Industrial Relations Commission New South Wales Medium Neutral Citation: Gonzales v Housing NSW [2012] NSWIRComm 1019 Hearing dates: 27, 28, 29 March and 4 April 2012 Decision date: 20 August 2012 Before: Bishop C Decision: Application dismissed Catchwords: UNFAIR DISMISSAL - public servant - demoted arising from investigation into misconduct allegations - appeal to GREAT - withdrawn - complaint to AHRC - terminated by AHRC - directed to resume duty - failure to do so - absence on leave without pay - Centrelink medical certificates - advised then directed to attend fitness to continue assessments - no attendance - disciplinary letter issued - no written response - misconduct held and dismissal - remedy of reinstatement or re-employment sought HELD - misconduct findings upheld - failure to collect registered mail - failure to comply with reasonable direction - dismissal not harsh or unjust or unreasonable - application dismissed. Legislation Cited: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Public Sector Employment and Management (General) Regulation 1996 Cases Cited: Antonokopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (19999) 93 IR 209 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne & Frew v Australian Airlines (1995) 61 IR 32. D'Souza v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042 D & R Commercial Pty Limited v Flood (2002) 113 IR 344 Grant Thomas v Boral Cement Limited [2011] NSWIRComm 1045 John Lysaght (Australia) Limited v Federated Ironworkers Association of Australia, New South Wales Division &Ors (1972) AILRR 517 National Union of Workers' New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 North v Television Corporation Ltd (1976) 11 ALR 599, Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. Youssef v Western Sydney Area Health Service [2002] NSWIRComm 8 Category: Principal judgment Parties: Victorino Gonzales (Applicant) Housing NSW (Respondent) File Number(s): IRC 345 of 2011 DECISION 1This is an application by Victorino Gonzales against Housing NSW for a remedy pursuant to s.84 of the Industrial Relations Act, 1996. Mr Gonzales was dismissed from his position of Client Services Officer by Housing NSW by letter of 15 December 2010. The application was lodged with the Industrial Registry on the 5 April 2011 (see Background and Chronology below). He sought reinstatement to, re-employment to any State Government job within his capacity and Grade 4 Maximum Clerk or alternatively six months monetary compensation in lieu thereof. 2The matter was listed for conciliation and directions before Commissioner Ritchie on the 28 April 2011 at which time conciliation took place. Further conciliation took place on the 23 May 2011. As the parties advised that no settlement could be reached, directions as to the filing and exchange of witness statements were issued in accordance with Practice Direction 17. The matter was originally listed for a four day hearing commencing 25 July 2011 but an adjournment was sought on behalf of the applicant and further directions were issued by Justice Staff on 18 July 2011. There were subsequent amendments to those directions issued on 19 October 2011 and 1 February 2012, again by Justice Staff. The matter was set down for hearing before the Commission as currently constituted on 27, 28 and 29 February 2012. However those dates had to be vacated because of the last minute unavailability on the first two days of Counsel who had been instructed in the matter on Mr Gonzales' behalf. The hearing was re-scheduled for the 27, 28 and 29 March 2012 in the interests of fairness and to allow for consecutive days for the hearing. The evidence concluded on the 29 March and further hearing of submissions by the parties took place on 4 April 2012. 3At the hearing Ms Howard, of Counsel, with Mr Simic, Solicitor, appeared on behalf of Mr Gonzales. Mr Gonzales gave oral evidence in addition to his affidavits as filed (Exhibits 1 and 2). A Witness statement was also tendered on behalf of Lindsay Hawkins (Exhibit 14) who was not required for cross examination. 4Ms Brus, of Counsel, appeared on behalf of Housing NSW with Mr Cureton from Housing NSW and called the following witnesses who gave oral evidence in addition to their affidavits as filed: Roslyn Gream......Acting Manager, Human Resources Practices and Employee Relations, Housing NSW (Exhibit 20), Denis Aslanis.......Acting Director, People and Organisation Performance Unit, Housing NSW (Exhibit 22). Background and Chronology 5The following Background and Chronology is taken from the documentation filed by the parties and in evidence before the Commission. 6Mr Gonzales was aged 58 as at the date of the hearing. As at the date of his application Centrelink documentation (dated 3 March 2011) indicated that he was in receipt of fortnightly Sickness Allowance from Centrelink of $570.90 from 18 March 2011. Reference was made confirming previous payments for the same amount, but only recent payments (up to 8 are able to be referred to) since the period commencing 26 November 2010 (as attached to his Form 7A Application). 7Mr Gonzales first commenced employment in the NSW Public Service in 1990 as a Clerk with the Attorney General's Department, was permanently appointed in 1991, and progressed to a Sheriff's Officer in 1998. He was then transferred to the Department of Housing (as it then was) in mid 1998 as a Trainee Client Service Officer Clerk Grade 2 and was permanently appointed as Client Service Officer Grade 2/4 in October 1999. He was incrementally promoted from Clerk Maximum Grade 2 and was a Clerk Maximum Grade 4 as at 2008. 8Mr Gonzales was employed under, and subject to, the provisions of the Public Sector Employment and Management Act 2002. 9During the period 2000 to 2008 Mr Gonzales was an active member and Workplace Delegate of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA). 10In May 2006 while attached to the Bankstown Office of Housing NSW Mr Gonzales made complaints of workplace bullying and harassment against three more senior officers (Exhibit 20-REG1/3). The allegations were investigated by a HR Manager from outside Housing NSW and found to have no substance (see evidence below). 11On 9 November 2006 Ms Gream referred Mr Gonzales to HealthQuest to have his "fitness to continue" assessed due to concerns with the amount of sick leave he had taken over the previous two years. He subsequently attended a medical assessment, and by a report from HealthQuest dated 23 January 2007 was deemed "fit to continue" (Exhibit 20-REG1/4-7). 