Industrial Relations Commission of New South Wales CITATION: Joseph D'Souza and NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042 APPLICANT Joseph D'Souza PARTIES: RESPONDENT NSW Department of Transport and Infrastructure FILE NUMBER(S): IRC 108 of 2010 CORAM: Bishop C CATCHWORDS: UNFAIR DISMISSAL - public sector employee - allegations of misconduct - tone and content of email - allegations of breach of email policy and bullying and harassment - applicant considered email statement not grievance - considered himself pre-judged in investigative process - considered process biased - did not participate - allegations found sustained - directed to resign - did not resign - dismissed - other issues raised at hearing re impracticability of reinstatement - reinstatement sought HELD - no bullying and harassment - misapplication of policy - only email policy breached - tone and content inappropriate - did not participate in subsequent investigation interview as not given opportunity of support person of choice - issues raised at hearing not previously raised - dismissal too harsh in circumstances - not proportionate to conduct - age of applicant relevant consideration in harshness - some issues as to procedure - no issues raised as to work performance or competence - other disciplinary options available - reinstatement ordered - conditions imposed - written warning - apology - counselling/training Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Public Sector Employment and Management Act 2002 AWU (NSW) (on behalf of Stojanovski) v Bluescope Steel (AIS) Pty Ltd (2004) 137 IR 211 Bankstown City Council v Paris (1999) 100 IR 363 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325] Byrne v Australian Airlines Ltd (1995) 61 IR 32 Cockayne v Hurstville City Council [2009] NSWIRComm 1013 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown) [2008] NSWIRComm 221 Dolphin v Longa (1994) EOC Eaton v Commissioner Of Police [2010] NSWIRComm1035, Electricity Commission of NSW t/as Pacific Power v Crump (1993) 48 IR 296 Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446 Hogan v Police and Community Youth Clubs New South Wales Ltd [2010] NSWIRComm 23 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517 CASES CITED: Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 AER 67 Lee v EnergyAustralia [2010] NSWIRComm1016 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Grose) v Griffith City Council [2006] NSWIRComm 1137 NSW Public Service Professional Officers Association v Forestry Commission (1990) 39 IR 46 Outboard World Pty Ltd (t/as Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 Pastrycooks, Biscuit Makers and Flour and Sugar Goods Workers Union NSW v Gartell White (No 3) (1990) 35 IR 70 Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 Perkins v Grace Worldwide Australia Pty Limited (1997) 72 IR 186 Plummer v Stannard Bros Launch Service Pty Ltd (2005) 145 IR 111 Riley v WorkCover Authority (NSW) (2006) 151 IR 396 Sams v Contact Point International Pty Ltd [2001] NSWIRComm 18 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 24/05/10, 27/05/10 and 28/05/10 DATE OF JUDGMENT: 29 July 2010 APPLICANT: Mr N Keats, Solicitor W G McNally Jones Staff Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Ms K Eastman of Counsel, Sparke Helmore Lawyers DECISION: - 96 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 29 July 2010 Matter No IRC 108 of 2010 Joseph Ignatius D'Souza and NSW Department of Transport & Infrastructure Application by Joseph Ignatius D'Souza re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2010] NSWIRComm 1042 1 This matter concerns an application by Joseph Ignatius D'Souza against the NSW Department of Transport & Infrastructure ("the Department") for a remedy pursuant to s.84 of the Industrial Relations Act 1996. 2 Mr D'Souza was dismissed from his position of Accounts Payable Officer by the Department on the 5 February 2010 (with effect on the 4 February 2010). He sought reinstatement, re-employment or monetary compensation in lieu thereof. 3 The matter was listed for conciliation and directions before Commissioner Macdonald on the 25 March 2010, at which time conciliation took place. However as no settlement could be reached, directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17. 4 The matter was re-allocated to the Commission as currently constituted and listed for hearing on the 24, 27 and 28 May 2010. 5 On the 14 May 2010, Summonses to Give Evidence pursuant to s.165 (3)(b) of the Act were issued with respect to the following persons who had also filed witness statements in support of Mr D'Souza: Elizabeth Trevena - Administration Officer, Dept of Transport & Infrastructure (Exhibit 7) Elizabeth Spires - IT Administrative Support, Department of Transport & Infrastructure (Exhibit 8) 6 A s.90 Undertaking by Mr D'Souza was tendered at the commencement of the hearing on 24 May 2010 (Exhibit 1). 7 An amended Form 7A Application was also tendered at the commencement of the hearing on 24 May, and had previously been exchanged between the parties. The main changes being that Mr D'Souza no longer sought re-employment as an Accounts Payable Clerk in another public sector department and in the "Reasons for Application", the original grounds were deleted and 5 other grounds were inserted in lieu thereof. The original Part 7A Application was subsequently formally tendered (Exhibit 6). 8 At the hearing Mr Keats, Solicitor, appeared on behalf of Mr D'Souza who also gave oral evidence in addition to the witness statements filed (Exhibits 4 and 5). Neither Ms Spires nor Ms Trevenna were required for cross-examination. 9 Ms Eastman, of Counsel, appeared on behalf of the Department and called following witnesses who gave oral evidence in addition to the witness statements filed: Nazzareno Lucarini - Director Administrative Services, Dept of Transport & Infrastructure (Exhibit 9) Michael Cashman - Manager, Employee Relations, Department of Transport & Infrastructure (Exhibit 10) Leiane Pretyman - Facilities and Services Co-ordinator, Dept of Transport & Infrastructure (Exhibit 13) Background and Chronology - based on the evidence filed and the transcript. 10 As at the date of the hearing Mr D'Souza was 69 years of age (and due to turn 70 the week after the hearing). He first commenced employment in the public sector in 1985. He had worked as an insurance underwriter with GIO, a salaries officer for NSW Police and as an underwriter for the State Superannuation Board during this period. He also had a period of time out of the public sector however there was no evidence as to the extent of this period. 11 Mr D'Souza commenced employment with the Department on 28 July 2000 as a temporary employee and was subsequently permanently appointed on 20 August 2001. He remained continuously employed until his termination effective on the 4 February 2010. 12 There are between 350 and 400 employees in the Department altogether. Mr D'Souza was located at the Department's premises at Parramatta Those particular premises had been the subject of ongoing issues with air conditioning since approximately 2004. Issues which were particularly relevant to the events both preceding, and leading to Mr D'Souza's termination. 13 On the 6 May 2009 at 5:14:49 p.m. Mr D'Souza sent the following email to Ms Jambavati Excell, a Receptionist (Exhibit 4-C): Hi Jambavati, At lunch time you told me nothing could be done, then an hour and a half later Daljeet told me repairs to the AC were in progress on Lvl 5. Around 4.15 p.m. Kevin Robinson went and spoke to Leiane and she soon returned with the building manager and now at 5.10 p.m. he has brought his ladder and has done a lot [of] adjusting of the vents/controls in the area of Finance and Capital Funding. So much for Admin.... Joseph 14 The e-mail was also copied to Daljeet Kaur, Kevin Robinson, Reno Lucarini and Wendy Barrett. It was not copied to Ms Pretyman. 15 On 7 May 2009 at 8:38 am, Ms Pretyman sent the following email to Mr D'Souza which was copied to 6 other staff members, including Mr Lucarini (Exhibit 9-A ): hi Joseph Any issues with air conditioning should be brought to my attention as Facilities Coordinator. Kevin Robinson complained about the air conditioning being too warm yesterday afternoon so I checked the temperature which was slightly outside of the range specified in our leasing agreement. I then contacted the Building Manager who visited our site to check the problem. He is currently is in the office this morning with a technician to conduct an air balance for the Finance area. . 16 Mr D'Souza replied at 11:32:35 am, (and in so doing, that reply also went to all recipients of Ms Pretyman's email, including Mr Lucarini) (Exhibit 9-A) as follows: Hi Leiane I consider your e-mail as a crass response and ask that you withdraw it in full. It is equally incumbent on you as Facilities Coordinator to ascertain the situation each day and/or talk to the staff, as all in Admin, you, Wendy and Reno know the situation. Peter Scarlett, Kevin, Julieta, Tony, Gaby, Hang, the GIS staff, etc, etc regularly comment/raise or have raised the issue of the AC. The Constitution allows for freedom of speech, more importantly it is our health and office productivity, if you think it is something personal or others have no rights, that is up to you. Might never right. Is it a fact that the new Owner is not honouring the earlier commitment to upgrade the AC? Or is there another reason for regular problems throughout the floors MOT occupies? I spoke to you and also sent e-mails in late Jan. '09 or early Feb. 09 when major repairs were being undertaken and I asked for the gauge to check matters, a few days later you brought a gentleman (the AC contractor?) to me whom you never explained/introduced properly. In your presence as you stayed silent, he sought to pressure me saying that there was nothing wrong, the temperature range was okay, why was I speaking up... You brought and allowed an outsider to heavy a permanent member of the Staff!!! Yet the work continued for days/weeks after that. Not to mention there is little or no improvement. On Tuesday 5.5.09, afternoon Louise Wilson, in front of my desk, told Peter Scarlett who was on his way to a meeting at the Admin. end that that area was "cold" also that on Monday 4.5.09, someone used a heater. So Peter went back to his room and returned with his coat and went to the meeting. In this strong arm impasse, I will have no option but to consider approaching WorkCover and other OH & S organisations to help, Joseph 17 After receiving this email, Mr Lucarini then sent the following email to Mr D'Souza (Exhibit 4-D), at 11.39 am: I will be in Parramatta this afternoon, based on your comments I consider it necessary that we meet and discuss your concerns, I will send a meeting notice for 1 pm today. 18 Mr Lucarini held the meeting at 1 pm that day to discuss the concerns raised by Mr D'Souza in his email. Mr D'Souza was accompanied by a support person, Mr McKerral, also present were Ms Pretyman and Mr D'Souza's Manager, Mr Tony Mamo. 19 Following the meeting, on 11 May 2009, Mr Lucarini sent an email to Mr D'Souza and Ms Pretyman (Exhibit 9-C), attaching a letter concerning the "Email Complaint By Mr Joseph Dsouza" (sic), and advised inter alia as follows: Mr Dsouza['s] email raises a number of serious allegations including: 1. That Ms Pretyman issued a Crass email. 2. That freedom of speech is being limited. 3. That Ms Pretyman "brought and allowed an outsider to heavy a permanent member of staff. 4. That a "strong arm impasse" exists and that this causes Mr Dsouza (sic) to consider approaching WorkCover or other 0H&S organisations to help. 20 Mr Lucarini further advised that the allegations raised were of "a serious nature" and that as no additional information was provided at the meeting it remained management's responsibility to investigate the allegations. He required that they both provide him with a "full and comprehensive report" on the allegations by 15 May 2009. The information to be provided was to be used to prepare a report for consideration by the Director General. 21 On the 11 May 2009, Ms Pretyman emailed a one and a half page report to Mr Lucarini detailing actions she had taken in relation to the air conditioning issues raised by Mr D'Souza and others. She also provided an explanation for "the outsider", being the Building Manager, Paul Dias and indicated that he did introduce himself and she did not feel that in any way he was trying to intimidate Mr D'Souza and "it would be uncharacteristic for him to do so". She also attached an email to show that Mr D'Souza's complaints were being addressed at the time and every effort taken to try and resolve them. She made no complaint and expressed no distress or concern in the report about Mr D'Souza's email (Exhibit 9-O). 22 On 15 May 2009, Mr Lucarini received the following email from Mr D'Souza in reply to his 11 May email (Exhibit 9-E)s: "At the meeting called by you on 7.5.09 from 1.00 to 1.30 p.m you angrily prejudged and condemned me from the outset, with the wholehearted support of Mr David McKerral (?), cutting off Mr Tony Mamo in mid sentence as it did not suit you, thereby biasing the matter. I strongly protest at the stance taken by you" 23 Mr Lucarini was absent from work on sick leave from about 15 May 2009 to 3 June 2009. 24 On 10 July 2009, Mr Lucarini sent a further email to Mr D'Souza attaching a letter requesting further information by 17 July 2009 (Exhibit 9-F). The letter reiterated the allegations raised in his earlier letter; that on the limited information provided in the meeting and Mr D'Souza's email response, the allegations could not be the basis of disciplinary action, and again requested further relevant detail in support of the matters raised generally in Mr D'Souza's email of 7 May. The additional and/or supporting information was to be provided by 17 July - "following which time I will formally advise the Director General whether or not to proceed further in this matter". 25 Mr D'Souza emailed a response to Mr Lucarini an hour later indicating that he considered "it only fair" that he be allowed two months for any reply, on the basis that Mr Lucarini had sought further information nearly 2 months after his email response of 15 May. Mr Lucarini granted the two-month extension until 10 September 2009 (by email). 26 On 11 September, Mr D'Souza sent the following email response to Mr Lucarini (Exhibit 9-I): "In view of my reply of 15.5.09, which you have acknowledged then, I am puzzled and do not know what more is required". 27 On 21 September 2009, Mr Lucarini prepared a submission to the Director General indicating that an allegation of misconduct be considered against Mr D'Souza (Exhibit 9-J). The allegations were detailed and relevant emails attached. It was indicated that the review of the complaint and allegations was managed as an investigation in accordance with the NSWTI Grievance Procedure. A report as to the investigations and findings was attached which indicated in summary that Mr D'Souza's allegations could not be substantiated and there was no case for Ms Pretyman to answer. Additionally it was found that Mr D'Souza had breached the "Use of Email Policy" (also attached) and the Code of Conduct. He had also been the subject of previous disciplinary matters, with mention being made of those past events in the attached report. Mr Lucarini went on to recommend "that the Director General considers the allegations of misconduct against Mr D'Souza and advise of the appropriate course of action" 28 On 29 September 2009, the Director General forwarded a letter to Mr D'Souza (Exhibit 10-D) indicating that he had received an allegation that he had engaged in misconduct as follows: 1. That you did breach section 2.5 if (sic) the NSWTI Use of Email Policy by sending material of a defamatory nature to a colleague 2. That you did breach the NSWTI Code of Conduct by making unsubstantiated allegations against a colleague 3. That you did breach the NSWTI Code of Conduct and the NSW Government Dignity and Respect Charter as they relate to harassment and bullying in the workplace 4. That you did also in the course of engaging in the behaviours described above, breach section 2.1 and section 2.2.1 of the Use of Email Policy by sending material which would reasonably cause anxiety, is threatening and libellous and designed to intimidate the recipient. 29 The letter went on to advise that the allegation was to be dealt with as a disciplinary matter under s.46 (1)(a) of the Public Sector Employment and Management Act 2002 and that Mr Peter Brown from GVK consulting had been requested to undertake an investigation into the allegation and prepare an investigation report. Mr D'Souza was advised that he was to be interviewed as part of the investigation process and given an opportunity to respond to the allegations. He was further advised that on receipt and consideration of the investigation report disciplinary action could be taken which was listed as follows: Caution Reprimand Fine Reduction in salary Demotion to a lower graded position To be allowed to resign Direction to resign Dismissal 30 On 9 October 2009, Mr Brown sent a letter to Mr D'Souza providing a copy of the guidelines for the conduct of the investigation and requesting that Mr D'Souza attend an interview on Friday, 16 October 2009. The letter further advised that as Mr D'Souza's support person was not available for two weeks, and this delay was unacceptable, he should choose an alternative observer (Exhibit 4-H). 31 This letter had followed an earlier phone conversation between Mr Brown and Mr D'Souza. on the 8 October 2009 concerning the interview arrangements. 32 On the 9 October 2009, Mr D'Souza sent the following email to Mr Brown (Exhibit 4-J) concerning that phone call and the letter: "I regret I am unable to meet your deadline and what I consider/view as your ultimation (sic). I am puzzled by the material you have enclosed an apparent fiat (sic) accompli/pre-judgement and condemnation and by what I consider your belligerent stance, being a third party who is being paid by DOT&I, and as I said yesterday - to me there is an inherent conflict of interest. I regret I cannot consider you as being neutral. I am not an employee of GVK. It should be DOT &I that should lead and be in the picture Please note my total objection to your handling of this matter. 33 On 12 October 2009, Mr Brown sent a further letter to Mr D'Souza (Exhibit 10-D) in response to this email advising him of the guidelines for the investigation; that no findings had been made nor had an ultimatum been set; he had been appointed to independently investigate the matter and that a final determination as to whether or not he had engaged in misconduct would be made by the Director General. He was further advised that in accordance with s.11.3 of the Guidelines, the investigation may only be conducted in the absence of the officer if: · the officer fails to attend an interview; and · there are no reasonable circumstances mitigating the failure of the employee to attend an interview; and/or · efforts are made to ascertain why the officer did not or does not want to attend an interview and are documented. 34 On 12 October 2009, Mr D'Souza responded to that letter by way of the following email (Exhibit 10-D): "I have replied to you at 2.21 p.m. on 9.10.09 referring to your phone call on 8.10.09 and the circumstances and can only consider your deadlines and further contact from you as an intrusion and intimidation." 35 Mr D'Souza did not attend the interview with Mr Brown on the nominated date of 16 October 2009. Mr Brown, by further letter of that date to Mr D'Souza, invited him to provide a written response to the allegations by close of business on Monday, 19 October 2009. 36 19 October 2009, Mr D'Souza sent an email to the Director General (Exhibit 4-J), indicating that it had not been possible for him to attend the meeting as his observer was in the Northern Territory. He went on to refer to the original meeting on 7 May, indicating: "..............Mr Lucarini biased proceeding (sic) by prejudging and condemning me. This is on record in my 2 e-mail replies to the Office. To overlook all this and to impose more deadlines for me to respond to "allegations" which are not facts, is not justice." 37 The Director General responded by email to Mr D'Souza on that same date (Exhibit 4-J), indicating that Mr Brown was an independent investigator and that the allegations against him were made by the Department. He was assured that a determination would only be made on the basis of information provided in the report prepared by Mr Brown, but that should he choose not to respond, then Mr Brown would prepare his investigation report on the information before him. 38 Mr Brown undertook his investigation during October - November 2009. During the course of the investigation Mr Brown conducted a site inspection of the Department's Parramatta premises and conducted interviews with the following persons: Reno Lucarini David McKerral Leiane Pretyman. 39 Mr Brown completed his report at the end of November 2009 (Exhibit 10- MC1) and indicated that the investigation had found that: There are sufficient grounds for the Department Head to make a finding of misconduct and continue to treat the matter as a disciplinary matter. I make this finding on the basis that Mr D'Souza did intend to intimidate and harass. Mr D'Souza has a documented history of inappropriate conduct and behaviour both verbally and by the use of email. He appears not to have benefited from two past remedial actions. He has been warned on two previous occasions. I have also formed the view that Mr D'Souza has, during the course of this investigation and at other times, exhibited behaviours consistent with the definition of a querulent complainant provided by the NSW Ombudsman (Complaint Handlers Toolkit 2004, Chapter 2 Section 2.1.6, Pg42). I have also formed the view that his behaviour and responses to issues is not commensurate with the matters raised. If deemed appropriate, it is recommended that Mr D'Souza attend a suitable medical assessment with a view to guiding future dealings with this officer. 40 On 27 November 2009, Mr Cashman received a memorandum and enclosures in relation to the findings of Mr Brown's investigation from Sharon Martin, Assistant Manager, Employee Relations (Exhibit 10-D). The memorandum included the following recommendation: 1. It is recommended that the Director General sign the attached letter to Mr D'Souza advising of the following: · That an initial finding of misconduct has been made, · Severest penalty that would conceivably be imposed - directed to resign or be allowed to resign · Providing him the opportunity to meet with the Director General, to discuss the findings · That he has 14 days to make a submission before the final decision is imposed 2. That the attached letter be returned to Employee Relations so that it is mailed with the appropriate attachments. 