Industrial Relations Commission New South Wales Medium Neutral Citation: Robert Buttling v NSW Department of Education and Communities [2012] NSWIRComm 60 Hearing dates: 12-15; 25 June 2012 Decision date: 28 June 2012 Jurisdiction: Industrial Relations Commission Before: Kavanagh J Decision: In Matter No. IRC368 of 2012, the claim for unfair dismissal filed under s 84 of the Industrial Relations Act is dismissed. Catchwords: UNFAIR DISMISSAL - unfair dismissal application under s 84 of Industrial Relations Act 1996 - application for reinstatement - applicant self represented - dismissed as a teacher for misconduct - significant errors in Report of Incident regarding applicant - failure by department to interview and listen to applicant in investigation - applicant's complaint not properly considered - applicant sends offensive and aggressive documents, emails and Facebook postings - applicant received official directions to stop conduct- directions reasonable - failure by applicant to comply with lawful directions - failure by applicant to comply with Code of Conduct - no collusion of departmental officers against applicant - reasons for dismissal had basis in fact and proper notice given - claim dismissed Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Teaching Service Act 1980 Cases Cited: Thompson v IGT (Australia) Pty Limited [2008] FCA 994 Category: Principal judgment Parties: Robert Buttling (Applicant) NSW Department of Education and Communities (Respondent) Representation: Mr P Ginters (Respondent) Self Represented (Applicant) NSW Department of Education and Communities (Respondent) File Number(s): IRC 368 of 2012 DECISION 1On 27 February 2012, Mr Robert Jeffrey Buttling filed two applications in the Industrial Relations Commission of New South Wales. The first application in Matter No IRC368 of 2012 was filed under s 84 of the Industrial Relations Act 1996 and asserts Mr Buttling was unfairly dismissed by the Department of Education and Communities (the "DEC") from his position as a Personal Development/Health /Physical Education ("PDHPE") Teacher. 2The second application filed on the same date asserts Mr Buttling was unlawfully dismissed pursuant to s 23A of the Occupational Health and Safety Act 2000 and s 210(j) and s 213 of the Industrial Relations Act 1996. This matter was filed before the Industrial Court of New South Wales and will be the subject of a separate judgment. 3This Decision addresses the unfair dismissal application brought by Mr Buttling before the Commission. 4Mr Buttling makes application for re-instatement. He contends he was terminated on 7 June 2010 when he left work as a teacher at Mosman High School. 5The Department contends Mr Buttling was terminated by letter of 3 February 2012 to have effect from 6 February 2012. In summary, he was dismissed for misconduct for breaches of: (a)a number of lawful directions; (b)directions to comply with the Code of Conduct and; (c)the Code of Conduct. 6Mr Buttling was self represented. In Court he was supported by a very caring mother and another family member. Mr Ginters of Counsel appeared for the DEC. There has been a significant amount of documentation placed before the Commission covering the employment period of Mr Buttling from 2006 to February 2012. The documentation is in the form of affidavits from teachers, head of school of PDHPE departments and Principals of Asquith Girls High School and Mosman High School where Mr Buttling taught PDHPE. There were also file notes from the relevant Regional Area of the DEC and from the Employment Performance and Conduct Unit ("EPAC") and the Child Protection Unit ("CPU") in EPAC. Also relevant are the letters addressed to Mr Buttling in the form of directions or allegations and investigation reports. Mr Buttling gave a statement with many attachments. 7Mr Buttling cross-examined six witnesses and relied upon much documentation. He made separate submissions on many of the DEC documents as to their accuracy and, in some circumstances, he proposes there are within these documents "lies". 8The files from the DEC revealed many emails sent by Mr Buttling to other staff members and to officers of the DEC in 2010 and 2011 which were tendered. 9Robert Buttling was born on 30 September 1976. He was a permanent teacher of PDHPE. He has been a teacher since 1999. 10It is necessary to shortly recite Mr Buttling's work history before addressing the issues raised by the parties. WORK HISTORY 11From the evidence the Court is satisfied Mr Buttling was a knowledgeable, well organised and skilled PDHPE teacher. Evidence from other teachers who worked with him and the parents of students with whom he worked give a basis for this finding. However there was a challenge to how he related to other staff in the schools and to how he reacted to events while he was appointed to Asquith Girls High School ("Asquith Girls") and Mosman High School ("Mosman High"). Asquith Girls Placement 12He was appointed to Asquith Girls High School in 29 January 2002. No Incident was relied upon as to Mr Buttling's service prior to September 2006. 13On the evening of 8 September 2008, Ms Heather Bate, Mr Buttling's head teacher, wrote a file note entitled "Report of Incident involving Rob Buttling on Wed 5/9/06". It was most offensive in its content. It misrepresented much relating to an event where a student (misnamed in the document) had reported to Mr Buttling a rumour at the girls' school. Mr Buttling, when told by a student of the content of the rumour, hurriedly tried to find confirmation. He took a student who, he alleges, confirmed the rumour to him to the Deputy Head of the School as the Principal was absent that day. Ms Bate wrote the file note after these students approached her to inform her of the events. 14The date Mr Buttling discovered Ms Bate's note is unclear. Mr Schipp records show it was 15 September 2006. Ms Bate's affidavit is silent on the issue. 15Ms Bate contends her note was prepared for her information only. She opines it was an aide memoire prepared in circumstances where she thought she may be called upon to give further information. Ms Bate says she was not asked to provide further information so she "did nothing with the note" and "had no intention of doing anything with it". 16However how she fashioned this "Report of Incident" was inadequate. She did not deliver the Report of Incident to the Principal. Mr Buttling accidentally discovered it near a computer in the staff room under her diary. He was justly outraged to read that the reported rumour, making the most serious allegations as to his conduct of a sexual nature with a student, had been put into writing and the circumstance inaccurately reported. 17Further the details of who and how Mr Buttling had been informed were totally incorrect. Mr Buttling alleges in content there were 16 errors in the half page Report. I find from evidence, later obtained, that there were significant errors in the document including the incorrect naming of the students who either approached Mr Buttling or who were approached by him. 18Mr Buttling objected strenuously to the inaccurate report but, after feeling he wasn't being heard, began to refuse to comply with directions issued by Ms Bate; accused Ms Bate of being "shona [Mr Buttling's former partner] reincarnated"; had other verbal altercations with Ms Bate, which variously reduced Ms Bate to tears. She complained to the Principal. 19While Mr Buttling denies it, it is asserted he said to Ms Bate words to the effect: I cant believe you would put things on me when you know I only have "x" amount of days to live. Mr Buttling has denied telling Ms Bate that he was planning to commit suicide however there was contemporaneous correspondence from his mother expressing, when told by Ms Simmons of the problems: This was a very hard time in his life and he acknowledges that he should not have said this, now knowing the effects upon them. 20After September 2006, Mr Buttling continued to press for the document to be corrected. Mr Buttling continued to feel his concerns were not being heard. He began a number of actions while at school which clearly distressed Ms Bate by the way he spoke to her. She was his head teacher. He was required to comply with her requests and directions. He refused to communicate with her at all. 21After a referral by Mr Rule, the Principal, to EPAC as to Mr Buttling's conduct there was an investigation conducted by EPAC. Mr Buttling was not informed of it until he sighted the documents this year (in April 2012). Mr Schipp of EPAC in his evidence was called to report on what officially had occurred. He stated the file revealed as follows: On 7 September 2006 Mr Richard Rule, then Principal of Asquith Girls High School faxed a number of documents to EPAC concerning a complaint he received from the mother of a student regarding Mr Buttling. Included were some documents that related to Mr Buttling's behaviour at school that caused Mr Rule to be concerned about Mr Buttling's wellbeing... ... This notification was referred to the child protection team within EPAC. ... On 11 September 2006 the matter was considered by the allocation committee at which time it was notied that the Mr Rule, Principal had concerns regarding Mr Buttling's well being and that an urgent risk assessment was required... .. On 15 September 2006 at 2:25pm a file note was made indicating that Mr Rule contacted Ms Anna Morris, then Chief Investigator to advise of an incident involving Mr Buttling. It was stated that Mr Buttling had that day discovered an incident report prepared by Ms Heather Bate written regarding a student and Mr Buttling's behaviour toward her. Mr Rule stated that Mr Buttling was incredibly angry and demanding to have the issue resolved. The issue as described in this file note related to whether the student in question thought Mr Buttling "had drilled her". On 15 September 2006 at 2:49pm there is a further ASIS file note created by Ms Anna Morris in which she refers having a case consultation with me, and then a case consultation with Ms Jane Thorpe, Director, Employee Performance and Conduct Directorate. The file note contains my suggestion that the Principal may be best able to manage Mr Buttling's well being issues by engaging the SSO (Staff Support Officer) and SED (School Education Director) and considering a Healthquest assessment. I note that Ms Thorpe's advice was that the school should deal with the health concerns and Mr Buttling's well being and that the EPAC investigation would proceed. ... Having reviewed this file it is clear to me that at no stage did I see a copy of the letter prepared by Ms Heather Bate. Indeed no such letter appears to have been provided to EPAC and no letter is held on the file... Further, from the information provided by the school...there were concerns regarding Mr Buttling's well being. My advice was in regard to dealing with the health concerns. At no stage was I in my role of Manager, Staff Efficiency and Conduct investigating or in any way dealing with the letter prepared by Ms Heather Bate or its content. Indeed, it is clear from the file that the investigation being considered by the child protection team was in respect to the complaint by [Student A] not the content of the letter of Heather Bate. It appears that Ms Anna Morris made contact with the mother of the student who complained about Mr Buttling and the student and mother indicated that they did not wish to take any further action in relation to the complaint. They were satisfied with the school's management of the situation by removing [Student A] from Mr Buttling's class. It was determined that there would be no further investigation into the complaint involving [Student A] but as a matter of procedural fairness Mr Buttling was to be advised of the complaint that was made, be advised that the investigation will not proceed and given the opportunity to respond which would be attached to the file. ... ...