Industrial Relations Commission New South Wales Medium Neutral Citation: Croft v RMS [2012] NSWIRComm 1004 Hearing dates: 01/02/12, 02/02/12, 03/02/12,27/02/12, 29/02/12 Decision date: 29 March 2012 Before: Ritchie C Decision: Catchwords: Applicant terminated by respondent-claimed unfair dismissal-respondent stated a number of reasons for termination-applicant claimed had been bullied and harassed - investigated by respondent and advised applicant of outcome-respondent directed applicant to provide particular documentation- applicant refused- allegations of swearing by applicant to fellow staff and superior denied by applicant-applicant directed to carry out different project on temporary basis- applicant refused. Commission found that swearing did take place, should have provided particular-should have taken up temporary role. Found in favour of respondent. Category: Principal judgment Parties: Mr W. S. Croft (applicant) : Roads and Maritime Services (respondent) Representation: Mr J Darams for the applicant: Mr S Meehan for the respondent. Hanson Lawyers for the applicant: Minter Ellison for the respondent. File Number(s): IRC 827of 2011 DECISION 1Mr Wesley Shane Croft ( the applicant) filed a claim under section 84 of the Industrial Relations Act 1996 (the Act) on 10 June 2011 against the Roads and Traffic Authority which now operates under the name of Roads and Maritime Services ( the respondent). 2The applicant was employed by the respondent as a Project Delivery Manager. He commenced employment in October 2007 and was terminated from the respondent on 5 May 2011. 3No agreement was reached in the conciliation, and a Hearing for an out of time claim was held before Bishop C. who allowed the claim to proceed to hearing on the substantive issue. Applicant's Case. 4The applicant commenced employment with the respondent in the position of Project Engineer, South West Region, Engineer level 2 , Regional Operations & Engineering Services Directorate. The industrial instrument that covered his employment was advised as the Professional Engineers (Roads & Traffic Authority of New South Wales ) Enterprise Agreement 20005 ( the agreement). This instrument was later superseded by the Professional Engineers (Roads & traffic Authority Division of the Government Service of New South Wales-Salaries) Award 2008 ( the award). 5The applicant stated that on or about 1 July 2009, he commenced working as Project Delivery Manager of South West Sealing. The applicant believed that during his employment with the respondent he followed all policies and procedures and believes that he was successful in reaching all his goals. 6In his statement the applicant outlined a number of issues and events that gave him concern. 7In March 2008 he believed he was subject to conduct by some of his work colleagues that he believed constituted bullying and harassment. 8In June 2009 Mr Graham McComber, Quality Surveillance Officer past comment to the applicant that he did not know how he kept his job and if it was up to him he wouldn't. The applicant reported this to Mr Mark Horney. The applicant did not know what happened as a consequence of reporting it. 9On or about 18 August 2009 he reported to his manager Mr Mathews of a altercation involving swearing and wrestling between two employees, Mr Cross and Mr Cobcroft that occurred the previous night in front of a service station . The applicant broke up the fight. The applicant believed that his was obliged to report this matter in accordance with the respondent's code. 10The next day the applicant had drinks and dinner with fellow staff at a restaurant. During the dinner he found out that an outside company manager was picking up the tab for the night. The applicant paid for his own. He reported this incident to Mr Mathews. He heard no more about it. 11In September 2009 he raised with Mr Mathews his concern with the lack of interest that Mr McComber had in South West Sealing activities and induction training. 12In September 2010 he had a work discussion with Mr McComber which resulted in Mr McComber saying he would "drop" the applicant. This incident was relayed to Mr Mathews. 13A few days later a meeting was arranged with the applicant, Mr Allan, Mr Mathews and Mr McComber to resolve the situation. No reason was given by Mr McComber as to why he threatened the applicant. The applicant reported the threat made by Mr McComber to the respondent's staff hotline. 14On 4 November 2010 the applicant attended a mediation meeting between himself and Mr McComber. The agreed terms were placed in writing. 15On 26 November 2010 the applicant attended a meeting with Mr Mathews who in an informal discussion, outlined a number of issues he had with the applicant's work performance, which included working excessive hours, relationship difficulties with personnel in his crew, not completing weekly management review meetings and a report that he had drove his car after having a drink three months previously. The applicant gave a response to each of the matters. He responded later that day with an email outlining his work schedule. 16It was on 29 November 2010 that Mr Mathews require the applicant to provide him with a two weekly schedule. 17On or about 30 November 2010 the applicant met with Mr Mathews who provided him with a letter regarding the informal performance discussion. The applicant responded to each issue. 18On 15 December 2010 the applicant raised a report and directed it to the respondent's HR department. He was critical that the record issued to him on 30 November 2010 was not as detailed as the discussion meeting held on 26 November . He also did not agree with all the required actions, as required by the Unsatisfactory Performance Policy. 19The applicant issued a letter of informal performance discussion to one of his subordinates Mr Shane Dunnett on 16 December 2010.The applicant believed he had the authority to raise such a letter. The letter outlined issues that the applicant believed Mr Dunnett had with respect to his work that had been discussed with Mr Dunnett and Mr Mathews on 2 December 2010. 20On 13 December 2010 the applicant , Mr Dunnett, Mr McComber and Mr Mathews met to discuss a particular work problem. It was the view of the applicant that the meeting quickly degenerated into Mr McComber and Mr Dunnett criticising the applicant. The applicant left the meeting and went home. The applicant then called Mr Judd and advised him what had occurred. That afternoon he returned to work and met with Mr Mathews who advised that he thought the actions of Mr Dunnett and McComber were inappropriate. At this meting Mr Mathews did request that the two weekly schedules be completed. The applicant queried as to why they should be completed. .Mr Mathews said that he would speak to Mr Judd and get back to him. He never did. 21On 15 December 2010 the applicant sent a formal complaint to the respondent's HR Dept. He listed the issues that he believed were outstanding. On 23 December 2010 he received correspondence to say that his complaint had been received. 22On or about 16 December 2010 the applicant travelled to a work site to hold a weekly meeting and to deliver the letter of record of informal performance discussion to Mr Dunnett. At this site the applicant stated that Mr Dunnett whilst driving a car in an aggressive manner stopped his car very close to where the applicant had been standing. After the weekly meeting the applicant provided Mr Dunnett with the letter. 23On or about 23 December 2010 the applicant finalised a second informal performance discussion report on Mr Dunnett following his discussion with Mr Dunnett on 16 December 2010. This letter was never sent to Mr Dunnett. 24On the same day the applicant had a meeting with Mr Judd and Mr Sexton of the HR Department. The applicant gave reasons why it was not appropriate for him to complete two weekly schedules. At that meeting the applicant raised the conduct of Mr Dunnett on 16 December 2010. The meeting went for approximately 2 ½ hours. 30 minutes after the meeting had finished the applicant received his warning letter. 25On or about 10 February 2011, the applicant had a meeting with Mr Judd and Ms Roach from the HR Dept. No discussion took place with respect to his letter of complaint. 26On or about 16 February 2011 the applicant had a planned meeting with Mr McComber but it did not proceed as planned because of the attitude of Mr McComber whom the applicant believed breached the mediation agreement. The applicant sent an email to Mr James and Allan and cc Ms Roach. A short time later Mr Adams came into his office and made a complaint about an Non-Conformance Report that the applicant had raised for failing to complete the waste register in January 2011. The same day the applicant had a meeting with Mr Mathews and advised him of the incident with Mr Adams. Mr Mathews said that he had received a report that the applicant had sworn at Mr Adams calling him a "cunt". The applicant denied using that word but did say that he called him a "rude prick". 27On 18 February 2011 the applicant prepared and emailed a two weekly schedule to Mr Mathews and cc to Mr Judd and Mr Sexton. He also raised staff bullying and harassment and staff performance issues. 28The applicant also raised what he believed were examples of interference in activities affecting the delivery of his work and associated performance. 29On or about 25 February 2011 the applicant had a meeting with Mr Mathews and Mr Sexton to discuss his work performance and to commence a new project. The applicant was told he would now be doing project managing contractors upgrading intersections. The applicant objected to the reallocation of work as he felt he was being demoted/punished from his current role to a role with less responsibility/less demanding and because he had still had grievance matters unresolved. Because the respondent had not commenced performance management discussions, he was of the view that his work should not be limited. 