Industrial Relations Commission New South Wales Medium Neutral Citation: Greenwood v Sth. East Livestock Health and Pest Authority. [2012] NSWIRComm 1017 Hearing dates: 30/04/12, 01/05/12,02/05/12,03/05/12. Decision date: 09 August 2012 Before: Ritchie C Decision: Catchwords: Appeal against termination. Appellant long term employee alleged to have wrongly painted sheep at Cooma sale yards. Also that he had made a statement during a Return to Work meeting as a consequence of having his access to firearms and poisons restricted. Found both to have occurred. Also took into consideration other work issues that existed and the complete break down in trust in the working relationship between all parties. Appeal rejected. Legislation Cited: Stock Diseases Act, 1923 Cases Cited: Franks v Roads & Traffic Authority(1996) NSWCA 192. Category: Principal judgment Parties: Mr Gregory Walter Greenwood (Appellant) South Eastern Livestock Health & Pest Authority(Respondent) Representation: Ms Keys (Appellant) Mr Y Sharif (Respondent) Mr R Hassell of Sparke Helmore Lawyers.(Respondent) File Number(s): IRC 1691 of 2011 DECISION Introduction 1The South East Livestock Health and Pest Authority (SELPHA) was created around January 2009 and replaced the previous system of Rural Lands Protection Boards (RLPB). 2On 1 November 2011 Mr Gregory Walter Greenwood ( the appellant) filed a Notice of Appeal- Public Sector Discipline as a result of a Refuse Increment ( this form was incorrectly filled out and the issue at the time was the "Failure to Notify" re allegations of misconduct) by his employer named as South East Livestock Health and Pest Authority (the respondent). 3Before the matter came before the Commission , the respondent notified the appellant by correspondence dated 30 November 2011 that he was terminated with effect from 2 December 2011. 4The matter came on for conciliation before Bishop C on 21 December 2011 but did not settle and the standard directions for the filing and serving of evidentiary material was provided to the parties. 5The hearing took place in Queanbeyan over four days from 30 April 2011 to 3 May 2011. At the completion of the evidence, parties sought and were granted the opportunity to provide final submissions in writing and were provided a timetable for the filing. This timetable was adjusted at the request of the appellant's representative on two occasions as she had difficulties adhering to the date for filing. A final timetable was made for the filing of their written final submissions on the basis that the period from 11 July to 23 July would not be counted if the Commission found in favour of the appellant and awarded back pay. Background 6The appellant held the position of Ranger with the respondent. 7On 10 November 2011 the respondent wrote to the appellant and advised that an investigation into particular allegations had been completed and that the Chief Executive Officer, Mr Nigel Milan had formed the view that the appellant had engaged in misconduct as follows: 1.On 11 October 2010, at the Cooma Sheep Sale, Mr Greenwood painted the heads of sheep with excessive amounts of yellow paint, indicative of infestation with lice, and was disrespectful and discourteous to members of the community coupled with he possibly contributed to a financial loss for the owner of the sheep; 2. On 14 February 2011, Mr Greenwood, during a Return to Work Interview, upon being told he would not have use of firearms said words to the effect "I don't need keys to the firearms here, because I have 23 guns at home and can hit a man between the eyes from 200 metres." 8He was offered the opportunity to respond within 14 days. He replied in correspondence dated 21 November 2011 stating in brief that he had been denied due process in the investigation, and that the investigation report did not support findings that the alleged facts are proven. 9In correspondence from Mr Milan dated 30 November 2011, the appellant was terminated. Respondent's and Appellant's Cases 10The respondent called a number of witnesses to give evidence in the hearing. 11Mr Thomas Ross stated that he is the General Manager of the respondent. Part of his responsibilities is to supervise the Senior Ranger, Senior District Veterinarian and Office Co- Ordinator. He reports to the Board of Directors on all operational matters. He has 29 staff under his control, seven at Cooma including the appellant. In his statement Mr Ross outlined various incidents that he had experienced with the appellant including his substantially increasing charges issued to rate payers in relation to travelling stock reserves without seeking approval from his superiors. The respondent had to withdraw the notices , apologise to the rate payers and reissue the charges at a reasonable rate. Also the issue of the appellant issuing Infringement Notices to a Mr Boller and Wilkinson. It was the concern of Mr Ross that the appellant had exceeded his authority and that he did not follow the procedures and policies relevant to Inspectors and Rangers at saleyards. The fines were later withdrawn by DPI after an investigation. 12Mr Ross stated that he received correspondence dated 18 October 2010 from a local stock agent, Mr John Mooney and his client Mr Les Robinson of an incident that had occurred at the Cooma saleyards. It stated that on 11 October 2010 the appellant had marked sheep with yellow paint because they were missing National Livestock Identification System Tags. They also remarked on the appellant's arrogant and rude attitude and the potential impact that his actions had upon their business on this occasion. 13On 18 October 2010, Mr Ross stated that he received correspondence from the Cooma Mayor ,Mr Dean Lynch in which he expressed concern in relation to a Ranger. Mr Ross later determined that the unnamed Ranger was the appellant. 14At around this time the appellant was involved in an altercation with a Mr Boller at the Cooma saleyards and was then absent from work under a workers compensation accepted claim until around 16 February 2011. No investigation could take place until the appellant returned to work and was fit to participate in the investigation 15Mr Ross stated that he offered the appellant support through their EAP program and when the matter went to court, Mr Boller had been charged by the Police for what had occurred at the saleyards on 14 October 2010, Senior Ranger Mr Grant Coe attended to provide moral and emotional support. 16On 14 February 2011 Mr Ross stated that he attended a Return to Work meeting at the Cooma office, which lasted approximately 45 minutes, to discuss potential concerns and suitable duties to facilitate the appellant's return to work. Also present were the appellant , Mr Coe , Mr Mathew Taylor and Mr Awaneesh Bamola. To minimise potential stress, that may result from the responsibility and control of firearms and poisons, a decision was taken to limit access by the appellant to firearms and poisons. In response to this decision the appellant stood up, threw his keys to the firearms and poisons room on the table and said words to the effect. " I own 23 firearms at home and I can hit someone between the eyes at 100 metres." Mr Ross believed that this comment was highly inappropriate and he had concerns as the appellant was returning to work from a serious psychological condition. Also he had received reports from staff concerning the appellant's manner and expressing concerns about their own well-being. 