[A] letter [was] sent to Mr Buttling advising him of the complaint and the outcome. 22It was important to Mr Buttling to press that he was not asked to give his version of events and further the complaint investigation related to his dealings with a student not the content of the "Report of Incident" about which he had been agitating. 23From Mr Schipp's summary of the file the Commission is satisfied Mr Buttling was not heard. An opportunity by the DEC was clearly missed in interpreting Mr Rule's report as indication of a behaviour problem and possibly a health issue. 24The letter sent by EPAC to Mr Buttling reads as follows: Dear Mr Buttling I am writing to advise you that concerns about your conduct were reported to the Employee Performance and Conduct Unit (EPAC). Mr John Malins, Principal Investigator, had responsibility for this matter. In particular, it was alleged that whilst employed as a teacher at Asquith Girls High School, during 2006, you caused a Year 10 student to feel uncomfortable by: 1.Singling the student out to answer questions in class; 2.Only asking this student to demonstrate things in the PE class; 3.Singling the student out to be your partner in dance demonstrations and holding her hand in a manner she found to be uncomfortable; 4.Moving your chair from the front of the classroom to the back of the classroom, placing it next to the student's chair and sitting next to her while watching a video in class. The available information has been carefully considered. It has been determined that no further action will be taken by EPAC concerning this matter. It has been referred to your Principal for appropriate follow-up, which may include providing you with advice and support. ... I would like to take the opportunity to remind you that as an employee of the Department of Education and Training, you are aware of the interpretations that can be placed on the actions and intentions of all staff in their interactions with students. The community has clear expectations that staff will conduct themselves in a courteous and professional manner in their contact with students. Any behaviour which is likely to cause the student embarrassment, bewilderment, insecurity, distress or fear or which breaches the trust students have in staff members is unacceptable. I also enclose a copy of the Code of Conduct which sets out the professional standards expected of all teachers. I have asked your Principal, Mr Rule, to hand you this letter, discuss these documents and the contents of this letter with you, respond to any questions you have and also explain what support is available to you. All papers relating to this issue will remain as a confidential investigation file, a completely separate volume your personnel file, and will be retained under restricted access. This matter has been reported to the Office of the NSW Ombudsman, which will assess whether or not the allegation was properly investigated and appropriate action taken. In line with employer's responsibilities as required by legislation, your name has not been referred to the Commission for Children and Young People. I have advised the relevant people about the outcome of the investigation. Support and advice is available to you at any time and I encourage you to access these services, if you wish to do so. Counselling services are provided by the Employee Assistance Program Services. The service coordinators in your area are IPS Worldwide, Toll free: 1300 366 789 (www.eap.com.au) and Davidson Trahaire Corpsych, Toll free: 1300 360 364 (www.davcorp.com.au). Advice and support is available from the Senior Counsellor in EPAC, Mr Francesco Lopizzo, who may be contacted on 9266 8070. General information about entitlements is available through the Staff Support Officer at the Horsby Area Office, whose telephone number is 9987 3900. Advice is also available from the Teachers Federation. For your information, I have enclosed additional information about the EPAC finalisation process. Should you have any enquiries please contact John Malins on 9266 8070. Yours sincerely, Anna Morris Chief Investigator 9 November 2006 25Mr Buttling has asserted he did not receive the letter from EPAC. However, the memo below reveals otherwise and is dated 23 November 2006 at 9:59am: Mr Buttling phoned to advise that he received the EPAC letter yesterday. He asked why he had not been informed that he was the subject of an investigation. I advised him that EPAC undertook to establish the veracity of the information and he was informed of the concerns once that process had been completed. Mr Buttling expressed his concern that EPAC undertook that process without telling him. Mr Buttling also asked whether EPAC had spoken to any staff or whether any students were removed from class to be interviewed. I advised him that EPAC sought to proceed in the most sensitive manner possible and that no staff member was interviewed, no student was removed from class or interviewed and no EPAC officer came to the school in relation to this matter. 26Mr Alan Pike, an EPAC investigator, noted on the record that the Principal at Asquith was advised that the matter was not a Child Protection Matter and also noted the letter was sent to Mr Buttling. 27From DEC files, Mr Buttling gained access to a file note of Jane Ferris, the next Principal at Asquith Girls, dated 18 February 2008 over a year later. It records that neither Ms Bate nor Ms Ferris showed Mr Buttling that there was an amended version of the Report of Incident. However, Mr Buttling was advised by Ms Ferris that changes had been made to the Report. Mr Buttling contends no changes were ever made to any file note, rather he was once shown a note with four names removed. No correct names were inserted. 28In the file note of 18 February 2008, Ms Ferris also mentioned there was an "OHS issue for staff under stress" and they should be advised if they wanted to complain regarding Mr Buttling's conduct, statements would be taken "off site". 29Mr Buttling notes that later on 28 February 2008 he was still agitating to have the report as to its errors in content amended. He saw the NSW Teacher's Federation. They organised a meeting with Ms Ferris as the Principal at Asquith. Ms Ferris commented she would like the incident over. Mr Buttling demanded Ms Bate rewrite the Report, Ms Ferris stated: Robert this is the end of it I have just witnessed the name being changed and I never want to hear another thing from you. Mr Buttling then confronted Ms Bate who said: I haven't done a thing Mr Buttling complains of Ms Ferris' dealings and notes he has never seen a name change made on the Report. 30The Commission accepts there was no name change. Ms Ferris' diary note of 18 February 2008 followed a conversation with "Fiona" from DEC. It states: Re 'letter' - if an error sufficient to ask H [Ms Bate] to [delete] - name, show me. Do not give R [Mr Buttling] copy - inform him I have ... it, remention 'H' [Ms Bate] apology for recording name incorrectly. re - The memo then goes on to state how the school should manage Mr Buttling: 2 progs... If doesn't follow directive e.g. staff room, carry out dir as requested (see Code of Conduct), put it in writing. If still doesn't follow, refer it to Bob D to act on -> charge under Teaching Service Act, Section 83. If remediates - keep going through cycle - persistent disobedience -> dismissal. If not resolved at SED, contact Kevin Schipp head of staff efficiency and conduct unit. 31Mr Buttling opines this was the "plan". This was "the beginning". He contends there was then a collusion from February 2008 to February 2012 by all senior officers to remove him as a teacher and such acts, he opines, were illegal. 32However what Ms Ferris wrote is exactly the fair process that must be followed if a teacher is not thought to be complying with the Code of Conduct in the workplace. As the Principal she complained about his conduct and she was told how he must be informed through directives what was expected of him. If there was a breach he should be given further directions. If no change the matter should then be referred to the staff employment division ("SED"). This was the process. It was not collusion. The process had to be followed by each school. It was followed. It was a fair process. 33Mr Buttling refers to himself, and has from the date of the initial Report of Incident, as the "victim". 34However, the Child Protection Unit did nothing further having received from the student and her mother who had raised a matter that they did not wish to press the matter. I accept Mr Buttling's complaint was not properly handled by the DEC. The allegation was so serious it should have immediately been officially investigated in May 2006 and Mr Buttling should have been interviewed and listened to. In the conduct of the formal processes put in place by the DEC there was care given to the expressed concern for Mr Buttling's health but he was not listened to in his challenge to the rumour contained in the Report which he wanted to be declared untrue. 35There was much concern expressed by Mr Buttling as to the handwritten note Ms Ferris sent him on 27 May 2008 reprimanding him. Ms Ferris continued to report concerns as to Mr Buttling's conduct. One such incident (as an example) related to an allegation by her that Mr Buttling had taken children on a school excursion without permission forms signed. Yet at the time of the complaint, Ms Ferris in fact held the permission forms "in her hand". 36It was decided to send Mr Buttling to Healthquest. The report is not before the Commission nor is its date but it is agreed Mr Buttling was found fit to teach. 37Mr Charles, the Deputy Principal at Asquith Girls recorded : Week 10 Term 4 2007: Issues surrounding Robert Buttling's conduct Background: Rob claimed that Heather Bate lied in a personal report she wrote re an incident in 2006. Heather's report had been removed, by Rob, from her daybook without her permission in 2006. Richard Rule had dealt with this issue in 2006. Rob gave Heather a letter term in 4 2007 that listed the errors in her 2006 report. A trigger for Rob's revisiting of the issue seemed to be related to the pregnancy of Yr 11 student...in late 2007. PE faculty was very tense. Lorna Fitzsimmons came to see me to say tht she was concerned. Other PE staff also indicated that relations with Rob were strained. Contacted Ian Tinley (staff support officer) for advice: HealthQuest difficult option due to previous referral. 38Mr Buttling received letters from the Principal on 12 March 2008, 4 April 2008 as official warnings and as well as directions from the School Education Director on 12 March 2008 and 29 May 2008 each directing him to stop his behaviour which was causing disturbance in the school. 