41 Mr Cashman deposed that after considering the memorandum and enclosures, he decided to support the action proposed. 42 On 3 December 2009, the Director General sent Mr D'Souza a letter informing him of the outcome of the investigation and that disciplinary action was being considered.(Exhibit 10-F). He was advised that in relation to this matter the severest penalty that would conceivably be imposed was, "that you be directed to resign, or allowed to resign within 10 days of my final decision. Should you fail to comply with this direction you can be dismissed." Mr D'Souza was given 14 days from receipt of the letter to make a submission and provide any additional information which he considered should be taken into account before the final decision was made. He was also advised that he had an opportunity to have an interview with the Director General accompanied by union/other representative (but not a legal practitioner) before a final decision was made. A full copy of the report (including attachments) was provided also to Mr D'Souza 43 An initial meeting arranged for 18 December 2009 between Mr D'Souza , his Union representative Mr James Shaw (from the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA)) and the Director General was cancelled by the Department on that day (there was no evidence as to the reason for this cancellation). Mr D'Souza arranged a subsequent meeting with the Director General for 14 January 2010 to discuss the matter. However on 13 January 2010 he sent the following email to the Director General (Exhibit 10-G): On second thoughts I forego attending the meeting at 10:30 a.m. on 14.1.10 44 On 15 January 2010, a memorandum in relation to the final decision concerning Mr D'Souza was prepared by Ms Martin, Assistant Manager, Employee Relations (Exhibit 10-H), recommending that Mr D'Souza submit a resignation within 10 days and, in accordance with s.49(1) of the PSE&M Act, he was to be suspended from duty on full pay effective immediately. The recommendation was subsequently signed by Mr Cashman, the Deputy Director General and the Director General. 45 On 21 January 2010, the Director General wrote to Mr D'Souza, noted that he had been provided with the opportunity to make submissions and/or provide additional information in support of his case by way of a meeting which he did not pursue, and advised that he was to be allowed to resign on or before 4 February 2010. In the absence of providing a resignation he would be dismissed on that date (Exhibit 10-I). 46 Mr D'Souza did not tender his resignation and on 5 February 2010 the Director General forwarded a letter of termination to him effective 4 February 2010. (Exhibit 10-J). Air Conditioning 47 Mr Lucarini's area of responsibility included facilities management and within that, air conditioning. The lease agreement for the Parramatta office of the Department provides that air conditioning will be between 21 and 23°. If the air conditioning performs outside the specified range it is the responsibility of the landlord. 48 Mr Lucarini deposed that in about late 2008 - early 2009, he directed the Facilities and Services Coordinator (Ms Pretyman) as to how to deal with complaints about the air conditioning. If a complaint was received then the relevant Coordinator was to go to the particular zone with a meter and take a reading; if the reading was within the acceptable range then the person who complained of that was to be informed and the matter noted as closed; if the reading was outside the range then the Coordinator was to report the matter to building management for them to rectify the issue. Ms Pretyman would report such issues to the Property Manager. 49 On 22 January 2009, Mr D'Souza sent a detailed e-mail to Ms Pretyman (Exhibit 4-A), concerning issues with the air conditioning between 19 and 21 January, his complaints and emails and actions taken by Ms Pretyman in bringing a temperature gauge to his area. His email then went on to say Talk about crass behaviour, i) a simple request to communicate with Lvl 6 Staff yesterday was given short shrift, ii) my request to have the temperature gauge is treated as an imposition, iii) 11.33 a.m to 11.47 a.m - 4 minutes you consider as sufficient to make a judgement, iv) 11.37 to 11.44 a.m - 7 minutes at Sigurjon's desk and then you offer feedback to him who had not even asked about the AC. v) a bit latter (sic) an e-mail to me. I'm spelling this out so that Reno and Wendy can know the full facts, this is the stuff of how situations needlessly escalate out of control. To me this is not the way at a facilities coordinator should work. 50 Mr Lucarini deposed that in about February 2009, the Department arranged for a technical survey to be conducted in relation to the air conditioning on Level 1 of the Parramatta office. The survey found that the air conditioning plant was underperforming and rectification works on Level 1 were undertaken and completed in around June 2009. The Department subsequently spent $35,865 on minor works to improve the performance of air conditioning throughout the Parramatta office and these works were completed in about September 2009. Relevant Work History 51 On 31 July 2007, Mr D'Souza received a written warning from the Acting Director General concerning his sending of an inappropriate email to various Ministry Staff the previous week (The email had attached an article on financial issues in the context of the GFC) . The letter of warning noted that on two previous occasions he had been spoken to in regard to "inappropriate content and tone" of two other emails he had sent in March and April 2007 (Exhibit 10-K). He was advised that his conduct and performance would be monitored for the next six months, and issued with a warning that his conduct was unacceptable. 52 In March 2008, a formal grievance was lodged against Mr D'Souza by Ms Christina Wang an employee of a company to which the Department provided Corporate Services. The grievance concerned a comment made by Mr D'Souza during the course of a telephone conversation with Ms Wang. A fact-finding report into the complaint was conducted by an independent investigator in June 2008. Mr Cashman supported this action. 53 The report received by the Department in June 2008 found that during a telephone conversation with Ms Wang on 20 February 2008, Mr D'Souza had said words to the effect of "Don't you understand English?" and then placed the receiver of the phone on his desk while Ms Wang was still talking (Exhibit 10-M). As a result of the report Mr D'Souza received a letter from Mr Scarlett , the Executive Director Transport Services Group, dated 25 July 2008, stating that he had breached the Code of Conduct; his behaviour was inappropriate and unacceptable; he was directed to comply with the code of conduct in the future; advised he would be formally counselled and that a copy of the letter would be placed on his personnel file for the next 12 months (Exhibit 10-N). 54 Mr D'Souza maintained that no such formal counselling ever took place. 55 Mr Cashman also deposed as to an email he received from David McKerral on 18 September 2009 concerning an approach Mr D'Souza had made to a female staff member, Ms Sandra Musset, and a leaflet that he had given her discussing ways to cure and prevent obesity. The email advised that, although offended by the suggestion, Ms Musset did not wish to go any further with the matter. She was not upset or distressed regarding the matter, just surprised by his actions. (Exhibit 10-P). 56 Mr D'Souza deposed that he was first made aware of this allegation when he viewed his personnel file on 18 December 2009. At the time he sent an email to Mr Cashman asking that it be removed from his file as he had been denied the right of reply. He did not receive a response to that request (Exhibit 5). 57 Mr D'Souza was one of two Accounts Payable Officers in the Department. As at the date of the hearing Mr D'Souza's position was substantively vacant. It had been filled on a temporary basis pending the outcome of this matter. 58 Mr Cashman deposed that the position had been identified as a possible "shared services function" in relation to the creation of the "super department" and accordingly action had not been taken to permanently fill the position. It was possible that the role might be subject to redistribution in the foreseeable future as part of a transition to Shared Services. 59 Reinstatement of Mr D'Souza was opposed by the Department. 60 There were no issues raised as to Mr D'Souza's competence or ability to carry out his position of Accounts Payable Officer. 61 The position description for the Accounts Payable Officer as applicable to Mr D'Souza was also in evidence (Exhibit 10 - O). 62 Since his termination Mr D'Souza deposed that he had registered with both Centrelink and Salvation Plus for their assistance in finding other employment. He had also contacted Hayes recruitment and deposed that they had indicated that in a "very tight market" it will be hard to find work. 63 He deposed that he had limited resources and only had enough money in the bank for his rent until May 2010. 64 Mr D'Souza further deposed that his greatest fear was that it would be extremely difficult for him to find any form of employment, let alone in his area of expertise and commensurate with the position and salary he had held in the public sector, that had taken him many years to earn. The Evidence General 65 Mr D'Souza acknowledged the various requirements expected of him as set out in his position description under the heading "Interpersonal Skills". He understood those duties and those requirements of his role. He also understood that he had to comply with the Department's Code of Conduct and other Department policies, including the Email Policy. 66 Mr D'Souza acknowledged that he would have signed the Code of Conduct, although he could not remember doing that, and that he had read the Code. He acknowledged various specific aspects arising under the Code of Conduct in relation to his obligations towards both colleagues and members of the public. 67 Mr D'Souza maintained he was never formally counselled about the incident with Ms Wang in 2008. He said that when he spoke to her as he did, it was because "I was perplexed". He did not agree that he spoke to her in a confronting way. He said Ms Wang never raised any complaint or comment throughout that conversation, and he was not aware during the conversation he had with her that she was upset by his comments. He agreed that he participated in an investigation and that he told the investigator that the matter could have been handled differently. He maintained that it was left in the report to the office to ask whether he should apologise. The matter was skirted around and there was no definite comment made and it was never pursued by Mr Mulhall. 68 When he received the letter from Mr Scarlett on 25 July 2008 he read the letter carefully and he understood the letter to mean that he had to do his work correctly, and not harm anybody. The steps he took to address his behaviour was to stick to his work and reduce his exposure to others. To avoid any misunderstandings he would stay and do his work. 69 As far as the reference in the letter to the tone and content of emails was concerned, he indicated that the email was "solely to help people". It was sent out with the utmost care. He acknowledged that Mr Scarlett's letter raised the issue of his interaction with other staff and colleagues and agreed that this was a concern to him. 70 He did not agree that he did nothing in 2007 and 2008 to address what the Department had identified as being a lack of awareness on his part as to his interaction between himself and other colleagues, saying "99% of the staff recognise my desire to help". He said that he had a desire to do right by others and had no intention of causing harm to anybody . 71 Whilst two emails were referred to in the letter (16 March and 30 April 2007 respectively), Mr Murphy only spoke to him about an email to Matthew James, never about an email to Rosemary Lee. No document was ever shown to him as to why the subject was raised until the letter was given to him, he had no recourse to answer anything. He had no choice but to accept that the content of the emails was inappropriate. He was not shown the email (to Rosemary Lee) that raised the issue until 18 December 2009. 72 When asked whether he agreed, looking back at the three e-mails, that the content was inappropriate that he responded "Could have been differently rephrased". 73 He maintained that in relation to the second email there was no personal animosity in that and the person concerned, Rosemary Lee, to the best of his knowledge was a temporary who left about that time. He was not familiar with the person and neither were her feelings make known to him. He acknowledged that the content of the email could cause distress to the reader "if they chose so to take it". Air Conditioning Issues 74 Mr D'Souza deposed that in relation to the problems with the air conditioning it would regularly be either too hot or too cold and he used to always have to wear a cardigan in the office. A number of other staff also always wore cardigans to cope with the air conditioning. He maintained that nearly all the staff on Levels 1, 4, 5 and 6 had regularly complained about the air conditioning. His Manager, Tony Mamo, had also made comments to him about the air conditioning. 75 He gave examples of his earlier complaints to Ms Pretyman in January 2010 and an email exchange with her concerning that issue. These emails had followed the air conditioning being exceptionally cool, then hot, then cool over previous days and a failure to properly respond to his concerns until he indicated that other staff had also raised concerns. He maintained that this was the common manner in which his concerns with air conditioning were dealt with by management. He was regularly raising issues about the air conditioning that could affect his health but the problem was not being fixed and it was only when other employers complained that anything happened. 76 Mr D'Souza acknowledged that he had no particular responsibility for the air conditioning in the building or for dealing with facilities and equipment used. However, he said that if something was amiss, then under the OH & S Act he had to bring it to his manager's or supervisors knowledge. They were told this in workshops and direct communication and those people would have been Ms Daljeet Kaur and his direct manager, Mr Tony Mamo. 77 He said that with something like the air conditioning being at fault, Ms Kaur would also ask to be kept informed, because he was sitting about 50 feet away from her. This happened throughout the four years, at least once or twice a month. The same thing happened with his manager Mr Mamo, he would tell him they had to report it to administration. 78 Mr D'Sousa maintained that he was repeatedly speaking up about the air conditioning. It did affect his health, but he acknowledged that he did not have any sick leave related to the air conditioning and also acknowledged that he had not provided any evidence to the Commission that he had experienced any ill health as a result of the air conditioning. 79 He was aware that it was Ms Pretyman's role to look after facilities and equipment for the building and that she was the person to whom any complaints about the air conditioning should be directed. 80 Ms Pretyman deposed that she had received several complaints from Mr D'Souza concerning air conditioning in the Finance area in late 2008 and early 2009. She considered that she had followed the correct procedure (as directed by Mr Lucarini) in dealing with his complaints. She gave examples of some of these instances where she would go to the particular area and take temperature readings, these instances occurred in January 2009. 81 In relation to events of the 22 January and Mr D'Souza's email, she had gone to the Finance area and taken temperature readings. She had asked Sigurjon Runarsson if he was also experiencing problems with the temperature and he told her he was, so she told him that the temperature was within the acceptable range but she would continue to monitor it. She then sent an email to this effect to Mr D'Sousa. He then sent her an email in which he stated that her behaviour was, amongst other things, "crass". She was surprised and upset by the email. She considered that he was implying that she was incompetent. She did not take the matter any further. 82 Mr D'Souza agreed that the language he used in the email was inappropriate but said that he was not commenting on Ms Pretyman's competence. He was at his "wits end". Her competence was not the issue. It was not his intention to be critical if she chose to take it that way. He had made a request and she was checking with another person. He said they were very inconvenienced when he wrote that email. Mr D'Souza did not accept that his response was disproportionate to the information being provided by Ms Pretyman. 83 Ms Pretyman also deposed that during this period she also asked him if wanted to move away from vent that he worked under and he indicated that he did not want to move from his location. 84 Mr D'Souza could not recall Ms Pretyman asking him this, primarily because she did not have the authority. To his knowledge she had not asked him that and he could not have discussed the issue with her because it was between himself and his manager. 85 Ms Pretyman also deposed as to one occasion during this period of time when she told Mr D'Souza that the temperature was still within range, to which he replied "you could cheat the temperature if you really wanted to". She took this to mean that he wanted her to report that the temperature was outside the range. 86 Mr D'Souza said did not remember saying that to Ms Pretyman and did not think he would have told her that. He was not aware of this incident because there was no record, other than her comments. He did not remember having a conversation to that effect with her. 87 Ms Pretyman also explained what was involved in taking the temperature gauge to a particular area, turning it on and gaining an automatic reading. The gauge shut itself off when the reading had been given and she reported that reading. She demonstrated the physical size of the gauge which was about the size of the Bible in the witness box. She indicated that the gauge recorded the temperature pretty quickly and could record it within four minutes. If it was left on too long it would shut itself off. 88 Ms Pretyman also indicated that she had never advised anyone how the temperature gauge worked, she didn't think she needed to do that, it seemed to be obvious at the time. 89 Mr Lucarini acknowledged in cross examination that there had been air conditioning problems at Parramatta that had been ongoing for over four years but considered that during that time only a normal level of frustration had built up. 90 Mr Lucarini acknowledged that in October 2009, when he had his interview with Mr Brown, that at that time point in time he considered that Mr D'Souza's reaction to the air conditioning problem was an "overreaction'. The Emails of 7 May 2009 91 Mr D'Souza deposed that the words he had used in the email to Ms Excell on 6 May "so much for Admin" was meant to convey that the problem was beyond a temporary employee's ability to solve. 92 He denied that he sent the email to Ms Excell because he wanted to circumvent Ms Pretyman. He knew Ms Excell's status. It was confirmation of a personal conversation he had had with her in the lunch room. He was not being critical of anyone. He was confirming Ms Excell's comments as such. He used those words "so much for Admin", because he was talking to Ms Excell and she had agreed that it was a dead end, the air conditioning could not be rectified and they were always going to be in that type of situation . 93 Mr D'Souza deposed that it was "in desperation" that the Department might not be able to solve the air conditioning problem that he sent the email of 7 May to Ms Pretyman. 94 Mr D'Souza said that Ms Pretyman never raised any issues with him as to the contents of this email. He considered the email from her felt like she was "pulling rank", when in the past she had been referring him to the receptionist. 95 Mr D'Souza acknowledged that there was nothing rude in the email that Ms Pretyman sent to him on the morning of 7 May and that she gave him certain information about what she had done about the air conditioning. 96 His email response to her was copied to the original recipients of her email because that was a CC that she had included. He did not delete anything on that and did not go out of his way to copy it to anyone else. 97 Mr D'Souza deposed as to his explanation for a number of expressions in the email as follows: · "I consider your email as a crass response" was intended to convey that the response was callous and insensitive to my concerns; · "The Constitution allows for freedom of speech" was intended to convey that I felt that I was not being heard as my requests were being dismissed in a manner that was trying to get me to stop complaining about the ongoing occupational health and safety issues; · "Might is never right" was intended to convey that I was frustrated that management was failing to care about by (sic) concerns with the air conditioning and how it was affecting my ongoing health and safety; · "You brought and allowed an outsider to heavy a permanent member of the staff" was intended to convey that I felt intimidated by the person brought in by management to look at the air conditioning. He was not to my recollection introduced to me. His first words to me were to the effect of "Joseph what are you talking about with the air conditioning, everything is okay", I felt pressured to say that there was nothing wrong, so I remained silent; · "In this strong arm impasse" was intended to convey that I felt that management was trying to stop me complaining about the air conditioning which I consider to be an ongoing occupational health and safety issue. 