Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg and Roads and Traffic Authority of NSW [2009] NSWIRComm 14

Industrial Relations Commission of New South Wales

CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg and Roads and Traffic Authority of NSW [2009] NSWIRComm 14

APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg PARTIES: RESPONDENT Roads and Traffic Authority of New South Wales

FILE NUMBER(S): IRC 872 of 2008

CORAM: Sams DP

Termination of employment - unfair dismissal - RTA driver testing officer - applicant dismissed for misconduct - alleged breaches of RTA's Code of Conduct and Ethics and other policies - whether dismissal substantively and procedurally harsh, unreasonable or unjust - applicant seeks reinstatement - earlier disciplinary investigation in 2004/05 - allegations of threatening and intimidatory behaviour against other staff - neighbourhood disputes brought into workplace - transfer from Grafton to Armidale with final warning - final warning had 12 month life - whether 2004/05 incidents relevant to applicant's later dismissal - first disciplinary matter involving driver testing errors - surveillance of applicant - errors substantiated - no formal fact finding investigation - procedural unfairness - applicant too ill to attend disciplinary interview - reports of applicant's doctors and HealthQuest - postponement of disciplinary investigation - delay in finalising investigation - complaints of the Union - second disciplinary matter - two incidents - whether threatening and abusive conduct - use of profane language - email complaints from employees - acceptance of certain words used - apology and contrition - complaints by applicant and partner - second incident involving allegations of threatening conduct - whether other employees fearful - whether certain words used - contrary evidence - no statements from, or interviews with, relevant persons - independent investigation - allegations found to be proven - restrictions on investigator - investigator queries quality of evidence - recommendation of Disciplinary Panel to dismiss applicant - recommendation approved - harshness of dismissal - principles of summary dismissal for misconduct - principles of procedural fairness - practicality of reinstatement. CATCHWORDS: Held; issues narrowed to incidents in 2007 - plausible medical explanation for driver testing errors - first disciplinary matter dropped - applicant's belated apology - own admission constituted breach of Code of Conduct - test of genuine fear of threatening behaviour not what perpetrator might believe - applicant frustrated and angry - history of foul language - animosity towards supervisor - applicant's evidence not preferred over other witnesses - acceptance that applicant likely to have used profane language - applicant intended supervisor to hear threatening comment - earlier angry outburst over suggestions of counselling - applicant's timing of incidents rejected - supervisor entitled to feel fearful and threatened - would have been preferable to have interviewed other witness - other witness did not support applicant's version of events - interviewing other witness unlikely to have changed outcome - 2004/05 matters relevant - unrealistic to ignore past history - no medical basis to explain inappropriate conduct - allegations found to be proven - breach of RTA's Code of Conduct and Ethics - procedural defects identified - no formal fact finding investigation would not have changed outcome - delay in concluding disciplinary proceedings due primarily to applicant's medical issues - appropriate for RTA to be concerned with applicant's medical condition - thorough investigations - independent investigator - two Disciplinary Panel hearings - applicant and Union put submissions in mitigation - mitigating factors properly considered did not outweigh seriousness of allegations - potential risk for the health and safety of other employees - allegations found to be proven on balance of probabilities - applicant's conduct in breach of RTA's Code of Conduct and Ethics - seriousness of misconduct outweighed procedural defects - other employees would not work with applicant - mitigating factors considered - dismissal of applicant not harsh, unreasonable or unjust - unnecessary to consider practicality of reinstatement or other forms of relief.