39Jane Elizabeth Simmons became the Principal Director Northern Sydney Region of the DEC in August 2008. From the file she reports on 4 July 2008 the prior Regional Director Ms Dionne Smith referred to an independent investigator (Mr Higgins) a complaint lodged by Ms Ferris, Mr Buttling's Principal at Asquith Girls. The allegations related to: 1.Mr Buttling's unprofessional conduct towards the head teacher PDHPE of Asquith GHS. 2.Mr Buttling's unprofessional conduct towards the principal of Asquith GHS. 3.The impact Mr Buttling's unprofessional behaviour is having on his colleagues and the school. The First Direction: 17 September 2008 40On her appointment Ms Simmons read the independent investigator's report. She accepted the finding that there had been an irreconcilable breakdown in the relationships between Mr Buttling and members of the executive at Asquith Girls. She further supported his recommendation that it was in the interests of all, including Mr Buttling, that he be transferred to another school. Ms Simmons wrote to Mr Buttling advising him of her findings and, of that letter, she comments: In this letter I also advised Mr Buttling that I found his conduct to be inconsistent with his professional responsibilities and inappropriate having regard to the standard of conduct expected from him under the Code of Conduct 2004. I directed Mr Buttling not to engage in similar behaviour in the future and to comply in all respects with his professional responsibilities as outlined in the Code of Conduct 2004. 41She then met with Mr Buttling. Mr Buttling I accept tried to show her Ms Bate's file note for the purpose of having it officially corrected. Mr Buttling recalls: During this time I presented the Heather Bate letter and some letters from students and then tried to convey how stupid the things had been that had been happening to me and being done by Jane Ferris and Heather Bate. This was the first time that she mentioned that I had been badgering Heather Bate ... On the second Tuesday of the September holidays 2008, a letter arrived from Jane Simmons that showed that not only had she not been listening, but she had been actively searching for any reasons he could to make the consequences for me worse. Another Report about that meeting had a similar tone. ... I was also directed to not attend any further school functions, which was a very hurtful decision. Absolutely nothing about any issue at all was mentioned in the letter and not one single thing to be done about any of the issues that I had brought up. ... ... I went to Bridge st the next morning at ten am I specifically only had one piece of paper. The Heather Bate letter. He read it and said "Whoa! Ok what's the issue?" I proceeded to explain the sixteen mistakes and what had actually happened and this was causing monumental consequences and extreme hurt. He said look, there is no way that I can determine the facts of this in half an hour, the best that I can do for you is to order Mrs. Jane Simmons to conduct a specific meeting at eleven am tomorrow morning at her office to explain to you her reasons for not changing the report, and making consequences worse. Report to her office at eleven am. ... The very first thing I did was put the original Heather Bate letter on the table and handed it to Jane Simmons. She immediately started to read it and stated she had never seen this letter before, even though I had showed it to her only days earlier. She then passed it around the room and I objected. She stated, "Robert don't you want people to know what we are dealing with.' I then proceeded to tell the entire story with minute by minute detail and highlighted a photocopy in yellow where the sixteen mistakes were. There was dead silence in the room and I have never heard another word uttered or written about it since, even though I have been beseeching almost every day. 42In the 17 September 2008 letter to Mr Buttling, Ms Simmons noted of the investigation: That the allegations raised by the principal are substantiated. That your actions are having a deleterious impact on staff morale and the effective functioning of the head teacher and the faculty. That your actions are having a significant impact on the head teacher's health and well being. That there is an irretrievable breakdown in professional working relationships between yourself and the principal, between yourself and the head teacher PDHPE and between yourself and the teachers in the PDHPE faculty That you be transferred from Asquith Girls High School as a matter of priority. That if a suitable permanent vacancy in a school is not available, you should be appointed to the PDHPE faculty above establishment. That during the first six months of your appointment to your new school, you are monitored closely. I support his [Mr Higgin's] view that there is an irreconcilable breakdown in relationships between members of the executive of Asquith Girls High School and yourself. I further support his recommendation that in the best interests of all concerned that you be transferred to another school. (Part 3.2 Section 87(2) of the Public Sector Employment and Management Act 2002. See attached copy). ... I also advise that I find your conduct to be inconsistent with your professional responsibilities as a member of the NSW Education Teaching Service and inappropriate having regard to the standard of conduct expected of you under the Code of Conduct 2004. ... I have determined that you will be placed at Normanhurst Boys High School during this time, under the supervision of Mr Jeff Bruce, Principal of Normanhurst Boys High School. Your further permanent placement will be determined based on the outcome of a Healthquest assessment which is currently being arranged. 43Mr Buttling was then notified to report to Normanhurst High School. He refused, stating transit difficulties. 44Mr Buttling in gaining access to the EPAC file and correspondence from the Principal of Asquith Girls submits in this hearing that correspondence between the Principal of Asquith Girls, first by Mr Rule and then by Ms Ferris, to Jane Thorpe of EPAC (with the knowledge of the Teacher's Federation), reveals there was developed between the EPAC unit and the school from 18 February 2008: The deliberate plan to fire me from both public and private sectors. With a key to concocting things making everything look like persistent disobedience...and then to apss it all to EPAC. 45Mr Buttling adopts the view that all reports of incidents written by the Principals involving him contain such errors of fact that they were misleading. Therefore, he contends the documents that went to the independent investigator to be assessed were inaccurate and "blatant lies". He opines, given the inaccuracies placed before the investigator, that the report was "patently ridiculous". 46As the investigator's report was incorrect he opines so was Ms Simmon's decision to move him. It was based, he contends, upon the "concocted words of people trying to excuse their shocking and illegal behaviour". 47He contends Ms Simmons, before she made her finding, never attempted to read the primary papers. When he sent his complaints the files reveal she simply ordered his complaint, as to the report's inaccuracies, to be filed. 48Mr Buttling demands the Commission reprimand Ms Simmons. Mosman High Placement 49Mr Buttling was finally placed at Mosman High and commenced there at the beginning of first term 2009. He was one of seven teachers in the PDHPE department. The Head Teacher of the Social Science department, under which worked the PDHPE teachers, was Phillip Webster. Mr Buttling went to Mosman High with trepidation he says as Beatrix Mears worked there, who was a specific friend of Heather Bate He had been on the DEC list to transfer to the Sutherland Shire and agreed to go to Mosman hoping his opportunity to move to Sutherland would shortly arise. 50Early in 2009, first term, Mr Buttling was given a disciplinary letter by the Principal, Susan Wyatt: Robert, You have 14 days to respond in writing as to why you allowed students into the hall with wet feet this morning after I specifically warned you not to at the start of the year. 51This was the first event which excited great concern from Mr Buttling. However the facts revealed Mr Buttling and Mr Clint Johnson were both late to school that morning and their two classes were standing out in spitting rain. It was Ms Wyatt herself who had moved them into the hall and, on his arrival, handed the 2 classes over to Mr Buttling. 52Mr Johnson, the other late teacher, recollected that Mr Buttling's outline was how the incident occurred. On hearing Mr Buttling had been reprimanded Mr Johnson went and reminded the Principal of the circumstances. It was the Principal herself who took the children into the hall. It was Mr Johnson's view that the matter was finalised. The Principal had accepted the facts. As far as she was concerned too the matter was finalised. Mr Buttling however felt he had been unfairly treated. 53Then in term 2 the school had a grandparents' day. Mr Buttling and Mr Johnson were taking 2 classes each of 30 students to play volleyball on 6 individual volleyball courts. The Principal was addressing the grandparents in the Hall. The classes outside at volleyball were noisy. She mentioned to a senior teacher to go and quieten them. He did not. Then the Principal came out and on to the Courts and spoke to the students. Mr Buttling took serious offence to the way she came onto to the courts and how she spoke to the students and how she ignored the staff. The Principal I accept did not later realise that Mr Buttling was incensed. However at a later meeting Mr Buttling agreed a Principal had a right to speak directly to his class. He opined before the Commission however; That Mrs. Susan Wyatt then walked, without warning, onto the tennis court, completely ignored both of us and sat all sixty students down. She then spoke in an overly aggressive tone to the students, who were mystified as to what it was about. Her first words were, "how dare you all be so rude" to the students who had absolutely no idea what she was talking about. 54Both teachers informed the Principal that they had received no message regarding the classes making noise. Ms Wyatt the Principal was of the view by the next Friday that "the incident" had been sorted out. 55Mr Buttling however continued to demand an apology from the Principal. Mr Johnson in evidence accepted the incident was as Mr Buttling described and, when the Principal had left the volleyball games on the tennis courts, Mr Buttling had kept the classes quiet for a long period. Mr Buttling while proud of how he controlled the children, once the Principal had ordered "quiet" still demanded an apology. Mr Buttling contended that at the meeting regarding reports with Ms Wyatt (held on the second last Thursday of term 2) he raised the issue with her and she commented he had not followed her instructions. This caused Mr Buttling further anxiety as it inferred that even though she knew the truth she persisted in putting blame on him. 56Notwithstanding the Direction on 17 September 2008 from Ms Simmons, on 15 March 2010 while now at Mosman High, Mr Buttling emailed Ms Bate and others. The text of Mr Buttling's email was headed "Report regarding incident involving Robert Buttling written by Heather Bate". I accept this gave a false impression as to its author. The email accused Ms Bate of having Mr Buttling fired because it upset her that he, Mr Buttling, wasn't able to forget it'; accused her of "making up a report; accused her of "deciding to destroy his Mr Buttling's life instead"; and accused staff of "deliberately lying to him Mr Buttling on over 800 occasions". 