30On or about 2 March 2011 the applicant sought details of the new duties. It was his view that the new duties given to him were different to what he had been advised on 25 February 2011. 31On 4 March 2011 the applicant moved to a different location. The applicant then proceeded on leave for approximately ten days. 32On the weekend prior to 15 March 2011, the applicant decided to seek external representation in order to resolve work place grievances in accordance with the award and that he would not change current duties until his grievances had been resolved through external representation and the HR Dept. 33When he next returned to work the applicant retrieved his South West Sealing folders and moved them to his new location. He noticed that several folders were missing. Later that morning Mr Mathews came into his office and a discussion ensued. The applicant stating that his position was with South West Sealing and Mr Mathews saying that he had been given other work and he was to return the folders. The applicant stated that he did not wish to discuss the matter and Mr Mathews asking whether he was refusing a lawful direction. The application sought external representation in accordance with his award and suggested that Mr Mathews check the award. Mr Mathews stated that if the applicant does not do as requested further disciplinary action may be taken. The applicant stated to Mr Mathews that he could not get away with victimising people and that he would have a fight on his hands. He then asked him to leave. 34The applicant stated that he did not use any profanities although he did raise his voice and pointed to the door as he felt he was being harassed by his manager and he wanted other nearby staff to hear his reasonable request for Mr Mathews to leave. A Ms Mitchell and McComber and a Mr Allan and Humpheries were in the near vicinity. When Mr Mathews left the applicant continued to unpack his boxes. 35On 16 March 2011 the applicant received a phone call from Mr Judd seeking a meeting as to what had happened the previous day. The applicant refused to attend as he did not have external representation and he was finalising a report to HR and he did not wish to speak until he had discussed the matter with HR. 36In the afternoon the applicant received a suspension from employment and proposed letter of termination letter from Mr Judd and Mr Sexton just as he was about to leave work. On reading the letter the applicant denied that he had sworn at his manager. 37On 18 March 2011 the applicant replied to the letter and stated that he was willing to meet with Mr Boggan. On the same day the applicant sent an email to HR summarising recent grievances. 38On or about 23 March 2011, the applicant received a letter from Mr Judd advising that the allegations contained in the applicant's letter dated 15 December 2010, had been investigated discussed with Ms Roach and Mr Judd and was now closed. 39On 23 and 24 March 2011 the applicant sough to speak with Mr Boggan's office to confirm they had received his correspondence and to speak to Mr Boggan. He again rang Mr Boggan's office and was advised that his correspondence had been received. 40On or about 5 May 2011 the applicant received his termination letter dated 2 May 2011. 41Since the termination the applicant stated that he has gone back to truck driving on a casual basis. He stated that he has attended three job interviews for local government engineering positions however he has been unsuccessful. 42In his statement in reply, the applicant stated with respect to the statement of Richard Boggon that he did not believe that the issues that he had raised to the General manager of HR had been properly investigated as no information was provided to him as to what investigations had taken place and how the decision to close the investigation had been reached. He did not believe that his relationship with his managers had " irretrievably broken down" as he had a lot of respect for his managers and could work competently as part of a team. He stated that he did not perform duties as directed because he believed that he was within his rights and had a valid reason to do so. 43He did not agree with the comments of Mr Judd as to describing his comments, when they spoke on 13 December 2011, as repetitive as the applicant was most concerned with the problems he had with other employees. He disagreed that he had formal management discussions with Mr Dunnett, they were informal. Respondent's case. 44Ms Julianne Mitchell stated that she is employed by the respondent in the position of Works Support Officer, Narrandera. When the applicant was employed she reported to Mr Mathews. She stated that she was aware that in or about late February 2011 the applicant was requested to move by Mr Mathews to another part of the office. She saw the applicant moving his belongings. On or about 15 March 2011 she witnessed an incident between the applicant and Mr Mathews in the office. She saw Mr Mathews enter the applicant's office, have a brief conversation with the applicant and then leave and return to his own office. A short time later he re entered the applicant's office. She did not hear their conversation until she moved to be near Alison McComber's desk and saw the applicant pointing his finger at his door and in a raised voice said to Mr Mathews words to the effect of: "Get the fuck out of my office." Mr Mathews then left the applicant's office. She did not hear Mr Mathews raise his voice. 45The next day Mr Judd and Sexton came to the office and advised the staff that the applicant was suspended from duties. 46On or about 18 March 2011 she say the applicant in the office. She reported this to Mr Judd. Later that day when the applicant left she reported this to Mr Judd. 47On or about 25 March 2011 she had a telephone conversation with Ms Sonia Damento, Workplace Practice Officer. They discussed what she had heard and observed on 15 and 18 March 2011. She later received a copy of a file note from Ms Dametto which she read and was satisfied that it was accurate. 48She stated that because of the lack of cooperation that she got from the applicant she found working with him frustrating. She stated that she received a phone call at home from the applicant regarding the incident of 15 March 2011 which was uninvited. She said she would be reluctant to work with him again. 49Ms Alison McComber stated that she works for the respondent in the position of a Works Support Officer, Narrandera. On 15 March 2011 she said that she witnessed an incident between the applicant and Mr Mathews in the Narrandera office. She sat two to three metres from the applicant's office. She saw Mr Mathews go into the applicant's office. She heard Mr Mathews ask for some folders and the applicant state that he was the sealing engineer. Mr Mathews then came out of the office. A short time later Mr Mathews re entered the applicant's office. She said that she did not hear all the conversation but she did hear the applicant raise his voice and say words to the effect of: " Get the fuck out of my office." The applicant was red in the face and appeared agitated. She then heard the following conversation to the following effect: The applicant: " Go away you are hassling me." Mr Mathews : " I am not hassling you Wes, I am trying to explain." The applicant: " Fuck off, you don't know what you have started, you will have a fight on your hands. Fuck off out of my office." The applicant then gestured towards his office door with his hand and Mr Mathews left the office and returned to his own. 50On or about 13 December 2010 the applicant walked out of the training room knocking into the door and spilling his coffee. The applicant grabbed the door in an aggressive manner and slammed it into the wall and left the building. The door handle had put a hole in the wall behind the door. Photos of this were attached to her statement. 51Mr Craig Mathews stated that he is employed by the respondent since 1998 in various designations and currently holds the position of Senior Project Manager, Maintenance. The applicant reported to him and he reported to Mr Judd. The applicant reported to him since he commenced with the respondent. The applicant was initially employed as a Project Engineer, South West Region in October 2007 and then in July 2009 his duties changed and he performed the Project Delivery Manager position within the Sealing Unit at Narrandera. 52The Project Delivery Manager position that was held by the applicant was classified as an Engineer Level 2 under the award. In his statement Mr Mathews listed the responsibilities of the position. The Riverina District of Road Services has five Project Delivery Manager roles: three in Narrandera and two in Hay. He said that this role is designed to allow for employees holding those positions to be moved between different projects from time to time as the needs of the business and its clients change. 53He said that the applicant's Offer of Employment states that it designates a region to which his position is allocated, but does not designate a particular project and states that the applicant "should understand that[he] may be required to carry out duties in other locations from time to time." 54He said that in late 2008 he received complaints from employees about the applicant concerning doing the work of others, communicating poorly with staff, working in an unsafe manner, his interaction with other employees and his inability to listen to advice. 