98 In cross-examination he said that he was merely stating his views but agreed that the email could have been better worded. He did not consider it rude and disrespectful or that the language was intemperate and inappropriate. He said that "I was puzzled by her comments that she has the position of the facilities coordinator". He had in no way questioned or queried her position. That was the part that he felt was a crass response. It solely related to the comments that she was the facilities coordinator, he was not bypassing her. He did not suggest that she was not doing her job properly. 99 Mr D'Souza acknowledged that it was the second time he had described Ms Pretyman as "crass" in an email but said that he was not questioning her authority, as he had no need to. 100 The Commission queried Mr D'Souza on what he understood the word "crass" to mean and he indicated as follows: A: Callous, indifferent, because I'm not speaking questioning her authority. I have written to Mrs Eksel and now I get a response, so it is -- she has taken offence that I am talking to Mrs Eksel. I'm not doing anything other than rephrasing what Mrs Eksel had spoken in the lunch room, but now it looks like that I had been criticising administration or questioning their authority. I'm not questioning Ms Prettyman's authority. 101 Mr D'Souza maintained that he was making a request of her (in relation to the second paragraph) and that it was not his intention in that paragraph to be critical of her. 102 As to the relevance of his reference to "The Constitution", and, "Might is never right", he indicated that it was part of an ongoing thing that had existed for four years because almost day in and day out they were having problems with the air conditioning. He had made a request on the 22 January and it seemed she was not going to pay any attention. It was frustration because nothing was or could be done to make the conditions workable. 103 He was not suggesting that Ms Pretyman was seeking to ignore his concerns but said that the responses were either "in silence" or "nonexistent". The silence was construed as no response. One answer here and there did not mean that the matter was being attended to. He was not the only one on the floor that had a problem. Every single employee raised the issue, if not daily, every two days, weekly, monthly and for years. 104 He did not agree that when he used the expression "Might is never right," that it was because he was suggesting that Ms Pretyman was bullying him, saying "I don't put words in people's mouths" 105 Mr D'Souza could not recall the date of when the actual event occurred about the anonymous gentleman who came in her company and then distanced themselves from her, walked up to him and asked him what he was complaining about, the readings were within range. 106 The following exchange took place in relation to this issue (typographical errors in the transcript have not been changed): Q. And are you suggesting that Ms Prettyman deliberately brought an AC contractor for the purpose of intimidating you, is that right? A. That is your suggestion, not mine. Q. Well, what did you mean by saying, "You brought and allowed an outsider to heavy a permanent member of the staff", exclamation mark three times? A. I have made a statement in which I have also raised this issue that it is in my opinion, very weird that an unknown party is on my floor in her company and without any introduction. I have sworn to tell you the truth and I stand by what I have said in that thing. Q. Well, what do you mean when you said, "You brought and allowed an outsider to heavy a permanent member of staff"? A. I don't know who the gentleman was, what his status was. All I know is that he indirectly or in my words is telling me to keep quiet. Q. But on your own account, Mr D'Souza, you say all that the man said to you is, "Joseph, what are you talking about the air conditioning, everything is okay"? A. Yes. I-- Q. That's the only thing you say that the man said to you? A. Yes, I felt pressured that who is this stranger that is telling me to keep quiet. Q. He didn't say anything about keeping quiet, did he? He just asked you what you were talking about, everything was okay? A. (No verbal reply) Q. On your own account, Mr D'Souza, you don't say that the AC man said to you, how dare you make a complaint or you shouldn't be complaining? A. You could rephrase that a million ways, but to me, he was telling me to be quiet. Q. Did you accept that he might have some expertise in relation to the air conditioning? A. I don't know the man. To me, he was and is an outsider, irrespective of Mrs Prettyman's comments. Q. But looking at your email on 7 May where you accuse Ms Prettyman of bringing and allowing an outside to heavy, on your own account, all the man said to you is, "Joseph, what are you talking about with the air conditioning, everything is okay"? A. (No verbal reply) Q. Are you seriously suggesting to the commission that those words alone constituted being heavied by an outsider? A. I made a statement that here is a total stranger who has no bearing or who is not supposed to deal with the staff. If he has any concern, he should be routed through the facilities coordinator in whose company he came. Q. But you're making the accusation that Ms Prettyman brought him in and allowed him to heavy you, isn't that right? A. I made a statement that he has come in in her company, walked up to me, away from her and virtually told me to be quiet. Q. And the best you can say is that he asked you what you were talking about, because everything is okay, isn't that right? A. Yes, he - to him I shouldn't be talking about the air conditioning. Q. Then the next paragraph down, you say, "Yet the work continued for days/weeks after that, not to mention there is little or no improvement". So were you criticisimg (sic) Ms Prettyman on the basis that nothing seemed to improve following your interaction with the air conditioning technician? A. No, nothing changed as far as the temperature or the air conditioning and in her statement, she confirms that repair work was being done from about March to September. 107 Mr D'Souza also maintained that Ms Pretyman had acknowledged that she had introduced somebody, but it was not the particular incident she referred to that he was talking about. 108 Mr D'Souza maintained that, in relation the words "in this strong arm impasse", he was at a loss to understand how a total stranger could come in, in her company, and tell him to be quiet and with no relief. They had been at Parramatta for years, and others on Levels 4 and 5 had been there 10 years and their constant comment was that they would never be able to get it right, that was the general consensus. He was not accusing anyone, he was making a statement because he felt she was pulling rank. 109 When he made when he made his statement in April this year it was a statement, not an accusation. 110 When asked to agree that at no point in his witness statements or anywhere else had he apologised for the email, he responded that Ms Pretyman had not raised any objection either verbally or in writing to him from 7 May to a year later in 2010. His email was a statement and not an accusation. Ms Pretyman had never raised the issue with him. Everybody else had, but not Ms Pretyman and "that is strange". Had there been any discussions or anything in writing then they could have thrashed out the matter to everybody's satisfaction. 111 The following exchange then took place: Q. And looking at the events sitting in the witness box today, do you apologise for the contents of that e-mail? A. It could have been better phrased, the statement that I have made in that email. Q. Is that all you wish to tell the Commissioner, that the e-mail could have been better phrased? A. Yes, there was no intention in that e-mail to her, there was no accusation, it is a pure and simple statement. Now, if Ms Prettyman had ever felt that she was affected even to the slightest degree of a phone call or even at the meeting on the seventh, she was totally silent at the meeting. Now, if there was a concern, we can talk it over and if she felt strongly about it, which she hasn't, sure, I would have considered an apology, that might not knowing, I can't read her mind. 112 Ms Pretyman deposed that she sent the email to Mr D'Souza on 7 May because of the earlier email he had sent to Jambavati Excell about the air conditioning issue that had been copied to her. In her view the email to Ms Excell was harsh and inappropriate when it stated, "So much for Admin", which she took as a derogatory comment against that person and her response to his complaint about air conditioning. She also considered that it was inappropriate for Mr D'Souza to bring his complaints to Ms Excell instead of her, and so she sent the email to inform him that she was the only person to contact with that type of complaint. She also spoke with Ms Excell and explained to her the correct procedure to deal with air conditioning complaints. 113 She was surprised and upset by Mr D'Souza's email reply and considered that he was implying that she was incompetent. She was taken aback by the contents. She did not understand how her email to him was "crass" or how she had intimidated him in the past. 114 Ms Pretyman agreed that she never complained either to Mr D'Souza or to anyone else about the content of the email. Nor did she express to anyone that she was surprised or upset about the email. 115 She remembered feeling that in the email Mr D'Souza was suggesting that she was incompetent, and he was suggesting that her earlier email was crass and she took that as meaning that it might have been stupid. She still felt it was inappropriate and she was upset, but agreed she wasn't upset enough to complain to anyone about it because she didn't want to "create a fuss" 116 Ms Pretyman was also taken in some detail through the explanation that Mr D'Souza had given in his witness statement as to the various elements of the email. She indicated that if she had received the explanation about what he meant by a crass response then she would have understood that and she would have understood that he didn't mean that she was stupid but that she was insensitive. However she said she definitely did not agree that her response was callous or that she was insensitive to his concerns. She thought he had implied that she was not professional. It also seemed to her that he had a bias towards her and she would be concerned about how he would behave towards her in the future. 117 Ms Pretyman said there was never an occasion when she took a view about Mr D'Souza's request or concerns about the air conditioning. She welcomed his feedback. It was not an OH&S issue when the temperature was in within range as it was in the leasing agreement range and also within the OH&Sy range. 118 She thought his statement that she failed to care about his concerns and how it was affecting his ongoing OH&S, was an unfair statement because she was concerned, she was concerned with staffs' OH&S and she had never told him not to make a complaint. 119 Notwithstanding her earlier response in cross-examination about being prepared to work with Mr D'Souza in the future provided he behaved appropriately (although expressing doubt as to whether he could do this), she subsequently responded that just from his statement it indicated that he had a bias towards her. 120 Mr D'Souza agreed that he received the email from Mr Lucarini calling them to a meeting within minutes of sending his email. However he did not accept that that would have suggested to him that there might be some concerns with what he had said in the email, saying that he didn't know why he had called that meeting in such great haste. He didn't understand his comments. He was perplexed. 121 Mr Lucarini indicated in cross-examination that he had experience in dealing with industrial relations matters and was aware of the Department's various industrial policies, including the policies relating to dealing with grievances. 122 Mr Lucarini maintained that the 7 May email was a grievance, saying that under the (Department's) guidelines (the grievance procedure), a complaint was a grievance. 123 Mr Lucarini confirmed that the guidelines he was referring to were the "Dignity and Respect - Policy and Guidelines on Preventing and Managing Workplace Bullying" that he had attached to his witness statement. In the section under the heading "Dealing With Complaints" there was a definition in the first paragraph which said: A grievance is defined as a clear statement by an employee of a work-related problem, concern or complaint. 124 Mr Lucarini considered that Mr D'Souza's email fell within category. 125 He agreed that the subject matter of the email - "Re air conditioning" - did not suggest that it was a grievance, and that the email did not ask either he or the recipient to investigate matters and determine whether or not the allegation was true or not. 126 Mr Lucarini then explained why he considered the email was a grievance as follows: A. Sure. The main concern that I had was the one that is involved, it says, "you brought and allowed an outsider to heavy a permanent member of staff". Now that to me, that's quite an alarming statement and I was quite concerned about someone being brought into the workplace to actually heavy - what's the words "heavy a permanent member of staff". To me that's pretty serious, that's a grievance 127 He acknowledged that Mr D'Souza did not at any time ask him to deal with his email as a grievance. The Meeting on 7 May 128 Mr D'Souza deposed that in the meeting he was "angrily pre-judged and condemned from the outset" by Mr Lucarini. He considered his demeanour during that meeting to be "bullying and one-sided". He felt "intimidated", even with the presence of a support person. The allegations were put to him, but he was not given much opportunity to respond. He considered that Mr Lucarini was "biased" and that any responses he might give "would not be properly considered". He was advised that an investigation would take place and he would be contacted at a later date. 129 During cross-examination Mr D'Souza maintained that what he had deposed clarified what had occurred at the meeting, "in its preciseness". He considered that Mr Lucarini's conduct was inappropriate and that what he had said in his statement was how he saw it. Mr Lucarini had from the outset prejudged and condemned him and that explained his total "no comment" throughout that half-hour meeting. 130 Mr D'Souza was taken in some detail to what Mr Lucarini said during the meeting but indicated in response that he was not consciously aware of that terminology. He took a few notes but because of the non-stop comments that were being made he could not write fast enough. He had not included any notes in his statement. 131 He also could not remember comments that it was said he had made during the meeting (that Ms Pretyman should be checking it every day and dealing with it) or Mr Lucarini's response. 132 All he knew was that the outburst, to him, as he saw it, was virtually non-stop. All he knew was that he was prejudged and that was it. Everything was directed at him, not a single question or word was directed at Ms Pretyman. 133 He had made a statement in his email, he was not making any allegations. All he was hearing was that Mr Lucarini had prejudged the situation. There were no questions asked, there were no explanations asked. Neither party was asked to present their side, it was something that had been prejudged and therefore he chose to say "no comment" throughout. He denied saying "it's all in the email." 134 Mr D'Souza denied that Mr Lucarini asked him on a number of occasions to explain what he meant by the email saying that by prejudging the situation he had forfeited the right to do anything further. In good faith he considered it a pre-judgement and a condemnation. 135 Mr D'Souza could not recall Mr Lucarini telling him at the end of the meeting that he was going to write to him formally and request him to provide information, he could have said that but he was not paying any attention to him as the pre-judgement meant that the matter was "nullified". 136 He went on to explain what he meant by "nullified" saying: A: I made a statement and I'm being held that I've made allegations or accusations, but without the chance of being asked to explain initially, - the chance to explain comes in four days later. That would have been the correct procedure, get an explanation and then evaluated. You evaluate first and then you say, explain. In my way of thinking, that is back to front. 137 Mr Lucarini deposed that he indicated at the commencement of the meeting that the meeting had been called in response to Mr D'Souza's e-mail as it raised a number of serious allegations including someone being brought onto the premises to bully him. The allegations were taken very seriously and the organisation had a responsibility to ensure the workplace was free of harassment and people didn't get bullied. The purpose of the meeting was to get some facts and information about the allegations in the email. 138 Mr Lucarini further deposed that Mr D'Souza repeatedly responded by stating words to the effect of, "it's all in the email". 139 Mr Lucarini denied that Mr D'Souza's responses during the meeting, each time was "no comment", saying that every question he asked of him he kept repeating "it's all in the e-mail". He maintained that he never once said "no comment". 140 Mr Lucarini maintained that he had not determined that the allegation would be investigated as a grievance. His first intention was to find out what the information was that led to this email being put out and he gave him the opportunity at the meeting to give more information and then sought a written report because he couldn't get any information at the meeting. 141 He acknowledged that was not usual to take action within seven minutes and calling a meeting with both the person being complained about and the complainant, but said that when someone was being "heavied" in the workplace, that required immediate attention. He didn't accept bullying of that nature in the workplace, he thought it was very urgent. 142 He agreed that there were a number of ways of handling a grievance. Normally you will calling a meeting of the people together. He had used that method before and it worked quite well, people get off their chest what the issue was, and they validated the issues and moved on from there. 143 In response to a question from the Commission as to why he didn't consider meeting with Mr D'Souza and Ms Pretyman separately or with either one of them first, he indicated that it was "horses for courses". He sometimes thought that individually was a good thing and sometimes, depending on each case, that bringing them together and getting the two people face-to-face in the room and actually testing things out worked okay. He thought this was one of those instances where the allegations were substantially the concern to him and where he thought that if he had them both in the room then they could each have their say and they could work out the next step. 144 Mr Lucarini did not take any notes at the meeting because there was no information coming forward all he was getting was "it's all in the email". There was no need to take any notes. 145 Ms Pretyman took rough notes but did not keep them. 146 Mr Lucarini maintained they couldn't get past the first question about providing information to elaborate what was in the email. He did ask another question related to reporting the bullying to his manager and spent a lot of time explaining the process of recording air conditioning and how that was to be dealt with. 147 Mr Lucarini said that Mr D'Souza was not invited to withdraw his allegations during the meeting on 7 May because they couldn't get past "can you please give me some more information". That was as far as they got. Given that he didn't get information, he didn't think that it was appropriate to ask Mr D'Souza to withdraw the allegation. He had put an allegation out there and he needed to be given an opportunity to provide substantiating information. Mr Lucarini advised him that he would be writing to him and he would need to provide information to him in writing. 148 Ms Petyman deposed that at the meeting Mr Lucarini repeatedly said to Mr D'Souza words to the effect of "this is your opportunity to explain your case and explain what you meant by the allegations raised in your email". Mr D'Souza kept saying "I don't want to comment" or "no comment". 149 This was also consistent with what she told Mr Brown during her subsequent interview with him as part of the investigation. 150 She also maintained that at one point during the meeting Mr McKerral asked Mr D'Souza "what did you mean by your e-mail?" To which he replied "I will talk about this with you later" 151 Mr D'Souza acknowledged that he said that to Mr Mckerral. 152 Ms Pretyman also indicated that during the meeting she was not required to ask Mr D'Souza to explain his email nor did she say that she did not consider her email "crass". 153 She went on to say that they did discuss how she felt about that at the time and to the best recollection of her recollection the words she used were: A. Okay. I explained to Mr Lucarini at the time, who asked me the question, what was meant by bringing in a heavy. I told him that the building manager had been in the building at that point in time checking the registers in the Finance area. What had happened was I had introduced the building manager, Paul Dias, to Joseph because he was checking the registers, and Paul Dias had asked Joseph about the air conditioning in his area and they had a conversation about that, and the building manager wasn't a heavy, it was someone who was there to check the air conditioning. 154 Ms Pretyman maintained that all this was said at the meeting and she had a clear recollection of that occurring at the meeting but agreed she did not include it in her statement. 155 Ms Pretyman maintained that it was not possible that some other technician on the floor could have been in his area and talked to Mr D'Souza and that she hadn't introduced that person. She didn't think that was possible as she always saw who came through. She would always let the technicians through and she would go with them to the various areas and talk about the problem. The technicians didn't fix the problem there, they would just have a look and say there is a problem. There was a plant room where they would go and fix a problem. She agreed that it was possible that there were times when the technicians would be on the floor or away from her presence. The Investigation and Disciplinary Process 156 Mr D'Souza maintained that his email response of 15 May to Mr Lucarini's request for a comprehensive and full report was "a comprehensive reply". He considered that once the matter had been pre-judged and he had been condemned, there was no case against him. He did not make a deliberate decision not to provide a full and comprehensive report by close of business on 15 May. In his opinion once the matter was biased, it was lost. There was no point in him doing anything further and there was nothing further he could do. He had summed up the matter "in a nutshell" and there was nothing that required any further clarification. 