57The further incident at Mosman High that caused concern for Mr Buttling occurred on 12 May 2010. There was a rugby training at the Allen Border Quad for the students. The students arrived at 7:45am. 58Mr Buttling had an agreement that the year 12s would be back at the school for the second lesson. Mr Buttling dismissed all year 12 students at 9:17am to go to mathematics. He went to the office on his arrival back at 9:45 at the school to make sure all students were signed in. He saw Ms Wyatt the Principal and then reported to the Head Teacher Mr Webster. However the mathematics teacher Ms Mears raised an issue about her students arriving late. She raised it with Mr Webster. Mr Webster asked Mr Buttling to write what occurred. Mr Webster however saw her talking with Ms Mears. Mr Buttling went up and explained his arrangement and assured the two teachers the boys had been back on time. It upset him that his explanation was not accepted by Ms Mears. Mr Johnson went to Mr Webster the Head of School to explain. Mr Webster then emailed Mr Buttling stating he "in no way shape or form" held Mr Buttling responsible. He then made two further statements in the email praising firstly Mr Buttling's teaching and then saying It's a shame that some of our Year Twelves don't recognise that And The issue in my mind is now over and I'd like to move on 59Mr Buttling stated these comments revealed that: Phil Webster still thought that someone had done something wrong on the Sunday evening and that I had not turned up till 11:45am even though he had shaken my hand and had a conversation with me at 10:08am. 60Mr Buttling having made the above interpretation of Mr Webster's e-mail, emailed him on the Sunday night. The email was sent on 23 May 2010 at 6:17pm. He complained about being asked once on the Friday then on the Monday then on Tuesday and Wednesday then again on Friday about what occurred. Then Mr Buttling wrote: (note: the Commission recites all emails in their true and original form) Next..... I do not care what you are prepared to accept. You are a rude and arrogant man who has only recently even given me a chance. I have worked my butt off for over ten hours a day for your department and all I ask for is to be spoken to with a level of courtesy commensurate with the level I deserve. and then it seems as tough you have decided that I was in the wrong...asking me a gain what I was going to do with the year 12 boys. I Had specific conversations with the whole group the five year 12's D Short and t hen the whole group again about how important it was to do the right thing. The whole point is. What happens the day that there is some doubt whether i did the right thing or not... How many days will it take then for your support. I do not care what your job description is. Do not converse with me outside of official meetings that i w ill attend begrudgingly as per my job description. that is if I even turn up again. Time and time again have i tried to get you to understand the only thing that is important to me. All official Emails will be given there due notice Mr Webster was surprised and concerned on receipt of this email on a Sunday evening. 61Mr Webster sent the email to the Principal Ms Wyatt. It was then sent on to Mr Dean White, School Education Director, Northern Sydney Region who sent it to Ms Simmons his superior. Copies from each went to Mr Schipp at EPAC. 62Mr Buttling also sent an email on the Sunday 23 May 2010 to Ms Mears, the teacher with whom he was in dispute, at 10:36pm: Every word that i ever said, every act i commited and every other thing was done with your requests in mine. If you had bothered to trust the intentions of someone that has never done anything but try and do the right thing by you rather than go on six day witch hunt, even going to the point of electronic records. Then you don't believe my words on atleats three occassions and make up even more lies about where i was. You are no longer to speak to me. the maths department no longer works on recording at any other carnivals that I am a part of and you personally will be given tiolet supervision duty every time. No students will be allowed out of PE classes on the day of any maths class excursions, competitions or any other events. And take my name of your random email list that tries to inflate your importance. This also was forwarded on to the education authorities and to EPAC. 63All the emails caused grave concern. They went to both the Region through Mr White who then began to negotiate with the EPAC through Kevin Schipp. It became an official EPAC investigation. There was then co-ordination and correspondence between Mr White, Ms Simmons and the Principal Ms Wyatt all directed to Mr Schipp. 64Mr White was told within 24-48 hours he would receive a Letter of Allegation to deliver to Mr Buttling. 65While still working at Mosman High, Mr Buttling continued to agitate for an apology from Ms Wyatt regarding the grandparents' day incident. His focus was also then on being told that in regards to the Rugby incident he had done everything correctly. The Second Direction 66On 2 June 2010 Mr White attended at the school. There is some dispute as to what occurred. Mr Buttling alleges he kept a contemporaneous report. He says Mr White handed him a letter that in the first line read that, regarding the Rugby event, he had not turned up at school till 11:45. He immediately showed the letter to Ms Wyatt who was there. 67Ms Wyatt made a comment Well Dean you know this information in here is untrue Mr White said Oh Susan be careful, you know there is going to be a full investigation She said So sorry but I was actually present at the events written and I know the [81c] to be untrue Mr Buttling then put the letter on the coffee table and left. It appears the letter was dated 28 May 2010 and was signed by Mr Schipp of EPAC. 68He therefore says he never received the Letter of Allegations. 69Mr White did not directly refer to this meeting. He however denied Mr Buttling's evidence as to the conversation saying it never happened and that there was only one letter and the letter was taken by Mr Buttling. Ms Wyatt's affidavit is silent to the issue. 70On 9 June 2010 Mr Buttling received a phone call from Shayne Sarantos, who worked under Mr Schipp at EPAC, reminding him he had only 4 days left to reply to the Letter of Allegation of 28 May 2010. Of this Mr Buttling said: What allegations? She said. "The ones that Dean White came to the school to give you on the second." Mr Buttling says: I immediately hung up the phone, in total disbelief that Dean White had not passed back the information about what had transpired in the meeting. ... Then, I threw my keys on the desk and went to fulfill my Wednesday Afternoon sporting commitments. I then also fulfilled my promise to take students to Regional Rugby trials that evening. I then have never returned to Mosman High school. He never returned to Mosman High from 9 June 2010. 71After he left Mosman High on 9 June 2010, Mr Buttling continued to complain via email about matters of grave concern to him which were identified as the September 2006 issue and as well 3 issues which arose at Mosman identified as the grandparents' day, the rugby training and the year 10 marking. These emails went at various times to a number of persons who in Mr Buttling's view had played a role in each incident. 72Mr Buttling continued throughout July 2010 to send emails to various teachers at Mosman. Some examples include on Wednesday 2 June 2010 Mr Buttling sent an email to Mr Webster: I have absolutely worked my butt of for Head Teacher who bumbles and stumbles his way through P.D.H.P.E. to other teachers Mr Johnson, Mr Webster and Mr Ferguson: ...because of his ineptitude, I ended up receiving the worst consequences possible. to Ms Wyatt: I have absolutely worked my butt of for Head Teacher who bumbles and stumbles his way through P.D.H.P.E. 73On 5 July 2010, there was an interview with Mr Schipp, Ms Sarantos, Ms Jean Buttling and Mr Warren Robinson, his uncle. Mr Buttling did not attend although expected. Mr Schipp revealed he knew of the Report of Incident of May 2006 which had caused Mr Buttling concern but admitted he had not read it. 74All these emails were referred on to the EPAC division in the DEC. 75On 12 August 2010 Mr Schipp sent the following letter to Mr Buttling Further allegations have come to my attention since my letter to you dated 28 May 2010. It is alleged that 1.On Wednesday 2 June 2010 you sent an email to Phil Webster a Head Teacher at Mosman High School which included the comment: "I have absolutely worked my butt of [sic] for a Head teacher who bumbles and stumbles his way through P.D.H.P.E". 2.On Thursday 17 June 2010 you sent an email and cc'd a copy of the email to Clint Johnson, Phil Webster and Joshua Ferguson, teachers at Mosman High School, which included the following comment in relation to Philip Webster: "...because of his ineptitude, I ended up receiving the worst consequences possible". 3.On Wednesday 28 July 2010 you sent an email to Susan Wyatt, Principal at Mosman High School and cc'd a copy of the email to Joshua Ferguson and Clint Johnson, teachers at Mosman High School, which included the comment: "I have absolutely worked my butt of [sic] for a Head teacher who bumbles and stumbles his way through P.D.H.P.E". The purpose of this letter is to inform you of these allegations and to give you the opportunity to respond in writing to me within fourteen (14) days of the date of this letter. You should also note that any response or information which you provide may be taken into account in deciding whether or not further action, including further investigation, is required and may be used if disciplinary action is taken against you. You may wish to seek advice, including legal advice, before you respond. 76On 12 August 2010, a further letter containing allegations was sent to Mr Buttling's postal address. Mr Buttling stated that he did not receive this correspondence from the DEC in 2010. The inference to be drawn from the evidence is that the August 2010 correspondence was received at Mr Buttling's designated postal address. Documents tendered before the Commission disclose Mr Buttling had authorised other family members to discuss with the DEC matters related to his employment. Perhaps Mr Buttling's family did not pass the correspondence on. 77On 18 September 2010 Mr Buttling sent George Gutierrez, a teacher at Asquith Girls, e-mails drawing attention to a Facebook message he had posted on Mr Gutierrez's Facebook page. One on 18 September posted at 2:21pm read: Subject: Still not man enough how could you have possibly deliberately tried to detsroy me for four years. You watched me be pummelled from every angle and went about joining in yourself. And still wont tell me what was said and give me some peace. what human beoing woudny be upset y what shona has done (which I still dont even know what it is.) Why will you not tell me what happened and why Shona felt she could explain to you for f=three hours but never said a word tpo me in seven years 78On 27 September 2010, Mr Buttling sent a series of emails to Mr Gutierrez. Some of them referred to a personal relationship Mr Buttling had had with a woman called Shona which had broken down. Others related to the Asquith Report of Incident. Mr Buttling then posted on Mr Gutierrez's Facebook a copy of the Report of Incident of September 2006. Mr Gutierrez gave evidence and acknowledged that he had been a friend of Mr Buttling. The identified subject of one email to Mr Gutierrez was "Another reason your lies for four years are a massive betrayal". These were forwarded to Ms Sarantos of EPAC. 79On Saturday 25 September 2010 at 3:46am Mr Buttling also sent an email to Ms Bate entitled "1500 days and you still want me to suffer". He then replicated the Report of Incident preceded by text which read as follows: because of your enormou betrayal and blatant lies and mistakes. Just in case you lost it ... 