55 Mr Mathews met with the applicant in early December 2008 identifying his role, his underperforming areas, made a number of requests such as completing weekly scheduling meetings with the Works Supervisor, completing a two weekly schedule, not working overtime unless approved in advance, not working outside the flexi time bandwidth and building rapport with the Works Supervisor and crews. 56In July 2009 he moved the applicant into the Sealing Unit. The moving of Project Delivery Managers gives the individual more experience, variety and career progression. This move was no different to the way other Project Delivery Managers in the past had been moved between projects. 57On 6 September 2010 he held a meeting between the applicant and a Mr McComber. It concerned a complaint by the applicant that Mr McComber had made a threat to him. In his view after discussing the matter that there existed conflict between the two. He stated that he was aware a mediation session was organised to take place between the two men. 58He stated that he had an informal discussion on 26 November 2010 with the applicant concerning a report that he may have driven home under the influence of alcohol. After listening to the applicant's story Mr Mathews was of the view that the applicant could have used better judgement in driving a long distance at night. He also spoke to the applicant about his management of hours , prioritising his work activities ( required a two weekly schedule to be provided), management of travel time and to hold weekly management meetings. He was told to hold such meetings. He was also spoken to about trying to improve his working relationships with his crew and other office staff. Mr Mathews stated that he told the applicant that if there was not an improvement in his performance he would consider elevating this to a formal performance management. He said that the applicant stated that he would leave if it went to a formal performance management. An email sent by the applicant later that day responding to the issues did not acknowledge or accept any of the matters that had been raised. 59On 29 November 2010 Mr Mathews provided the applicant with a two week schedule pro forma and asked him to complete it each Monday. This he refused to do. 60On 30 November 2010 the two men met again and Mr Mathews again stated that he required the two weekly schedule to be completed. The applicant said that he would not do it as he worked off a white board. Mr Mathews did not believe the white board served the same purpose. 61On 2 December 2010 Mr Mathews held a meeting with the applicant and Mr Dunnett. Work issues were gone over . It was his view, that this was not a performance meeting about Mr Dunnett's work. 62On 8 December 2010 Mr Mathews received a phone call from Mr Dunnett stating that the applicant wished to hold another Ensite review meeting and that they had just had one two weeks ago. He said that he rang the applicant and stated that it was a better idea to spread such meetings out and that he should hold his weekly management meeting. The next day Mr Dunnett advised him that the applicant had held an Ensite meeting but not a weekly management meeting as had been suggested. 63A meeting on 13 December 2010 held between the applicant , Mr Dunnett, Mr McComber , Mr Cross and Mr Mathews was to discuss various work issues. The meeting resulted in Mr McComber and Mr Dunnett complaining to the applicant that he did not listen to them. The applicant did not believe he had to listen to what was being said and left the room slamming the door into the wall. Mr Mathews denied that he sough to belittle the applicant. Later that afternoon he contacted the applicant and apologised for the way the meeting went. He also spoke to Mr McComber and Dunnett about the way they had spoken to the applicant. The two men agreed the meeting had got out of hand and said that it would not happen again. Later that day Mr Mathews and the applicant had a discussion about what had happened that morning and other work issues/strategies that the applicant had, that needed to be sorted. The issue of the applicant completing the two weekly schedule was again raised and again the applicant refused to do them. This refusal was passed onto Mr Judd. 64He understood that Mr Judd spoke with Ms Cvetkovic explaining the issue and expressing the view that that the matter needed to be managed by way of formal performance management. 65Mr Mathews organised with the applicant to hold a meeting with him on 16 December 2010. On 16 December 2010 Mr Mathews received a phone call from Mr Dunnett informing him that he had received an informal management letter from the applicant. This letter had been issued without Mr Mathews knowledge. The meeting on that day did not take place as the applicant had to go home and fix his car and mind his children. On that day Mr Mathews received an email from Mr Cross to state that he had not been included in a management review meeting that had been convened by the applicant. A copy of the letter received by Mr Dunnett was found on Mr Mathew's desk. Mr Mathews then sent emails to Ms Ctvekovic detailing issues that he was having with the applicant. 66On or about 4 February 2011 he again spoke to the applicant with respect to completing the two weekly schedules. 67On or about 17 February 2011 Mr Mathews received a complaint from Mr Dunnett concerning the way the applicant had spoken to Mr Adams. Mr Dunnett had received the complaint from Ms Kelly Hicks a Works Support Officer. Emails of this incident were passed onto Mr Judd by Mr Mathews. 68Mr Mathews then had a conversation with the applicant. The applicant denied calling Mr Adams "a cunt" but did call him a "rude prick". He also raised the issues of not completing the two week schedules and his practise of copying senior management into emails relating to RFS operational matters. Mr Mathews also spoke to Mr Adams concerning his behaviour. Mr Mathews also issued a letter to the applicant directing him to complete a two week schedule by 4.00pm on 18 February 2011. He received the schedule. It was the only one he ever received. 69On or about 23 February 2011 Mr Mathews had a telephone conversation with Mr Judd, Mr Sexton, Ms Cvetkovic and Ms Roach. The topic of conversation was the work practises of the applicant and how he interacted with his fellow workers and the subsequent negative reaction from these employees. The result was that the Sealing unit was not functioning satisfactorily and change was needed to ensure that the Sealing programme would be delivered. 70On 25 February 2011 Mr Mathews and Sexton met with the applicant. The meeting went for approximately three hours and covered the way the applicant communicated with fellow employees eg sending an email to a person who sat by his side in the office. The requirement to change his management style and to communicate better with his crew. It was at this meeting that the applicant was told that he was going to be moved into Construction for the rest of the financial year. He was told that the relationships within the Sealing unit can not continue. He was told that he would move to a office in the building about 20 metres away. He was also told that he will stay as the Sealing engineer and return to that position in July. He was also told that if he couldn't build and maintain relationships in the office the next step would be formal performance management. He was told that he would be involved in preparing the PSP for the next year's programme. 71On 2 March 2011 Mr Mathews sent an email to the applicant outlining his new project. Mr Mathews stated that this new project was not a demotion in grade, rate of pay or status. The heavy patching work was most needed due to a particular wet season. 72The applicant refused to undertake the new project. Emails between the parties occurred between 2 and 4 March 2011. The applicant was told that that he was refusing a reasonable instruction if he did not accept this new project. The applicant then went on leave and returned on 15 March 2011. 73Prior to proceeding on leave the applicant had been told by Mr Mathews to leave the Sealing files at his old desk. During his leave Mr Mathews required some of these files which he found in the applicant's new office. Mr Mathews did not replace the files. 74On 15 March 2011 Mr Mathews advised the applicant that he wanted the Sealing files left on the Sealing bookshelf. The applicant stated that he was keeping them as he was the Sealing engineer and for Mr Mathews to go and check the award. The Sealing engineer was his job 75Mr Mathews left the office and called Mr Judd. Mr Judd advised to let the applicant know that he is refusing a reasonable direction and that Mr Mathews will be getting further advice on commencing formal performance management. Mr Mathews returned to the applicant's office and advised him of his position. The applicant advised Mr Mathews that he was being unfair and that he was harassing him. 76The applicant then pointed to the door with his arm and in a raised voice told Mr Mathews words to the following effect : "Get the fuck out of my office. You're harassing me and you haven't followed procedures. You should go back to your office and think about how unfair you have been and you haven't followed procedures. I'll fight you all the way, you've got a fight on your hands. Fuck off, get out of my office. Go get out, get out. Get out." Mr Mathews stated that he was not harassing him and that he was going to get advice. 