157 He did not understand that by taking the stance that he had, that there might be consequences for him, not to his knowledge. The Code of Conduct was not in his "mind's eye". He had made a statement, he had not made any allegations, he had confirmed certain things that occurred or the way he thought that things occurred, and he did not consider that he made any allegations against anybody. 158 Mr D'Souza denied that his subsequent email response on 10 September 2009 took two months simply because Mr Lucarini had taken two months to reply to his initial email. It had been on his mind for those two months what more could he have to offer. He was not waiting two months just to make him wait. It was an issue that had escalated out of control. He spent a lot of thought on that. 159 He agreed that he had now given some thought about how he had communicated with his colleagues throughout this period of time and said "yes, I would have thought better not to say anything, just virtually see nothing, say nothing, do nothing, because there is nothing that was being done that was not being misconstrued". 160 Mr D'Souza also denied that he had had a "run in" with Sandra Mussett about a week after sending his response to Mr Lucarini (the 10 September email). 161 Mr D'Souza deposed that he usually saw her about two or three times each week while on his way to do the banking when she would be smoking in front of the office entrance with one or two colleagues. He provided her with a leaflet on Australian Bush Flower Essences and a photocopy of a page from a book on vegetable juices that could help a person slim. He did this after she had earlier agreed to receive material that could help to reduce smoking. At the time he provided the material he said to her that if she did not like the material she should throw the papers away. She thanked him for the information. 162 Mr D'Souza agreed in cross examination that she had not asked him for advice about weight loss, his actions were unsolicited, but said she thanked him for the paper. He did not agree that he was insensitive nor was he aware that she was offended by what he said and what he had given her. She had never raised it with him so he was not aware she was offended. He was aware that Mr McKerral had raised the issue with Mr Cashman in an email. 163 Mr Lucarini acknowledged that he undertook the investigation into the grievance and was effectively the person who received the allegation, investigated the allegation and made the recommendation that there be findings of misconduct. He did not consider it to be unusual that the person who received the complaint, investigated the complaint and recommended misconduct. He said it was a normal process when that a complaint was made, he investigated it and had to provide a report to the Director General and his report included his recommendations. 164 He agreed that his report also included one case of past conduct of Mr D'Souza that he had been involved with. He considered that it was important to consider any past allegations of misconduct that he might have been involved in and that it was fair and reasonable to look at past conduct in determining whether misconduct had occurred. 165 Mr Lucarini also agreed that under the guidelines it was not until one looked at a penalty that you looked at whether or not there had been past conduct of a similar nature. 166 Mr Lucarini was also taken in some detail to the allegations of misconduct contained in his report. He maintained that he had no problem with the email, it was Mr D'Souza's failure to explain that the email. Because what was in the email was not substantiated it was a breach of the Harassment Policy. 167 Mr Lucarini was also taken to be specific explanations that Mr D'Souza had made in his witness statement as to the various sections of his email and indicated that if he had had that sort of an explanation then he could have taken that into account and that might have been an influence in his decision. 168 The reason for the misconduct was the false allegation that was not substantiated that someone had been brought into heavy an member of staff. He thought that was very, very serious. There were a number of allegations in the email but that was the most serious one he was concerned with because that sounded like a physical threat to an employee. It was never elaborated on and he was never given any clarity. The first hint he got of any clarity when it was when he got the comprehensive report from Ms Pretyman who said it related back to the air conditioning person. 169 It sounded to him like there was a physical threat of some kind in the workplace. That caused him to react really quickly and after he had given Mr D'Souza three different opportunities, one on the day, then in writing and then two months after that and was never able to get anything which could substantiate his claims, through his investigation he could not find any substantiating evidence and therefore there was a breach of the Harassment Policy. 170 In further clarification he said that when his original concern had been associated with some sort of potential violence or something that could be happening in the workplace, but in reality that wasn't substantiated, then he believed harassment was reversed and that was his allegation, that Mr D'Souza's actions actually contravened the Harassment Policy. That was the reason he went down that road. 171 Mr Lucarini further explained his reasoning as follows: A. Sure, if I could make the link there, it's probably helpful. 2.2.1 clearly states that "Harassment is an act or acts which annoy, intimidate or obstruct another person.. (not transcribable).. implied or violence. So in the first instance, that could be associated with my original concerns that there was, you know, some sort of potential violence or something that could be happening in the workplace. But in reality, when that wasn't substantiated, harassment was actually I believe reversed and that is my allegation, because it contravenes the harassment policy. Mr D'Souza's actions actually contravene the harassment policy. That's the reason that I went down that road. 172 Mr Lucarini also explained that the email policy talked about standards, it was a guide to make staff aware of how they should behave in the workplace and it talked about emails being considered a formal way of communicating and that when they composed an email they must have regard to various policies and how to use appropriate language. In his view, he believed that the policy was contravened by Mr D'Souza's actions. 173 Mr D'Souza acknowledged that once he had received a letter from the Director General advising of Mr Brown's investigation and the range of options that might be open to the Director General, this caused him a lot of concern. He now understood that the investigation was an opportunity for him to give his side of the story. 174 Mr D'Souza also acknowledged the contacts made by Mr Brown and Wendy Klaasons about organising a meeting with him. He did not object to participating in a meeting, he clarified his inability to participate as the person familiar with the case was at a conference in Darwin. 175 Mr D'Souza was taken through his email response to Mr Brown in some detail. 176 When he sent the email to Mr Brown on 9 October saying "I regret I'm unable to meet your deadline what I consider/view as your ultimatum", he meant that he could not comply with the meeting because the person familiar with the case was not available. In relation to the term "ultimatum" he meant that he had been given a deadline in that correspondence dated 12 October. 177 Mr D'Souza said that when he accused Mr Brown of being "biased", he did not know at that time whether a third party paid by the Department could be considered neutral, because with the regulations, he was ignorant of the guidelines that were applicable in such cases. To Mr D'Souza, he was engaged by the office, being paid by the office so he couldn't but consider the comments that he had made. 178 Mr D'Souza said that he used the word "belligerent" because of their "repetitivity" of the phone calls and emails. He had no recourse or person to call back to guide him on this issue. It was almost a feeling of being cornered. He was raising his concern because of the constant phone calls and emails. 179 He acknowledged that he sent a further email on the 12 October saying that he viewed further contact as "intrusion and intimidation". This was because he'd asked for the time until the observer came back and he didn't appear to have been given that leeway. He did not consider that the response was "wholly inappropriate" in circumstances where he felt he was being cornered, the only thing he could do was raise an objection. 180 He read the letter from Mr Brown in a cursory way and when asked if he acknowledged that Mr Brown had told him that no findings had been made or an ultimatum set, he responded: A. This is a serious issue and basically I am not able to deal with it with such preciseness, had it been a normal piece of correspondence. I understand the gravity of the matter. At that stage I didn't have a clear picture of what could and what couldn't be done. I had asked for time until my observer was present. That was not allowed. 181 Mr D'Souza acknowledged the subsequent letter that he received from the Director General of 14 October but said that: "In good faith I honestly considered right from 7 May onwards, up to October, everything was being steered into a set direction. That was why to me, to say these are the things, but you can come and talk to me, at that time was negotiating under duress. 182 He said that, at that time, and at his level, that was how he saw it. 183 He acknowledged that he did not attend the interview. He had been following up the office to find out when his observer would come in, and within the 16th and 19th not having a definite answer he could not comply with seeing Mr Brown, so that was why he sent his email of 19 October. 184 He also acknowledged that he was given a further opportunity to respond in writing and did not provide any further response saying - "I considered my situation to be cornered and therefore I had to say to stay silent. That is my only explanation". 185 Mr D'Souza agreed that after this date he did nothing to provide a response to the Department giving his version of events. He also agreed that he received a copy of the report and read it to the best of his ability 186 Mr D'Souza said that he did not attend the re-scheduled meeting with the Director General in January because he felt he had no chance at all, a decision had been made, he had found him guilty of misconduct. 187 Mr D'Souza was taken to the Director General's letter and the section that said that he wouldn't make a final decision until Mr D'Souza had put forward material. Mr D'Souza responded that in the circumstances what stood out was the middle of his letter where it said "I have formed the opinion that you have engaged in misconduct". Mr D'Souza said that if he had judged him, he had the right to act, and what could he do. 188 He went on to say that in hindsight he could always have a different opinion, but at the time, being cornered, he did not consider that he had many options or many choices, the perspective would be a lot less than it is today. In hindsight it would be a different perspective. 189 He agreed that in not providing anything or any further information to the Director General he deliberately missed the opportunity to put his version of events for a final time. 190 Mr D'Souza was also taken to his original Part 7 Application and his handwritten entries. He indicated that what he had expressed was his opinion based on what had transpired, he was expressing his point of view. He considered that "within the hierarchy all the action was one way. The matter was biased, the matter was turned around and that was the way it had gone". It was his feeling that he was improperly pressured or subject to duress. 191 Mr D'Souza also agreed that he had amended the remedy that he was seeking as he considered that to accept money, to him, would be a bribe, that was how he saw it. Money was not the primary factor in his life. 192 In relation to the 7 May email Mr D'Souza maintained the view that the matter was biased and that nullified the whole process. There was no discussion, no explanation, no indication of the principal party. If Ms Pretyman had spoken to him either then or in the 11 months after and told him, he would have replied to her and it would have been an amicable solution. In hindsight the email could have the rephrased. He was not saying he would not retract. At the time that was how he personally saw the situation. 193 Mr D'Souza did not accept that he had little insight into the way in which his behaviour might affect others saying that he had done two thirds of a course in a Master of Counselling program in America and was aware of how to deal with people. He was aware of how his behaviour impacted on others. 194 Mr Cashman acknowledged that the email from Mr McKerral concerning the incident with Sandra Musset was never put to Mr D'Souza. That was on the basis that the staff member didn't wish to proceed any further. Those interests were taken into account. He accepted that he didn't have Mr D'Souza's side of the story. The relevance of the email was that it reinforced to him a potential pattern of behaviour of the individual. Mr Cashman indicated that he did not take either this incident or another incident (never put to Mr D'Souza either) to which he had referred in his witness statement into account in arriving at his conclusion that Mr D'Souza's misconduct was not an isolated incident. He had relied on the information from the incidents which were on file. 195 Mr Cashman did not consider Mr D'Souza's email to him about the Musset matter to have been a request for Mr McKerral's email to have been removed from his file. He considered it was an opinion expressed by Mr D'Souza . 196 Mr Cashman agreed in that in reaching his decision to support the recommendation that went forward to the Director General he took into consideration the email incident of 2009, the breach of the policies and the two earlier breaches in 2007 (the three emails) and the 2008 incident (the conversation with Ms Wang). 197 Mr Cashman said it was his understanding that Mr Scarlett undertook the counselling of Mr D'Souza in relation to the incident concerning Ms Wang. He was not aware of anything on Mr D'Souza's file that substantiated that and was not surprised that there might not be some note to that effect. He had no firsthand knowledge as to whether the counselling had happened or not. 198 Mr Cashman said he did not have the delegation to make a decision in relation to misconduct. He made a recommendation to the Director General who would then formally sign off on and approve the proposed misconduct determination. The recommendation was prepared by a staff member in Employee Relations. Mr Cashman's decision component was in deciding whether the material that was being put forward to the Director General. was whole and complete and represented the matters to be considered. 199 Mr Cashman did not include any reference to the ongoing air conditioning issues as he did not see that the air conditioning as such should have any relevance on the acceptableness of the behaviour or the incident that occurred. Whilst he appreciated that Mr D'Souza may have been frustrated, he was not of the view that that should actually cause or condone behaviour that impacted on other staff. He believed other staff were also experiencing difficulties with the air conditioning. 200 Mr Cashman considered that Mr D'Souza's email was inappropriate behaviour and thought it could have been "an overreaction". However he did not believe that the outcome was warranted because of the air conditioning. Reinstatement Issues 201 Ms Pretyman indicated that she would be comfortable working with Mr D'Souza in the future, provided that he conducted himself appropriately. However, she had serious concerns about whether he could do that and indeed, had no confidence that he could do so. 202 She also gave evidence about a number of instances where he she had found his manner to be "unprofessional, abrupt and even derogatory". She had felt harassed by his behaviour but had not officially complained because she felt it was "manageable" and did not want to "create a fuss". 203 Ms Pretyman gave examples of inappropriate conduct/comments on the part of Mr D'Souza towards her: 1. In mid 2006 speaking to her about the way she had processed an account and saying "you have your head in the clouds and you must be thinking about your boyfriend". 2. Comments about her status as a temporary staff member and then an issue where he had lost his pass in 2007 and questioned her right to advise him what to do about it because of that temporary status. 3. Giving her inappropriate non-work-related material on a number of occasions including booklets and handouts on financial and spiritual issues. 4. Giving her a paper on the meaning of colours and commenting about her clothes and what colours she should wear. She considered these comments inappropriate. 5. Repeatedly approaching her to talk about financial issues and referring her to financial websites whilst she was working and pressuring her to look it up straight away. She felt pressured to comply as a new employee but it was disruptive to her work. 6. Lending her a DVD titled " Birthing in Silence without Violence" in April 2009, whilst she was pregnant with her first child. She felt it was inappropriate for him to give her this material and that he was imposing his personal beliefs on her, but she took the DVD from him because she did not want to upset him. 204 Mr D'Souza's response to these six issues in cross examination was as follows (applying the same numbering order): 1. "The work was wrong and I jokingly made that comment to her". It was not a criticism and she never either objected or raise the matter with him. He did not agree that the words suggested that the person was not performing their job competently. 2. He did not agree that he made derogatory comments concerning her temporary status when she commenced at the Department. 3. He agreed he gave her booklets or handouts on financial and spiritual matters. 4. He agreed that on two occasions he gave her papers about the meaning of colours. This was when she used to come at least once a day with work and stay around to chitchat. He made a suggestion. He was not asking her to do anything and he was not trying to convey to her that wearing too much black meant that she displayed hatred and malice in the workplace. He used to compliment her on her clothing. 5. In relation to suggesting she have regard to various financial websites, that was within the normal chitchat that she started and was part of his comments, if it would help her. He agreed he asked her to look at financial websites but it was an issue he would have raised for her to take up her convenience. 6. He did not agree that he offered her the DVD directly. The matter was first raised by Julie MacLeod with Ms Pretyman and he gave her the DVD after he was informed that she would accept it or she had agreed to take it from Mrs McLeod. She had raised the issue of childbirth when he was talking to Mrs McLeod and that is why the DVD item arose. It was given with her acceptance. He was not aware that she accepted it because she did not wish to offend him. 205 Mr D'Souza went on to say that it did not occur to him that at any time his actions were inappropriate. 206 Ms Pretyman also indicated that in relation to those other occasions when she considered Mr D'Souza was inappropriate, she did not bring those to his attention because she didn't want "to create a fuss". She had to work fairly closely with him and required his help on many occasions so she felt if she did create a fuss he might not want to assist her with her at any accounts' problems she had. 207 She went on to say that she felt really uncomfortable about it but didn't want to create a fuss and wanted to have a good working relationship with him and was worried that if she complained it could make things difficult for her. She was aware that there was a grievance procedure at the Department but was not fully aware of what it entailed. She was also aware that she could have approached Mr D'Souza's manager to ask him to stop particular behaviour but said she found that "it was manageable". In her mind it wasn't worth creating a fuss over. She had a very good relationship with his Manager and she didn't want to create a fuss 208 She agreed she did not officially complain about any of those matters. She did not speak to him directly about them and did not ask anyone else to speak about them for the reasons she had already given. 209 When asked whether she considered that in her work environment there was no-one she could safely raise these complaints with she responded as follows: A. I spoke to - about the issues with other receptionists, because they were finding that they were having difficulty dealing with him also and I said to them that if they felt that they were being harassed or you know, troubled, to let me know about it. I guess I sort of liaise with the other receptionist because they were experiencing something similar and I didn't speak to anyone else about it. Joseph's manager was aware of it, because one day he came up to me when Joseph had spoken to me in appropriately, and said to me, "look if joseph is being a pain to you, come and see me, come and talk about it with me". But again I didn't want to make a big deal out of it. 210 She went on to indicate that the receptionists mentioned to her that he had given them material that was inappropriate and she mentioned that the same thing had happened to her. She agreed that there was nothing in her witness statement about that. 211 Ms Pretyman explained that the duties of her position that required ongoing consultation or contact with Mr D'Souza was the approval of accounts. She had a delegation of a certain amount and if there were any discrepancies with the accounts, that either she had processed or reception had processed, then they would liaise and try and resolve the matter or perhaps Mr D'Souza would have a query about an account that was processed and he would contact her about that. The receptionist had more contact than she did, she was co-ordinating the receptionist's work. 212 Mr Cashman deposed that in supporting the recommendation to dismiss Mr D'Souza he considered the following issues: · The facts of the case; · The nature and seriousness of the misconduct; · Mr D'Souza's position and length of service; · The conduct history of Mr D'Souza; and, · The effect of the proposed action on Mr D'Souza. Submissions on behalf of the Applicant 213 Mr Keats made oral submissions in addition to the written submissions as filed (Exhibit 14) and in so doing took the Commission to the relevant evidence in support of Mr D'Souza's application for reinstatement. The application was made on the grounds that his termination was harsh, unreasonable or unjust. 