12On 4 November 2009, Mr Doug Falconer, Acting Manager Business Assurance, prepared a Briefing Note concerning a number of complaints against Mr Gonzales (from 4 clients, 2 staff members, the Telephone Interpreter Service) made in the preceding four months and referred by management to Business Assurance and it was recommended that each of the matters warranted investigation as possible misconduct (Exhibit 22-A) 13On 6 November 2008, Mr Gonzales was formally advised in writing by Mr Mike Smith, the Director-General of Housing (as he then was), that he was suspended on full pay because he was the subject of 8 allegations of misconduct which were detailed in the letter (Exhibit 20-REG1/8). 14Deloitte Touche Tomatsu (Deloittes) were engaged by Housing NSW to investigate the allegations and in doing so interviewed a number of witnesses including Mr Gonzales. Mr Gonzales received a copy of the transcript of his interview which took place on 23 February 2009 (Exhibit 20-REG1/10). 15The 66 page Investigation Report of Deloitte Touche Tomatsu (which had been given the name "Project Bundanoon") was completed and forwarded to Mr Allen on 6 May 2009 (Exhibit 20-REG1/9). 16On 11 May 2009, Mr Allen wrote to Mr Gonzales advising that the investigation by Deloittes had been completed and that four (4) of the allegations against him were found to be sustained, one (1) allegation was partially sustained and three (3) allegations were not capable of having a finding made and therefore no longer part of the disciplinary process. Mr Gonzales was further advised that disciplinary action was being considered, he was given fourteen (14) days to make a submission before a final decision was made and provided with an opportunity to have an interview with Mr Allen accompanied by a union or other representative (Exhibit 20-REG1/11). 17After seeking an extension of time Mr Gonzales provided a written response on 19 June 2009 and requested an interview which took also place on 19 June. He indicated that he had never knowingly or intentionally defied Departmental policy; intended to comply with policies on his return; requested that no adverse findings be made; raised a number of mitigating issues; referred to issues of natural justice, equity, reliance on partial, circumstantial and hearsay evidence; maintained his innocence; apologised for anything he may have done that caused Housing or its staff any discomfort or difficulty, and sought remedial action and consideration of a transfer (Exhibit 20-REG1/12). 18On the 6 July 2009, Mr Rodney Hodder, Executive Officer, Office of the Director-General of Housing, prepared an extensive Briefing Note concerning on the issue of the determination of disciplinary penalty and made a recommendation which was forwarded to the Director-General, Mr Allen (Exhibit 22-B). 19On 8 July 2009, Mr Allen approved the recommendation and decided to demote Mr Gonzales to the position of Clerk Grade 1/2 and wrote to Mr Gonzales advising him of this decision, of additional remedial action to be taken, that his suspension from duty was ended, and that he was to report for duty on Monday 13 July 2009 to Mr Julian Neylan, Acting manager Greater western Sydney Division at the Parramatta office (Exhibit 20-REG1/13 &14). 20Mr Gonzales did not report for duty on 13 July 2009 and provided a medical certificate (dated 13 July 2009 from Dr Adel Zaki at Liverpool) covering the period 13 to 17 July 2009. By email of 19 July 2009 to Mr Neylan, Mr Gonzales requested a further leave of absence from 20/7/09 to 25/09/09 so that he could prepare and lodge a Formal Appeal against the decision (Exhibit 20-REG1/15). The request for further leave was granted and he was on Leave Without Pay (LWOP) effective 24 July 2009 (Exhibit 20-RM1/20). 21Later in July 2009, Mr Gonzales lodged a disciplinary appeal with the Government and Related Appeals Tribunal (GREAT) and five conciliation conferences were subsequently held between the parties in September and November 2009. 22On 31 July 2009, Mr Gonzales also filed an extensive complaint to the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission - AHRC) alleging discrimination and victimisation on the grounds of race, disability and trade union activity (Exhibit 20-REG1/16). 23On 12 January 2010, Mr Gonzales withdrew his disciplinary appeal before GREAT (Exhibit 2-C). 24On 19 January 2010, Mr Neylan wrote to Mr Gonzales directing him to report to him personally at the Parramatta Office on 27 January 2010 (Exhibit 20-REG1/19) and advising that "failure to comply with this direction may lead to a recommendation of formal disciplinary action". Mr Gonzales did not comply with this direction and continued to be absent from work. 25On 27 January 2010 Mr Gonzales forwarded (by mail) to the General Manager Housing NSW two Centrelink Medical Certificates signed by Dr Sadiq Asar for the periods 15/8/2009-15/11/2009 and 16/11/2009 to 16/2010 and requested that his LWOP be amended to Sick Leave without Pay (SLWOP) (Exhibit 20-RM1/21). 26By correspondence dated 16 March 2010, NSW Businesslink, acting on behalf of Housing NSW, wrote to Medibank Health Solutions formally requesting that a 'fitness to continue' be conducted on Mr Gonzales due to his extended absences. Relevant information was included (Position Description, 2007 HealthQuest Report, Centrelink Medical Certificates, 2008 report of Dr Potter etc) (Exhibit 20-REG1/20). 27NSW Businesslink is a state government department responsible for providing administrative, payroll and other human resources services to several government departments including Housing NSW. Such services include, upon request, organising medical examinations with nominated health service providers for such departments. 28By correspondence dated 19 March 2010, from Ms Antoinette Ricaud, HR Advisor NSW Businesslink, and sent by registered mail, Mr Gonzales was advised that he was referred for "further medical assessment due to long term absence from work and your inability to resume your new position due to medical illness". He was advised that an appointment had been made for 14 April 2010 with Dr Kathryn Lovic, Consultant Psychiatrist (Exhibit 20-REG1/20). 29Mr Gonzales did not attend this appointment and the documents sent by registered mail were not claimed and were returned to NSW Businesslink. 