17Mr Ross was later informed that the appellant had recorded the meeting without advising Mr Ross or seeking his permission. He stated that he later received a copy of the recording and a transcript. He did not believe that it was a complete recording as the comments about returning his keys and the comment about his guns occurred after the recording ended. Mr Ross's notes of the meeting formed part of his statement which included the comment concerning the appellant's ownership of guns. 18Prior to the appellant commencing his absence form work, Mr Ross stated that he was developing concerns about the appellant's conduct and attitude at work in that he seemed to thrive on a sense of authority or power associated with his role as a Ranger. Mr Ross believed that this was contrary to the respondent's Code of Conduct. Whilst the appellant was away, staff at the Cooma office approached Mr Ross stating that they felt uncomfortable , due to the appellant's intimidating conversation or his manner. He suggested to the staff to contact the Employee Assistance Program (EAP). A report from the EAP was later given to Mr Ross. 19On the appellant's return to work Mr Ross stated that he attended two meeting when the appellant was also in attendance. He stated that at the first the appellant made a comment that Mr Ross believed put other staff down and at the second meeting, he continually glared at both Mr Ross and Mr Coe and was irate and confrontational. Mr Ross stated that he felt extremely uncomfortable. 20Through the respondent's Human Resource Department, Mr Ross organised the appellant to attend a refresher Code of Conduct which took place on 17 March 2011. 21Also at that time Mr Ross after seeking advice from Human Resources organised an investigation into the saleyards incident , the comment made at the Return to Work meeting and other aspects of the appellant's conduct which had been complained of. The investigation commenced when the respondent received information from the appellant's psychologist advising that the process would not aggravate or impede his recovery. 22In May 2011 Mr Ross received comments from staff that the appellant was photocopying lots of files. He advised Mr Coe to investigate. Also he had a discussion with Mr Robert Freebody who complained that he had just had an altercation with the appellant concerning a 4WD recovery kit. When Mr Ross discussed with the appellant his behaviour with other staff he denied the incidents had ever occurred. 23On 16 May 2011 the appellant advised Mr Ross that there was stolen product in the Cooma office being crates owned by the Sydney Fish Market. Mr Ross was advised by Mr Freebody that he had purchased them from a clearance sale. On 25 May 2011 members of the NSW Police Force attended at the Cooma office to investigate an allegation of theft of the tubs . No further action took place. 24In the same month, Mr Ross was advised that the appellant had been improperly storing and accessing files such as aerial baiting. Mr Ross understood that the appellant had previously denied knowing their whereabouts. The relevant file was found in the appellant's office filing cabinet. 25Because of his experience with the appellant Mr Ross held grave concerns for the ability of the respondent's Cooma office to function effectively if the appellant was to return. When the appellant was absent between October 2010 and February 2011 he believed that the Cooma office operated more effectively and professionally with the staff appearing to be happier and more confident in their ability to perform their duties. If the appellant was to be reinstated then this would be contrary to the interests of the respondent and its staff. 26Mr Ross stated that he was not involved in the deliberations concerning the preliminary or final decision to terminate the appellant's employment. 27Ms Tania Thompson stated that she is the principal of an industrial relations management business called Interact HRM which is engaged by various entities to act as a human resources and industrial relations consultant. 28In around April 2011 she was asked by Ms Tamara James of the Livestock Pest Authority (LHPA) to assist in relation to a matter involving the respondent concerning the appellant in allegations of misconduct and the investigation of these issues. 29She stated that whilst the allegation occurred in 2010 they were only being investigated now due to the absence of the appellant and the necessary clearance from his doctor that the investigation could take place. 30She stated that she was aware that the LHPA provided a formal letter dated 10 May 2011 to Mr Mandel to conduct an investigation. They sought for the investigation to be completed within four weeks. 31On 16 May 2011, the appellant was advised that an investigation was taking place and that he was stood down with pay. He was also advised that he would be interviewed by the investigator and provided an opportunity to respond. The appellant replied on 23 May 2011. On 3 June 2011 the respondent replied to the appellant and sought to answer some of the points that he had raised. 32Delays occurred in the investigation and the appellant was advised of them. 33On or around 19 September 2011, the respondent received a draft copy of the investigation report , but prior to the report being released the respondent was advised that the Workers Compensation provider was conducting an investigation and for the respondent to refrain from making any conclusion until the Workers Compensation investigation had been completed. The respondent wrote to the appellant and advised him of this development. 34The Workers Compensation investigation was completed around mid October 2011 and she was informed that the claim was upheld. 35Following receipt of the final investigation report and the Workers Compensation investigation she conferred with Mr Milan and it was determined that the appellant had likely engaged in misconduct. The appellant was advised of this by letter dated 10 November 2011 and provided with a copy of the censored report. 36The appellant responded on 21 November 2011 but his correspondence did not address the allegations or provide additional information on the relevant factual matters. The appellant also did not take up the opportunity to discuss or elaborate his concerns. It was determined that termination was appropriate in the circumstances. A letter dated 3 November 2011 advised the appellant that he had engaged in misconduct and his employment was to be terminated effective as of 2 December 2011. 37It was her view that it would be unfeasible and unacceptable to allow the appellant to return to work for the respondent as any potential for a positive and professional relationship between the appellant, staff and the local community had dissolved. 38In a separate statement Ms Thompson stated that she was made aware of the appellant secretly taping the meeting held around 19 September 2010. She spoke to various persons of the respondent before making a report at the Tamworth Police station around 24 October 2011. To her knowledge no further reports or actions were taken with respect to this issue. 39Ms Kirrily Gould stated that she works part time at the Cooma office of the respondent as a Customer Service Officer and commenced early January 2010. Her statement covered her working interaction with the appellant. She recounted in early February 2010 when returning in a car with the appellant and other officers how the appellant was very confrontational and challenged or contradicted most things she said. She found the experience belittling. In May 2010 the appellant stated to her that the only reason she got the job was that she knew one of the other officers. She felt offended by this comment as she had been selected in a merit situation. The appellant in speaking to her about other officers would try and turn them against one another. In the office he would stomp around and carry on in an angry or agitated manner. She said she felt very uncomfortable. 40In around March 2011 she saw the appellant take a suspension file out of a cabinet in the boardroom and soon after exit the building with the file under his arm. It was her understanding that files were not allowed out of the building. She had not seen any other Ranger take a file out of the building. 41She stated that the work environment now is pretty good. When the appellant was at work it was not a pleasant place to work. She found it unpleasant to work with him and she does not want to work with him again. If he did return she said she would consider looking for a job elsewhere as she does not wish to work with him again as it would be just too difficult. 