214 Mr D'Souza's background was detailed with particular reference to his age, and his satisfactory work performance. 215 Mr D'Souza was dismissed as a result of the sending of a single email on 7 May 2009 which it was alleged gave rise to the following four allegations against him: 1. That you did breach section 2.5 of the NSWTI Use of Email Policy by sending material of a defamatory nature to a colleague. 2. That you did breach the NSWTI Code of Conduct by making unsubstantiated allegations against a colleague. 3. That you did breach the NSWTI Code of Conduct and the NSW Government Dignity and Respect Charter as they relate to harassment and bullying in the workplace. 4. That you did also in the course of engaging in the behaviours described above, breach section 2.1 and section 2.2.1 of the Use of Email Policy by sending material which would reasonably cause anxiety, is threatening and libellous and designed to intimidate the recipient. 216 In relation to the allegations concerning the sending of the email, it was conceded by Mr D'Souza that the email was sent. It was Mr Lucarinini who saw the email as a grievance and determined that the best way to deal with it was to call a meeting bringing together Mr D'souza and the person Mr Lucarini considered that he was complaining against, Ms Pretyman. 217 Mr D'Souza had not resiled from his position that the person in question was not Peter Dias,as stated by Ms Pretyman, and it was accepted by her that it was possible that a technician could have talked to Mr D'Souza whilst not in her presence. It was submitted that that provided a reasonable basis for rejecting the Department's case that he knew the person who came on the premises and knew it was Mr Dias. 218 It was submitted that the manner in which the email was handled by Mr Lucarini was unusual. He considered that it was a grievance when Mr D'Souza did not, and chose a confrontational way of dealing with what he characterised as a threat of physical violence by bringing the parties together to an urgently convened meeting. He prevented Mr D'Souza's manager from talking on his behalf during the meeting. He then determined that there was nothing to Mr D'Souza's grievance. No written response closing the grievance was provided to him, there was no finalisation interview to bring the grievance to an end, instead Mr Lucarini determined that he would conduct an investigation into Mr D'Souza's conduct and in turn recommended that misconduct investigations occur. 219 It was submitted that Mr D'Souza's refusal to engage in the process, and his comments that he felt prejudged throughout the process, must be seen in that context. He felt intimidated by the meeting and felt "angrily pre-judged and condemned" by Mr Lucarini. He did not consider that he had made an allegation, he merely thought that he had made a statement. Indeed, the first time that he was on notice that he had made an allegation was at this meeting. There was also evidence that David McKerral considered that this meeting was one-sided and that Mr Lucarini prevented Tony Mamo from talking on Mr D'Souza's behalf. 220 It was not denied that Mr D'Souza was given a further two opportunities to provide a report in relation to his email and chose not to do so. It was also not denied that he did not engage in the investigation process undertaken by Peter Brown nor that he sent emails to Mr Brown that were not reflective of true state of the disciplinary investigation process set out under the PSEM Act. Additionally it was not denied that he did not attend an interview with Peter Brown or the Director General nor that his emails with Mr Brown reflected an incorrect belief about Mr Brown's role and status and were not appropriate. 221 It was submitted that Mr D'Souza's dismissal was harsh, unreasonable or unjust. 222 Submissions were made as to the proper approach to be taken by the Commission and the relevant provisions of s.88 of the Act. 223 Submissions were also made as to the relevant provisions of the PSEM Act. The dismissal of the applicant took place within the statutory context provided by that Act and s.46 required the Director General to deal with allegations of misconduct in accordance with the statutory scheme, with misconduct also defined. Pursuant to s.46(1), the Director General must decide whether to deal with an allegation as a disciplinary matter or to take remedial action. If an allegation was dealt with as a disciplinary matter in accordance with the procedural guidelines, then the Director General may decide to take disciplinary action if he or she "is of the opinion that the officer has engaged in any misconduct", per s.46(2). The forms of disciplinary action available to the Director General are set out in s.42. 224 It was submitted that having regard to the statutory scheme, in a s.84 application what would arise for consideration of the Commission, was both whether the misconduct in fact occurred as alleged and, if it did, whether the disciplinary action taken (that is, dismissal) was harsh, unreasonable or unjust in all the circumstance, including the availability of other disciplinary measures: Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown) [2008] NSWIRComm 221 at [22]. 225 This accorded generally with the position in unfair dismissals that where an employee has been dismissed on specified grounds, particular attention will be paid to whether the allegations have been made out on the evidence. Reliance in this regard was placed on NSW Public Service Professional Officers Association v Forestry Commission (1990) 39 IR 46. 226 It was further submitted that a dismissal of an employee on grounds of misconduct may be harsh, unreasonable or unjust on at least two grounds. It may be unfair because the Commission was not satisfied that the allegations relied upon, in fact, occurred, or because dismissal was too harsh a punishment for the conduct relied upon by the employer to justify the dismissal: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410. A similar approach had been adopted by this Commission: see Outboard World Pty Ltd (t/as Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167, and Bankstown City Council v Paris (1999) 100 IR 363. 227 The Commission was obliged to determine whether or not the termination of the Mr D'Souza's employment was harsh in its consequences for him, having regard to the applicant's personal and economic situation, as well as whether dismissal was a disproportionate penalty, having regard to the misconduct alleged: Byrne v Australian Airlines Ltd (1995) 61 IR 32 at 72; Electricity Commission of NSW t/as Pacific Power v Crump (1993) 48 IR 296 at 302; Wells v Commissioner of Police (2000) 100 IR 106 at 118; AWU (NSW) (on behalf of Stojanovski) v Bluescope Steel (AIS) Pty Ltd (2004) 137 IR 211 at [30]. 228 In this matter it was submitted that there were a number of features of the Mr D'Souza's circumstances that supported the conclusion that the termination of his employment was harsh. Submissions were then made on the relevant considerations of particular significance, summarised as follows: 1. Mr D'Souza's age (currently 69) and, prior to his dismissal, had been employed for a period of in excess of 9 years by the Ministry. His evidence was that he enjoyed working for the Department. 2. Given Mr D'Souza's age and having regard to current economic circumstances, it was likely to be extremely difficult for him to find any other employment, let alone comparable employment in either remuneration or security. 3. Mr D'Souza had given evidence of the efforts he has made to obtain other employment in the short period (3 months) and to date has only registered with Centrelink, Salvation Plus and made inquiries with Hayes Recruitment. Particular emphasis was placed on the short period of time between termination and the hearing. 4. The severe financial and personal consequences for Mr D'Souza of the termination of his long-standing employment with the Department that he had intended to continue; 5. Mr D'Souza did not have the benefit of formal counselling and it was submitted that the evidence of Mr Cashman, should not be accepted. Mr D'Souza denied counselling occurred, Mr Cashman did not have first-hand knowledge of the matter; there was no documentary evidence to support that counselling occurred; and there was no evidence of Peter Scarlett's usual practice). 6. Mr D'Souza had no intention of inferring that Ms Pretyman was incompetent and stated that he respected Ms Pretyman. 7. He accepted that his e-mail of 7 May 2009 could have been better worded. 8. He had consistently said that he had no intention to cause harm or to accuse Ms Pretyman and that if Ms Pretyman had objected or raised concerns he would have apologised. 9. The email was sent complaining about air conditioning in a context where the problems with the air conditioning had been ongoing for 4 1/2 years. It would be reasonable that in those circumstances a person might get frustrated about the time it was taking to repair the air conditioning. 10. The Code of Conduct dealt with compliance and disciplinary action in these terms: (a) If staff breach any policies or instructions, the Ministry of Transport may take disciplinary action against the staff member. Penalties include formal written warnings to improve conduct and, or very serious breaches, dismissal". i. This was consistent with the terms of each of the other relevant policies -Use of Email and the NSW Government Dignity and Respect Charter. ii. The email when read objectively could not be considered to be so serious as to warrant termination. iii. The breaches of the policies were not so serious as to warrant termination. 11. Mr Lucarini's evidence under cross-examination was that he was not concerned so much about the email but by his after email conduct. He considered the breach of the policies did not arise from the email. On re-examination Mr Lucarini's evidence was left unclear as to what he relied upon as to amount to breaches of the policies. 12. The true picture was that stated by Mr Lucarini to the investigator in October 2009: "I think that Joseph's ah, reaction to the air conditioning was, was an overreaction. I think he wanted to get action done and unfortunately what we saw or what I saw was, ah that someone was being threatened in the, in the workplace." And "he was probably just upset about the air conditioning." 229 It was therefore submitted that as a result of these factors, the sanction of dismissal was too harsh a penalty having regard to the personal circumstances of Mr D'Souza and the history of his employment, particularly bearing in mind the availability of alternative penalties under the PSEM Act. 230 Mr D'Souza sought an order that he be reinstated to his former position as a Accounts Payable Officer with the Department. Reinstatement was the primary remedy in case of a s.84 application: see, for example, Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325]; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Plummer v Stannard Bros Launch Service Pty Ltd (2005) 145 IR 111; Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197; and Riley v WorkCover Authority (NSW) (2006) 151 IR 396 at [94]. 231 Further the Commission may only consider other remedies if it found that reinstatement was "impracticable". Before any other remedy could be ordered, the Commission must make an express finding that reinstatement was "impracticable" and that finding must be supported by appropriate evidence: Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446 and Plummer v Stannard Bros Launch Service Pty Ltd (2005) 145 IR . 232 It was submitted that the Department's evidence about impracticability was limited to a consideration of the 3 emails in 2007, the telephone conversation with Ms Wang in 2008 and the email in question sent 7 May 2009. This was consistent with the evidence given under cross-examination by Mr Lucarini and Mr Cashman. 233 Submissions were then made in relation to those issues and the relevant evidence referred to and summarised and the following pointed out: · The 2007 emails: Ø Remedial action appeared to be only for the email sent on 25 July 2007. The other 2 emails are referred to as matters that were the subject of informal discussion with Pat Murphy. An appropriate way of dealing with those emails. The second email was "low level" at best however. The sustained breaches did not seem to relate to these other two emails. Ø The 25 July email was said to give rise to a breach of the conduct in that Mr D'Souza had not met the requirement that "staff are expected to be efficient and economical in their use and management of public resources including their own work time. They should be scrupulous in their use of public property and service" and breach of the email policy was that email was to further non-departmental business. Ø The email provided information about the global economy. It did not provide a proper basis for establishing a pattern of behaviour of an inability to properly interact with staff. Ø The other 2 emails are hard to fit with the breaches that were found by Department. · 2008 conversation with Ms Wang It was accepted that Mr D'Souza should not have said the words "don't you understand English", 234 It was submitted that to the extent that it was argued by the Department that there was any pattern of conduct, it could only be founded on the two emails that were the subject of the informal discussion with Pat Murphy in 2007 and the conversation with Ms Wang. The economic email in 2007 did not fit any pattern. It was not the extended history of conduct. 235 It was submitted that none of the other allegations subsequently raised were ever put to Mr D'Souza prior to the filing and serving of statements in these proceedings. In those circumstances the Department could not rely on them. Some of the allegations dated back to 2006. Both Ms Musset and Ms Pretyman deliberately choose not to complain about these matters. It was very unclear on the evidence what the Employee Relations Team matter was about and no one disputed Mr D'Souza's evidence that he continued to communicate with that team. 236 It was submitted that on the evidence the Department employed at the least over 320 employees. Of the three witnesses called by the Department neither Mr Cashman nor Mr Lucarini were required by their duties to have any dealings with Mr D'Souza. Their evidence as to impracticability was limited to the matters for which he had been previously the subject of remedial action. Ms Pretyman, whilst stating that she would be comfortable working with Mr D'Souza in the future provided he followed the correct procedure, maintained that she had serious concerns that he would conduct himself appropriately. She conceded that the concerns she had were based on the matters set out in her statement which she conceded she had never officially complained about. They did not provide a proper basis for the Commission to find that re-instatement was impracticable. 237 It was also submitted that in re-examination (which was objected to) Ms Pretyman was allowed to give contrary evidence to the effect that her concerns were also based upon Mr D'Souza's explanation of his email as set out in his witness statement. This contradictory evidence should be given no weight, it was unsafe and unsatisfactory material on which to rely. Mr D'Souza in his evidence in chief provided explanation of his conduct. Ms Pretyman chose not to consider that explanation in her written statement in reply. She was then asked in cross-examination, as a matter of fairness, to consider his explanation but at no time during that cross examination did she seek to rely upon that explanation as a further foundation of her serious concerns that the applicant would conduct himself appropriately. 238 It was further submitted that Ms Pretyman gave evidence that she had no concerns discussing Mr D'Souza's inappropriate conduct with other receptionists. Her evidence was that she was aware that there were processes for dealing with harassment in the workplace and that harassment was not tolerated. and she was also aware that she would be given assistance should she make a complaint. 239 It was submitted that in those circumstances the Commission would not accept, given the seriousness of the effect of the matters that Ms Pretyman said the inappropriate conduct of Mr D'Souza had on her over an extended period of time (2006 to 2009), that she didn't want to complain as she didn't want to make a fuss. No concerns should arise from her role as Facilities and Access Coordinator and the evidence was that the air conditioning system had been repaired. 240 In cross examination Ms Pretyman volunteered that she had an ongoing work relationship with Mr D'Souza by way of approving accounts. She was given an opportunity in cross-examination to further explain that relationship and didn't. It was never put to Mr D'Souza as a basis for the break down of the relationship. It was submitted that there was insufficient evidence before the Commission to use this as a proper basis for determining that reinstatement was impracticable. 241 Further no reliance should be given to the fresh allegations made by Ms Pretyman under cross examination against Mr D'Souza. Even she conceded that her serious concerns were not based on those matters. 242 It was submitted that Ms Pretyman's testimony as to her serious concerns that Mr D'Souza would be able conduct himself appropriately should be rejected. 243 It was submitted that the uncontested evidence of Ms Spires and Ms Trevena that the email of 7 May 2009 was out of character and that they would be happy to work with Mr D'Souza must be given great weight. This was particularly the case when Ms Spires stated she had an ongoing relationship with Mr D'Souza in that he ensures that accounts generated by her section are paid. Additionally Ms Trevena stated that her contact with Mr D'Souza was mainly by email. 244 In considering this evidence the Commission was reminded that matters of this nature should be assessed according to "the standards of men and not angels" applying Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 AER 67. Further, as observed in Perkins v Grace Worldwide Australia Pty Limited (1997) 72 IR 186, in most cases employment relationships are capable of withstanding some friction and doubts. 245 It was also submitted that Mr Cashman had clarified in cross examination that the Mr D'souza's position was substantively vacant and that no decision about the shared services plan had yet been made. In those circumstances the Commission should be satisfied that the position still exists. 246 If however it was held that reinstatement was not practicable, then Mr D'Souza sought an order for compensation. He was terminated in February 2010. Within that two month period he had registered with Centrelink and Salvation Plus for assistance in finding employment and had made contact with Hayes recruitment. The Commission would be satisfied that given the short period of time, that his attempts were reasonable given his age, length of service in the public sector and the state of the Australian economy. 247 In conclusion Mr Keats submitted that the termination of the Mr D'Souza was solely predicated on the content of the email of 7 May 2009 and the Commission was invited to make an objective assessment of the email. That assessment would demonstrate that termination was disproportionate to the conduct. This was a case where frustration had led to an overreaction and the matter was allowed "to grow into something bigger than Ben Hur". Further the Department had not discharged their onus of establishing that reinstatement was impracticable and Mr D'Souza should be reinstated with consequential orders in relation to continuity of service and loss of remuneration during the period of termination. Submissions on Behalf of the Respondent 248 Ms Eastman, on behalf of the Department, also made oral submissions in addition to the written submission as filed (Exhibit 15) and in so doing traversed the relevant chronology. The relevant evidence that supported the Department's submission that Mr D'Souza's application should be dismissed was also traversed. 249 It was submitted that the two main issues that arose for determination were whether the termination of Mr D'Souza was harsh and if it was found to be harsh, whether he should be reinstated. 250 It was acknowledged that if the 7 May email was an isolated incident, then the termination of Mr D'Souza may be harsh. However, the 7 May email should not be viewed in isolation. It was submitted that the termination was not harsh given Mr D'Souza's pattern of behaviour and his inability to address that behaviour. 251 It was submitted that even if the Commission found that the termination was harsh, Mr D'Souza's failure to address his behaviour, acknowledge that his behaviour may cause offence (even if unintended) and his complete absence of contrition, meant that it would be inappropriate to order his reinstatement. 252 It was further submitted that the relationship of trust and confidence between the parties had broken down. On Mr D'Souza's own account he had no confidence that senior managers, including the Director General, will treat him fairly. This was evident from his refusal to participate in the disciplinary process. Again on his own account, he maintained the view that Ms Pretyman "was pulling rank", and continued to attribute motives to her that had no substance. Even his view that compensation would be a 'bribe' was indicative of his state of mind. He lacked trust and confidence in his employer. 