77In his office Mr Mathews then individually spoke to Ms McComber and Ms Mitchell and asked whether they had witnessed what had just occurred. He then spoke to Mr Judd and was told to make a detailed record of what had just occurred. This he did. 78Mr Mathews stated that he believed that it would be untenable for the applicant to return to the Narrandera depot both for himself and the office staff. The new Project Development Manager and Sealing crew are working well as a cohesive crew with an improved morale. He does not believe that the applicant is suited to a role that includes management of a direct control workforce. He had problems in both the Maintenance and Sealing units in terms of communication and working relationships as well as with the general administration and office staff. 79Mr Shane Dunnett stated that he commenced employment with the respondent in 1997 and currently holds the position of Works Supervisor. He commenced in this position in 2008. He reported to the applicant from approximately 1 July 2009. In his position he is responsible for the output of bitumen on national and state highways as well as supervising such work working mainly on site with one or two days in the Narrandera depot per fortnight. In the area that he worked the sealing season is from September to April when the weather is hotter. He stated that it is critical that the work is well planned and everyone knows what is happening, where and when. Various documents and meetings take place so as people are informed. On at least one occasions he stated that the applicant made changes to the Sealing programme without letting him know which resulted in a crew turning up at a location without equipment and materials. 80Mr Dunnett outlined what happened when the applicant held an Ensite meeting on 9 December 2010 so soon after a previous Ensite meeting two weeks before. In Mr Dunnett's view such a meeting so soon after the previous one was not called for and a loss of time occurred. 81 He also outlined what occurred on 13 December 2010 in a meeting held between the applicant , himself, Mr Mathews and McComber. He stated that he told the applicant that " You just don't listen" with the other two men agreeing. Mr McComber stated that " You have problems working with other people" and the applicant leaving the meeting stating words to the effect of " I don't have to listen to this fucking shit." 82 On 15 December 2010 Mr Dunnett stated that he organised a teleconference meeting to take place at 9.30am the following day, with the applicant and Mr Cross from the Narrandera office and himself and Mr Adams from on site at Gunbar. The meeting took place at 9.30am without the applicant, as his whereabouts was unknown. The meeting lasted about ten minutes. At approximately 10.00am the applicant arrived at the site when 'spraying' was taking place which required a coordinated safety procedure involving a number of vehicles and a cockle tipper. Particular safety procedures have to be followed. Mr Dunnett saw the applicant drive his vehicle onto the blocked off side of the road. Mr Dunnett stated that by his hands he gestured to the applicant " what are you doing here?". The applicant then advised Mr Dunnett via the two way radio that he was required at a meeting. After completing his part in the process Mr Dunnett then drove back to where the applicant was standing near Mr Adams car. He denies he drove towards the vehicle at excessive speed and pulled up about five metres away. The applicant then held a management review meeting but did not include Mr Cross. Mr Dunnett advised the applicant that they had already had the meeting. The applicant did not respond. The applicant did not ask if they had anything to say. At the end of the meeting the applicant handed Mr Dunnett a letter regarding his performance. After having the letter read to him, Mr Dunnett stated that he would be calling Mr Mathews. Mr Dunnett advised Mr Mathews that the letter was in his name. Later Mr Judd called Mr Dunnett and advised him that the applicant had no right to do anything like that. Mr Dunnett did not believe that he had done anything wrong. 83Mr Dunnett outlined what occurred with the change of site around 21 February 2011,his referral to Mr Mathews ( normal procedure when his direct supervisor is not at work) as to why the change had to take place and the subsequent reaction from the applicant who complained that he had not been kept informed. The change in location took place on the applicant's day off. 84Mr Dunnett stated that it was the style of the applicant not to listen to anyone's else's advice. It was his way or nothing. He left Mr Cross out of management meetings which made it difficult for Mr Cross to order aggregate and other supplies. He did not think that the applicant added much value to him or the sealing crew. The new Project Development Manager communicates frequently with the team. If the applicant was reinstated back to the Narrandera depot there would not be a sealing crew because no one would work with him. He said he would be reluctant to remain in his position. 85Ms Emilia Cvetkovic stated that she commenced with the respondent in June 2001 and is currently acting in the position of Manager, Industrial Relations and Policy and has been since June 2011. In her statement she outlined the various positions she has worked in and the policies and guidelines that the respondent has. She advised that the applicant was a participant in a training session on Managing Unsatisfactory Performance and Conduct that she assisted to run. 86On or about 14 December 2010 she stated that she received a call from Mr Judd and Mr Sexton regarding performance concerns of the applicant. This was followed by an email from Mr Judd confirming the discussion and that it may be appropriate to commence a formal performance management programme for the applicant. She then sought further information from Mr Mathews. On 16 December 2010 she received further information from Mr Mathews regarding issues that he had with the applicant. She stated that she became aware that the applicant had issued a performance letter to Mr Dunnett and that he intended to issue a second one. She was also aware that the applicant had not provided a two weekly schedule when required to by Mr Mathews. She assisted Mr Judd in preparing a letter of warning to the applicant. On 23 February 2010 she participated in a telephone conference call with Mr Judd, Mathews, Sexton and Ms Roach concerning the applicant. 87On 15 March 2011 she received a phone call from Mr Mathews concerning an incident between himself and the applicant. She also on that day had a discussion with Mr Judd. She also spoke to Mr Evans. On 16 March 2011 she received a phone call from Mr Judd who stated that the applicant was refusing to speak to him about the incident of 15 March 2011. As a consequence of the refusal of the applicant to supply a two week schedule to Mr Mathews, his alleged behaviour to Mr Mathews on 15 March 2011, refusal to change duties, refusal to meet with Mr Judd and that he had already been issued with a warning letter of unacceptable behaviour it was considered appropriate to commence applying the Discipline Policy and Discipline Guidelines to the applicant. On 17 March 2011 she allocated conduct of this matter to Sonia Dametto Workplace Practice Officer. 88On or about 16 March 2011 Ms Cvetkovic issued a memorandum to Richard Boggon, Director, Commercial Services which recommended the applicant be suspended with pay and to issue a show cause letter as to why he should not be terminated. This was approved by Mr Boggan and a show cause letter was given to the applicant by Mr Judd. She had a further telephone conversation with Mr Mathews , Sexton and Judd as to what happened when Mr Mathews and Sexton had gone to deliver the letter to the applicant. She also asked Ms Dametto to enquire into what occurred between the applicant and Mr Mathews on 15 March 2011. She understands that Ms Dametto spoke to Mr Mathews, Ms McComber, Ms Mitchell and Mr Humphries. 89The applicant sent letters to Mr Boggon and to Ms Edwards, Acting General Manager , Human Resources Strategy dated 15 December 2010 and 18 March 2011. On 20 April 2011 Ms Cvetkovic had a conversation with Mr Judd about the recommendation that the applicant's employment be terminated. On the same day she and Ms Dametto prepared a memo to Mr Boggon recommending that the applicant be terminated. She stated that she was aware that on 2 May 2011 Mr Boggon issued a letter to the applicant terminating his services. 90Mr Richard Boggon stated that he commenced employment with the respondent in January 2007 and commenced in his present position of Director of Commercial Services of Roads and Maritime in February 2011. 91He stated that he first became aware of the issues concerning the applicant when he visited the Narrandera Depot some time prior to July 2010. He stated that he was advised by local management that the applicant did not work as part of a team and was not maintaining or building relationships. 92 On 16 March 2011 he stated that he was supplied with a memorandum prepared by Ms Cvetkovic recommending that he suspend the applicant. Prior to making a decision he spoke to line management. He made the decision to suspend and signed a show cause letter. On 18 March 2011 he received the applicant's response plus two letters dated 15 December 2010 and 18 March 2011, that had been sent to the General Manager, Human Resource Strategy. He stated that he carefully reviewed the applicant's response. He also sent a copy to the Workplace Practices Unit for their advice. On 20 April 2011 he received a memorandum from Ms Dametto recommending that he terminate the applicant's services. He noted that the issues raised in the applicant's letters to the General Manager had been investigated and dealt with. In those circumstances he did not think those issues had any bearing on his decision. He stated that he decided to terminate the services of the applicant because there had been a number of issues concerning the applicant , not just one. The issues had been repeated over a period of time, his refusal to undertake the duties he had been directed to undertake by Mr Mathews or comply with his directions and had behaved in an aggressive and inappropriate manner. His refusal to produce the two weekly schedules as required by Mr Mathews and his conduct having an adverse effect on the team. He considered moving the applicant but concluded that the issues that existed were likely to repeat themselves. 