and 21 August 2001. 47 In early April 2001 the applicant sought leave for the matter to be re-listed as he had concerns about the contact the respondent was making with him. Leave was granted and on 12 April the Commission heard the applicant as to his complaint. On 18 April the Commission issued a Statement dealing with the issues raised by the applicant. 48 The matter came on for hearing in August 2001 as scheduled and the applicant opened his case. The applicant's evidence consisted of an extensive affidavit sworn by the applicant, as well as his oral evidence. A number of documents were also tendered in support of the applicant's application. The respondent called evidence from Mr Raymond Arraj who was the Acting Chairperson of the respondent at the time of Mr Hyland's termination. Evidence was also called from Ms Frances Milne. 49 In the afternoon of the first day of the hearing (20 August 2001) I had occasion to interrupt Mr Hyland's cross-examination of Ms Milne in order to understand the relevance of his line of questioning. The applicant responded by expressing concern that he was not being treated fairly. In the result, after some discussion about future programming and the limits on the Commission's time, the proceedings were adjourned to the following day. 50 On 21 August the applicant advised the Commission that he would not be in a position to continue proceedings on that day, as he was unwell. The applicant submitted that he felt the proceedings were unfair, that he was being pressured and that the Commission was biased against him. After making a number of submissions to the Commission, the applicant was allowed an adjournment, encouraged to seek assistance with his case, and directed to inform the Commission by 4.00 pm the following Monday if he intended to continue with his application. 51 The applicant informed the Commission of his intention to continue proceedings and the matter was listed for the completion of the evidence and submissions on 14 February 2002. On that occasion the applicant resumed his cross-examination of Ms Milne but again I found the need to interrupt Mr Hyland in order to better understand the nature of his case and the relevance of his questions to Ms Milne. Following what was a somewhat fruitless exchange, Mr Hyland was invited to continue his cross-examination of Ms Milne but he declined and in doing so further accused the Commission of bias. Following Mr Godfrey's re-examination of the witness, Mr Hyland made a very brief closing submission. The respondent tendered a written submission in respect of which the applicant was invited to respond but he failed to do so. 52 The applicant in these proceedings was unrepresented and despite his apparent initial confidence in being able to present his case I consider that the applicant found himself in a stressful situation and that this affected his capacity to make a reasonably coherent and rational presentation to the Commission. The applicant's complaint that he was not treated fairly stemmed from interruptions by the Commission to his questioning of Ms Milne and the Commission's attempt to understand the nature of his case. Whilst the applicant was given very considerable latitude in presenting his case and in questioning witnesses there had to be a limit to issues raised by him that, in my opinion, simply were not relevant. Furthermore, the applicant's focus seemed to be on having Ms Milne admit she was lying and there is a limit to the Commission's tolerance of such accusations when there was absolutely no evidence or any other material before the Commission, to ground such accusations. 53 Despite the Commission's reservations and its concern about the time being taken to deal with issues, the Commission was prepared to allow the applicant to continue with his cross-examination of Ms Milne on 14 February 2002. However, the applicant felt he could not continue because of what he referred to as "a level of bias that is going to influence the things I do." 54 Whilst the applicant did not conclude his cross-examination of Ms Milne, I have enough evidence and other material before me, as well as an understanding of the applicant's case, to make a just decision in this matter. The Commission rejects the applicant's allegations of bias and unfair treatment. Consideration 55 It seems to me that the applicant put forward his case on two broad grounds. Firstly, that the reason for the termination of his employment was not the dispute with Upekha Nadarajah. He submitted the real reason was that he had been challenging the respondent on the ability of its managers in respect of a variety of matters, and the individuals under challenge did not like that. Secondly, the applicant claimed that he was denied procedural fairness in the attempts by management to resolve the problem with Ms Nadarajah, and the lack of procedural fairness flowed through to his dismissal. 56 On the evidence it is clear that there were problems within the respondent organisation during 2000. There were a number of staff terminated as a consequence of funding cuts, and volunteers were called upon to manage the organisation. The evidence shows that at times staff were paid late and this was an unsatisfactory state of affairs. There was also evidence to the effect the applicant complained about management problems. However, there is no evidence whatsoever to suggest the applicant was the target of any form of reprisal or discrimination because of his complaints. I find the respondent did not dismiss the applicant for reasons other than those relating to the applicant's dispute with Upekha Nadarajah. 57 Thus, it must be determined whether in its attempts to resolve the dispute between the applicant and Ms Nadarajah the respondent treated the applicant unfairly and as a result the dismissal was harsh, unreasonable or unjust. 58 I accept the evidence that there was an altercation between the applicant and Ms Nadarajah and that Ms Nadarajah became upset and anxious, not only as a direct consequence of the altercation but also because she found the applicant to be generally unapproachable, uncooperative, intimidating and aggressive. 