42Mr Timothy Seears stated that he is a Project Manager for Pests and Travelling Stock Reserves and has held this job for five years. The State Management Council is responsible for overseeing the management of 14 Livestock Health and Pest Authorities (LHPA). He stated that he acts as a key adviser for the State Management Council and was involved in policy and procedure development and drafting. These policies are then passed down to the LHPA's for implementation. The State Management Council has the ability to direct LHPA's to perform particular duties or tasks. Prior to his present job he stated he worked as a Ranger for the Cooma Rural Lands Protection Board for approximately 14 years and an Inspector at the Cooma saleyards for 12 years. 43He stated that he knows that yellow paint is used to identify diseased stock and is provided for under the Stock Diseases Act. This is widely known by stock inspectors, agents and vendors that yellow paint is only to be used for marking diseased stock. Stock missing identification tags may constitute a breach under the Stock Diseases Act however they are not considered diseased because they are missing an identification tag and should not be marked with yellow paint. 44He stated that he would be concerned if a stock Inspector were to apply yellow paint to stock that was missing identification tags but were not diseased as it would send out an incorrect message or confuse potential buyers. The presence of yellow paint may confuse buyers and impact on the stock's saleability. He was not aware of any instances where a Ranger or Inspector had used yellow paint for the purpose of indicating missing tags. He disagreed with the evidence of Mr Paul Anderson with respect to the use of yellow paint and did not understand why Mr Anderson would be concerned about the use of raddle in this instance. 45Mr Mark Luff stated that he is employed as a Senior Ranger with the Hume Livestock Health and Pest Authority (HLHPA). He has held this position since the HLHPA took over from the Rural Lands Protection Board approximately three years ago. He is based at the Wagga Wagga Office. He stated that he is responsible for the supervision of all Rangers in his area and has been employed as a Ranger for over 20 years. As a ranger he has performed Stock Inspection duties as saleyards. 46He stated that yellow paint represents diseased stock or stock that may be potentially diseased. He did not recall ever using yellow paint for identifying stock that had missing tags. He would not use yellow paint in this manner as it represents diseased stock. Yellow paint is applied to diseased or potentially diseased stock to make this issue apparent to potential purchasers. He said that he did not remember seeing any policies or procedures about dealing with stock with missing tags that mentions the use of yellow paint for the purpose of identifying them as needing re-tagging. If stock are missing tags then replacement tags may be requested. 47In response to the statement of Paul Anderson paragraph 7 he stated that the supplying of yellow paint is now to be purchased by the District Livestock Health and Pest Authorities. 48Mr John Mooney stated that he is the Director of John Mooney and Co , a stock and station and real estate agency. He has worked as an agent for 50 years, including 44 years in Cooma. He stated that he has known the appellant for about ten years. 49In his statement he recounted an incident that he witnessed in August 2010 concerning a heated argument between the appellant and an agent Mr Bill Wilkinson. He understood the argument was over cattle consigned to Mr Wilkinson for sale without electronic ear tags. Later the appellant told Mr Mooney that he was going to fine Mr Wilkinson and his client as it was not the first time he had sent cattle in without ear tags. Later Mr Mooney heard that the two men had been fined. 50On 11 October 2010 at a Cooma sheep sale, Mr Mooney stated that he noticed one of his lambs that were there for sale had been painted on the head with yellow paint. He approached the appellant who stated that the lamb had lost its ear tag and that he would have to pay for an emergency tag and put it in , which he said he did. He said that he did not make an issue of it as he was busy and he considered it a one off incident. Later that same day he saw the appellant apply yellow paint to the head of some of the sheep that he was acting as agent for. The sheep were owned by a Mr and Mrs Robinson. The paint was highly visible on two or three sheep in a flock of 134. Mr Mooney said that he was concerned that the paint may spoil the appearance of the sheep and deter potential buyers. He asked the appellant what he was doing and was advised that as a consequence of the sheep missing tags he was marking them so Mr Mooney could put tags on them. Mr Mooney complained about the amount of paint that was being applied and advised the appellant that he did not agree with his actions and that he was going to hear more about this. He stated that the appellant replied to his comments by advising him that he would put as much paint on as he liked. Mr Mooney felt that the appellant was throwing his weight about and acting in an unreasonable fashion. Mr Mooney retagged the sheep. 51Prior to the sale Mr Mooney stated that he made a public announcement that the sheep were not lousy, as the paint may suggest but that they just had missing tags. The sheep were purchased by an agent Mr Sinclair Dixon who remarked to Mr Mooney that it was lucky that he had made that announcement as he thought the sheep were lousy. 52A few days later he received a call from Mr Robinson who stated that he had concern that as a consequence of the yellow paint it may have detracted from the sale price and that he was not happy with the appellant's attitude. Mr Mooney said to put his concerns in writing and he would under a covering letter send it to Mr Ross. This he did in correspondence dated 18 October 2010. Later he received a phone call from Mr Ross who agreed that the yellow paint should not have been used in that way and that he would look into the matter. 53Mr Mooney stated that around April 2011 when he rang the respondent to advise that there were cattle in the saleyards without tags, and the call was taken by the appellant, the tone of the appellant was sarcastic and belittling, rude and unnecessary. 54Mr Mooney stated that in his experience, the use of yellow paint is used to identify lousy or diseased stock . He stated that whilst it is an offence to sell sheep without the appropriate ear tags, there is usually a low tolerance given by rangers of around 3 %. This leniency is given because sometimes during the journey ear tags are dislodged. 55He also took issue with the excessive amount of yellow paint used by the appellant. 56Mr Brett Jones stated that he is employed by the Cooma/Monaro Shire Council as Chief Weeds Officer. Prior to this he worked as a Ranger for the Cooma Rural Lands Protection Board (RLPB) for about three years. Between 2004 and 2007 he worked with the appellant, both as Rangers. He found the appellant intimidating, moody and undermined or questioned his decisions. In his statement he gave examples of the appellant undermining the work of the RLPB . He also stated that yellow paint on stock represents lousy or diseased stock. 57Mr Grant Coe stated that he is a Senior Ranger with the respondent commencing in this position in around October 2009. He is responsible for and supervises all Rangers that work for the respondent. He attends the Cooma office about once every fortnight. He stated that the use of yellow paint is applied to stock that is suspect or diseased to enable identification of this issue. If stock were missing tags then he said that he would approach the owner or agent and request they attend to tagging the relevant stock. If it were necessary to mark the stock with missing tags he would use rattle. If this was unavailable he would use paint but a colour other than yellow. The mark he would make would be about the size of a bottle top. He said that rangers are trained in saleyard procedures. It forms part of the compliance training module put in place by the Department of Primary Industry (DPI) and Rangers undergo this training upon commencing work as a Ranger. In his opinion a Ranger of the experience of the appellant would have been aware of what yellow paint represents and should have refrained from using it as he did on 11 October 2010. 