80Ms Bate complained to Ms Ferris immediately after she read it that evening: Jane, Sorry to disturb you in the holidays but I found this in my inbox today. He has also sent George three other emails this term but not on the school email system. How much longer do i have to put up with this persecution? When is the DET going to do something to protect me from his abuse. it is not even an accurate or complete copy of the original document. Do they not have some sort of responsibility for my OHS? When school goes back would you please request the DET changes my DET email and keeps it private, off the corporate DET list. 81Also on September 25 2010 at 4:36am Mr Buttling sent to Ms Fitzsimmons, a teacher at Asquith Girls, a posting on her Facebook that was a copy of the Report of Incident. 82I am satisfied Mr Buttling was aware of his obligations arising under the Code. Mr Buttling was, I am satisfied, on notice that his communications were inappropriate. 83On 28 September 2010, a "fitness to continue report" on Mr Buttling was finalised by Ms Wyatt. Mr Buttling's view is that correspondence in February 2011 confirms this referral was part of a plan by Mr White and Ms Wyatt to have him removed from teaching for "health" reasons. 84Mr Buttling attacks Ms Wyatt's Fitness to Continue Report of 28 September 2010. I accept the Report recites Ms Wyatt's view of events at Mosman High. In it she mentions his "computer favourites" where she said: ...The principal had the computer technician check this and a number of gambling URL's were found on Mr Buttling's favourites' list. The principal referred this knowledge to EPAC including a compressed file of Mr Buttling's favourites. Mr Buttling opines the inference is that gambling sites were discovered. Rather no on-line gambling sites were identified. He only ever checked on that computer the dates for meetings of a poker club to which he belonged. He otherwise had only a clip of "Dreamgirl" songs that he was to use for a social dance choreography at school in lessons. 85On 13 October 2010, a letter was sent to Mr Buttling's postal address containing further allegations. The letter informed him that Mr Gutierrez and Ms Bate did not want him to communicate with them and told him not to have any contact with Mr Gutierrez, Ms Bate or Ms Fitzsimons all at Asquith Girls without the knowledge or approval of Mr Barnett or Mr Schipp. Mr Buttling was also advised that a failure to comply with the direction "may result in disciplinary action being taken against you." 86On 14th October 2010 Ms Sarantos entered an EPAC file note on a Running Sheet noting: Contact made with Heather Bate regarding the rumour that was circulating at Asquith Girls High School in 2006 that the PSOA had made a girl pregnant and paid for a termination. ... Ms Bate indicated that the rumour was just that, a rumour. When asked to clarify how this was determined, Ms Bate indicated that she thought the student who the rumour was about spoke to either Karen or the principal and advised that the PSOA was not the father of the baby. Ms Bate suggested SEPO make contact with Karen Roberts or Chris Charles who were both aware of the matter at the time. The above information provided to CI Malcolm Barnett. Ms Sarantos then noted on her file note: SEPO consulted with Legal Officer, Mellissa Buchanan. Ms Buchanan stated that an allegation should not be put to the PSOA as the email is to a former student, not a student and there is nothing offensive in the email. 87A further file note of 14 October 2010 recorded some preliminary enquiries. Karen [Roberts] recalled aspects of the incident however, she could not confirm specific details in particular in relation to who the students were who were involved. The teacher said Karen recalls Mr Buttling reacting to a report that was made by Ms Bates and that he had demanded that she change the reports. 88A phone call was made by Ms Sarantos to another teacher. She recorded: Chris stated at the time of the rumour, the school and the SED spent a lot of time managing the PSOA's behaviour as he had over-reacted to the situation. Chris said that he recalled at one stage that the OH&S unit also became involved. Chris stated that as far as he was aware the matter was not reported to EPAC and that the information came third hand from students at the school. ... Chris was also uncertain as to whether anyone actually asked the student in the matter whether the PSOA was the father of the pregnancy. 89It appears that on 11 November 2010 Mr Barnett then called the mother and the ex-student. On that day he recorded as follows a conversation with Student A: She said that she remembered that for a while Mr Butling was not at the school and a rumour went round that he was on suspension for a few weeks because of such comments. I asked if he was her teacher and she stated that he wasn't but that he was her sports coach for a number of sports. I asked if she ever had any concerns about his conduct towards her in that role. She stated that the only thing that he did that annoyed her was that he had a funny way of saying her name, that he would always call her ... and never just .... She said that he he didn't do that to anyone else. I asked her if he ever came into any physical contact with her and she said never - and repeated the only concern was his funny use of her name. ... I stated that if she ever remembered who the Year 12 girl was supposed to be she could always call. 90One student (Student B) who had knowledge of the incident and the rumours signed a statement for Mr Buttling on 27 May 2012 saying: Mr Buttling was very flustered and concerned as he spoke to us. He was trying to find out who would have started this rumour. Perhaps mistakenly, I thought that Mr Buttling may have believed I was the person spreading the rumour. I was upset at this, being worried that, although I was not at fault, blame may fall on me for something I was not responsible for. There is no way I would describe this interaction as Mr Buttling "drilling" me. ... I told my friends about what had happened. As I was worried and upset that somehow this might go down on my school record, they suggested I go to see Mrs Bates. As I recall Heather McVey accompanied me to see Mrs Bates. I briefly told Mrs Bates what the situation was, that I was not responsible for the rumour. ... I asked Mr Buttling to let me speak first, and I told him that in no way was I responsible for the rumour. Mr Buttling let me speak, and at the end he calmly told me that he believed me. I said something to the effect that I understood how hard this must be for him to deal with, how unfair it was. When asked to recall this conversation, I recall him as being professional in his conduct. ... I was satisfied with Mr Buttling's response. As far as I was concerned, that was the end of the matter. I thought nothing more of it for years. At the time, and at no time since has anyone else from the school or the Education Dept contacted me, or attempted to speak to me about these interactions with Mr Buttling. Similarly for my parents. Now that I am aware of the situation, through Mr Buttling and his mother, that arose from these two interactions, I am far more disturbed by the lack of due process around this matter than I ever was by the minor "incidents" at the time. It could all have been cleared up very quickly by any prompt follow up by the school. 91Mr Buttling, when he discovered in April this year of these acts by DEC, takes grave exception to a re-enquiry being launched in 2010 but he ignores that he excited the inquiry by sending the Facebook entries to Mr Gutierrez, Ms Fitzsimmons and to Student B. It was the mother's reaction to his Facebook posting to her daughter which triggered her complaint to Ms Ferris, who sent it to EPAC where it was delegated to Ms Sarantos to check. 92Mr Buttling contends again no one spoke to him about the incident and his concerns. He also notes by now the DEC had much correspondence from him about the incident and the errors contained in the report of Ms Bate. He opined Mr Schipp is to be blamed for the DEC incompetence in conducting its new enquiry with the wrong person. However the investigation arose from a phone call to the mother of Student A after she had raised it with Ms Ferris at Asquith Girls. The file notes from EPAC refer to Case Officer: Kevin Schipp. 93Mr Buttling makes the point how could Mr Schipp order the CPI investigation of 2010 when he had been directly told of all the inaccuracies, including the false name, which allowed the wrong person to be "investigated" years before. However Mr Buttling in this submission fails to acknowledge that he excited the re-investigation given his Facebook entry to the Student A. Directions 94On 24 February 2011 Mr Buttling was sent to see Dr Nigel Marsh, Occupational Physician. He had the Report from Ms Wyatt raising the question of his fitness and reciting the incidents at Mosman High. Mr Buttling contends that document was full of inaccuracies. There are some inaccurate statements in the report (e.g. the inference regarding gambling sites). 95Mr Buttling followed the session with Dr Marsh with an email to Ms Wyatt on 24 February 2011 - saying "what are you putting me through" and then he gave a lengthy recording of his view of the facts. 96On 25 February 2011, a Letter of Direction was sent to Mr Buttling's postal address directing him to refrain from making contact with the Principal and staff at Mosman High. The letter went on to advise Mr Buttling that any issues he wished to raise were to be directed to Mr White, the School Education Director, and notice that a failure to comply with the direction could expose Mr Buttling "to disciplinary action, which may include dismissal". 97On 24 March 2011 Mr Buttling sent an unsolicited email to staff at Mosman High, including to Mr Webster, Mr Johnson and Ms Wyatt. In his email he advised that "you have all pushed me too far and I am now deciding to take action into my own hands". He stated he would not "accept the consequences of your mistakes, mistrues, lies and lack of effort." 98On 24 March 2011 Mr Buttling also sent an email to Mr White from the Northern Region. It would appear that this email was in response to an email Mr White sent to Mr Buttling of 23 March 2011. In the email Mr Buttling indicated that he will do EVERYTHING in my power never to accept the consequences of her [Ms Wyatt's] lies or distorted thinking. and Are you telling me that you are not going to check the truth of the matter before allowing the consequences to continue. That this is the extent of the responsibility you feel you have. 99Mr Buttling requested that disciplinary proceedings be commenced against Ms Wyatt, Mr Johnson, Ms Mears and Mr Webster. He responded to Mr White's request for his "current contact details" as follows: P.S. IT IS ABSOLUTELY NONE OF YOUR BUSINESS WHERE I LIVE OR WHAT MY LIVING ARRANGEMENTS ARE AND ANY FUTURE THOUGHT ON THE MATTER WILL BE CONSIDERED DISCRIMINATION. YOU HAVE BEEN PROVIDED WITH A SIGNED STATEMENTOF ADDRESS THAT I REQUIRE TO BE USED BY THE DEPARTMENTOF EDUCATION. 