30On the 31 May 2010, Mr Gonzales emailed two further Centrelink Medical Certificates (signed by Dr Asar) to the General Manager for the periods 15/2/10-15/5/10 and 17/5/10 to 17/8/10 (Exhibit 20-RM1/21). 31By correspondence dated 19 July 2010, (and sent by registered mail) Mr Allen, Chief Executive, Housing NSW, directed Mr Gonzales to attend a further medical assessment on Wednesday 4 August 2010 with Dr Kipling Walker, Consultant Psychiatrist. Copies of the various documents which had been sent to Medibank Health Solutions were also enclosed. Reference was made to Ms Ricaud's correspondence of 19 March 2010, his failure to attend the medical appointment arranged and that the registered mail had been returned. He was informed that failure to comply with the direction to attend this medical appointment may result in disciplinary action and possible termination of his employment (Exhibit 20-REG1/21). 32On Friday, 30 July 2010 (4:02pm) Mr Gonzales sent the following email to Ms Ricaud in reply to her earlier email (not in evidence) (Exhibit 6): Dear Ms Ricaud, Thank you for your e-mail. I will be collecting the registered mail as soon as possible. Unfortunately I will not be able to attend the assessment booked for Wednesday 4/8/10 as I have an appointment with my Psychologist. I will get back to you on Monday next week about making an alternate arrangement, after I've had an opportunity to read the attachments to the letter from Mr Mike Allen, Chief Executive, Housing NSW. I'd appreciate you advising Dr Kipling Walker of my inability to attend on 04/8/10. 33The Australia Post Delivery Confirmation Advice Receipt for the registered mail which was signed by Mr Gonzales on the 31/07/10 was subsequently returned to and received by Businesslink on 6 August 2010 (Exhibit 20-REG1/22). 34On Monday, 2 August 2010 (2:14pm), Ms Ricaud replied to Mr Gonzales' email as follows (Exhibit 6): Dear Victor, I note your email content and advise (sic) was sought by Housing NSW HR. Unfortunately your reasons as to why you cannot attend the health assessment appointment on 4 August 2010 is (sic) not acceptable to Housing NSW. As you are aware Mike Allen Chief Executive Housing NSW has directed you in writing to attend the assessment appointment. Attendance is non-negotiable and that failure to do so may result in disciplinary action and possibly termination of your employment with Housing NSW. 35On the 2 August 2010 (3:44pm) Mr Gonzales sent a further email to Ms Ricaud for the attention of Mr Allen as follows (Exhibit 6): Dear Mr Allen, Thank you for your letter dated 17 July 2010, which I collected on 31 July 2010. I am assuming that you are already aware that I notified Ms Antoinette Ricaud from NSW Bizlink, HR 30 July 2010 that I am unable to attend the appointment that NSW Bzlink arranged with Dr Kipling Walker on 4 August 2010 due to a prior commitment. I note that Housing NSW declined my workers compensation claim and that to date I have not initiated an appeal: that is, there is no existing workers compensation claim, so my employer no longer has the right to force me to see a doctor other than one of my choosing. I appreciate that the present circumstances cannot go on as they have and accordingly I have made arrangements for a Psychiatric Assessment on 12 August 2010, with a view to resolving the issue of my fitness to continue my job. I will provide you with a copy of his report as soon as I have it. I trust that you will allow me to proceed with the appointment with my doctor on 12 August 2010, free from any threat of industrial repercussions and I thank you in anticipation of that. I look forward to resolving this issue with you 36On the 2 August 2010 (5:14pm) Ms Ricaud replied by email to Mr Gonzales as follows (Exhibit 6) : Dear Victor I have once again sought advise (sic) from Housing NSW HR and you are hereby advised that you are directed to attend as referred for an independent medical fitness due to been (sic) absent from the workplace for a lengthy period due to illness Housing NSW has a duty of care to ensure that you are fit to undertake the duties of your position; That Housing as part of their duty of care, has the right and is obligated to have you independently assessed to ascertain as to whether you are fit to undertake the duties of the role; That the issue of your workers compensation claim is not relevant to the situation and that for the above reasons Housing does have the right to direct you to attend the independent scheduled health assessment; and That the Chief Executive is directing you to attend the assessment and that failure to attend the appointment may result in disciplinary action and possibly termination of your employment with Housing NSW. 37By correspondence dated 31 August 2010 (and again sent by registered mail), Mr Allen advised Mr Gonzales that as a result of his failure to comply with the direction to attend the medical assessment on 4 August 2010, he was now considering imposing the disciplinary action of dismissal and he was given 14 days in which to make a submission before a final decision was made. Reference was made to previous disciplinary action in 2009 that was to be taken into account. He was also offered the opportunity of having an interview with Mr Allen accompanied by a union or other representative (Exhibit 20-REG1/23). 38Mr Gonzales did not provide any response to this letter and the registered mail was stamped 'RETURN TO SENDER' and date stamped 27 Sep 2010 (Exhibit 20-REG1/23). 39By correspondence dated 15 December 2010 from Mr Allen, Mr Gonzales was advised that as he had not responded to the letter of 31 August 2010 and submitted any additional information for consideration, that Mr Allen had decided to dismiss him from the Public Service with an effective date of 15 December 2010 (Exhibit 20-REG1/24). The letter was sent by pre-paid registered post by Ms Gream, marked 'Unclaimed' and returned to Ms Gream on 25 January 2011 (Exhibit 20-REG1/25 & 1/28). 40Mr Gonzales continued to receive (by post) fortnightly payslips from Housing NSW, Human Resources (Pay Dates - 06/01/2011; 20/01/2011; 03/02/2011; 17/02/2011 and 03/03/2011) which indicated that he was a Supernumerary, Clerk Grade 1/2 Level 4 and on 'Leave Without Pay' (Exhibit 11). 41By correspondence dated 15 March 2010 from Ms Cecilie Atkins, Senior Payroll Officer, NSW Businesslink Mr Gonzales was advised as to the details of his "final pay from Housing NSW, Department of Human services, last day of duty being 15/12/2010. The net amount was deposited into your nominated Bank Account via electronic transfer on 10/03/2011" (Exhibit 20-REG1/26). 