58Mr Coe stated that Infringement Notices may be issued if agents or owners of stock fail to comply with the requirement of tagging sheep. This is generally done as a last resort. He stated that to be eligible to issue fines, Rangers must undergo self enforcement training and receive authorisation from the DPI. 59On or around 14 February 2011, Mr Coe stated that he attended a Return to Work meeting for the appellant at the offices of the respondent at Cooma. Present were the appellant, Mr Bamola, Mr Taylor and Mr Ross. At the meeting the appellant was advised that he would not have access to the firearms safe or the poisons room. In response the appellant stated words to the effect: " I have 23 guns at home and can hit a man between the eyes." 60Post the meeting Mr Coe was advised that the appellant had secretly recorded the meeting. Mr Coe received a copy of the recording and a transcript from the respondent's solicitors. In his view the whole of the meeting was not recorded. 61Mr Coe stated that when the appellant returned to work in February 2011 he received calls from staff complaining the way the appellant dealt with them. He was not asked to report these concerns. Whilst he advised the staff to make the complaints formal they were reluctant to do so because they were concerned the appellant may take some form of retribution against them. Mr Coe said that he raised these issues with Mr Ross and Taylor between approximately February and May 2011 and they sought to closely monitor and support the staff. 62Around March 2011 he said that he approached the appellant and asked him whether he had been taking files out of the office. This he denied. Once the appellant was stood down the complaints were resolved. It was his view that if the appellant was to be reinstated the respondent would not function effectively due to his inability to interact with staff and to deal with the public in a civil manner. Also he had the concern that staff may resign due to their concern for their personal safety and wellbeing. 63Mr Sinclair Dixon stated that he is a Director and Agent of a livestock selling company called Monaro Livestock and Property. He stated that he has worked as a Stock and Station Agent for approximately ten years. 64 He attended the Cooma saleyards on 11 October 2010 and saw about 6 or 7 sheep marked with yellow paint on their heads. Some had a yellow stripe and some with a circular marking about 1.5 to 2 inches in diameter. He had no intention of purchasing the sheep for his client because yellow paint indicates lice or lousy sheep. Prior to the sale John Mooney made an announcement that it was not lice but had been painted because of missing tags. He bought the sheep for approximately $80 each which he believed was about $10 to $15 below the average market value at the time. It was his view that the presence of the yellow paint on the sheep decreased their value. In December 2010 he resold the sheep for $105 each. 65He stated that he had been dealing with the appellant on a fortnightly basis and found him to be an awkward person who seemed to take his position of authority above and beyond what was necessary. He was not co- operative and could be rude. 66In his experience yellow paint indicates that a sheep is lousy or has lice. Also if sheep are missing a tag the Ranger would generally provide emergency tags and tell the agent or owner to re-tag them. 67Mr Mathew Taylor stated that he is a Ranger with the respondent based at the Bega office. He commenced in this role three years ago. He is also the Return to Work Co-ordinator for the respondent and the Cumberland Livestock Health & Pest Authority. He has held this position for two years. 68He stated that the use of yellow paint indicates that the sheep or cattle are lousy or diseased. He is aware of the existence of written documents produced and published by the Department of Primary Industry regarding the use of yellow paint on stock. He stated that he attended a Return to Work meeting with the appellant on 14 February 2011 where the appellant said words to the effect: " Doesn't worry me because I've got 23 guns and I can shoot a man from 100 metres." He stated that he had received a copy of the recording of the meeting made by the appellant and a copy of the transcript. The transcript does not include the above comment or that he had to return his keys or his limits of access to the pesticides. Whilst he believed that the meeting went for approximately one hour the recording only goes for approximately 20 minutes. He did not believe that it therefore was a true copy of the meeting. 69Mr Taylor stated that from February 2011 onwards he received phone calls from staff in the Cooma office expressing concerns regarding the behaviour and conduct of the appellant. He was concerned that this could lead to serious OH&S issues. He also provided advice to named staff not to come to work if they felt their interactions with the appellant were having a negative impact on their health and safety. 70It was his view that the return of the appellant would have an impact on the respondent's brand damaging their authority and its relationship with its staff and the community. 71Mr Awaneesh Bamola stated that he is employed by The Rehabilitation Company , as a Rehabilitation Consultant and has held this position for approximately five years. In or around December 2010 he was appointed as the Rehabilitation Consultant assisting the appellant in his return to work for the respondent. Prior to his appointment he had not met the appellant. His role with the appellant ceased around March 2011 when the appellant returned to work. 72On 14 February 2011 he attended a return to Work meeting with the appellant along with Mr Ross, Coe and Taylor. During the meeting the appellant was advised that he would not have access to poisons and firearms. The appellant responded in words to the effect: " I've got firearms at home and could shoot a guy from a hundred yards between the eyes." Mr Bamola believed the meeting went for approximately 45 minutes. 73Since that meeting he had been given a copy of a tape of the meeting by the respondent's solicitors. He was unaware that the meeting was being taped and did not give his permission for taping to take place. He stated that he had reviewed the tape and it does reflect his recollections of the meeting in part but however not in full. There is no reference to his claim about firearms at home or his shooting prowess. 74Mr Robert Freebody stated that he is a Ranger with the respondent for about three years and is based at the Cooma office. he reports to Mr Coe. 75He stated that the general procedure for dealing with stock missing tags is to either mark the stock with a "blue raddle" or speak with the agent and have the animals re-tagged. If stock are sent to the saleyards untagged emergency tags are issued and a warning lesson setting out the obligations and the potential fines is issued. He said he usually phones the recipient to give them the opportunity to discuss it. 76From his experience yellow paint is used on sheep if they are diseased or have lice. In his statement Mr Freebody outlined the procedure for marking. The knowledge in this area he said he gained as part of his job training. 77He said in 2009 and 2010 he attended sheep sales and saw the appellant correctly apply yellow paint to diseased or lousy sheep. He also saw the appellant apply blue "raddle" to identify stock that were missing tags and needed to be retagged. 78On or around 11 October 2010 a fellow Ranger Greg Tozer returned from the saleyards and said that the appellant was spraying some sheep that John Moody had with yellow paint because they were missing tags and that John Moody was not pleased about it. He was surprised that the appellant would carry out such an action. 