93On about 2 May 2011 he signed a letter terminating the applicant. 94He also stated that he did not receive any message that the applicant wished to meet with him. He said that nothing that the applicant advanced in his evidence in these proceedings would have altered the decision he took to terminate the applicant even if he had met with the applicant prior to the termination. 95He held the view that the relationships that the applicant had with his managers had irretrievably broken down. The applicant had made it clear that he was not prepared to carry out his duties as directed. Re-instatement or re employment would he believe, lead to the same likelihood of refusal with the same managers being involved in his supervision. 96Mr Garry Sexton stated that he commenced with the respondent on 8 June 2010 and currently holds the position of Human Resources Advisor, South West, New South Wales. He stated that on or around 23 December 2010 he attended a meeting with Mr Judd and the applicant. On 23 February 2011 he attended a meeting with Mr Mathews and the applicant. At both meetings he took notes which he attached to his statement. In his statement he denied the applicant's assertion that he picked the letter up from the floor and pushed it into the applicant's chest. He denied touching the applicant in any way. He offered the letter to the applicant and said : "You really should read this it is important." He also denied that he and Mr Judd sought to block the applicant's access to the door. 97Mr Mitchell Judd stated that he commenced with the respondent in 1981 and currently holds the position of Road Services Manager, Country West. In his current position he reports to Mr Greg Evans who reports to Mr Richard Boggon. He manages approximately 350 employees. Seven District Works Managers report to him, one of those being Mr Craig Mathews. In his statement Mr Judd gave an overview of the organisation and its operation in the competitive field that they operate in. In the season when they work each day equates to between $75,000 to $100,000 turnover. In his view it is therefore very important for the planning and monitoring of work through periodic team meetings, weekly meetings and two weekly schedules. 98Mr Judd approved the appointment of the applicant. The applicant was not recruited into the Sealing role. There was no recruitment process into that position. The applicant was changed from a position in the Maintenance to a position in the Sealing team. In both positions he held the position of a Project Delivery Manager. 99He stated that he and Mr Mathews had several conversations concerning the applicant's performance. He was aware that Mr Mathews attempted to address the issue of the applicant's management of time through the completing of the two weekly schedule. He became aware of the applicant's refusal to complete the two weekly schedule on or about 26 November 2010. 100On 13 December 2010 he received a phone call from the applicant complaining about the abuse he had received at a meeting with Mr Mathews, Mr McComber and Mr Dunnett. Later that afternoon he received a phone call from Mr Mathews describing what occurred at the meeting and his failure to control it. That day he spoke with Mr Sexton and Mr Mathews concerning the applicant's work issues and as a consequence he spoke to the Workplace Practice Unit to seek advice. The next day he spoke with Ms Cvetkovic about the applicant. It was agreed that Ms Cvetkovic would speak to Mr Mathews. Several days later he again spoke with Mr Mathews who advised that he had apologised to the applicant. 101On or about 16 December 2010, Mr Judd had a telephone conversation with Mr Mathews concerning the applicant issuing a performance management letter to Mr Dunnett. Mr Mathews advised that he was unaware of the applicant's intention of doing this. When he received a copy of this letter it confirmed Mr Judd's view that the applicant was not authorised to issue such a letter. The applicant had not consulted either Mr Sexton or Mathews prior to sending the letter or a second proposed letter. In consultation with Ms Cvetkovic he determined that on the basis of this incident and his refusal to raise the two weekly schedule he would issue the applicant with a letter of warning. Mr Judd then spoke with Mr Dunnett advising that the applicant should not have issued such a letter. 102On or about 22 December 2010 Mr Judd said he spoke with the applicant and stated that he wished to speak to him about the letter to Mr Dunnett and the completing of the two weekly schedule. The following day he with Mr Sexton met with the applicant. The applicant admitted that he had not spoken to either his supervisor or HR prior to sending the letter to Mr Dunnett. He was told that he had misunderstood the policy and not to do it again. With respect to the two weekly schedule Mr Judd directed the applicant to comply with what Mr Mathews had asked. Mr Judd did not agree that the applicant's behaviour with respect to Mr Dunnett was reasonable. Post that meeting Mr Judd issued the applicant with a warning letter. 103With respect to the applicant's letter of complaint sent to Mr Doran and Ms Edwards around 15 December 2011, Mr Judd said that he was directed by the Workplace Practice Unit to undertake an investigation into the complaints. On 10 February 2011with Ms Roach, he spoke with the applicant and went through the issues that had been raised by the applicant. On or about the same day he spoke with Mr Mathews concerning the applicant's request for parental leave. Mr Mathews also responded to questions concerning an altercation with Mr Cross and another person and the allegation of Mr Dunnett driving in an aggressive manner. Mr Judd also spoke with Mr John Harrison concerning the alleged fight outside the Rosehill Bowling Club. He also spoke with Mr Cobcroft denying that he was involved in a fight. Mr Judd received an email from Mr Mathews who spoke with Mr Adams concerning the allegation of Mr Dunnett driving in an aggressive manner. Mr Adams had no memory of this. As a result of his investigations Mr Judd made his determinations based on the evidence that he had collected and either determined that no further action was warranted or lack of evidence could not warrant any action. 104On or about 28 February 2011 Mr Judd stated that he prepared an Initial Assessment Report of his investigations and directed it to Mr Evans. On or about 8 March 2011 he prepared a letter to the applicant advising him that the investigation was completed and that the matters were closed. Mr Judd sought for this letter to be given by hand to the applicant. It subsequently came to his attention that he did not have any acknowledgement that the applicant had received the letter so he resent the letter by registered post on or about 23 March 2011. 105On 23 February 2011 Mr Judd advised the applicant via email that he was not to include senior management into emails he has sent concerning matters relating to project delivery. Mr Judd was aware that Mr Mathews had already spoken to the applicant about this practise and to cease it. 106On 15 March 2011 Mr Judd became aware of an incident between the applicant and Mr Mathews. He received a phone call from Mr Mathews stating that the applicant had : "given me a gob full of abuse. He told me to fuck off, said I was harassing him, bullying him, told me to get out of his office, said 'I'm not prepared to talk to you about this'. I can't tolerate this . What can we do ?" Mr Mathews told him about the sealing folders and that the applicant had taken them into his new office. Mr Judd then spoke to Ms Cvetkovic and it was decided that Mr Judd would go to Narrandera and speak to the applicant. He then telephoned the applicant that afternoon and organised to meet him the following day. He stated that no issue was raised about holding the meeting. 107On 16 March 2011 Mr Judd said he travelled from Dubbo to Narrandera to meet with the applicant leaving at approximately 6.30am. At 8.20am the applicant sent an email stating he would not be available for the scheduled meeting. He phoned Mr Sexton and advised him and then he phoned the applicant who stated that he would not attend until he had external representation. Mr Judd stated that external representation was not necessary as he just wished to hear his side of what had happened the previous day. Mr Judd then directed the applicant to attend. The applicant said he would not. The applicant was warned that not coming could potentially lead to disciplinary action and could lead to termination. The applicant stated that he understood this. He was directed again, and again he refused. Mr Judd then said that he was coming down and that he don't leave the office and that he would report this to Head Office. He then spoke to Ms Edwards and Ms Cvetkovic and advised them of what had happened. Ms Cvetkovic said that she would prepare a memorandum to the Director recommending the applicant's suspension. He then sent an email to the applicant confirming their conversation. He also spoke with Mr Mathews updating him on what had occurred. He also spoke with Mr Sexton asking him to come over to Narrandera . They agreed to meet at Narrandera at 1.00pm. 108That afternoon Mr Judd gave the applicant a letter of suspension and proposed termination of employment. When received the applicant rejected the letter. Mr Judd denied that he or Mr Sexton sought to block the applicant from leaving the office or that Mr Sexton pushed the letter into the applicant's chest. 