253 It was submitted that for the Department's part, Mr D'Souza's poor track record and failure to address his behaviour caused the Department to have real concerns that the behaviour would be repeated. After the incident on 7 May 2009, his behaviour deteriorated further. His emails to Mr Lucarini were discourteous and disrespectful. His treatment of the independent investigator was also discourteous and disrespectful. This was clear from the documentary evidence. 254 Mr D'Souza's approach to Ms Musset was insensitive. Mr D'Souza's refusal to apologise (unless Ms Pretyman raised a concern with him directly) was an untenable and unreasonable position. It was clear from Ms Pretyman's evidence that she could not work with the Applicant unless he acted appropriately. However he had done nothing during the course of the hearing to suggest that he will address these defects in his behaviour and act appropriately in the future now that he has some insight into how his behaviour affects others. 255 It was submitted that there was little factual dispute in this matter. Submissions were made about the relevant chronology with the relevant evidence detailed. 256 It was submitted that Mr D'Souza accepted that, in his role as an Accounts Payable Officer, it was part of his duties to have cordial relations with customers and staff, discretion, patience, tolerance, and refraining from rudeness. He also accepted that he was required to comply with the Department's policies, including the Code of Conduct and Email Policy. He said he was familiar with the Code of Conduct "in a cursory way" and believed he "adhered to it". 257 Mr D'Souza also said that "so far as he knows, no-one has indicated a disagreement with opinions he has expressed". It was submitted that this statement cast serious doubt over the veracity of his evidence as the statement was clearly untrue. 258 Ms Eastman referred in some detail to the warning given to Mr D'Souza on 25 July 2007 for breaching the Email Policy and Code of Conduct with respect to emails sent on 16 March 2007, 30 April 2007 and 25 July 2007. 259 When he was asked about these incidents in cross-examination, he said the email of 25 July was sent "solely to help people". He said that he accepted that the emails were inappropriate but suggested that he "had no choice". He also accepted that the emails could have been better worded but did not say how. It was submitted that his evidence that he was only shown the email of 25 July and not those of 16 March and 30 April 2007 should not be accepted. This evidence is inconsistent with the documentary evidence at the time. 260 It was submitted that Mr D'Souza further sought to justify his behaviour on the ground that "Rosemary" never made her feelings known to him, so he did not see that she could have been distressed. 261 He was asked in cross-examination whether these emails would have put him on alert that he needed to take care and his response was evasive. He said only that with respect to the 25 July 2007 email, he "took utmost care not to cause distress". He refused to acknowledge that the email was capable of causing the recipient distress. 262 Ms Eastman also made detailed submissions about the 2008 incident concerning Ms Wang which was investigated with the investigation finding that Mr D'Souza had breached the Code of Conduct. 263 When asked about the incident in cross-examination, Mr D'Souza claimed that he never received a complaint from Ms Wang. He conceded that he could have handled the situation differently but did not say what he would have done differently. He agreed that he could have apologised to Ms Wang. He agreed that he never apologised and says this was not pursued by Mr Mulhall. This seemed to reflect a view that Mr D'Souza was only going to apologise if he was directed or told to do so. It was pointed out that the formal grievance requested an apology. It was recorded that Mr D'Souza became argumentative and left the meeting. 264 Mr D'Souza was told in the clearest terms in the letter from Mr Scarlett that his conduct was inappropriate and unacceptable and that that he needed to treat staff and colleagues fairly and consistently, in a non-discriminatory matter and with respect to their rights and obligations. Mr D'Souza said that he understood the letter and that he had been found to have failed to act professionally and responsibly. He also understood that he was directed to maintain commitment to the Code of Conduct. 265 There was nothing in the material to suggest that Mr Scarlett did anything other than counsel him about these matters. It was accepted that Mr Scarlett did not give evidence in this proceeding but Mr Cashman's evidence was that to his knowledge of the way in which Mr Scarlett performed his work he had no doubt that he would have engaged in that counselling. To the extent that there was contradictory evidence from Mr D'Souza, given the way he gave his evidence, the Commission should accept the Department's evidence over Mr D'Souza's account. 266 It was submitted that these incidents should have made it clear to Mr D'Souza that his behaviour, and, in particular, his manner of communication, could cause his colleagues offence. When asked what steps he had taken to address his behaviour, all he could say was that he - "did his work correctly and not harm anybody" and would "stick to his work and reduce his exposure to others to avoid misunderstandings." 267 When Mr D'Souza was asked about these incidents in cross-examination he didn't respond by saying that he accepted that he done the wrong thing but he sought to justify his behaviour by saying that he sent the Nile solely to help people. He accepted that the e-mails were inappropriate but sort to justify this because he had no choice. 268 It was submitted that his explanation of his conduct about the e-mails in July 2007 should cause the commission some concern about whether or not he had sufficient insight into the issues that the Department was bringing. In relation to the issue of the air conditioning it was submitted that there was no dispute that there were problems with the air conditioning in the Department's building and that the air conditioning may have caused a number of employees some frustration. However, none of the other employees reacted in the same manner that Mr D'Souza reacted to the problem. 269 Further there was no evidence that the air conditioning was an OH&S issue or that Mr D'Souza experienced ill-health or took sick leave because of the air-conditioning. 270 On 22 January 2009, Mr D'Souza sent an email complaint to Ms Pretyman, the Facilities Co-ordinator which was cast in intemperate terms. Ms Pretyman's behaviour was described as "crass". He now agreed that his language was inappropriate but sought to explain it on the basis that he "was at [his] wits end". He sought to justify his language on the basis that he did not intend to offend Ms Pretyman. He did not accept that the recipient of the email might read it as a claim that she was incompetent. When asked whether he had thought carefully about the email, mindful of need to be respectful, he was again evasive. He responded by saying "I was respectful but I was suffering." There was no evidence before the Commission that he was suffering. Whilst this email was not the subject of disciplinary action it was relevant in that it showed the consistent pattern that he continued to lack any insight into his manner of communication and the effect he might have on his colleagues. 271 Further Ms Pretyman said she was surprised and upset by the email because it implied that she was incompetent and Mr D'souza failed to address her response in his statement. The evidence made clear that Ms Pretyman responded to his complaint and asked him whether he wished to move. She was not challenged on this aspect of her evidence and it should be accepted. 272 Mr D'Souza had also suggested to Ms Pretyman that she should "cheat" in relation to recording the temperature so that the temperature could be varied. She did not agree with this approach and was not challenged on this aspect of her evidence and it should also be accepted. 273 On 29 January 2009, Mr Pat Murphy informed Ms Pretyman that Mr D'Souza had made a complaint and again she responded to that complaint. Ms Pretyman was not challenged on this aspect of her evidence and it should be accepted. This evidence made it clear that Mr D'Souza's claim, (which he still maintains) that no one responded to his complaint or that he was prevented from complaining, was false. 274 Ms Eastman then dealt with the 6 May email to Ms Excell complaining about the air conditioning and Mr D'Souza's comments "so much for admin". This email should have been directed to Ms Pretyman. Mr D'Souza had copied a large number of people into the email but not Ms Pretyman. 275 Ms Pretyman responded to this email on 7 May and her response was polite and directed to the issue. However Mr D'Souza's response to that email was grossly disproportionate to the information that Ms Pretyman had conveyed in her email. Further in cross-examination he refused to accept that the language and the tone were inappropriate, responding by stating that he was "merely stating my view". He refused to accept his email was rude and disrespectful. His explanation in his witness statement only confirmed his lack of insight into the manner in which he communicated. Unlike the suggestion made in the opening submissions made on his behalf, he did not appear to embrace the suggestion that he overacted. 276 Mr D'Souza appeared not to have appreciated the effect of copying a number of senior people into the email which alleged that Ms Pretyman had brought in an outsider to heavy him (amongst other things). Further he appeared to have no appreciation that his email contained serious allegations about Ms Pretyman's behaviour. 277 It was submitted that it was now clear that the contents of the email were wrong and misleading. Even on Mr D'Souza's own account, there was no occasion where an outsider came into the office to heavy him. 278 It was submitted that at the time, Mr Lucarini took Mr D'Souza's email on face value. He wanted to address the allegation that Ms Pretyman had brought in someone to bully Mr D'Souza and wanted to address the issue immediately hence he convened the meeting that afternoon. Mr Lucarini was not challenged on his account as to how the meeting opened and his evidence should be accepted. What Mr D'Souza said in response was disputed. However regardless of what he said, it was clear that he did not address the issues, did not provide any explanation and he did not back up his allegations about Ms Pretyman's behaviour. Mr Lucarini's evidence about what Mr McKerral said to Mr D'Souza was not challenged and should be accepted. There was no dispute as to what was said at the end of the meeting by Mr Lucarini. 279 It was submitted that throughout that meeting Mr D'Souza refused to engage, refused to provide any detail about the contents of the email and refused to explain his particular grievance. As Mr Lucarini explained during the meeting, he needed information to understand the basis of the Applicant's complaint. Mr D'Souza took a bizarre view of that meeting suggesting the Mr Lucarini had prejudged him and for that reason he refused to participate or co-operate in the meeting. 280 It was submitted that to the extent there was a conflict between the evidence given by Mr D'Souza and the evidence given by Mr Lucarini, Mr Lucarini's evidence should be preferred. There was no evidence that Mr Lucarini was biased or had pre-judged Mr D'Souza and these claims were not put to him during cross-examination. 281 Ms Eastman submitted that Mr Lucarini gave Mr D'Souza a further opportunity to provide his response on the 15 May and Mr D'Souza agreed that he understood the request and that his response would be used to advise the Director General. Mr D'Souza asserted that his response was a full and comprehensive report but it clearly was not. He did not avail himself of the opportunity to explain his conduct or substantiate the allegations he had made and the Commission should find that he made a conscious and deliberate decision not to cooperate and that his response was inappropriate. There was no substance his claim that there was bias. 282 The subsequent further opportunity for response (and the relevant background) provided to Mr D"Souza by Mr Lucarini was detailed. It was submitted that Mr D'Souza's response was "bizarre" and he required two months to respond which was agreed to by Mr Lucarini. However he was subsequently advised by Mr D'Souza that he had no further information to provide. 283 It was submitted that Mr D'Souza gave an inadequate and implausible explanation in his evidence to the Commission as to why he took such a long time before responding to Mr Lucarini when it seemed abundantly clear that he had no intention of providing any further information. 284 Ms Eastman then detailed the relevant chronology of events (and the relevant evidence that then transpired leading up to and including the investigation by Mr Brown. In so doing it was submitted that: · Mr D'Souza agreed that he received the Director General's letter of 29 September, read it and understood its contents. · Mr D'Souza's response was to the further invitation from Mr Brownto attend the interview was that the investigator was intruding, intimidating, bullying and harassing him. · Mr D'Souza was invited by both Mr Brown and the Director General to provide a written submission but failed to participate in the process. · Mr D'Sousa said that he had read Mr Brown's report but not in any particular detail. 285 It was submitted that it was clear that Mr D'Souza had many opportunities to substantiate the allegations that he was making in his email and to give an account for why he had made these allegations against his colleague, Ms Pretyman. He conceded that he had never availed himself of the opportunity to do so and even to the extent that there was an explanation for his conduct in his witness statement, nowhere in his evidence did he seek to substantiate the allegations that he made against Ms Pretyman. All he did was to confirm that the contents of his email were intended to be rude and disrespectful. There was nothing in Mr D'Souza's evidence that supported the claims that he has persisted in making. There was no substance to any of his allegations. 286 It was submitted that the only conclusion that the Commission could draw was that the allegations were totally without foundation. Even today Mr D'Souza was not prepared to concede that what he alleged on 7 May was totally without foundation. That was a factor that must be taken into account if the commission was minded to reinstate Mr D'Souza. 287 Ms Eastman then detailed the subsequent chronology and relevant evidence concerning the process followed following the report and up to and including the termination of Mr D'Souza and drew the Commission's attention to the following: · Mr D'Sousa advised the Director General that he did not wish to attend the meeting scheduled for the 14 January and therefore the Director general proceeded to consider the matter based on the material available to him. · Mr D'Souza did not respond to the Director General's request to resign nor did he comply with the direction that he resign and accordingly as a result Mr D'Souza's employment was terminated on 4 February 2010. 288 It was submitted that where there was a conflict between the witnesses' account, the Department's evidence should be preferred. Mr D'Souza's evidence was not credible and should not be accepted by the Commission. In cross examination when he was asked non controversial questions – for example about his duties - he answered directly, quickly and in a forthright manner. However, when he was questioned as to his understanding, or for explanations for his conduct, he was evasive and often required the questions to be asked at least 2 or 3 times before he was prepared to answer. Then he was often non-responsive. The Commission may take into account the manner in which Mr D'Souza gave his evidence and particularly the extent to which he was evasive and unclear in providing an explanation for his conduct. Further some of the evidence given by Mr D'Souza was completely implausible where he sought to continue to advance untenable positions that certain people were belligerent, unfair or biased towards him. 289 It was submitted that the Department had a valid reason to terminate the Applicant. As explained by Mr Lucarini, the issue was not the fact of the sending of the email, it was Mr D'Souza's behaviour with respect to the email, that was the issue. 290 It was accepted that where an employee threatened to make a complaint to an external body concerned with OH&S, it would have been wrong for the Department to impose a sanction on the employee: see ss 23 and 23A of the Occupational Health and Safety Act 2000 (NSW) and Hogan v Police and Community Youth Clubs New South Wales Ltd [2010] NSWIRComm 23. 291 However the Department's concern was Mr D'Souza's failure to substantiate his allegations about Ms Pretyman. He also failed to respond or participate in the investigation and Mr Lucarini was right to conclude that the allegations made by him were without substance. He was right to recommend that disciplinary action be taken with respect to the Mr D'Souza's behaviour which was sending an email with defamatory content, making unsubstantiated allegations, and conduct contrary to the policies. 292 Mr D'Souza's alleged misconduct was clearly set out in the Director General's letter of 2 October 2009. 293 It was accepted that the Department bore the onus to demonstrate that misconduct did in fact take place applying Pastrycooks, Biscuit Makers and Flour and Sugar Goods Workers Union NSW v Gartell White (No 3) (1990) 35 IR 70. It was submitted that the misconduct had been proved and that Mr D'Souza appeared to have accepted the misconduct, notwithstanding his claim of bias. 294 It was submitted that it was appropriate for the Department to rely on Mr D'Souza's record of service, including his previous disciplinary offences, in reaching a decision that termination, rather than some other sanction, should be imposed. John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517, was relevantly cited. 295 In relation to procedural fairness it was submitted that the evidence established the following: · Mr D'Souza was offered the opportunity to participate in an extensive and fair disciplinary process and there was no evidence that this process was unfair. · The investigation was conducted in a fair and appropriate manner and in accordance with all relevant policies and the provisions of the PSEM Act, including the Premier's Guidelines. · Mr D'Souza was given numerous opportunities to put his version of events and to explain the contents of the 7 May 2009 email but he failed on every occasion to take any active role in the investigation. · Mr D'Souza was advised of the reasons for his termination. 296 Ms Eastman's submissions concerning the issue of harshness relied on the definition of harsh as set out in Sams and Contact Point International Pty Ltd [2001] NSWIRComm 18. 297 It was submitted that the termination of the Mr D'Souza's employment was a proportionate response to the acts of misconduct in which he engaged, for the following reasons: · The Department's Code of Conduct made it plain that sanctions for a breach of the Code may include termination of employment; · The seriousness of the acts of misconduct and the fact that the conduct has persisted over time; · Mr D'Souza's failure to co-operate with the investigations; · Mr D'Souza was accorded procedural fairness; · Mr D'Souza's general employment history; and · to the extent that it was able the Department appropriately took into account all mitigating factors. Remedy 298 It was submitted that if the Commission were to find that the termination was harsh, then an order of reinstatement was opposed, as was an order for re-employment. The Commission was aware of the relevant principles as had been applied in Cockayne v Hurstville City Council [2009] NSWIRComm 1013. 299 It was submitted that the Commission should have regard to the following factors in assessing the matter of impracticability of reinstatement or re-employment: · The nature of the behaviour; · Mr D'Souza's lack of contrition; · Mr D'Souza's lack of insight; · The risk of recurrence; · The Department's duty of care to other employees; · Ms Pretyman's concerns; · the impact on other staff – Ms Pretyman gave evidence that other receptionists were also upset by the Applicant's behaviour; and · Mr D'Souza's conduct during the investigation was inappropriate. 300 It was submitted that, unlike the type of factors identified in Cockayne, there were compelling barriers to reinstatement as indicated by the evidence. 301 Further, it was submitted that in addition to specific disciplinary measures, Mr D'Souza had a persistent, and consistent, pattern of inappropriate behaviour and discussion with colleagues, in particular women. 302 It was submitted that Ms Pretyman had given examples of that inappropriate behaviour and discussion. However Mr D'Souza seemed not to appreciate that his behaviour was inappropriate or at time offensive to his colleagues. He also had no understanding of the impact of his behaviour on Ms Pretyman. 303 It was submitted that the fact that Ms Pretyman did not complain was not surprising. There was no obligation to complain. She was new and a junior member of staff, did not want to make a fuss and believed that she was handling this. Under discrimination laws which make sexual harassment unlawful, there was no requirement that a person object to the conduct or make a complaint to her employer: see Dolphin v Longa (1994) EOC. 304 Further even when these matters were being investigated and it would have been obvious to Mr D'Souza that he was to account for his behaviour with respect to communication with colleagues another incident took place in September 2009 concerning the document given to Ms Musset suggesting to her that it may help her lose weight. Mr D'Souza agreed that he did this and again, seemed not to think that it might be inappropriate given that the advice was unsolicited. Again, his conduct was insensitive and he appeared to have absolutely no insight as to the impact of his behaviour on his colleagues. 305 It was submitted that the evidence of Ms Trevena and Ms Spires should be given little weight because neither appeared to work with Mr D'Souza on a day-to-day basis. 306 It was submitted that there was no evidence that Mr D'Souza had mitigated his loss by seeking alternate employment. Reliance in this regard was placed on New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Grose) and Griffith City Council [2006] NSWIRComm 1137. 