42On 25 March 2010, Ms Gream received an email from Ms Atkins that attached an email response from Mr Gonzales (which followed his telephone call to Ms Atkins on at 4:50 pm on 18/03/11) in which he expressed "extreme distress about this alleged termination of my employment amounting to Unfair Dismissal because I have not & have never been informed or notified by my employer, Housing NSW regarding it in any shape, form or manner until your attached letter dated 15-March 2011 which I only received on 18 -March-2011". He requested that the subject documents be forwarded to him (Exhibit 20-REG1/27). 43By correspondence of 6 April 2011, Ms Gream referred to Mr Gonzales' 25 March email to Ms Atkins and attached the earlier correspondence to him from Mr Allen dated 31 August 2010, as well as the dismissal letter dated 15 December 2010. She also noted that the dismissal letter had been sent to the same address as the letter sent by Ms Atkins and therefore must have been received by him (Exhibit 20-REG1/27). 44By correspondence dated 14 April 2011, Mr Gonzales replied to Ms Gream's letter and the allegation that he did not collect the two registered mail letters from Mr Allen (31/08/2010 and 15/12/2011) indicating as follows (Exhibit 12): The simple fact is that the abovementioned letters from Mike Allen may have never been delivered and or mis-delivered to another address and or suffered a misadventure and or stolen, etc., hence, consequently they were never received by me. It is my request to Housing NSW that I should not be unfairly singled out and instantaneously blamed and unfairly for whatever the possible failings are of the postal system regarding the non-delivery/non-collection/non-receipt of any mail. He also sought a reversal of his dismissal on the basis that it was "totally unfair, unjust, arbitrary, harsh, and oppressive". 45By correspondence dated 30 November 2011, AHRC advised Housing NSW that it was terminating Mr Gonzales' complaint concerning unlawful victimisation because "there was no reasonable prospect of the matter being settled by conciliation." Mr Gonzales was informed of this decision and issued with a Notice of Termination. Mr Gonzales was also advised that AHRC had determined not to continue the inquiry into his complaint alleging victimisation on the basis of trade union activities as the complaint was lodged more that 12 months after the alleged acts complained of and the remainder of the complaint lacked substance (Exhibit 23). 46Also in evidence and referred to by the parties was the Public Service document: M2001-11 Revised 'Fitness to Continue' Procedures (Exhibit 9) issued by the Public sector Management Office on 5 September 2001. Particular reference was made during the hearing to various parts of the following extract: Part 2: Guidelines A Referral of Employees Both employers and employees have the right to initiate a fitness to continue assessment. referrals can be directed to either the GMO or an approved medical practitioner in accordance with the agency's employing legislation. An employee may initiate a fitness to continuous assessment if they have a medical certificate stating that, in the opinion of a medical practitioner, they are unfit to continue work. The employer is required to pay for the fitness to continue assessment whether the referral is initiated by the employer or employee. All employers have an obligation under the Occupational Health and Safety Act 2000 to ensure the health, safety and welfare of employees [1]. In addition, the Public Sector Management (General) Regulation 1996 provides for the direction of any public servant by the Department Head to undertake: 'a medical examination or other health assessment as the Department Head may, on the advice of the GMO, consider necessary if the Department Head has reason to believe that the public servant is not fit for work. [2] It is therefore in the interests of CEOs of their delegates to seek the advice of the GMO or approved medical practitioner when: an employee is ill so frequently as to raise the question of fitness to carry out the duties of the position or is absent frequently on sick leave; an employee's medical practitioner advises that the employee is not likely to recover and is unable to undertake the inherent requirements and job demands of their position; a medical certificate has been submitted covering a period in which the employee's sick leave with pay will cease and recovery does not appear likely; advice from an employee's medical practitioner is not relevant to the inherent requirements and job demands of the position and there is still a question of health and safety or doubt as to the employee's fitness; the employer has concerns about the fitness of an employee to continue to work and the employee will not seek advice from a medical practitioner; the employer has concerns about the health and safety of others in the workplace. Employees are obliged to comply with an employer's request to attend a fitness to continue assessment. Referrals to attend a fitness to continue assessment must be authorised by a CEO of a specifically authorised delegate. 47Also in evidence was a Circular issued by NSW Government Premier and Cabinet C2009-21 'Transitional Arrangements Following Dissolution of HealthQuest'. (Exhibit 21) 48Also in evidence and referred to by the parties were the following: Final Assessment Report- Fitness to Continue re Mr Gonzales by Mark Milic, Senior Clinical Psychologist, dated 9 January 2007 (Exhibit 3). Psychological Report re Mr Gonzales by Mr Huy Anh Nguyen, Forensic Psychologist, AusviePsych dated 19 May 2011 (Exhibit 15). WorkCover Medical Certificates for the period from 24/10/08 up to and including 19/01/09 (Exhibit 17). Medical Certificate of Dr Chau from Bonnyrigg Family Medical dated 31/7/2010 for the period 31/7/10 to 6/7/10 (Exhibit 7). Centrelink Medical Certificate dated 30/7/09 (Exhibit 8). Referral letter for Mr Gonzales to Minh Tuan Nguyen from Dr Nguyen Cabravale Medical Centre dated 14/08/2010 (Exhibit 13). Letter from Dr Sadiq Asar of Nirimba Medical Centre Quakers Hill dated 9/02/12 verifying an appointment made on 4 August 2010 but deferred to 5/08/2010 due to Mr Gonzales' medical condition (Exhibit 19). Evidence 49There was extensive cross examination of Mr Gonzales, Ms Gream and Mr Aslanis by the respective Counsel. There was substantial cross examination of Ms Gream on issues/matters about which she could not comment or had no direct knowledge and as such is not referred to below. 