109On 18 March 2011 the applicant returned to the office and Mr Judd phoned him and asked him why he had returned when he was suspended. 110On or about 27 April 2011 Mr Judd received a copy of a memorandum recommending the termination of the applicant. He agreed with this action and listed his reasons as to why. He stated that the issues with the applicant were caused by inherent characteristics, eg not listening to others, inability to accept their input or views, apparent unwillingness to delegate, refusing directions from superiors where he felt they were unnecessary, inability to build and maintain working relationships and an inability to accept that he had contributed to the issues he had experienced in the workplace and work through a solution. He believed that the behaviours that the applicant was exhibiting would be problematic regardless of whether particular people were reporting to him or not. He saw no evidence of any change taking place with the applicant's behaviours so a placement in another part of the business would place an unreasonable burden on any new workplace and he had lost confidence in him as a member of a team that Mr Judd is responsible for. 111Mr Judd stated that he is not aware of any training programmes that the applicant has attended on his initiative. The achievements that the applicant recorded are activities that are expected of anyone holding the position of the applicant. 112If reinstated to the Narrandera depot Mr Judd believed it would cause serious damage to the goodwill at Narrandera and that it would increase tension and animosity in the workplace. Since his departure the Sealing unit has been functioning well and continues to be profitable. He believed that the applicant demonstrated a pattern of behaviour that would be repeated and created conflict. Considerations and decision. 113The applicant received correspondence dated 16 March 2011 signed by Mr Boggon headed Suspension from Duty with Pay Proposed Termination of Employment. Various incidents were noted with the applicant given seven days to respond. The applicant responded to this correspondence dated 18 March 2011.The applicant was terminated by letter signed by Mr Boggon dated 2 May 2011. In that correspondence Mr Boggon outlined various correspondence that had passed between the applicant and the respondent. Under the sub-heading of Outcome he stated; Overall, I note your response to the proposed penalty indicates no acknowledgment by you as to how your actions have caused disciplinary proceedings to be commenced against you or any admissions regarding your conduct and contribution to any poor relationships or behaviour. Your proposal for an alternative outcome to your disciplinary matter, including a secondment, is in direct contradiction to your ongoing refusal to comply with Mr Mathews' and Mr Judd's request to undertake alternative duties. I am satisfied that sufficient evidence exists of your poor relationship and communication skills and disregard for management authority despite ongoing discussions with you by your supervisors about these matters. Additionally , there is sufficient evidence of you refusing to comply with Mr Mathews' direction to provide work schedules and to work on an alternative project, as well as refusing Mr Judd's direction to meet with him, and your intimidating behaviour towards Mr Mathews in the incident on 15 March 2011. Your lack of insight into your behaviour has on others given the RTA no basis on which to maintain any trust it has in your capacity to conduct yourself professionally , and in accordance with the standards expressed in the RTA's Code of Conduct and Ethics. I therefore do not believe an alternative option would address these problems. As such, following careful consideration of the evidence and documentation you have provided , I have determined that the most appropriate disciplinary action is that your services be terminated immediately upon receipt of this letter. You will receive payment of three(3) weeks pay in lieu of notice. 114The applicant commenced with the respondent on 2 October 2007 in the designation as a Project Delivery Manager. The letter of offer states that his position is that of Project Engineer, South West Region, Engineer Level 2 , Regional Operations & Engineering Services Directorate. This position is covered by the provisions of Professional Engineers (Roads & Traffic Authority of New South Wales) Enterprise Agreement 2005. Under the Position Description of Project Engineer - Position Purpose it states: The Project Engineer is responsible for the management of the delivery of routine maintenance and specific road related projects in the South Western Region. 115The applicant reported to Mr Mathews who reported to Mr Judd. Mr Dunnett reported to the applicant. 116A great deal of evidence was placed before the Commission concerning various incidents that involved the applicant leading to the applicant's termination. The correspondence directed to the applicant on 16 March 2011 entitled Suspension from Duty with pay Proposed Termination of Employment set out the issues the respondent had with the applicant. They can be listed as: The request by Mr Mathews to leave sealing related files on the sealing bookshelf on 15 March 2011 The refusal by the applicant to comply with a reasonable request to undertake the new duties allocated to him on 25 February 2011. The applicant's response directed to Mr Mathews on 15 March 2011 accusing him of being unfair and harassing the applicant and the applicant pointing to the door and telling him to "f...off" and telling him he would " have a fight on his hands", again telling him to " f...off " and shouting at him to " get out of your office". Your declining of requests to attend a meeting with Mr Judd on 16 March 2011. An incident between the applicant and Mr Adams that occurred on 16 February 2011 where the applicant stated in a loud voice" I work with a bunch of pricks and you're all c..nts." The meeting on 25 February 2011 discussed with the applicant his work performance, his poor relationship with his immediate supervisor and members of his team, difficulty in managing reasonable workload requirements and his unprofessional conduct towards his supervisor Mr Mathews, his new work project and opportunity to improve his communication and relationship building skills. These concerns had been raised with the applicant on 26 November 2010 and documented in correspondence of the same date. Refusal to comply with completing the two week schedules. 117In his correspondence in summary the applicant replied: Denied using bad language and accused Mr Judd, Mathews and Sexton of misleading events to victimise him and threatened his employment. Did not wish to meet with Mr Judd on 16 March 2011 as he wished to have feedback from HR prior to any meeting and may wish to have representation. Also in accordance with section 19 of the Professional Engineers Award his request was reasonable. Mr Mathews refused to listen to his reasonable requests that he did not wish to discuss his current position with him and that Mr Mathews was threatening his employment. Maintained that in his opinion his job is still in Sealing. Admitted that he commented on Mr Adams rude behaviour as a "rude prick. He should get a real job." The various Harassment, Bullying and Victimisation reports that he had lodged with HR. His desire to continue to work on improving current Sealing practises. The applicant proposed a number of options including: * Maintaining his employment in the Sealing unit , bringing in outside referral sources to resolve problems his experienced in bullying , harassment , victimisation etc and to ensure reasonable penalties are applied to personnel for their involvement and actions. * Maintain his employment in the Sealing unit and HR address his grievances etc.. with feedback from HR advising what action is to be taken to minimise the risk of reoccurrence. * As above but with external resources in conjunction with HR. * As above but obtain formal recognition for his positive contribution for implementing the appropriate policies. * Seek formal recognition for his positive contribution implementing management systems, improving IT systems . He would also consider a permanent or secondment position with Project Services eg Project Manager (Maintenance) based in Narrandera. 118It is clear from the applicant's response that he sees Mr Judd, Mr Mathews and Mr Sexton responsible for victimising him and threatening his employment. It is also clear that at no point in his response does he admit any blame for the incidents or his work performance that occurred that led up to the date of his response. 