79Mr Freebody stated that he found the appellant very abrupt and arrogant with unpredictable moods. He would give staff incorrect information or talk about staff behind their back. He recounted an incident with the appellant with respect to the increase of rates of Travelling Stock Reserves which had not been approved. He also commented on a conversation with the appellant concerning his recovery gear and the manner the appellant spoke to him. He also detailed his attempt to find a file on aerial baiting. The appellant was unaware where it was, so the file had to be recommenced obtaining replacement statistics and information. He was later informed by Ms Stewart that the file had been found in the appellant's office. Mr Freebody believed that the appellant was aware of the file the whole time. He also detailed the issue where the appellant raised the situation of particular tubs with the words "Fisheries Department" written on their side stating that they were illegal. Mr Ross also raised this . Mr Freebody advised Mr Ross that he had purchased them from a friend. Later a police officer enquired about them. The police officer was advised of their history and nothing more was heard about it. It was Mr Freebody's view that it was the appellant who had advised the police. He felt this was a very vindictive and spiteful act towards himself and the respondent. He stated that he did not wish to work with the appellant and wants nothing to do with him. 80In a separate statement Mr Freebody stated that he did not recall receiving training from Mr Anderson. He also disagreed with Mr Anderson's comment that yellow paint is not only used to mark diseased stock but also to mark stock for any infringement under the Stock Diseases Act or Regulation. In his experience he had only seen yellow paint used to mark diseased stock. He stated that the use of blue raddle to identify stock other than for disease because once the issue has been rectified the chalk like substance can be removed. 81Mr Graham Tozer stated that he is a Ranger with the respondent, working out of the Cooma office commencing about four years ago. Prior to working for the respondent he worked as a Field Assistant for the Cooma Rural Lands Protection Board for approximately nine years. In his statement he outlined the procedure if a sheep is missing a tag. He would let the agent know and mark the sheep with raddle. He would provide the agent with an emergency tag. These are procedures taught to Rangers when they start working in the role. Rangers have an equipment bag which contains blue raddle, yellow paint and emergency tags. 82On 11 October 2010 he saw the appellant paint the heads of sheep with yellow paint from their nose to the top of their head. He approached the appellant and told him that was for only lice or footrot. The appellant did not respond. A conversation took place between the appellant and John Moody about the amount of paint with the appellant advising Mr Moody that he would use as much as he wanted. Mr Tozer stated that he shook his head in disbelief as yellow paint is only used to indicate diseased or damaged sheep. With the paint on he believed the value of the sheep would have dropped. Later in the day when he and the appellant went back to the office the appellant made a comment about painting the heads of sheep , his encounter with Mr Moody and having a joke about it. The appellant did not seem to care about how his conduct may have effected the owner of the stock. He told the appellant that he was not right. 83Mr Tozer stated that on days when he would be working with the appellant he would wake up feeling sick and stressed. He found the appellant to be very spiteful, divisive and at times intimidating. He recounted the situation of the missing aerial baiting file which the appellant denied any knowledge of , which was later found in the appellant's filing cabinet which he had locked. 84In a separate statement Mr Tozer denied that Mr Anderson had trained him or authorised him as a Stock Inspector. He also denied the statement made by Mr Anderson that yellow paint can be used to mark stock for any infringement under the Stock Diseases Act or Regulation. He also said that yellow paint and blue raddle are purchased at local suppliers. 85 In his statement Mr Leslie Robinson expressed that he is a farmer and stock breeder since 1984. He has sold stock at the Cooma Saleyards for approximately 27 years. 86On 11 October 2010 he stated that he was selling sheep at the Cooma Saleyards. Based on his experience of the market at the time he was expecting to get at least $100 per sheep. On that day he saw the appellant painting his sheep with yellow paint. When he asked him why he was doing this he advised that they did not have ear tags. He then witnessed a conversation between the appellant and Mr Mooney concerning the amount of paint being applied. In Mr Robinson's experience the presence of yellow paint on stock indicates lice or disease. He requested Mr Moody to make an announcement that the sheep were not lousy or diseased but only some did not have ear tags. His stock were sold for approximately $80 per sheep and were resold on or around January 2011 for $105. In his view the application of the yellow paint diminished the value of his sheep. 87In final written submissions the respondent stated of the two witnesses who gave evidence, Mr Anderson gave untrue evidence which he later accepted was untrue and the appellant's evidence was also unsatisfactory in several respects. The appellant also made a series of concessions which demonstrated that he must have known all along about his misdemeanours for which he had not previously accepted any responsibility. It was submitted that in accordance with the various acts and regulations, the actions of the appellant on 11 October 2010, in marking sheep, with yellow paint, who did not have a tag was wrong. Yellow paint was used to mark diseased stock and two to four sheep in a mob of 134 did not require tagging. 88 The second allegation was the secretly recording the Return to Work meeting that took place on 14 February 2011 and the threatening remark made by the appellant during the meeting. It was accepted by the appellant that he did record the meeting without the knowledge or agreement of the other people at the meeting. Whilst he refuted the allegation of the threat made, everyone else gave evidence that he had. The appellant also made a record of the meeting and intentionally excluded the threatening remark. 89 The written submission also included other allegations which justified the respondent's decision to terminate. The issuing of the Infringement Notices by the appellant to Mr Boller and Mr Wilkinson, which later had to be withdrawn, as the appellant did not have the necessary authority to take such action. Also no formal investigation took place prior to the Notices being raised. The appellant had therefore not complied with the policies and procedures promulgated by the Department of Primary Industries and the respondent. The respondent also raised the issue of the lack of trust and confidence between the appellant and the respondent and the acceptance by the appellant that there was no prospect of the relationship of trust and confidence being re-established. It was expressed by the respondent that there was no denial of procedural fairness to the appellant. In summary they stated that the appeal should be disallowed. Appellant's Case. 90Mr Paul Anderson stated that he is a Senior Inspector Regulatory ( for the Central West Zone) with the NSW Government Department of Industry and Investment. He has been a Senior Inspector Regulatory since 1978. His duties involve the administration of the Stock Diseases Act and Regulations as well as various other acts. He stated that he trained and issued authorisations as Stock Inspectors to Robbie Freebody and Graham Tozer. He knows the appellant from his work with the respondent. 