50Mr Gonzales' written evidence included a range of character and work references, certificates as to various training he had carried out and competencies he had achieved, qualifications and the Psychological Report of Mr Huy Anh Nguyen . 51He was also taken through the relevant chronology of events and related documentation (largely as set out in the Background and Chronology above). 52Mr Gonzales deposed as to the range of activities on which he had engaged on behalf of members during the period from 2000 to 2008 when he was a Workplace Delegate and "Activist", including "opposition to Departmental Restructuring geared towards negative cost-cutting practices and assisting employees re grievance mechanisms". He became a Delegate in 2004, but he had helped union members with their industrial issues and recruitment since 2000. 53He deposed that he believed that he was "singularly targeted" and "systematically subjected to" workplace bullying, harassment, over monitoring, petty fault finding, micro-management, discrimination and victimisation by Housing NSW management as a result of his sustained union activities in the workplace. There was also fabrication of allegations and inappropriate solicitation of fabricated complaints against him. He also believed there had been collusion with between internal and external accusers by making it appear that they were merely undertaking performance management via fabricated allegations and trumped up charges against him. This had happened from 2002 onwards. 54He deposed that he stopped working on 21 October 2008 due to the bullying and harassment he experienced at work. He submitted a workers compensation claim regarding the workplace injury. However he believed that Housing NSW showed no compassion for his well-being and workplace related injury and arbitrarily and with pre-meditation suspended him from duties based on false, misleading and fabricated allegations of misconduct against him in a letter of 6 November 2008 from Mr Allen, Director-General Housing NSW. 55He acknowledged that when he was suspended by Mr Allen he was suspended on full pay. 56He believed that he was pressured under duress by Housing NSW management to attend an investigation/interrogation session with Deloittes. He believed the allegations against him were unfounded and found the investigation insulting and heavy handed. He believed that the subsequent demotion of his grade and salary were pre-meditated, pre-judged and it was totally unfair, unjust, harsh and oppressive. He was not aware of any other persons in Housing NSW being put through an external investigation and singled out in such a way except for two persons who ended up being referred to ICAC for corruption. 57He deposed that he had medical certificates covering his absences, except in the period 20 April 2009 to 14 August 2009 an that was because Housing NSW had declined his workers compensation claim hence aggravating his workplace injury. 58He deposed that he believed that there were numerous incidents of workplace bullying against him since he started work at Housing NSW in 1998 and up until his unfair dismissal on 18 March 2011. 59He stated that there were also many instances in 2004 of petty fault finding concerning his performance and use of facilities, such as photocopying union materials and disseminating them to membership, through fax and telephone usage and it was being monitored by workplace supervisors. He understood that he had the right to such access and usage. 60It came to a head in 2006 and he went on workers compensation because of the stress. Mr Millic found him fit to return to work. The bullying intensified in 2007 and he received flack for his union activities in 2008. Mr Gonzales relied on a petition he circulated in 2008 concerning restructuring. He sent it to broadly officers within Housing including the Director General and Area Directors, he considered that he got an adverse reaction. He also referred to an email exchange with Mr Ken Bone (Exhibit 17) concerning his use of email for PSA activities which he perceived was a threat. 61He appealed his demotion to GREAT but had no legal representation apart from some conciliation sessions where he was able to obtain some assistance from a solicitor. Housing NSW were represented by a solicitor (Mr Cureton) and a barrister (Ms Brus). During this time he continued to receive treatment for his depression and anxiety. 62After he was demoted he was not offered a position outside the one he was in, or re-employment in any other area of the public service. Nor was he offered any remedial assistance to get his skills up after the Deloitte investigation found he had some deficiencies. 63Mr Gonzales deposed that he believed that he was unable to cope with the pressure placed on him by Housing NSW during the GREAT appeal. The appeal did not settle at conciliation and proceeded no further. He hoped that the complaint he had lodged with the AHRC, through further conciliation, would bring about a sensible resolution between himself and Housing NSW without the cost and trouble of litigation. During the AHRC conciliations he did not receive any indication or notice from Housing NSW representatives that his employment would be terminated. 64Mr Gonzales denied receiving the letter of 19 March 2010 from Housing NSW concerning the medical appointment for 14 April 2010. 65He acknowledged receiving the letter of 19 July 2010 concerning the medical appointment of 4 August 2010 which he picked up in the last week of July. He then had an email exchange with Ms Ricaud concerning the appointment and confirmed with her that he could not attend the appointment. 66He deposed that at the time he was seeking medical treatment from his GPs including Dr Asar and attended his surgery a number of times. He was also being treated by Ms Fe Limjap a Psychologist at the same Centre. He also attended the rooms of Dr Vincent Nguyen and sought help from the "Blackdog Institute". He was having difficulty finding a psychologist or a psychiatrist to see him, as they were not willing to see him without being paid a substantial fee beyond his means. He did not have any source of income apart from the Sickness Allowance he was receiving from Centrelink. 