119It was the respondent's submission that the applicant had been advised on a number of occasions that he complete the two weekly schedules. I am satisfied from the evidence, from the applicant who confirmed in evidence that at a meeting with Mr Mathews on 4 December 2010 he was required to complete the two weekly schedules, from Mr Mathews and Mr Judd that the applicant was placed on notice to complete the schedules. This was expressed in the applicant receiving a "Letter of Warning" dated 23 December 2010. I also accept that the applicant refused to complete the two weekly schedule. He believed he had reasons why he did not wish to carry out this practise. I reject the submission made by Mr Darams during final submissions that because there was no adverse consequences in the 2009/2010 sealing season , when the applicant did not complete any two week schedules, then they were not necessary. I accept the reasons given by Mr Mathews that there existed genuine reasons why he wanted the applicant to complete these schedules. The applicant finally completed one two weekly schedule around 18 February 2011. Another schedule was due on 4 March 2011 but was not done. Whilst in the intervening time the applicant had been advised that he would be carry out another project, Mr Mathews had directed to the applicant by email on 2 March 2011, correspondence with his new duties. There was an expectation that the applicant would complete a schedule for the new job. This he did not. 120 In my view the applicant did not complete another schedule because he was never going to take up the new project. It is my finding that what was being asked of the applicant to complete a two weekly schedule was a reasonable instruction. By not carrying out this instruction the applicant was placing himself in a position where disciplinary action would be taken. 121The applicant had been accused that on two occasions he had had used inappropriate language in the workplace. 122 On 16 February 2011 it was alleged that he said to Mr Adams and to others in the office: " I work with a bunch of pricks and you're all cunts." The applicant stated that he did call him a rude prick and that he should get a real job but denied that he called anyone in the office "a cunt". The respondent was notified by a fellow worker of this outburst. No witness was called from the respondent to confirm this conversation. I therefore find that what was said was only what the applicant has admitted to. He admitted in evidence that such a comment was inappropriate but he just vented some frustration. 123The second incident was alleged to have occurred in the office on the morning of 15 March 2011. Mr Mathews gave evidence that he entered the office of the applicant and spoke to the applicant about some Sealing files and his wish for them to remain on the Sealing bookshelf. This location of the Sealing files the applicant did not agree with as, in his view he was the Sealing engineer and they would stay with him. Mr Mathews stated that he then left the office and rang Mr Judd. Mr Judd is alleged to have said that the applicant is refusing a reasonable direction and that you ( Mr Mathews) will be getting further advice on commencing formal performance management. Mr Mathews stated that he then returned to the applicant's office and advised the applicant that by refusing to move to other duties he had been allocated he was refusing a reasonable direction. He then said he was going to get advice on commencing formal performance management. The applicant stated that Mr Mathews was being unfair and harassing him. The applicant then pointed to the door and raised his voice and allegedly said words to the effect: Get the fuck out of my office. You're harassing me and you haven't followed procedures. You should go back to your office and think about how unfair you have been and you haven't followed procedures. I'll fight you all the way, you've got a fight on your hands. Fuck off, get out of my office. Go get out, get out. Get out." In giving evidence both Ms Mitchell and Ms McComber confirmed their statement as to what they had heard in the office that day. Ms Mitchell confirmed that the applicant in around July 2011, rang her at home and sought for her to write a statement . She advised him that she had heard what he said and that she had already written a statement. 124The applicant has at all times denied that he swore at Mr Mathews. He accepted that if anyone did say what he was alleged to have said, then that person would be in breach of the Code of Conduct. In his response to Mr Boggan's letter of 16 March 2011 the applicant stated in part: I detest claims and any references raised in your letter of 16/3/11 that I used the " f...off and " and you're all c...ts" in any way or reference to discussions had in the workplace. It is disappointing that false allegations like these are being used to worsen current problems. It is unfortunate that I have evidence of misleading events from the actions of my RSM, DWM, and HRA and like comments above , are being used against me to add to my victimisation. In giving evidence the applicant stated that at the time he was being polite. In response to a question from the Bench he stated that he was calm and clear but added that he did get a bit agitated but was in control of himself and did not loose his temper. He stated that he was very clear on what he did and say. The applicant stated in evidence that he got on well with both Ms Mitchell and Ms McComber. 125It is my finding based on the balance of probability that the applicant did swear at Mr Mathews on the morning of 15 March 2011. I see no reason why the two independent witnesses, Ms Mitchell and Ms McComber should tell lies on this issue. I have accepted both of these witnesses as witnesses of truth. I also accept the evidence with respect to this issue from Mr Mathews. 126I therefore find that the applicant was in contravention to the Code of Conduct and Ethics. 127What gives me grave concern is that the applicant has sough to turn this incident where I find him clearly in the wrong, into a situation where he has sough to describe himself as the victim. He seeks to blame his supervisors for false allegations and that he had evidence of misleading events from the actions of Mr Mathews, Sexton and Judd. 128As a consequence of what had occurred on 15 March 2011, Mr Mathews reported to Mr Judd. Mr Judd decided to seek to meet with the applicant. Mr Judd stated that he made arrangements with the applicant that day to meet the following day at Narrandera. Mr Judd on the 15 March was in Dubbo and the next day drove to Narrandera leaving at approximately 6.30am. At 8.20am on 16 March 2011 Mr Judd received an email from the applicant with Subject: Harassment - Wesley Croft stating: I will not be available to attend todays requested meeting from 1pm. The matter you wish to discuss has been referred to HR. I am currently finalising a document to assist HR with my previous reports. I do not wish to discuss the matter until I receive feedback from HR on the matter. Can I politely ask you to request Craig to stop: excluding me from sealing, to stop staff removing folders & t return folders/CD's that have been removed from either my desk or packed box's without first asking my permission threatening my employment in my office without first organising an agreed meeting. 129It was Mr Judd's evidence that he organised the meeting by phone with the applicant on 15 March 2011, although he could not categorically say it was arranged on the 15th, to take place the following day. The subject of the meeting was the incident between the applicant and Mr Mathews that took place on 15 March 2011. It was the evidence of the applicant that he found out about the meeting on the morning of 16 March some time between 7.45 am and 8.20am when he sent his email. He believed he received the message through his phone. On the balance of probability I accept the evidence of Mr Judd. I do not see Mr Judd setting out to drive from Dubbo to Narrandera at 6.30am without having confirmed that the meeting was taking place. It is my finding that Mr Judd organised the meeting on 15 March 2011 to take place the following day. 130The applicant stated in his reply email at 8.20am that " the matter you wish to discuss has been referred to HR. " This statement by the applicant is not correct. He had not referred by 8.20am on 16 March 2011 to HR the incident between the applicant and Mr Mathews. I accept the submission of Mr Meehan for the respondent that the applicant sought to mislead Mr Judd. In essence the applicant was not prepared to meet with Mr Judd concerning what had occurred the previous day and sought to cloak it over with introducing other issues that he had already raised with HR. I accept the submission of Mr Meehan that this was a dishonest attempt to forestall a management investigation into the 15 March 2011 incident. A later phone conversation between Mr Judd and the applicant where the applicant was directed to attend, and placed on notice that a failure to attend would be interpreted as a refusal of a lawful direction, which could lead to disciplinary action and could lead to dismissal was accepted by the applicant to have taken place and that he advised Mr Judd that he would not be attending. 131 In my view the applicant was now placing himself in a precarious position. What was being sought by Mr Judd was to give to the applicant the opportunity to give his side of what took place the previous day. Notwithstanding the applicant's refusal to meet with Mr Judd, he later in the morning of 16 March 2011 sent an email to Mr Judd briefly recounting what had occurred the previous day with Mr Mathews including the comment that " he should not victimise people the way I am being treated." 132In summary it is my finding that Mr Judd had a duty to meet and speak with the applicant concerning what had occurred between the applicant and Mr Mathews. In my view the actions of the applicant in not meeting with Mr Judd were ill founded. 