59 I also find that the respondent took reasonable and proper steps to resolve the conflict between the applicant and Ms Nadarajah. Clearly, in my opinion, it was not open to the respondent to sweep the issue under the carpet in the light of Ms Nadarajah's complaint and in light of the report by Ms Shrock. The employer had an obligation to deal with the matter. 60 The respondent requested the applicant to participate in a mediation session with Ms Nadarajah. The applicant refused, not once but on a number of occasions. The applicant was afforded the opportunity to meet with several of the respondent's officials, including the Chairperson, from very soon after the initial dispute began. Through these meetings the respondent encouraged the applicant to take part in mediation in order that the dispute could be resolved. The respondent was planning, through mediation, to give the applicant an opportunity to put his side of the story to an independent third party. The applicant simply refused to respond, claiming that he had been denied procedural fairness because had not been given a document clearly stating the allegations against him. 61 I fail to see how the applicant could claim that he did not know the substance of the allegation made against him such that he could not answer it. The applicant in this matter was made aware in writing within three days of the incident of his employer's concern and the concern of his work colleague. He was given every opportunity to respond and participate in mediation prior to any formal grievance being lodged by Ms Nadarajah. He was given a further opportunity following the lodgement of the formal complaint. The applicant was made aware in clear terms of the allegation against him and given an opportunity to respond. He refused to do so without any reasonable explanation. 62 There was some suggestion on the applicant's part that he was not informed of any "behavioural standard" that applied to him in his employment and, therefore, the allegation by the respondent in the letter terminating his employment that the applicant had "failed to meet the behavioural standard of the ECC" did not constitute a proper basis for termination. Part of the behavioural standard the applicant was required to meet under his contract of employment was to participate in procedures to resolve any disputes. The applicant failed to meet this standard. If the applicant's position is that he was not made aware that the ECC's behavioural standard required him not to be abusive towards fellow employees and, therefore, it could not be said he breached such a standard, I cannot accept such a submission. If plain common sense and courtesy towards fellow employees did not dictate a standard of behaviour in this respect, it is clear from Mr Hyland's employment contract that he had an obligation to work in harmony with other employees and with the management of the respondent so that there was no disruption to work. 63 Finally, there is the question of whether the applicant was given sufficient warning of his unsatisfactory behaviour before the dismissal. The evidence was that during his meeting with Mr Nicolaou on 27 October 2000 he was told that if he did not respond to the problem with Ms Nadarajah in a flexible way his employer would have no room to move and may need to dismiss him. He was again warned in a letter from Mr Nicolaou on 22 November that if he failed to allow his employer to address Ms Nadarajah's grievance it would result in his dismissal. A formal warning was then attached to the letter of termination sent to the applicant on 7 December, 2000. 64 Without sufficient warning a dismissal may be unfair. There may also be unfairness where ambiguous, oral warnings are given. In Turner v Decke Sheetmetal (unreported, IRC NSW, Buckley C, 2232 of 1996, 12 May 1997) Buckley C said: The difficulty is that such warnings (verbal) need not necessarily convey the intended message. What may be intended to by an employer as a serious warning may be interpreted by the worker as a passing comment … 65 Whilst I agree with Buckley C, in this case I do not consider that the comments made to the applicant could reasonably have been, or were, misinterpreted by the applicant. Further, the warning was followed up quickly with a written warning, with the 22 November letter stating unequivocally that a failure to participate in mediation would lead to dismissal. 66 The respondent then attached a further formal warning to the letter of termination. This was, in my opinion, unnecessary and it understandably caused some confusion for the applicant. However, it did not obviate the effect of the verbal and written warnings the applicant had previously been given or negate the conduct of the applicant. The applicant had, by then, consistently refused to participate in mediation with Ms Nadarajah. He had told his employer that he would not take any action to resolve the dispute, and rebutted any suggestion that he had a responsibility to do so. He had, by the time of the termination letter, effectively issued his employer with an ultimatum, challenging the respondent to proceed according to his wishes or dismiss him. The respondent chose the latter. 67 I find that in the circumstances of this case, the two warnings given to the applicant were sufficient and did not result in unfairness. 68 The respondent attempted by reasonable means to resolve the dispute between the applicant and Ms Nadarajah. Ms Nadarajah was willing to participate in mediation. The applicant, however, was not prepared to do so. He simply wanted the issue to go away it seems, without making any attempt to address Ms Nadarajah's anxiety about working with him. In a modern employment environment, where the employer must be acutely sensitive to the impact of one employee's behaviour on another, it was not within the applicant's prerogative to seek to avoid a resolution of the matter. 69 In the face of the applicant's unreasonable stance in stubbornly resisting to participate in resolving a dispute with a fellow employee the respondent, in my opinion, was left with no choice but to terminate the applicant's employment. Accordingly, I find that the applicant was not unfairly dismissed and the application for relief pursuant to s 84 of the Industrial Relations Act 1996 is refused. I so order. 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.