67He said that he contacted Ms Ricaud to request to initiate his own assessment because he was very traumatised by the doctor that examined him from the GIO. He based his request on the Department of Premier and Cabinet Revised Fitness protocols. 68He came to his understanding about this document based on his reading, and advice he received from the Whistleblowers Association of Australia and some union persons. 69He did subsequently obtain a medical certificate from the Bonnyrigg Medical Centre (Exhibit 7) which he had wanted to present to the AHRC because they were in conciliation. He sent a copy by email to Housing NSW. At that time in July/August 2010 he was on Centrelink benefits and being provided with Centrelink Medical Certificates. 70He stated that after these emails with Ms Ricaud he did not receive any emails, telephone calls, or personal contact, or any letters. 71Mr Gonzales stated that he first became aware that his employment had supposedly been terminated on 15 December 2010 in March 2011 when he received a letter and payslip from NSW Businesslink dated 15 March 2011 notifying him about his "final pay." He was in shock and contacted Ms Atkins the Senior Payroll Officer of NSW Businesslink by email . He then received a letter from Mrs Gream on dated 6 April 2011. He then immediately lodged an unfair dismissal claim and started looking for lawyer to help him with his application. 72In cross examination concerning the Centrelink Medical Certificates Mr Gonzales agreed that they were completed to enable him to obtain sickness benefits and that he filled in and sent a new one off when the three month period ended. He had last submitted one in March 2012 that was due to expire the week of the hearing. 73He confirmed that he had an on-going medical condition and Dr Sadiq Asar was his General Practitioner. He confirmed that Dr Asar was at Quakers Hill, and that was not close to Bonnyrigg, but he went there because he was the doctor that had the most effective way of dealing with his condition. He agreed he also went to the Bonnyrigg Family Medical Centre which was closer because travel to Quakers Hill was a bit oppressive at times. He had also visited Dr Lombardo in South Bankstown who treated him for depression and PTSD during 2008 and 2009 changing to Dr Asar in 2009 because he felt he was more effective. 74He had a medical certificate from Dr Vincent Nguyen dated 14 August 2010 at the Cabravale Medical Centre because he was asking around for a doctor who would bulk bill. He had asked Dr Asar for a referral but he had not got back to him so he had to look expeditiously for another doctor who was close by and who could find a psychiatrist who wouldn't charge money or who would do a report. He agreed that Dr Nguyen referred him to Dr Minh Tuan. He did not end up attending his rooms because of the billing issue and did not know that before he went to Cabravale. He went back to the Bonnyrigg Centre and also to Dr Asar. 75He confirmed that he went to see Dr Nguyen, a Forensic Psychiatrist, in March 2011 at AusviePsych at Lansvale. From memory he thought that he had been referred to him the year before in July/August 2010. This psychologist was referred to him informally by a solicitor but he had to get a referral from a GP first. They had a GP at the same Centre, Dr Vincent Nguyen. He could not remember what date he obtained the referral letter. He notified the AHRC as there was indirect communication between himself and Housing through the AHRC. 76Mr Gonzales agreed that sometime after August 2010 he was referred to the Psychological Assessment and Treatment Service and when asked why he did not advise someone in Housing and he responded: "Well, I was feeling very upset and depressed and very sick and humiliated at the time with what the Housing Department is doing to me and I thought that communicating that to the Human Rights Commission during our conciliation which I have communicated would be sufficient to notify Housing." 77He confirmed that prior to putting in his complaint to the AHRC he was aware that he had to provide a medical certificate when he was away from work for three days or more and if he was going to be away because of an illness or injury for a couple of weeks. He was aware of the rule and had always submitted medical certificates even for one day. He had also required leave of absence the year that he had moved house to Bonnyrigg in 2007. 78He had communicated through the conciliation proceedings in the AHRC and acknowledged that there were only conciliations (carried out by telephone) regarding his complaint in 2009, but said the matter was ongoing, it had not been terminated and he was having email and phone conversations with the Senior Conciliator in 2010. Housing had not contacted him and he left it to between himself and the AHRC and Housing to come to a non-litigated resolution. He had confidence in his dealings with the AHRC and that was the proper venue to communicate his medical condition. He was ringing the Senior Conciliator and she was ringing him. 79He maintained that he did not deliberately stop sending medical certificates to Housing but understood that his complaint would deal with that and that was defacto communication to Housing because she had said she would relay his situation to Housing. He did not send the certificates to the AHRC he just advised her verbally. 80Mr Gonzales acknowledged that a department in the NSW public service could refer its employees for a medical examination and that had been the practice for a number of years. 81He maintained that it was a Dr Mahadev in 2006 who intimidated and traumatised him with his demeanour and that he was like a barrister cross examining him. Also Dr Potter when he was referred to him in 2009. He agreed that it was GIO who referred him to Dr Potter not Housing but said Ms Ricaud was the Workers Compensation Officer at Housing and they worked in tandem with the insurer. 82He acknowledged that he did not change his address or email address between March and July 2010. 83Mr Gonzales was taken through the sequence of the email exchange with Ms Ricaud between 30 July and 2 August. He agreed that he read the letter of 19 July when he picked it up on 31 July, but denied that he knew there had been an earlier letter and an earlier referraI. He agreed that the first paragraph referred to the earlier letters and a referral but said he did not receive the letters in March and April and could not possibly have discussed it in the email. 