100Mr Buttling finally went to see Dr Peter Anderson, Consultant Psychiatrist on 31 March 2011 who reported on 2 April 2011. The doctor opined Mr Buttling was fit to be a teacher. However he advised: I believe he is fit. ... I do not believe he will return to Mosman. I believe that situation is irreconcilable. ... Professional counselling may help, given insight and willingness, but is not likely to occur. Arbitration or mediation would assist in his current setting. He will probably require, in another setting, a senior figure who can both supervise him and mediate between himself and executive. 101Doctor Nigel Marsh, endorsed Dr Anderson's opinion. 102On 23 May 2011 Mr White replied to an e-mail sent by Mr Buttling the content of which directed attention to Mr Buttling's concerns at events in Asquith Girls as well as Mosman High: Dear Mr Buttling I refer to your e-mail of 17 May 2011 to Ms Shayne Sarantos requesting an update on a number of matters you feel are outstanding regarding Mosman High School and Asquith Girls High School. As Ms Sarantos informed you, I have been asked to respond to you regarding these matters. The issue you have again raised regarding the veracity of statements made on 28 September 2010, by Ms Susan Wyatt, Principal of Mosman High School, as part of your Fitness to Continue Report, have been thoroughly reviewed on two separate occasions by myself and an independent departmental officer. Ms Wyatt states that her observations were both fair and accurate and as I have already informed you in March this year (reference number DOC 11/49365) I am unable to alter this report. I understand that on 22 February 2008, Ms Jane Ferris, Principal at Asquith Girls High School, informed you that, she had witnessed the Head Teacher, PDHPE amending a statement to correct a student's name. This issue has now been dealt with and finalised by a number of departmental officers and no further correspondence on this matter will be entered into with you. With regard to the progress of your complaints against staff at Mosman High School, neither the Northern Sydney Region nor the Department's Employee Performance and Conduct Directorate have received any formal complaints from you in relation to staff at Mosman High School. Should you wish to make a complaint the Guidelines are available on the Department's internet site at www.det.nsw.edu.au/aboutus/epac.index.htm. I note that an investigation by the Department's Employee Performance and Conduct Directorate is ongoing. I am advised that the issues addressed in this correspondence are separate to that matter. If you have any further concerns, please do not hesitate to contact me on telephone number 9941 3000. Yours sincerely, Dean White School Education Director Middle Harbour Schools Network 23 May 2011 103There was no proper Review conducted by Mr White. He in evidence simply confirmed he sent every piece of correspondence he received on to EPAC. The difficulty I have is that Mr White clearly saw himself only as a conduit for the receipt of information from teachers, copies of documents (emails) and complaints and sent them on to EPAC. It would have been more efficient, even accepting he was the conduit, to point out that there were some glaring inconsistencies in the documents he was referring on. 104Mr Buttling in an email reply to all including Mr Schipp noted he had never seen the two reviews referred to by Mr Whilte. He had only cited a blacked-out four names in a copy of the Report and had never seen a corrected copy of the September 2006 Report. He referred to the situation as "outrageous". Mr Buttling noted Mr White said that Ms Ferris witnessed the name change in February 2008. Mr Buttling called this "total garbage and ... lie". First Ms Bate had agreed in 2 June 2008 that she only blacked out names. Other statements in the Report of Incident have been proven incorrect. There is no evidence Mr Buttling made any student upset nor drilled a student. As to Ms Wyatt's report Mr Buttling's view was the way Ms Wyatt reported the grandparents' day incident was to ensure no one knew she had made a mistake in presuming he had been warned to stop the noise. He further pointed out he had lodged complaints regarding the teachers at Mosman High and EPAC had received copies of the complaints. There had been complaints made despite Mr White's denial. He suggested he was being "juggled" between departments. 105The reply from the Department excited a further email on 28 May 2011 to Ms Wyatt and others, headed "Unconscious lies". It read as follows: It is dispicable that I wake up this morning with a letter in my letter box from Mr Dean White!!!!!! that still claims that you think you are telling the truth and that your report is fair. The only thing about that report that was fair or accurate was that I am a sad person. I am a sad person! because of people like you. You can some how manage to tell the biggest whoppers and be caught with your pants down in a blatant lie....and somehow you get away with it. and leave the suffering person it is about to deal with the consequences FOR YEARS!!!!!! Steven Taylor never came anywhere near us!!!!!! You were told this in June 2009, three days after the event Two weeks after that you still find a way to say that I did not follow your instructions. Then you apologise Then, an entire year later, you re-write your idiotic thinking in an official report. Honestly how do you sleep and night!!! All to a person who never did anything but follow your instruction to the letter of the law and then some. This whole situation is an absolute disgrace and yes!!! I hold you personally responsible for any further consequences for me. You must stop it!!! You have removed me from your school..... why try and deliberately destroy my life aswell? Have and show some courage and admit the truth. 106On 28 May 2011 Mr Buttling sent a further email to Ms Bate. The email refers to his recent letter from Mr White as being "an absolute Joke" containing "lies". It goes on to refer to Ms Ferris' statement that she saw changes being made to Ms Bate's Report as being "absolute total garbage and a blatant lie". Mr Buttling's email goes on to state "What kind of Head Teacher does this to a member of her staff. AND is allowed to get away with it!!!!!! Ooops actually gets promoted as well." Insofar as the Grandparents Day incident was concerned, the email states "The reporting of the Grandparents day incident is a total fabrication, designed to cover up her [Ms Wyatt's] own outragous stupidity of thought." 107On 2 June 2011 Mr Buttling received a further letter from DEC to refrain from contacting staff at Mosman High without the prior consent of Mr Barnett. He was also, on 2 June 2011, instructed to report to Dee Why at the DEC's Middle Harbour School Network to perform non-teaching duties. Mr Buttling did report to Dee Why. He stayed a short period of time. Mr White was not there but others were instructed as to the work he was to do. He left when Mr White was not there and then presented a medical certificate which stated that he was suffering from a "medical illness". Between June and July there was correspondence as to the type of leave to which Mr Buttling was entitled. 108On 1 August 2011 Mr Buttling received from EPAC a further Letter of Allegations signed by Mr Barnett of Staff Efficiency and Conduct. There were six allegations that Mr Buttling was asked to respond to. Mr Buttling had been to see the NSW Teachers Federation to ask for their assistance. On 1 August 2011 through the Teachers Federation, Mr Buttling was issued with the Letter of Allegations. It stated: The allegations are that: 1. you breached directions in a letter ... from Ms Jane Simmons, Regional Director, Northern Sydney Region, dated 17 September 2008, in which she directed you to: * comply with your professional responsibilities as outlined in the Department's Code of Conduct; * treat members of the public, your colleagues and students with respect; fairness and consistency; * be courteous and sensitive to the needs of others and provide all necessary and appropriate assistance practicable; and * conduct yourself in a manner which will promote co-operation and harmonious relations among colleagues in that you: There were then listed several instances of emails sent on particular dates to particular people: 1. ... on 24 February 2011 at 1.26 am ... to Ms Susan Wyatt, Mr Clint Johnson and Mr Phil Webster ... on 24 March 2011 at 4.11 pm ... to Mr Phil Webster, Mr Clint Johnson and Ms Susan Wyatt ... on 24 March 2011 at 3.07 pm ... to Mr Dean White, School Education Director ... on 28 May 2011 at 12.13 pm ... to Ms Susan Wyatt, Principal Mosman High School ... on 28 May 2011 at 5.38 pm ... to Ms Heather Bate ... 2. You breached a letter of direction ... from Mr Jim Burnett, Relieving Manager, Staff Efficiency and Conduct, dated 13 October 2010 ... 3. You breached a letter of direction ... from Mr Kevin Schipp, Manager, Staff Efficiency and Conduct, dated 25 February 2011 ... in that: a) on 24 March 2011 at 4.11 pm, you sent an email ... to Mr Phil Webster, Mr Clint Johnson and Ms Susan Wyatt ... 4. You breached directions in a letter ... from Mr Kevin Schipp ... dated 2 June 2011 in which he directed you to refrain from making any contact with the principals and staff at Mosman High School and Asquith High School ... 5. You attempted to make inappropriate contact with Mosman High School Students through Facebook in that you wrote in Facebook ... on 26 March 2011 at 5.12 pm the following: "Is there anyone from Mosman who remembers the volleyball lesson I taught in total silence on the tennis courts in 2009. If there is (should be current year 11) could they please write to me with the fact that they remember that day." 6. You failed to submit appropriate "Application for Leave" forms to Ms Susan Wyatt, Principal, Mosman High School, in accordance with Departmental policy ... 109On 8 August 2011, Mr Buttling responded to the letter of allegations of 1 August 2011 in a 9-page document. He asserted that Ms Simmons' direction of 2008 was based upon false allegations made by the Principal of Asquith High, Ms Ferris; that the only cause of the non-harmonious environment at Asquith High was the failure to properly investigate the Report; that Ms Wyatt, Principal of Mosman High, wrote her report in the knowledge that her view of events was a lie; that Mr White's view that he created disharmony at Mosman High was also based on a lie as he did no "review" of any incident and the assertion that he did was not true. Mr Buttling then went on to substantiate his reasons for emails to Mr Webster, Ms Bate and Mr Gutierrez. He opined as to the false information provided to Dr Marsh through Ms Wyatt's "ill-conceived inaccurate report". He sent further letters endorsing these views on 10 August 2011 and 17 August 2011. 