91He stated that in 2010 he was contacted by the appellant in connection with two unused emergency tags that he found in the Cooma saleyards. The finding of the tags meant that the emergency tags had not been properly attached to the cattle and that the cattle were sold without any tags. Two 'major offences' had occurred and he advised the appellant to issue the infringement notices. He stated that he later found out that the infringement notices had to be withdrawn as the appellant's authorisation to issue infringement notices could not be found. 92He stated that he had been shown the statement of Mr Ross and one of the annexure, entitled " Inspectors' Duties at Saleyard". He noted on page 46 a hand written notation " Yellow only for diseased". He stated that this handwritten notation is not part of the official Procedure , and additionally is incorrect. 93He said that yellow paint is used to mark stock for any infringement under the Stock Diseases Act or Regulations. He said that he would be very concerned if Inspectors used blue raddle as it is not mentioned in his training of Rangers to be Inspectors. 94Mr Gregory Greenwood stated that he was formerly a Ranger with the respondent. He stated that on 14 April 2010 he found two emergency stock tags in a shed at the Cooma Saleyards. Finding the tags meant that stock had been sold without any identification tags. He checked the records and found that one of the tags had been issued to a Mr Bill Wilkinson on 10 December 2009 and the other to Mr Graeme Boller on 4 February 2010. After speaking with his supervisor and others within the DPI he issued two infringement notices on 21 September 2010 believing he had the appropriate authorisation. 95On 11 October 2010 the appellant attended the sheep sales at the Cooma Saleyards. He was unaware that Mr Tozer also attended as he did not see him nor did he approach him. He stated that he has used yellow paint to mark stock in connection with any contravention of the Stock Diseases Act and Regulations. Only Inspectors can use yellow pigment to mark any stock. He stated that he has only used yellow to mark stock. If a sheep has lost its identifier and is therefore not traceable to the location of breeding or grazing , it should be marked as contravening the Stock Diseases Act, and its price should be affected, because it is not export quality and can not be sold for slaughter. 96On 11 October 2011 he sprayed the head of four untagged sheep with yellow paint. He photographed the sheep and issued emergency tags to John Mooney who was responsible for the sheep. The appellant stated that he spoke to Mr Mooney on several occasions on that day but was unaware that either he or Mr Robinson were agitated by the way he had conducted himself. 97The appellant then outlined what occurred on 14 October 2010 with respect to the exchange he had with Graeme Boller at the Cooma saleyards. This resulted in Mr Boller being charged and pleading guilty to intimidating the appellant with the intention of causing fear physical or mental harm. As a consequence of this encounter the appellant sustained a psychological injury which was accepted as a workers compensation claim. 98 He attended a Return to Work meeting on 14 February 2011. At the meeting was Mr Ross, Coe, Taylor and Bamola. He denied that at this meeting he was told he would not have access to firearms and poisons. He also denied that he threw his keys to the firearms and poisons room onto the table. He also denied that he stated that he owned 23 guns and could hit a man between the eyes at 100 metres. He stated that he does own guns , all licensed and all stored in a safe place. 99He stated that he did secretly tape the meeting and did not switch the tape off at any time during the meeting. He later provided a copy of the transcript and a CD of the tape to the respondent. 100Another review meeting took place on 21 February 2011 and after that the appellant received a certificate from his doctor stating that he was fit for pre injury duties. Considerations and Decision. 101The first allegation was that the appellant applied excessive amounts of yellow paint to sheep on 11 October 2011 at the Cooma saleyards that were being sold by Mr Mooney on behalf of a Mr Robinson. The appellant has admitted applying yellow pigment to the head of some sheep. Four sheep in a mob of 134 were marked by the appellant with yellow paint because they did not have identification ear tags. The appellant stated that the percentage that inspectors work on was 3% of sheep in a mob. 102The appellant was asked : Q. You agree with me, don't you , that the identification system with sheep operate on a mob system ? A. That's correct. Q. You were in Court this morning when I asked Mr Anderson a question about whether there is any policy or procedure issued by the DPI or LHPA that provides that sheep which are missing tags are to have yellow pigment applied to them; do you recall that ? A. Yes. Q. Do you recall that his answer was there was no such policy or procedure that required the application of yellow pigment to sheep that are missing tags; correct? A. I recall him saying that, yes. Q. You agree with that, don't you? A. I have always been under the understanding that you use yellow spray for everything at the saleyards. and Q. You are aware, aren't you , that there is no policy or procedure issued by the DPI or the LHPA that prescribes the use of yellow pigment on sheep that are missing tags ? A. Yes. 103A further series of questions were directed to the appellant in cross examination. Q. You agree with me , don't you , that the identification system with sheep operate on a mob system ? A. Yes. and Q. You agree with me , don't you , that a mob based system means that there's just one PIC number issued for the whole mob of sheep; correct ? A. That's correct. Q. So that if special-sorry, if a mob of sheep includes some sheep which don't have the tags attached, that they can be excused; correct? A. If there are a very small number of them that don't have tags, yes. Q. So that they don't need to have issued any replacement tags; correct ? A. Yes. Q. You knew that that was a procedure that applied to you on 11 October 2010 ? A. Yes. and Q. You agree with me, don't you, that the NLIS scheme is a scheme that was only commenced in operation in the last decade; correct? A. It came in for all sheep on 1 January 2008 and for lambs in 2007, I think. Q. That scheme is now enshrined in the Stock Diseases Act; correct? A. Yes. and Q. Historically you would agree that yellow pigment has been applied to diseased stock; correct? A. Yes. Q. When the NLIS scheme was introduced, there was not a single policy or procedure that then prescribed the use of yellow paint to mark stock with missing tags; correct ? A. Yes. and Q. That here were people who were selling sheep at an auction who would loose value on their sheep if the yellow pigment conveyed that the sheep were diseased; you didn't take that into account at all ? A. No, I see that now. 104The appellant eventually accepted the responsibility for what he did on 11 October 2010 was wrong. 105Mr Paul Anderson gave evidence on the subject of the use of yellow pigment . The following questions were asked: Q. You would agree with me, wouldn't you, that there is not a single procedure or policy issued by your organisation that refers to the use of yellow paint when either permanent identifiers or special identifiers are missing, do you agree with that ? A. I agree with that, yes. and Q. So, is the answer to my question that the only reference to yellow pigment being used on stock in the policies and procedures issued by the Department of Primary Industries and its successors, by reference to diseased or lousy sheep ? A. Yes. 106I find this evidence from Mr Anderson to be in conflict with what he expressed in his filed statement where he stated: "Yellow paint is used to mark stock for any infringement under the Stock Diseases Act or Regulation." 