307 The only evidence of mitigation was that he claimed to have "registered" with two agencies and contacted Hayes Recruitment. This evidence indicated that he had done no more than register or made an inquiry. There was no evidence of any actual mitigation and is no evidence of applications for any positions. Mr D'Souza's answer to the summons allowed the Commission to draw the inference that he had done nothing. 308 In conclusion it was submitted that if the Commission was minded to reinstate the Mr D'Souza there should be no back pay. Alternatively the Commission should not award the maximum compensation in light of Mr D'Souza's failure to mitigate. Submissions in Reply on behalf of the Applicant 309 Mr Keats indicated that in relation to the issue of mitigation it was not known whether that was the issue that was on the Commission's mind on previous day of the hearing when the potential of recalling Mr D'Souza. was raised with the parties. 310 Mr Keats also submitted that there had been a suggestion, in relation to Mr D'Souza's 2007 emails and the warning issued, that there was care used in the words "formal counselling". The Commission needed to have a look at the actual letter that was sent by Mr Scarlett referring to "formal counselling". There was a further suggestion that it was not known what Mr D'Souza would have done and that the Commission was reminded of Mr D'Souza's statement in reply where he said "if I'd had the benefit of that counselling I may have been able to modify my behaviour and not send the e-mail of 7 May 2009 that led to his termination". There was evidence about how that might have affected things. 311 It was also submitted that some time was spent on Code of Conduct matters. However the basis for the submissions on harshness was that the Code itself said that if it was leading to dismissal then the breach of policy had to be "serious, very serious". 312 The Commission was bound to objectively to look at what had happened and was not bound by what Mr Brown, Mr Lucarini or even the Director General did. This was not an exercise of the Commission going through and seeing whether or not the Department had ticked the right boxes and come to the right conclusion. This was an objective exercise of looking at the email, the allegations that were made against Mr D'Souza and whether they arise and of finding whether it was harsh knowing that there was an acceptance that the email was sent. If that conclusion was arrived at then what was the appropriate remedy. 313 It was submitted that when all those steps were taken the Commission would find that the termination was harsh in all the circumstances and that Mr D'Souza should be reinstated. Consideration 314 I have very carefully considered the evidence, both written and oral, the submissions of the parties, and the relevant authorities to which the parties have helpfully taken the Commission. 315 The parties have correctly identified that the two issues for my consideration are firstly, whether the misconduct as alleged against Mr D'Souza took place, and secondly, whether the penalty imposed, namely dismissal, was too harsh in all the circumstances. The outcome of that consideration may then give rise to the necessity for the further consideration of the appropriate remedy should Mr D'Souza's dismissal be found to be harsh, (or indeed if it is also considered to be unjust and/or unreasonable). 316 The term "harsh" was recently considered by the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65, and it was observed at para.27-29 as follows: .....................There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] (' Loty') , that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" ( Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] (' Little' ) stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 317 I should indicate at the outset that although I have found that misconduct occurred, it was not to the extent as alleged by the Department. I have further found that the dismissal of Mr D'Souza was too harsh in all the circumstances and indeed in some respects unjust, and was a penalty that was out of proportion to the misconduct that did occur. In this consideration I have been guided by the Full Bench's decision in Kaplan. I intend therefore to make orders for the reinstatement of Mr D'Souza with certain conditions attached per s.89(8). 318 In reaching those conclusions I have had the benefit of considering all of the relevant evidence, which includes the evidence and material of Mr D'Souza, material that was not available for the consideration of Mr Lucarini, Mr Cashman or the Director General. 319 It is accepted that in the absence of such material and evidence as has been available to the Commission, the decision taken by the Director General to dismiss Mr D'Sousa was not unreasonable in such circumstances. 320 I now turn to the conclusions that I have reached, and the findings that I have made. I do not propose, in so doing, to reiterate the evidence. The facts of this matter are fairly clear and in my view the relevant and significant facts are not in contention (with the exception of the issue of the identity of the "outsider" which I will deal with below). 321 When considering whether misconduct has occurred it is necessary to have regard to the relevant and specific provisions of the PSE&M Act rather than what might be termed the usual or standard types of conduct/behaviour that are to be found in a range of cases dealing with dismissals that are characterised as misconduct in the workplace such as, fighting/assault, theft or fraud, swearing/offensive behaviour, serious insubordination, inappropriate material on a computer etc., etc., to name but a few, and those so named obviously being at the higher end of the scale. 322 The meaning of misconduct under the PSE&M Act is set out in s.43 as follows: (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) Performance of duties in such a manner as to justify the taking of disciplinary action, (c) Taking any detrimental action (within the meaning of the Protected Disclosures Act 1994 ) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act, (d) Taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer. (2) For the purposes of this Part, the subject matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position. (3) In this section, internal disclosure means a disclosure made by an officer regarding the alleged misconduct of another officer belonging to the same department as that to which the officer belongs. 323 In my view that definition is so broad as to cover virtually any action/behaviour that does not meet with the approval of, or the standards set by a public sector employer. 324 In considering Mr D'Souza's actions in sending the 7 May email and in particular the content of that email in the light of the Department's Use of Email Policy, then there is no doubt that applying that definition, Mr D'Souza did indeed commit misconduct. The tone and content of that email was quite inappropriate. Mr D'Souza does concede that it could have been better worded. 325 However I am satisfied that Mr D'Souza only intended to convey in his email that he considered Ms Pretyman's email to be "insensitive" to his concerns. I do not consider that he was suggesting in any way that Ms Pretyman was either stupid or incompetent. I accept that Ms Pretyman would, at the least, have been taken aback at the language Mr D'Souza used (as she was in January when he also used the word "crass" in an email), and would have been entitled to have taken offence at his tone and language. I also clearly acknowledge that she was not insensitive to his concerns. Her evidence, particularly the attachments to her witness statement, shows that she was taking all complaints about air conditioning, including those from Mr D'Souza, seriously and doing what she could about the issues raised. 326 That is not to say that Mr D'Souza did not have the right, if he had a legitimate concern, to raise that concern. The issue is of course raising it in an appropriate manner and using appropriate language. 327 Having said that however, I can appreciate Mr D'Souza's frustration with the ongoing air conditioning problems. I have never yet have worked in an air-conditioned building that does not have such problems. I have even worked in a brand-new building that had ongoing problems. In my view problems with air conditioning are an inevitable and inescapable fact of working life. With the exception of having no air conditioning at all, in my experience one simply has to learn to adjust and take appropriate personal measures (where practicable) such as an electric fan for when it is too warm or a cardigan/coat/rug for when it is too cold. It should also be kept in mind that what one person finds too warm, another person will consider is "just right". Similarly what one person finds too cold will be quite comfortable to another person (for example especially someone wearing a suit). I have also visited workplaces where problems with air conditioning have created a significant level of frustration with employees over the inability to achieve a consistent and on-going temperature range that suits everyone. Indeed for some employees that has been the cause of health problems, albeit of a minor nature (in my experience of observing and hearing about the problems of co-workers in the past they have been in the category of colds/sniffles etc., sore necks where overhead vents and very cold air is involved etc.,). 328 That does not excuse inappropriately worded emails about such an issue. 329 But, I do have a fairly fundamental problem with the somewhat tortuous (and almost incomprehensible) logic that was applied by Mr Lucarini in determining firstly, that Mr D'Souza was making an allegation of bullying and harassment, and secondly, (and more for me of more serious implication) seemingly, that because his allegation was not proven, then he was himself guilty of bullying and harassment. In my view that second proposition is just wrong, wrong, wrong. 330 If that second proposition is followed to its logical conclusion then any employee at all who makes a claim of bullying and harassment that is not established to be correct or not proven, is then placed in the position where they become the person who is guilty of bullying and harassing. If that were the case then frankly employees should be advised not to make any claims about bullying and harassment unless they are absolutely, rock solid sure their claim is absolutely true and can be established! That of course would be a ludicrous situation. However it seems to me that that is the consequence of applying Mr Lucarini's logic. 331 The problem with this second proposition is that bullying and harassment, like beauty, is very much in the eye of the beholder. 332 For example there have been numerous occasions over the years in either disputes or s.84 applications coming before me where there have been claims of bullying and harassment made by an employee in situations where that person is having their performance managed by a supervisor/manager. An employer clearly has the right to appropriately "manage" an employee's performance where there are genuine concerns and remedial action is required. 333 There have also been numerous occasions in matters before me where an employee considers that they are being bullied and harassed because of some comments/behaviour by another employee(s) in circumstances where there is obviously simply a misunderstanding and/or misconception and the person making the complaint is mistaken/misguided in their belief. 334 However the consistent theme throughout all of those matters that I have referred to above is usually that the particular individual has a quite genuine belief that they have been bullied and harassed. 335 That is not to say that there are not instances of genuine bullying and harassment in the workplace and that as a result employers need to be vigilant and take appropriate action when those issues are raised, far from it. Such matters may also involve and require appropriate applications seeking the involvement of this Commission to assist the parties. 336 Of course where a person makes a claim of bullying and harassment for malicious/vindictive reasons and knowing full well that such a claim has no foundation whatsoever, then that is quite a different matter and is clearly misconduct of a very serious kind warranting the severest sanction available to the employer (if such is established of course). 337 In this matter, in my very firm view, it is abundantly clear that Mr D'Souza held genuine views/opinions about the actions (or his perceived lack thereof) of Ms Pretyman. That his views/opinions were not correct or were misconceived or ill informed does not mean they were not genuinely held beliefs at the time. Simply because Mr Lucarini considered that what Mr D'Souza was alleging was incorrect or did not happen does not automatically mean that Mr D'Souza himself become the person who was breaching the bullying and harassment policy. 338 I am not satisfied that the outsider to whom Mr D'Souza was referring, was Mr Dias as suggested by Ms Pretyman. It is clear from Mr D'Souza's email that the incident occurred some time in the past because after his statement in the email about "you brought and allowed an outsider too heavy a permanent member of the staff".. he goes on to say.. "yet the work continued for days/weeks after that". I do not believe that it can be established with any preciseness just who he was referring to and just when this occurred. It certainly was not something that had happened the previous day and had anything to do with the discussion with Ms Excell that he said he had with her during lunch time or indeed the events he referred to during the afternoon that was the subject of his email to her at the end of that day. 339 That is no reflection on Ms Pretyman's evidence. Mr D'Souza could not remember just when this had happened. Ms Pretyman acknowledged that there was a possibility that a technician could be on the floor and away from her presence and in those circumstances Mr D'Souza may have been spoken to. I also note that Ms Pretyman told Mr Brown during her subsequent interview that there had been more than one or two different building managers over the period of time. It is impossible therefore to establish just what happened and when. It certainly appears to have been something that perhaps festered in Mr D'Souza's mind and just piled up on the events that he referred to as occurring earlier in the week. 340 Again I stress that what Mr D'Souza related about the outsider was how he viewed the interaction, nothing more nothing less. That he was incorrect in the conclusion he drew, i.e. that he was being heavied and then pressured into not making complaints and that Ms Pretyman was responsible, was clearly misguided, not correct, and he misunderstood the situation. That does not in my view give rise to a sustainable allegation of misconduct on the basis of Mr D'Souza somehow bullying and harassing Ms Pretyman. 341 Further, it seems rather odd that if Mr D'Souza was intending to harass or intimidate Ms Pretyman he did so in such a public way, in circumstances where his email went to a number of other staff members, including Mr Lucarini. That would seem to be a rather stupid thing to do. 342 What in fact he did, contrary to Ms Eastman's submission, was to simply reply to Ms Pretyman's email and in so doing his email was also copied to those to whom Ms Pretyman had copied her email. 343 I also have some difficulty with the manner in which Mr Lucarini handled this email. I do not consider that Mr D'Souza intended his email to be taken as a formal complaint or grievance. Indeed he has consistently maintained that he was simply making a statement, or what I have termed expressing views or opinions that he held. 344 Indeed it was subsequently characterised by Mr Lucarini to Mr Brown as an "overreaction". 345 That there were genuine problems with the air conditioning requiring addressing (and that were in fact addressed) is borne out by Mr Lucarini's evidence about the remedial works that were undertaken between May and September 2009. 346 I also note that it is apparent from Ms Pretyman's evidence that she never explained to anyone, and in particular Mr D'Souza, how the temperature gauge device worked and that it could take a reading straight away and record and display the temperature in an area that this exercise could be undertaken and completed in as short a period of time as four minutes. Mr D'Souza clearly thought that the process of checking that was being undertaken was cursory and not thorough, hence his apparent frustration and concern with the process, as he had expressed on more than one occasion. 347 The policy guidelines that appear to have been applied are not as specific as those I am familiar with in some other public sector areas such as NSW Health (and various Area Health Services) where very detailed guidelines are set out for how to handle issues concerning allegations of bullying and harassment from essentially start, (the complaint) to finish, (resolution/remedial action after investigation and findings are made). 348 Whilst I appreciate Mr Lucarini's approach of "horses for courses" can be very useful and appropriate and indeed is an approach (i.e. getting all the parties together in the one room) that I frequently use quite successfully, I don't consider it was the appropriate course in relation to Mr D'Souza's e-mail. 349 In this matter, and indeed in any matter involving a (possible) allegation of bullying and harassment, the first step must be to establish that there is a complaint being made. The complainant should be individually interviewed to clearly ascertain the substance of the complaint and most importantly, what is sought. Then the person complained against (and any other relevant witnesses etc.) should be interviewed. Of course there is also usually a step involved in having an informal complaint or concern formalised and advising the person complained against that there is such a complaint. Appropriate admonitions/cautions are generally issued about the genuineness of such a complaint etc., parties are usually also advised that confidentiality must be ensured, parties not to be approached etc/,etc. I have also seen some very comprehensive and excellent letters from employers starting off the process once a complaint has been received. Various policies with which I am familiar have various steps of a similar nature or indeed may be more extensive and comprehensive (and I may have overlooked some steps). 350 The complaint, if it is serious, may then need to be the subject of an external investigation with findings and recommendations made. 351 I hasten to add that the Harassment Policy as attached to Mr Lucarini's witness statement is an excellent and comprehensive policy. The issue I have is the rather general way "Dealing With Complaints" is expressed. Although I note that it does refers to agency specific complaints procedures being able to be followed. There was no documentary evidence as to what procedures were followed by the Department. 352 The only Guidelines that were in evidence were those included in Mr Brown's report but they concerned procedural guidelines for dealing with misconduct not for dealing with bullying and harassment claims. 353 I appreciate that Mr Lucarini's concern appears to have been whether there had in fact been some actual physical threat or action that had taken place and considered accordingly that swift action needed to have been taken. However charging in with a full scale meeting complete with support person was not the way to go in my view. Mr D'Souza should have been contacted first either by phone or email in a non-confrontational and enquiring manner as to perhaps some greater detail about what had happened and whether he wished to make a formal complaint. Alternatively (or indeed as well) Ms Pretyman could have been contacted, similarly by a simple phone call or email enquiry as to whether she had any problem with the email and whether she could shed any light on particular incident to which Mr D'Souza may have been referring. 354 Having had the opportunity of observing Mr Lucarini in the witness box, he is, if I may say, a reasonably tall, well built man with an authoritative and decisive demeanour and not the possessor of a soft voice, when compared to Mr D'Souza, who is slightly built and whom I found to be rather quiet and reserved (and taking into account his age). Therefore I can see how such a meeting may have come across to Mr D'Souza as being quite confrontational and particularly given with the speed with which Mr Lucarini acted. I can also see how Mr D'Souza may have formed the view, given how the meeting commenced and then unfolded (even on Mr Lucarini's evidence), that certain judgements and views had already been made and formed against him. 355 The entire meeting on 7 May was predicated on the basis that Mr D'Souza had made actual allegations in his email when he considered that he had simply made statements. Indeed the whole matter proceeded forward over the ensuing months on that basis. I consider that basis to be unfounded. It was also predicated on the basis that Mr D'Sousa's email was a grievance. 356 It is also of some concern that Mr Lucarini both essentially conducted what was a preliminary investigation and made essentially what were findings that became the allegations of misconduct on the basis of breaches of policy and then became the subject of formal investigation. 357 I note that the definition that was applied by Mr Lucarini refers to a "clear statement" (by an employee of a work-related problem, concern or complaint). I consider it extremely doubtful that Mr D'Souza's e-mail could be considered a clear statement given the quite over- the- top nature of what he expressed and the somewhat idiosyncratic way in which he expressed it. 358 Now one can quibble about the difference between a statement and an allegation and whether what is contained in the statement really does purport to be an allegation. A ready analogy that comes to mind is where a union and its members say to an employer that unless a particular issue is resolved industrial action will take place. The union and its members invariably regard that as a simple statement of intent, the employer invariably regards that as a threat (or on occasions blackmail). 