110On 28 October 2011, Mr Schipp replied to Mr Buttling's objections to Mr White's statement in the letter of 23 May 2011 where Mr White noted DEC had not received any formal complaint regarding the Principal's report from Mosman High on other complaints. Mr Schipp assured Mr Buttling that the report he objected to (of Ms Wyatt) was only used for the Health assessment and was not part of the EPAC investigation. He notified Mr Buttling that the results of the investigation would soon be forwarded to him. 111On 9 December 2011 the DEC wrote to Mr Buttling enclosing a copy of the Investigation Report which included consideration of all of the Allegations. He was advised that sustained findings of misconduct had been made. The letter informed Mr Buttling that the most severe disciplinary action that was being contemplated was that he be dismissed. He was invited to make submissions on the disciplinary action proposed. 112Mr Buttling attacks the investigation report. He does not deny sending the emails but the basis of his objection continues to be the false reporting of the events. He especially attacks Mr Schipp who, he contends, knew that Ms Bate's Report of Incident was false from 15 August 2006; admitted he had been asked by Mr Buttling for a full review; admitted he hadn't read the Report of Incident in June 2012. Given this knowledge, Mr Buttling asks why would Mr Schipp have had the Child Protection Unit make an inquiry of Student A who had been mentioned in the 2006 Report in 2010. He suggests that the documentary evidence of events as recounted by Ms Bate, Mr Ferris, Ms Wyatt, Ms Sarantos and Mr White were false so the investigation should have no status. In the case of Mr Schipp, Ms Sarantos and Mr White, he asserts they neglected their responsibilities to investigate the actual events which gave rise to the emails. 113What is revealed from the investigation report is that it addressed all matters referred to by the Department to Mr Buttling in its many correspondences to him and particularly: 1. the letter and direction of Ms Simmonds of 27 September 2008 regarding his conduct at Asquith Girls' High; 2. the letter of 12 August 2010 from Mr Bennett re his emails to Mosman High teachers; 3. the letter of 13 October 2010 re correspondence via email he sent to Mr Gutierrez; 4. the letter of Mr Bennett to Mr Buttling of 1 August 2011. 114The findings on each of the allegations that were sustained (some were not sustained) were based on an assessment of the evidence. Given the decision that an allegation was sustained there was then a consideration and a finding of misconduct and a finding that there was a breach of the 2009 Code of Conduct. 115Ms Jane Thorpe, Director Employee Performance and Conduct, on 1 December 2011 received the investigator's finding. She sustained allegations 1, 3-7, 13, 17(a)-(e), 19(a) and (b), and 20(a) and (b). 20(b) was an error as the investigation by EPAC unit had not found that allegation was misconduct. She stated: The allegations against the teacher essentially relate to him sending inappropriate emails and communications to other staff members about his perceived concerns about his own treatment to the extent those staff have felt harassed and anxious about the nature of his communication with them. In many circumstances he has also copied the emails to other staff members. Several allegations relate to the teacher not complying with lawful directions not to contact staff members and not complying with directions to comply with the Code of Conduct and not engage in the sort of conduct that resulted in him being moved from Asquith HS. While the teacher has not specifically responded to every allegation - his evidence is that he considers this conduct to be reasonable because he is upset about perceived inaction in relation to the way he believes he has been treated. Concerns were held about the teacher's health and he was referred for a medical assessment. The medical assessments pronounced him fit to teach but recommended he needed to be moved from Mosman High School, provided with mediation between him and any executive and he would benefit from ongoing counselling but was not willing to do so. On the basis of his fitness assessment - the investigation into possible misconduct was completed. 116Mr Buttling made submissions and held a meeting with Mr Riordan on 19 January 2012. Mr Riordan gave evidence he listened to the submissions and Mr Buttling's arguments. Mr Riordan on 3 February 2010 sent the dismissal letter to Mr Buttling to have effect from 6 February 2012. CONSIDERATION 117The Commission has before it two cases running parallel. Mr Buttling's case is he is a victim of the incompetence and inefficiency of the DEC. It is his contention he has been not understood nor listened to from 2006 to today's date. 118He relies upon a most serious incident in 2006 at Asquith Girls and a number of incidents at Mosman High to assert he has been treated unfairly. Each incident involved Mr Buttling. 119I accept the Report of Incident of September 2006 should never have been written. It is full of inaccuracies. Any male teacher about whom it was directed would have been appalled and would have justly demanded it be properly investigated so the allegations could be corrected and formerly found to be untrue. It was not properly handled at the school level nor later by the Department in initiating its inquiry. The inquiry expressed its concern for Mr Buttling's health but did not hear from or listen to Mr Buttling. The investigation seems to have addressed only the complaint of a parent and the Principal's opinion that the issue may be a health issue related to Mr Buttling, given Mr Buttling's reported reactions to the Report. 120There was no assessment as to Mr Buttling's immediately expressed concerns as to the content of the Report of Incident. Had there been a proper initial investigation in 2006, the 2010 revival would not have occurred. I make this finding while taking into account that it was Mr Buttling's own act in both distributing the initial Report of Incident and, that in 2010, his posting on the Facebook of Student A and his emails triggered the 2010 revival of the matter. While the matter is officially now completed within the Child Protection Unit of the Department, Mr Buttling does not "feel" vindicated. The Commission feels some sympathy for him in his endeavours to have the document declared false. It was a false Report of Incident. The rumour contained therein has no vestige of truth. The Commission will address later how Mr Buttling went about his campaign to prove his "innocence". 121As to the events at Mosman High, it is difficult to accept Mr Buttling's perspective as to how serious he perceives each event to be. Nonetheless, Mr Buttling's analysis of the comedy of errors regarding the wet feet incident and the grandparents day misunderstanding do expose an inefficient level of proper investigation before action was taken by his superiors. The Rugby trial falls into a different category. The mathematics teacher seems to have been under stress. No one seems to have initially listened to Mr Buttling's explanation. The head teacher seems to have finally accepted Mr Buttling's explanation. However, Mr Buttling persisted in demanding that the Principal should apologise. This was, I accept, a complete over reaction by Mr Buttling. 122I do not accept that the investigation done by EPAC was incompetent. The investigating branch is reliant upon statements given to it. Perhaps there needs to be a rigorous checking of asserted facts, even if they are presented by senior officers. A Principal's expressed opinion on a given set of facts must be given weight but also be subjected to scrutiny. I found Mr Schipp to be an honest and caring witness but I do not accept that, even if it is a sensitive matter under investigation, the person concerned should not be spoken to directly. 123The DEC's case is that because of Mr Buttling's over reactions, he has caused stress within the two school environments; he has failed to treat colleagues with respect; and he has failed to follow legal directions given to him as to contact with staff members and colleagues. He breached the Code of Conduct. I accept that from early May 2010, Mr Buttling's email correspondence began to reveal the acts of a person obsessed and lacking in judgement. The DEC, after giving him clear directions, then investigated and finally reached the conclusion that Mr Buttling had engaged in misconduct such as to warrant dismissal. 124The DEC in evidence focused, not on the events given accent by Mr Buttling, but to his reaction to those events. When asked in evidence about that reaction specifically identified through his emails and other documentary communication, Mr Buttling said: Q.But we are talking about your consequences of displaying that conduct? A.If someone, Mrs Moxham, was prepared to write any statement under the sun about what I had done for her daughter. Fantastic, professional, all it would have taken was for someone to have cared about me enough to just say, "Who is the right person and what did he actually do?" And six and a half years after the event none of this would have happened and that's the whole point of this case. I reject the whole DEC assertion that because they have done, I won't clarify the word, but monumentally severe actions to me over and over again for six and a half years, I reject the assertion that there is no right or avenue at all and the people considering this say I did nothing. I did absolutely nothing. I believe the other person for six and a half years and I can be told I am doing inappropriate things. Yes, 3.46 in the morning, people wouldn't want to assert it. Later on in a normal environment, but it's just not fair to say that to someone after what people have put me through and that's the whole genesis of why I believe it's an unfair dismissal. You just can't do that to a human being in this country, you can't. Specifically because it's not just the content, but it's not the right person. And when you investigated it, it's not the right person. ... Q. But it is the case those are the grounds on which you were terminated? A. Your Honour I will do hours and years of discussion on what it was and what my actions were and all those kinds of things when I believe and if I believe that people have put it in the appropriate context and the issues are coming from the right diving platform first and you saw all the witnesses walk into this courtroom and say, "Oh, you did this" and then after crossexamination, "Oh really, is that what actually happened?" As long as you are coming from the correct place. If I had been investigated by this department for six and a half years on L Moxham, we would not be here today. Even if it takes six and a half years in the world of things that doesn't bother me in any way shape or form because it's real, but you can't make stuff up and expect people to accept the consequences. It's not fair. ... Q. Just listen to the question and answer the question, we wouldn't be here Mr Buttling if you didn't inappropriately and without permission take a personal note of Miss Bate's and then take it upon yourself to circulate and publicise that note to third parties? A. I put to you, have you read the evidence of Mrs Bate, and that says she intended to hand it to the principal? Q. Mr Buttling would you please answer my question? A. I am. There is no doubt that Mrs Bate wrote that with the intention to hand it to the principal and you can't as this lawyer in this court be a