107Other witnesses to the proceedings being Mr Luff, Coe, Freebody, Tozer and Jones all stated that they would never use yellow paint/pigment on disease free sheep and certainly not use yellow paint/pigment on sheep with missing tags. 108Clause 5.3.2 of the Sheep Lice Control Manual : Action when lice are detected in saleyards. states: The action with regard to lousy sheep in saleyards is similar to that for footrot. Inspectors should take regulatory action when lice is detected at any sale at which they are in attendance in accordance with their animal health plan. Action may be taken to single animals ; to mobs or flocks where a number of sheep are infected; and to flocks where there is evidence of lice infestation and where a long wool treatment has been applied( there are no long wool treatments registered for the eradication of sheep lice). Where evidence of lice infestation is detected in a pen of sheep, the following action must be taken: i) Sheep in the pen are marked with a yellow scourable mark on the head. Diseased animals are further marked to allow easy identification and demonstration of lice to the owner or agent. 109Taking into consideration the Stock Diseases Act and its Regulations, the National Livestock Identification Scheme and the NSW Sheep Lice Control Manual- Advisory & Regulatory Programs & Policies it is my finding that the marking of the sheep with the use of yellow pigment at the Cooma saleyards on 11 October 2010 by the appellant was contrary to the practise of identifying sheep in a mob who did not have ear tags. I have come to this finding after considering the written submission of the appellant that sections 7(5) and 20G(2) of the Stock Diseases Act applied and in some way allowed the appellant to paint the sheep with yellow pigment. Those sections of the Stock Diseases Act allow only an Inspector to mark stock with yellow paint and may mark stock in a manner approved by the Director-General where the Inspector suspects that the stock is infected or the stock has been moved contrary to this act or regulations, or have strayed or have been the subject of any order or seized under this act, or for the purposes of investigating or controlling diseases, even if the stock in are not affected. None of those elements existed at the Cooma sale yards on the day in question. 110Taking into consideration that the identification of sheep is applied on a collective "mob" system, then those sheep who are missing tags need not be re tagged with special tags as they form part of a mob that can be identified. 111Taking into consideration the evidence that fell concerning this issue, I have not found any justification for the appellant's actions on that day. 112The sheep on that day were sold for approximately $80 a head. The agent Mr Dixon believed that this was about $10 to $15 below market value. He resold them in December 2010 for approximately $105 per head. Notwithstanding the public announcement made by Mr Mooney prior to sale that the yellow paint did not indicate that the sheep were lousy, there must be a strong doubt that Mr Robinson's sheep that day did not achieve their true market price due to their appearance and the subsequent loss of interest by prospective buyers. 113The appellant was a Ranger/Inspector who had a long experience working for the respondent and its predecessors in saleyards. I do not accept the evidence of the appellant that it was only during the giving of his evidence in this matter, that he realised the negative impact of his actions in marking sheep with yellow paint. Witness after witness stated that yellow paint on sheep meant that they are either diseased or lousy. No other witness (except Mr Anderson) accepted the appellant's actions of marking sheep with yellow paint because they did not have an ear tag, as being correct. No Act , Regulation or manual was produced by the appellant or Mr Anderson that supported his action in marking sheep with yellow pigment due to their lack of ear tags. That it was expressed in evidence by Mr Mooney that the appellant liberally applied the yellow pigment onto the sheep that day, to me only highlighted the error of the appellant. 114 His response to Mr Mooney's comment concerning the excessive amount of yellow pigment that had been applied, the appellant stated: " I will put as much paint on as I like." I accept the submission of the respondent that the appellant's comments were inappropriate, abrasive, disrespectful and unbecoming of a person charged with important statutory and regulatory duties. 115 The appellant was bound by the Inspectors' Duties at Saleyards which is a general procedures document. Within this document it states: Regulatory activities of inspectors are undertaken on behalf of the entire community, not just on behalf of the RLPB, the district's ratepayers or even livestock producers in general. 116 By carrying out such an action with the yellow pigment, the appellant failed to consider the ramifications of his actions with respect to the interests of the vendor Mr Robinson. 117In summary I find the first allegation proven. 118It is also my finding that the appellant's Manager Mr Ross quite rightly did not play any part in the investigation of the allegations against the appellant and there was no evidence brought before this Commission that he brought any influence to bear on the investigators or the final decision maker Mr Milan. I have also noted the issue raised by the appellant in final written submissions with respect to his opportunity to make a submission with respect to penalty. Correspondence from Mr Milan to the appellant outlined the allegations and his opinion drawn from the investigation report that the appellant had engaged in misconduct. He clearly places the appellant on notice ( in bold print) as to the severest penalty ( termination) and offers the appellant the opportunity to make further submissions and have a meeting with him. This appellant did not take up this opportunity. It is my finding that the appellant had the opportunity to address Mr Milan having been placed on clear notice. 119The second allegation was that during a Return to Work meeting held on 14 February 2011 the appellant on being told he would have to hand his keys to the firearms and poison room stated words to the effect: " I don't need keys to the firearms because I have 23 guns at home and can hit a man between the eyes from 200 metres. " The above statement was denied by the appellant. He admitted that he had secretly recorded the meeting without the knowledge or permission of the attendees, and then at a later stage typed up the recording to form a transcript of it. He stated that at no stage did he stop the recording until after the meeting had completed. 120All the other attendees, Mr Ross, Coe, Bamola and Taylor, at that meeting gave evidence confirming what was alleged that words to that effect were used by the appellant during the meeting. I have noted that the evidence of the attendees at that meeting varied with respect to the alleged words. I would be most surprised if these witnesses had each quoted exactly the same words. What is common is that they all agreed that the appellant did state words to the effect as quoted. If I am to believe the appellant, then I would have to accept that four other people at the meeting have conspired to fabricate their evidence. I note that one of the attendees Mr Bamola is not an employee of the respondent. 121 On the balance of probability I accept the evidence of Mr Ross, Coe, Bamola and Taylor that the appellant during the meeting did state words to the effect as alleged. Such a comment was quite inappropriate and in my view was said to place concern and perhaps fear into the minds of his fellow work colleagues. I did not see any evidence of those four witnesses either collectively or individually lying to this Commission over this incident. 122It should also be stated that, in my view the act by the appellant to secretly record the meeting was in effect a betrayal by him of the trust that should exist between work colleagues. If as he said that he did not trust his colleagues to record the meeting accurately , then it was a quite inappropriate way to regain their trust. 123I therefore find that the second allegation proven. 