359 I appreciate that at both this meeting, and subsequently, Mr D'Souza was not forthcoming with any information to Mr Lucarini that might have set his mind at ease or satisfied his concerns. Mr D'Souza certainly should have taken the time and trouble to properly explain his actions/views/opinions and do so in an appropriate and courteous manner. That he did not clearly did not assist his cause as he now realises. 360 I should also indicate that I do not accept Mr D'Souza's explanation for the two-month delay in responding to Mr Lucarini's email of 15 May. I consider Mr D'Souza engaged in tit-for-tat exercise that was unworthy of him and somewhat petty. 361 However "petty" is also a term that can be used to describe, what were in my view, trivial issues that have been raised against Mr D'Souza by Ms Pretyman. Issues that I propose not to waste any more time on, suffice it to say that I do not consider in any way that it is reasonable or fair to raise issues against Mr D'Souza in circumstances where those issues have never, ever been raised with him as being of concern to the particular employee (and I include other receptionists to whom Ms Pretyman referred as well as Ms Mussett in this comment). They are issues that certainly do not appear to have caused sufficient concern/distress/discomfort to report them to anyone at all. This is particularly so in circumstances where Ms Pretyman specifically said that Mr Mamo had indicated to her that if Mr D'Souza was being "a pain" that she should speak to him about that. However she said that she "didn't want to make a fuss". She also indicated that it was "manageable". 362 I do not accept that Ms Pretyman was in any position to have a been concerned about any adverse reaction from Mr D'Souza (i.e. as a subordinate employee) apart from a concern she may have had that he might not have provided her with assistance when she needed it. There was no evidence (and it was not clear to me) whether the assistance in question was an actual requirement arising from the interaction of the positions held by these two people or what she was referring to was simply the sort of assistance that one employee might seek from another employee when they are having difficulty/problems with a particular task. 363 I have no doubt that Mr D'Souza would continue to carry out his duties in a proper professional manner and in carrying out his duties provide any required assistance to any colleague. 364 It seems reasonably clear to me that Mr D'Souza genuinely thought he was being helpful or interacting in a social way in making his approaches to his colleagues. That there is a substantial generational gap (or indeed gulf) between Mr D'Souza and his younger colleagues is fairly obvious. 365 However I also have to say that I have never yet worked in a workplace (including this one) where staff members do not exchange/offer/volunteer all manner of items such as books/DVDs/CDs/magazines/recipes/knitting patterns/ newspaper clippings etc., that is all part and parcel of the normal social interaction that takes place. It would be an extremely spartan, dull, boring and uninteresting workplace where such activity didn't take place. I appreciate that where employees do not wish to engage in such activity (or to receive a specific item/category of item) then they should certainly make that clear to the other person(s) involved. I would expect that to happen among sensible and mature adults. Certainly if there is a problem then it should be appropriately raised either with the person concerned or an appropriate supervisor. 366 I do not consider that these issues raise any barrier whatsoever to the practicability of reinstating Mr D'Souza to his former position. I have no doubt that Mr D'Souza will in future not volunteer any document or information to any fellow worker that is not of a strictly work-related nature, given that he has had to sit through these proceedings and listen to the evidence that has unfolded about these issues. 367 I reject Ms Eastman's submission that Mr D'Souza lacks insight into his behaviour. It is hard to have such insight when those issues have never been raised with him in the first place. In any event I have no doubt that his insight has been greatly expanded, as I said above, given the evidence that he has had to listen to. 368 I accept that Mr D'Souza's subsequent dealings with Mr Brown were unfortunate and the tone and content of his emails not entirely appropriate. However I also accept that they were composed and sent in the context of Mr D'Souza's genuinely held belief that he had been pre-judged and that he was being unduly pressured and by that I refer to the attempts to arrange the meeting with Mr Brown to enable Mr D'Souza to be interviewed . 369 Mr D'Souza now accepts that Mr Brown was an independent investigator. As I observed in Lee v EnergyAustralia [2010] NSWIRComm1016 at p.155: .................. Simply because an investigation is commissioned and paid for by an employer does not mean it is not independent. What is crucial are the terms of reference. Provided that such terms are clear, address the issues in question and that all relevant persons are interviewed (which I consider occurred in this matter), then I would have no issue with such an investigation........... 370 I do have concerns about this investigation. I do not consider that it was at all appropriate that Mr Brown did not allow Mr D'Souza the opportunity of having to support person of his choice, namely Mr James Shaw, a PSA Industrial Officer. Mr Shaw is an experienced and competent Industrial Officer who has appeared before me in a number of public sector matters and I have no doubt that if he had been available and with Mr D'Souza it would have been of enormous benefit and this matter may well have had an entirely different outcome. 371 I can see no reason why there would have been some overwhelming imperative to conduct the interview with Mr D'Souza on the date nominated other than, it would appear, Mr Brown's convenience. There is certainly nothing suggested in the report. I accept that Mr Brown may not have realised the significance of a PSA Industrial Officer, and the person who was familiar with Mr D'Souza's case, being the support person of his choice rather than just a co-worker or friend. There is no indication as to whether Mr Brown made any enquiries as to this issue with Mr D'Souza. Not allowing Mr D'Souza the support person of his choice which resulted in Mr D'Souza (with some justification) not being prepared to attend the interview resulted in my view in a process that was unjust. 372 Similarly it was also most unfortunate that the scheduled meeting that had been arranged between Mr D'Souza and Mr Shaw with the Director General for 18 December 2009 was cancelled and apparently not cancelled until they were actually in the building (the Department's head office). That is evidently the date upon which Mr D'Souza at least accessed his personnel file. There was no evidence as to why the meeting was cancelled, but it was to say the least most unfortunate, as again this may have been an opportunity to clarify matters, provide necessary explanations and seek reconsideration of the views formed by the Director or, at the least, reconsideration of the penalty to be imposed. 373 This may also have been a matter, where if Mr Shaw had been able to be more directly involved, that could have come to this Commission by way of a dispute notification (as has happened in other matters involving disciplinary processes with individual PSA members in various departments) and the assistance of the Commission given to the parties through the usual process of conciliation. 374 It cannot be said that Mr D'Souza was not prepared to meet with either Mr Brown or with the Director General. I accept that he did not take up the option of providing a written response and that he cancelled the subsequent meeting he had arranged with the Director General. However I can also understand his view that, given that the Director General had already determined that he had committed misconduct (and the nature of the misconduct), that he may have considered that there was not a great deal of utility in having a meeting in such circumstances and that the Director General would make such decision as to penalty as he saw fit. 375 I do not consider that the past conduct of Mr D'Souza that was relied upon sufficiently established a serious pattern of behaviour that warranted dismissal as the penalty for any further misconduct that occurred. Indeed the emails of July 2007 I regard as particularly minor. I that acknowledge the email with the financial information attached, being a non-work-related matter, was an issue to be addressed with an appropriate reprimand. 376 I am also not satisfied that the counselling referred to in Mr Scarlett's letter did indeed take place. I would have thought that if such formal counselling had taken place then there should have been a file note about such on Mr D'Souza's personnel file. In relation to the complaint by Ms Wang, notwithstanding that Mr D'Souza's said it was not his intention to make a discriminatory comment and he was merely expressing his "perplexity" (as he expressed it), that perplexity was not expressed appropriately in the circumstances and some form of appropriate (but proportionate) disciplinary/counselling was warranted . 377 I should have also thought that if it was considered that Mr D'Souza's approach to the sending of emails in relation to his tone and language was inappropriate then surely counselling and indeed relevant training could have been provided. There is no evidence of either ever taking place in any formal way. 378 I do not accept Ms Eastman's submission as to Mr D'Souza's credibility. On the contrary, I viewed the way he responded to questions regarding his understanding or explanation of an issue as demonstrating that he was giving careful and appropriate thought and consideration to his response. Indeed, it seemed reasonably clear to me, that he still remains (understandably so) perplexed as to how his email of 7 May could have become, as Mr Keats put it, "bigger than Ben Hur." 379 There is no real issue as to credibility of any party that appeared before the Commission. The real difference between the parties are the diametrically opposed views about Mr D'Souza's email and his intent. 380 Having carefully considered the evidence I make the following findings: 1. Mr D'Souza's email to Ms Pretyman on 7 May was inappropriate in its tone, language and content and as such contravened and breached the Department's Use of Email policy. 2. Applying the relevant provisions of the PSE&M Act such breach did constitute misconduct and the first allegation contained in the Director General's letter of 29 September 2009 is thus sustained. 3. Given the inability to establish just what did happen in relation to the "outsider" but accepting that there was no intention by Ms Pretyman to "heavy" Mr D'Souza, I do not consider that he breached the Code of Conduct by making an unsubstantiated allegation. I do not consider that Mr D'Souza was making a formal allegation as such. To that extent he did not breach the Code of Conduct and the second allegation is not sustained. 4. Mr D'Souza was making a statement in his 7 May email and expressing genuinely held views. He was not making an allegation of bullying and harassment and in turn he was himself not intending to bully and harass Ms Pretyman in the email. 5. To that extent he did not commit a breach of the Department's Code of Conduct and the NSW Government Dignity and Respect Charter as they relate to harassment and bullying in the workplace. The third allegation is not sustained. 6. Whilst it could be considered that the sending of the email might reasonably cause anxiety, it was not intended to be threatening or designed to intimidate the recipient. It was acknowledged by the Department that where an employee threatened to make a complaint under the OH&S Act it would be wrong for the Department to impose sanctions on that employee. 7. I consider that characterising the email as "libellous" is taking the issue to a level that is simply not warranted in the circumstances. 8. To that extent there was only a partial breach of the Code of Conduct and the fourth allegation is partially sustained. 381 Having found that misconduct took place, although not to the extent alleged, the Department has discharged the onus upon it applying the principle enunciated in Pastrycooks. 382 Notwithstanding that finding, it then becomes necessary to consider whether the dismissal of Mr D'Souza, taking all relevant circumstances into account, was harsh, unjust or unreasonable and sufficiently so as to warrant the intervention of the Commission. 383 The expression "harsh, unjust or unreasonable", was also considered in Byrne (at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one, or any, or all of those three. 384 I have also adopted the meaning of those individual terms as considered in detail in Sams v Contact Point International (and referred to by Ms Eastman) That decision has been applied in numerous other decisions of this Commission. 385 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 386 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 387 I further find that the penalty imposed of dismissal was, in all the circumstances of Mr D'Souza's case, too harsh a penalty and disproportionate to the misconduct that did take place. 388 The way in which this matter was handled at the start of the process, as I have indicated above, does raise concerns with me on a procedural basis. Further, to the extent that Mr D'Souza was denied his appropriate support person in the investigative process and thus did not participate in that process, his dismissal was also unjust. 389 I have already indicated above that given the circumstances of the material available to the Director General and Mr D'Souza's failure to participate in the investigative and disciplinary process that was not unreasonable for the Department to dismiss Mr D'Souza. 390 The disciplinary options available to the Director General are set out s.42 Definitions, of the PSE&M Act as follows: disciplinary action , in relation to an officer, means any one or more of the following: (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. 391 Remedial action is also defined in s.42 as follows: remedial action , in relation to an officer means any one or more of the following: (a) counselling, (b) training and development, (c) monitoring the officer's conduct or performance, (d) implementing a performance improvement plan, (e) the issuing of a warning to the officer that certain conduct is unacceptable or that the officer's performance is not satisfactory, (f) transferring the officer to another position in the Public Service that does not involve a reduction of salary or demotion to a lower position, (g) any other action of a similar nature 392 There is no doubt that the penalty of dismissal for a man of Mr D'Souza's age is of a much harsher consequence than would otherwise be the case with a younger employee. There will be real difficulties in securing alternate employment in the current economic climate. Mr Keats is entitled to make that submission. 393 I am very familiar, through the uncountable number of s.84 applications that have come before me over the years, of the very real difficulty that older, mature workers have in finding alternate employment when they are either dismissed or lose their job through being made redundant. Those older mature workers have generally been persons (with only a handful of exceptions) under the age of 60. I can't imagine the difficulties that will face Mr D'Souza in trying to re-enter the workforce in his areas of experience and expertise at the age of 70 and competing against younger applicants. 394 Mr D'Souza has lost a secure job in the Public Service. That in itself in my view, even apart from considerations of age, can be viewed in a different category to that of the loss of a job in the private sector. The only other comparable area would be Local Government. 395 Mr D'Souza wishes to keep on working, he enjoyed his work. That is to be commended. There were no issues whatsoever raised with his work performance or the competence with which he carried out his tasks and duties. 396 I do not consider that it would be impracticable to reinstate Mr D'Souza. In reaching that conclusion I have been guided by the principles encapsulated in Loty and Holloway as well as Perkins. 397 As I frequently remind parties one only has to look at Loty and Holloway and remember that it was Ms Holloway who was actually reinstated, notwithstanding the evidence about what could be considered the quite problematic and difficult relationship that she had with certain officials of the AWU and some of the actions she undertook. As is frequently commented in the cases cited on the issue of practicability of reinstatement, people are not required to like each other to work together or required to get on (I agree that it certainly helps if they do and makes the workplace a more pleasant environment). Impracticability is not about interpersonal relationships. 398 I do not consider that there has been any substantive issue raised that could genuinely be held to justify a loss of trust and confidence by the Department in Mr D'Souza. I reiterate that no issue was raised as to his work performance and competence to carry out his required duties. The only issues of concern I have found is the way he communicates with colleagues and others in his emails. That can readily be addressed by appropriate counselling, and if necessary appropriate training. 399 In any event I accept the submissions of Mr Keats that neither Mr Cashman nor Mr Lucarini are required to work with Mr D'Souza on a daily basis and that Ms Pretyman's initial evidence was that she would have no difficulty working with Mr D'Souza in the future albeit that she had concerns as to whether he could act appropriately. I do not propose to give any weight whatsoever to the further evidence that came forward as a consequence of Ms Pretyman's re-examination. I also accept the unchallenged evidence of Ms Spires and Ms Trevena who do have the some dealings with Mr D'Souza in a work capacity. 400 I consider that an appropriate remedy for the misconduct arising from Mr D'Souza's breach of the Department's Use of Email policy is a formal written warning. Such warning to remain on his personnel file. 401 However there should also be appropriate counselling conducted of Mr D'Souza and if possible if there is some appropriate training course that can be undertaken, then such should be provided and Mr D'Souza is to participate in such training. 402 I also consider that Mr D'Souza should issue a written apology to Ms Pretyman expressing regret at the tone and language used in his email of 7 May and apologising for any concern or distress he may have caused her. It may be appropriate that either Mr Keats or an appropriate officer of the PSA assist Mr D'Souza in this regard. 403 I have given careful thought the issue of whether Mr D'Souza has taken sufficient action to mitigate his loss. I accept the submissions made by Mr Keats and am satisfied that given Mr D'Souza's circumstances and the relatively short period between his dismissal and the hearing, that he has taken such action as is available to him to mitigate his loss. 404 Mr D'Souza's situation can be distinguished from that applicable in USU (Grose) v Griffith City Council. In that matter Mr Grose sought reinstatement and took no action whatsoever to seek to mitigate his loss and simply sat at home pending the hearing of his case. 405 I did also given consideration as to whether it was appropriate to impose some modest financial penalty as I did in Cockayne and recently in Eaton v Commissioner Of Police [2010] NSWIRComm1035 (but certainly not as great as that imposed in those two decisions), given that the one of the disciplinary options open to the Director General was the imposition of a fine. 406 However in the absence of more information about his personal circumstances I am not prepared to follow that course of action. It seems evident that as he pays rent, he does not own his own home and on his evidence has limited financial resources. It was this area of his personal circumstances that I would have sought further information in recalling Mr D'Souza for further evidence. Unfortunately there was objection raised to that course of action. 407 In this consideration of penalty I have also been mindful of the fact that I have already indicated that dismissal was too harsh a penalty and out of proportion to misconduct that did take place. In those circumstances the imposition of a fine, in any event, would not in my view be appropriate. 408 I thus propose to order Mr D'Souza's reinstatement from the date of termination, that is 4 February 2010, with payment of salary that would have been earned had he not been dismissed (less any income earned in the period since his termination). 409 The Industrial Relation Commission orders: 1. Pursuant to s89(1) of the Industrial Relations Act 1996, the respondent, the Department of Transport and Infrastructure, shall reinstate the applicant, Joseph D'Souza, to his former position of Accounts Payable Officer on terms no less favourable than those which would have applied had the applicant not been dismissed on 4 February 2010. 2. The reinstatement of the applicant shall be effected no later than 14 days from today's date. 3. Pursuant to s89(3), of the Industrial Relations Act 1996, the respondent, the Department of Transport and Infrastructure shall pay the applicant as from the 4 February 2010 the applicable rate of pay less any gross income earned since that date. 4. Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's period of service shall be treated as not to have been broken by the dismissal. 5. Pursuant to s89(8) of the Industrial Relations Act 1996, the following conditions shall apply to the reinstatement of the applicant: i. Mr D'Souza is to provide a written apology to Ms Pretyman for the email of 7 May. ii. A formal written warning concerning the breach of the Department's Use of Email Policy is to be placed on Mr D'Souza's file. iii. Counselling is to be provided to Mr D'Souza as to the Use of Email policy and relevant and appropriate training provided if such is available. Mr D'Souza is to participate in such counselling and training. A notation is to be placed on Mr D'Souza's file indicating that such counselling has taken place and the date upon which it occurred. A similar notation is also to be made should training be undertaken. 6. These orders shall take effect on and from 29 July 2010. Elizabeth Bishop Commissioner 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.