fortuneteller and say that that wouldn't have been called on at some stage with those inaccuracies in it and I reject the fortunetelling premise of the lawyer. ... HER HONOUR Q. Mr Buttling I understand your concerns about that document. We are however looking at other things. A. I understand that, your Honour. I respectfully request we put it in the category that Australian citizens would normally expect of relevance in terms of importance and then I will accept years of consequences or discussion or modifications of behaviour. I already said to Mr Riordan, they have put on record, I would shut down all Facebook, all emails, if that was the problem. So I couldn't fire off email communications. I would do anything to bend to the department's request just to get it changed and fixed on the record so I can start again and say to my friends and family it's finally over and it's not fictitious any more. 125For Mr Buttling the matter of the 2006 rumour is now "fixed" on the record. The rumour reported in the Report was false and not true. 126In the final day's address Mr Buttling said that of all the emails, he wanted to explain only two sent on 23 May 2010. APPLICANT: ... That is two emails and both of them are reports to a question that the applicant figure out what actually went wrong. This was sent to Breatrix Meares who was just - the second report went to Phil Webster who had written, "It is a shame that the year 12s still recognise this, still think there was a club". Then he said "I do not need to review the response." That is the key. He had already said it has nothing to do with that but still did not have the knowledge to go forward so I did send those two on Sunday afternoon and then I didn't even turn up on Monday, ie no emails until the meeting with Steve White and he admitted he had nothing and Susan Wyatt read them and then I read the ordered report. That is different from the only two email. If you look at those two reports and say that is worth 35 years of a teaching career, I don't understand it. It is a lot of emails. It is two reports of the day and multiple allegations which is the report Mr Wood never even read [sic]. Mr Buttling seems to be saying that two of the emails, one to Mr Webster and one to Ms Mears, should not be read as offensive but rather an explanation of "what actually went wrong". He otherwise would not address any other of his modes of correspondence. His conduct, he says, was a consequence of the DEC wrongdoing. 127The DEC, through Mr Riordan, considered the balancing issue I have before me. Mr Riordan said in evidence: 14.In coming to this conclusion I acknowledged that Mr Buttling was of the belief that some of his e-mail communications to staff were as a result of his distress concerning what he believed to be a number of errors in documents and records of events. However, I was satisfied that efforts had been made by the region to review and investigate the concerns and Mr Buttling had been advised of those outcomes. Furthermore, Mr Buttling had been issued with directions on a number of occasions regarding his conduct and interaction with staff of the Department ... and he had failed to comply with these directions. I formed the view that Mr Buttling's dissatisfaction with how some issues had been dealt with did not entitle him to breach the Code of Conduct and communicate with staff in the manner that he did. The manner and tone of Mr Buttling's communications with other members of staff was unacceptable... 15. I also formed the view that the relationship between Mr Buttling and the Department had irretrievably broken down to the point that I had no confidence Mr Buttling could continue to work within the Department. In this respect I note that, at various times, Mr Buttling indicated that he had no respect for senior members of the Department's staff and had also accused senior members of the Department's staff of lying, deliberately lying, conspiring against him and engaging in criminal conduct. 128The question is was the Department entitled to require Mr Buttling, in the circumstances, to obey its directions? In Thompson v IGT (Australia) Pty Limited [2008] FCA 994, reliance was placed on the recitation of the relevant principles by Goldberg J at [48]: 48.... An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott-Charlton (1996) 70 FCR 16, Finn J said at 21: "The accepted view in this Court is that it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart (1982) 65 ALR 41; Bayley v Osborne (1984) 4 FCR 141; for a different view on the matter of reasonableness see 10 Halsbury's Laws of Australia, 'Employment', par 165-265, but cf W B Creighton, W J Ford and R J Mitchell, Labour Law (2nd ed, 1993), pars 8.2-8.8. ... The 'standard or test' of the lawfulness of a command or direction that has been adopted in this Court for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44; (1938) 60 CLR 601 at 621-622: If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.' (Emphasis added). ... The directions Mr Buttling received were reasonable. Mr Buttling makes a separate complaint as to "unlawful". However, on the evidence were that charge pressed against the DEC before me, I would find no direction given to Mr Buttling by the DEC was either unreasonable or unlawful. 129Mr Buttling is a difficult personality. His reaction to the initial triggering event was to seek the help of his supervisors at the school. The Commission is sorry it did not take his complaints so seriously as to require, in its formal referral for an investigation, that an enquiry be made as to his viewpoint rather than identify the problem as a "health" issue. He should have been interviewed. Mr Buttling from the evidence was a good teacher. He was well organised, had control of the students and was most enthusiastic. He was talented as a teacher. 130Unfortunately, he did become very distressed and I am satisfied from the evidence did, in fact, over-react. On leaving Mosman High, all his concerns as to what occurred at Asquith Girls returned and he sent emails and Facebook entries that were ill disciplined and quite unacceptable. At some point from February 2010 Mr Buttling became so frustrated he lost his sense of propriety. The emails reflect in totally unacceptable conduct. They blemish his professional reputation. They were sent to colleagues, some of whom perceived themselves as his friends. He began to perceive everyone as an enemy and himself as a victim. He makes allegations of unlawful acts by many staff members with whom he worked. He makes allegations of unlawful acts by many senior DEC officers. He sees the investigation being conducted by DEC officers, when appropriate enquiries were made to establish facts, as a "collusion" to get him. I do not accept that there was collusion. The processes indicate to the Commission there was a fair investigation overall. There was expressed ongoing concern as to his reaction to events from September 2006 at Asquith Girls and very early in his employment at Mosman High. I do not condemn any expression of concern for his health. I reject his characterisation of the medical examinations as being "a set up" in the context of Ms Wyatt's background report. Rather his health had to be properly considered as to whether it provided an explanation for his conduct, before there was a finding that his conduct was misconduct. 131I accept Mr Buttling was given reasonable and lawful directions and he repeatedly defied those directions. He also failed to comply with the Code of Conduct for teachers. The requirements of the Code were pointed out to him in many of the directions. Mr Buttling's communications with other teachers were, I accept, harassing and intimidatory. The Commission is very concerned that Mr Buttling refuses to accept that his actions have had a deleterious effect on his colleagues and that he too has created victims. His dismissal of Ms Bate's reactions to his missives is unkind. 132I find Mr Buttling's conduct was incompatible with the fulfilment of his duties as a teacher and was also destructive of the necessary confidence between the DEC and himself. 133"Misconduct" is defined, in part, in the Teaching Service Act 1980 at s 93C(1). Section 93C(1) is in the following terms: 93C Meaning of "misconduct" (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) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person. 134I accept that the reasons for Mr Buttling's dismissal were notified to him in the DEC letter to him dated 3 February 2012. He had notice of the allegations against him. The reasons for dismissal, I accept, had a basis in fact. Mr Buttling was given opportunities to give an explanation for his behaviour, including in an interview with Mr Riordan on 19 January 2012. Mr Buttling was repeatedly advised that his conduct was considered to be inappropriate and was warned many times of the potential consequences of breaching the directions. I note that Mr Buttling has not worked as a teacher with the DEC since 9 June 2010. There has been, for a considerable period of time, a fundamental breakdown in the relationship of trust and confidence as between the Department and Mr Buttling. I accept the colleagues to whom Mr Buttling addressed correspondence do not want to work with him. Whilst Mr Buttling has disagreed with the outcome of events that took place whilst he was employed by the DEC, his conduct was inappropriate in the workplace. 135Although not stated in this application, in Matter No. 369 of 2012, the applicant seeks to bring proceedings pursuant to s 210(1)(j) of the Industrial Relations Act, 1996, alleging that he was victimised because he has made a complaint about a workplace matter that he considers was not safe or a risk to health. 136Mr Riordan has made clear that the reason for his decision to dismiss Mr Buttling related to his failure to comply with lawful and reasonable directions and his breaches of the DEC's Code. Mr Riordan stated: At the time of my decision to dismiss Mr Buttling I was not aware of any occupational health and safety complaint about a workplace safety matter Mr Buttling had raised. Indeed, as at the date of swearing this affidavit, I am not aware of any such complaint being raised by Mr Buttling. I deny that such complaint either, (a) formed part of, (b) was a substantial and operative cause in, or (c) actuated, my decision making process in determining to dismiss Mr Buttling. 137I do not see or hear any evidence supporting such an application under s 210(1)(j). While he called himself a "victim" he said it was because of the DEC not listening to him to right a wrong. 138Mr Buttling was given many a directive to cease and desist from his unprofessional conduct. The Commission cannot accept his view that the communications were simply an acceptable consequence of the unfairness in his treatment. They were, in fact, communications that were threatening and ugly. 139I find, despite Mr Buttling's skill at exposing some of the carelessness and inaccuracies in the documentation of the DEC, he misconducted himself such as to warrant dismissal. The dismissal was not harsh, unreasonable or unjust. It was not unfair. The claim for unfair dismissal in Matter No 368 of 2012 is dismissed. ORDERS 140In Matter No. IRC368 of 2012, the claim for unfair dismissal filed under s 84 of the Industrial Relations Act is dismissed. 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: 13 July 2012