133Later on the day of 16 March 2011 Mr Judd and Mr Sexton met with the applicant and provided him with a suspension letter. It was alleged by the applicant that when he sought to leave the room his way was blocked by both Mr Judd and Mr Sexton. This was denied by the two men. Two days later the applicant wrote in detail to both Mr Boggon and the General Manager Human Resources Strategy detailing various complaints. No mention is made of his allegation that Mr Judd and Mr Sexton sough to block his way. On the balance of probability it is my finding that neither Mr Judd or Mr Sexton blocked the applicant from leaving the office. 134In a Letter of Warning dated 23 December 2010 issued by Mr Judd to the applicant, one of the issues raised was that of the applicant's letter to Mr Dunnett. This letter headed Informal performance discussion 2/12/ 10, dated 13/12/10 states: As discussed on Thursday 2/12/10 there are a number of performance issues Craig and I would like you to address. This letter is a record of discussions and actions required. It concludes with : If there is no improvement in these areas it will be dealt with formally through the RTA performance management system. At no time was Craig Mathews advised or agreed that such correspondence to be sent to Mr Dunnett. In my view including a supervisor's name in correspondence of that nature without first conferring and receiving approval with that named supervisor is a completely unacceptable practise. 135During his employment the applicant lodged complaints concerning be it bullying and harassment against himself or employees breaching company policy with one of the complaints going back to August 2009. Mr Judd was requested by the Workplace Practice Unit to undertake an investigation into the applicant's complaints. He commenced this investigation on or about 10 February 2011 when with Ms Roach spoke with the applicant. Mr Judd did not himself carry out all of the investigations but delegated some. On or about 28 February 2011 he prepared an Initial Assessment Report in relation to the complaints made by the applicant setting out his conclusions. The report and its findings were then endorsed by Mr Evans dated 1 March 2011. 136 Mr Judd then prepared a letter around 8 March 2011 to be hand delivered to the applicant. He was unaware that at that time the applicant was on leave. Later on he realised that he had not received any acknowledgement that the applicant had received his letter so he resent the letter by registered mail on or around 23 March 2011.The letter stated that the three matters raised by the applicant had been investigated and: " Based on the information you provided and the investigation these matters are now closed. Should you have any further information related to these matters please contact me directly." Mr Judd stated that the applicant did not come back to him. 137No details were provided as to what was the outcome and or consequences to employees. In answering a question as to why more details were not provided he stated that the organisation had a clear set of guidelines that states they do not refer the outcomes of investigations to the complainants, but keep them confidential and act on those in that manner. 138On 25 February 2011, the applicant was advised by Mr Mathews and Mr Sexton that he was to be moved from his current work to construction on a temporary basis. The applicant was given reasons why the move was to take place. He would retain his rate of pay with the applicant responsible for between 5 to 8 contractor crew members and a surveillance officer. The applicant had done this work before and it was advised to him by Mr Mathews that it was "absolutely necessary work" due to a particular heavy wet season. The applicant was told that he would be able to return to the Sealing unit if he worked on and repaired his relationships with members of the crew. He was advised that he could be involved in preparing the PSP for next years program. At that meeting he advised he wished to stay in the Sealing unit but was advised that the decision had been made. From that time onwards the applicant rejected all attempts to move from his present role to another. In his view he was the engineer in the Sealing unit and had not agreed to move to another role. In responding to questions from the Commission the applicant recognised that Mr Mathews had a problem with the applicant and some of his staff, and that Mr Mathews sought to remedy this problem by transferring the applicant for a short period of time, but the applicant did not wish to move until his grievances had been addressed. He also had a partial issue with the status of this proposed job and who was about to do the job he was currently doing. 139The applicant also raised Clause 19.3 Grievance Procedure of the award. This clause is expressed in the following terms: (a) A grievance is a personal concern about work or the environment for which staff seek hearing or resolution. (b) A grievance may, for example, relate to : (i) allocation of work or development of opportunities, (ii) a perceived denial of an entitlement, or (iii) suspected discrimination or harassment. (c) The RTA's grievance resolution policy and guidelines , as amended by the RTA from time to time , are to be followed when a grievance arises. The current grievance resolution policy is detailed in Appendix C. (d) While the policy, guidelines and procedures are being followed , normal work is to continue. 140It was the applicant's view that the proposed transfer of him was a limitation of work and that this work in the sealing unit he should continue. He did not agree that his normal work was delivering maintenance and specific road related projects in the south-western region. He did not believe that the respondent had the power to transfer him until his grievances had been addressed. 141Notwithstanding this view, in his written response to Mr Boggon's correspondence, as an option he stated that he would consider a permanent or secondment position with Project Services eg Project Manager (Maintenance) based in Narrandera. In my view, expressing this option makes his refusal to take up the temporary role even more confusing. 142None of the respondent's witnesses admitted looking at that clause of the award. Whilst Mr Mathews and Mr Judd may be forgiven for not being HR people, the same can not be said for Ms Ctevokic or Mr Sexton. One of those two persons should have considered that clause and given advice to Mr Boggon, Judd and or Mathews. 143 It was Mr Judd's view that a works manager had a right to allocate duties within the position descriptions as he sees fit. He saw no reason as to why the applicant should not comply. It was Mr Boggon's view that project managers in their industry were assigned work and that work will change on a daily basis. 144It is clear that the applicant did not wish to carry out this work that he had been directed to by Mr Mathews. This was only a temporary transfer which the applicant was aware of. It was his view that he should remain in his present job in the Sealing unit until his grievances had been met. 145The applicant was employed as a Project Engineer. Such a position is responsible for the management of the delivery of routine maintenance and specific road related projects in this case, in the South Western Region. In directing the applicant to carry out this work he was not being asked to carry out work that he was not qualified for. The work that was required to be carried out fell within his capabilities. He had already carried out this work. It was work that project engineers carry out as part of their normal work. 146 In my view there were two basic reasons why the direction was made. Firstly there was work that was required to be done and secondly management wished to provide the applicant with space and time so as he could refocus and continue to contribute. When the Commission put that to the applicant, taking him out of the firing line and give him another job, he said he could see a lot of credit in what was being expressed. 147The sub clause in the award expresses "that normal work is to continue". Taking into consideration that the applicant had already carried out this type of work during his contract with the respondent as a Project Engineer, it is my finding that what the respondent directed the applicant to do was a reasonable direction which would allow normal work to continue and which the applicant should have followed. I do not find that the respondent was in breach of the award in issuing such a direction to the applicant. 148One of the issues raised by the applicant was that when he sough to take up the offer made by Mr Boggon to met with him but he had difficulty reaching him so he left a message with a named person in Mr Boggon's office. Mr Boggon in evidence advised that such a person did exist but never received any message. The applicant in his evidence did state that he had provided Mr Boggon with all the information or material that he wished to have taken into account. That it was unfortunate that the applicant and Mr Boggon did not meet, taking into consideration of what was expressed with respect to documentation before Mr Boggon, I do not think anything of great magnitude would have resulted. 149In summary it is my finding that it was the actions of the applicant that led to his dismissal. The failure of the applicant to recognise his own frailties, but in response accuse both managers and fellow staff of lying is unacceptable. In all the correspondence that he developed that became evidence in this matter, there was no recognition by the applicant that he may have been in the wrong. 150 It is therefore my finding that his termination by the respondent was neither harsh, unreasonable or unjust. 151I therefore dismiss this application. This matter is now concluded. D.ritchie commissioner 152 . DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2012