84The following exchange then took place: Q. That's my point though Mr Gonzales. Where in the subsequent emails - the emails I just took you to. Why didn't you - or did you tell the Housing Department that you had not received those earlier documents? A. Well what was important to me was to address the requirement - the quite strong, very forceful; requirement by Antoinette because to - in each - to see the psychiatrist, Dr Walker. That was more my concern. So I wasn't able to address that - this point that you are trying to adduce about whether I replied because I didn't receive those letters. Q. Mr Gonzales the question I'm asking you is this and I think you might have answered it but I need to get it clear. Are you saying you did not think it was important to let Housing know that you knew nothing about these arrangements in March? A. Well it didn't occur to me at the time. What was more important to me is to - I was you know shell-shocked Ms Ricaud's very forceful insistence that I should report to Dr Kipling Walker's surgery and that I cannot make my own - initiate my own assessment. I was - that what was important to me. So that's why there I have no reference to what you're asking me about why didn't I refer to that previous mail which I never received. 85Mr Gonzales was asked whether he had any idea in August 2010 of how long he was going to be away from the workplace and responded as follows: A. No specific idea but I have an expectation that Housing will conciliate the matter and see the merit of my case for reinstatement and I'm sure I will definitely rise to the occasion to be well and fit for my job description. 86He acknowledged that in August 2010 he was able to go back to work at Housing as a Grade 2 Clerk but didn't want to, he wanted Housing "to re-examine the circumstances or, you know, and facts regarding my demotion because I believe I was unjustly demoted." He went on to say that he wanted to go back to his career as a public servant in New South Wales and at the grade he belonged to, unless the demotion was temporary, and not indefinite or permanent. 87Mr Gonzales also indicated that while Ms Limjap was his psychologist as at July 2010 and he had been participating in counselling with her since September 2009, that had been sporadic because of distance and difficulty of getting an appointment, and she was not the psychologist he had an appointment with on 4 August 2010. 88Mr Gonzales indicated that he did not have an actual appointment for that day because he was still in search of an actual psychologist close by and available. He had been advised by medical secretaries of GPs that he had inquired of that he had been put on a waiting list for a cancellation so he was searching for an appointment that week. 89The following exchange then took place: Q. And you would not have known, sir, would you whether or not you could get an appointment on Wednesday 4 August, did you? A. Well that's a literal interpretation of this sentence. That's why I am clarifying that this was a search of an actual appointment and I have a wait list request to the secretary for them to accommodate me on that date. Q. But you tell Ms Ricaud that you have an appointment? A. That's not the - this sentence - email has a tendency of not explaining everything like it's in black and white but you can't say everything, the nuances of that sentence, like I was in search of an actual appointment. Q. You go on, sir, in the last sentence to tell Ms Ricaud that you are unable to attend on 4 August . A. Yes. 90When it was suggested to him that he had two opportunities in that email to explain his situation to Ms Ricaud and did not do so he responded as follows: A. Yes I did and I expressed that very explicitly that I will be searching for- waiting for my - for the call from the medical secretary for my wait list status. 91When asked which email that was in he responded: A. It's not in this email. It doesn't have to be in this email and I'm on my - my feet are securely planted on the ground, I'm not floating as you have described. I am - I have seen the doctor the day after this, that was the earliest opportunity that I could see a medical practitioner because Ms Limjap was just not - chock-a-block........ 92He confirmed that he saw Dr Chau at the Bonnyrigg Family Medical Centre on the 31 July 2010 and obtained a medical certificate saying that he would be unfit for work from 31 July to 6 August 2010. He did not recall whether he sent the medical certificate to Ms Ricaud because he was very sick then. He agreed that he did not mention that he had a medical certificate in his email to Ms Ricaud of 2 August 2010 or in his letter to Mr Allen. 93He maintained that he was well enough to write the letter to Mr Allen and had to respond as he was being intimidated and threatened with dismissal, he had been threatened several times before and it was an on-going threat by the Department against him, the document referred to a possible termination. 94He thought that it was more than a direction to attend it, was an actual pressure to or imposition for him to go, regardless of his right to initiate his own medical appointment according to the procedures. He considered it was a threat, an intimidatory statement. 95He could not remember whether he sent any email to Ms Ricaud or Mr Allen advising of his medical condition after he received the email from Ms Ricaud on 2 August directing him for a second time to attend the medical assessment. 96Mr Gonzales said he did not ever provide a copy of the report to Mr Allen, as he had referred to in his letter to Mr Allen, because that appointment did not eventuate because of his sickness. 97Mr Gonzales maintained that he did comply with the return to fitness procedures, he was not defying, or not complying, or disobeying, as it had been implied. The procedures provided him with the right to seek his own assessment. 98He had not disobeyed as he exchanged written communication to negotiate an employee initiated medical assessment so it was not outright non-compliance, or defiance, or disobedience to a local direction by an employer. 99He acknowledged there was no response from Mr Allen to the email letter, only an email from Ms Ricaud still rejecting his appeal for an employee initiated medical assessment. He didn't know whether Mr Allen agreed or not he was basing it on Ms Ricaud's "attitude of imposing and disregarding my opinion and request for employee initiated medical assessment". He re-affirmed that he did not attend the assessment as directed because he was sick and trying to organise his own assessment. 