124 During the hearing of this matter, the respondent raised other issues that it submitted should be taken into consideration in the determination of this matter. In essence they submitted that in a public sector disciplinary appeal the Commission is required to focus upon the disciplinary decision made by the employer. The focus is not on the reasons that the employer gave for the decision, but ultimately whether that decision should be left to stand or not. This issue was discussed by the Court of Appeal in Franks v Roads & Traffic Authority and stated : The nature of a statutory appeal against an administrative decision, whether to an administrative body or a court, ultimately depends on the terms of the statute: Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 622; Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234 at 249-251; re Coldham, ex parte Brideson (No 2) (1990) 170 CLR 267 at 273-4; Maritime Services Board v Murray (1993) 52 IR 455at 463. Uninstructed by decided cases, in my view the terms of the Act make it plain that in disciplinary appeals the Tribunal is entitled to decide the appeal by regard to matters other than those on which the employer has based its decision. An Appeal is against the decision of the employer, and what is in issue is whether the decision should be struck down(appeal allowed) or upheld (appeal disallowed) or replaced by a different decision(such other decision with respect to the appeal as the Tribunal thinks fit) (see 48(2). It is the decision that must be addressed, and the decision is distinct from the grounds for the decision. 125On 14 April 2010, the appellant stated that he found two emergency stock tags in a shed at the Cooma saleyards. Through records he determined that one of the tags had been issued to a Mr Bill Wilkinson, a local stock and station agent on 10 December 2009 and the other tag was issued to a Mr Graeme Boller another stock and station agent on 4 February 2010. The appellant stated that he spoke with his supervisor and other staff within the DPI. Infringement Notices were issued on 21 September 2010. The appellant stated that the reason for the delay in issuing the notices was that he had spoken with Mr Anderson who then contacted a Mr Andrew Sanger and then he and Mr Sanger discussed the matter. After the discussion he was contacted by Mr Anderson who advised to issue the infringement notices. They were issued on 21 September 2010. 126The respondent submitted that as Infringement Notices would only be issued for " a significant breach", then a requirement was for a formal investigation to take place. The investigation would consist of the collecting of evidence, the interviewing of persons and the preparation of a breach report. 127It was accepted by Mr Anderson in cross examination that as part of an investigation when a breach is identified , is to make various inquiries as part of the process, including interviewing witnesses, giving the opportunity to the people to be charged with the offence to explain their position and gather evidence prior to any charge being laid. 128In this case the appellant failed to provide a brief of evidence as he failed to carry out a formal investigation with respect to the found ear tags. The appellant accepted that he had not carried out a formal investigation including interviewing the two men. 129 I am most surprised that an Inspector with the degree of experience that the appellant had, would not provide the opportunity for Mr Wilkinson and Mr Boller to state their case. The two ear tags were found in the Cooma saleyards, by the appellant in shelving under a bench in a communal area frequented by anyone, on a date well after they had been issued. Clearly issues such as how did they get there ,when did they get there and who put them there needed to be investigated. 130The appellant accepted that he had been overzealous in his actions without following the appropriate precautions that the policies and procedures required. 131 The appellant had not complied with the policies and procedures of the respondent or the Department of Primary Industries. 132It also came to pass that the appellant did not have the necessary authority to take regulatory action as it appeared the authorities for all Inspectors in the area appeared to be lost. 133The Infringement Notices were withdrawn. 134By this Notice of Appeal, the appellant seeks to return to his previous occupation at Cooma. The respondent submitted that this would not be possible as the degree of trust between the appellant and the respondent had ceased to exist. 135In my view there is a great deal of weight to the respondent's submission. The appellant stated in evidence that he did not have trust in Mr Ross, Coe, Taylor or Bamola at the time he secretly recorded the Return to Work meeting in February 2011. 136The appellant was asked the following questions in cross examination: Q. You must accept, mustn't you, that it makes it now untenable for you to be employed by the respondent? A. If that's their view, yes. Commissioner. Q. That's not-what's your view ? A. Probably, yes. Q. Sorry, sir? A. Yes. and in further cross examination Q. You would agree, wouldn't you , that for the purposes of a cohesive and working relationship between the SELHPA and community stakeholders, it is necessary for inspectors and rangers to work harmoniously with members of the community; correct ? A. That's correct. Q. To work harmoniously with their colleagues; correct? A. Yes Q. If that doesn't occur that brings into dispute the organisation itself; correct ? A. Yes. Q. You would agree, wouldn't you , in the course of the evidence you've heard in these proceedings, that you have not worked harmoniously with various people in the community; correct ? A. That's correct. Q. Including your colleagues ? A. That's correct. and Q. The question I was putting to you ,sir, is that don't you agree that it is really untenable for you to go back and work to the respondent ? A. Nobody likes me there. No one talks to me. So, yes, you're quite right. Nobody wants me there. 137The appellant worked in an office that had less than ten people in it. The evidence of the appellant's work colleagues, Ms Gould said she would consider resigning, Mr Coe believed that harmony in the workplace would be lost and resignations would follow, Mr Taylor did not wish him to return, and Mr Tozer stated that on days he was to work with the appellant he would wake up feeling unwell. The appellant's Manager Mr Ross did not wish him to return as he did not believe the office would work in harmony. Ms Thompson who does not work for the respondent also stated that in her experience she believed that a professional working relationship between the appellant, the respondent and the community had dissolved. I accept this evidence. It is my finding that I do not believe that there exists any trust between the appellant and his work colleagues and vice versa. Without this fundamental element of trust existing, I do not see how the contract of employment could be re-established and the parties proceed in the future to co exist in a harmonious working relationship. 138As previously expressed , I have found that the two allegations made against the appellant proven. In arriving at a determination of this Appeal, I have also taken into consideration the issuing of the two Infringement Notices and the evidence that fell from the respondent's witnesses with respect to the issues that they had to deal with in working with the appellant. I have also taken into consideration the final written submissions by both parties. I have also taken into consideration the process that the respondent went through prior to the appellant's termination. I have not seen any evidence that would make me arrive at a conclusion that the appellant had not received procedural fairness to an extent that would have resulted in an upholding of this appeal. 139In conclusion, it is my finding that the actions of the appellant warranted his termination and I dismiss this appeal. Order 140 The Appeal raised in Matter number 1691 of 2011 is disallowed. D. Ritchie Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2012