100He could not remember whether he had looked at the Guidelines document (the procedures in Exhibit 9) before August 2010. When taken to the document he agreed that the employer had the right to initiate a fitness to continue assessment but said equally with the employee, there were equal rights. 101He agreed that as of 30 July 2010 he had not initiated a fitness to continue assessment saying that he only received the actual registered post on the 31 July 2010. He had notionally initiated through his different phone calls to different surgeries to put him on a wait list. He had a Centrelink Medical Certificate that he was unfit for work that was due to expire on 17 August that he had "mentioned" to the AHRC. 102When asked whether in the period between August 2010 and the beginning of 2011 (and the letters of March and April) he made any enquiries of Ms Ricaud or anyone else in Housing about what was happening with the letter he received on 30 July 2010 he responded as follows: A. I have placed my reliance on the Human Rights Commission to settle my grievance and complaint good graces trade union activity and disability and formal complaint of victimisation which encloses all those issues with the Australian Human Rights Commission. 103Mr Gonzales confirmed that he had received pay advice slips by mail and that the pay advice slips in Exhibit 11 were the only ones he had received. If there was a break in their sequence it was because he did not receive them. If he did not receive one he did not make any enquiries of Housing as to why not. 104Mr Gonzales was taken to the 17 March 2008 email from Ken Bone, the then General Manager, about his use of emails and confirmed that he considered what was said to be a "discrete form of bullying". 105Mr Gonzales acknowledged that when liability was not accepted for his workers compensation claim he did appeal but did not take it further within the workers compensation jurisdiction because of financial considerations, he did make enquiries however. 106Mr Gonzales maintained he did receive ordinary mail at his house if it was delivered, but not if it was not delivered or got mis-delivered to another address, because he got mail from other addresses. He maintained he did not receive the letter of 31 August by registered post and only knew that it was sent that way because he had now been told that (at the hearing). 107There was then an exchange between the Commission and Mr Gonzales concerning the way registered mail was delivered in which he acknowledged that the mail was held at the post office and a little card was sent out, the same as for a parcel with, a box ticked and you had to go to the post office to collect it. The Commission asked him if he remembered getting any little cards in his letterbox to go to the post office and he responded: A. Yeah, to pick up that 31 July one. 108He went on to indicate that he did not get any little card in his post box in late August early September. When asked if it was possible he just didn't go to the post office to pick it up he said that if he received anything in his mail box he would acknowledge it and action it. 109In re-examination Mr Gonzales confirmed the letter from Dr Asar dated 9/02/2012 which stated that he made an appointment to see him on the 4th August but due to his medical condition could not attend the surgery and had to defer it to the next day when he did attend for consultation (Exhibit 19). 110Mr Gonzales said that he did have to use his leave entitlements after the period of suspension. 111He confirmed that as at the date of the hearing he was now in receipt of Newstart Incapacitated benefits from Centrelink which commenced shortly after he found out he was dismissed. It was not a requirement that he look for work but he never stopped wanting to get back into the workforce. He knew he was still productive and could contribute greatly to the people of New South Wales, it was his career, in the public service. 112He had made attempts to find work in the government service, including Centrelink who were looking for call centre agents but they then told him they had no funding. He had also tried the State Rail Authority and the response was a wait list. He had made applications to some small private companies but as soon as they heard your age and accent it seemed to be an issue about suitability or acceptability. 113Mr Gonzales was also taken through other sections of the "Revised Fitness to Continue Procedures" but generally reiterated that his emphasis and purpose was on the employee initiated assessment. He recalled that he read those sections briefly at the time, agreed that whether or not the employer had the right to direct a public servant to attend, he understood he was under a direction to attend. 114Mr Gonzales reaffirmed that his interaction with the AHRC was by telephone, with the same person, to and fro, all the time. She did not give him any information about what calls were being made to Housing NSW to his recollection, she said she was discussing what he was trying to say but never gave him any outcome. He did not know if she had passed on the information he provided to her about the medical certificates. 115He also recalled that in August, September 2010 he told Ms D'Oreynovo at the AHRC about the direction to attend and sent her an email (about the email exchange with Ms Ricaud) and subsequently spoke to her about being pressured to attend a psychiatric examination which he felt was reprisal by management because he launched his complaint before AHRC. She said she would relay his position to the other side. He told her he had an equal right to also initiate and told her about Dr Potter's traumatic exam assessment. 116Mr Hawkins confirmed that he worked for a different agency and at a different location to that of Mr Gonzales at the time of his employment. He knew Mr Gonzales in his capacity as a fellow PSA delegate, they were both members of a network of delegates and members called the Progressive PSA (PPSA). 117He deposed that they frequently attended monthly meetings of PSA Central Council together as alternate delegates in 2007 and 2008. He had also been subject of bullying by some managers and some PSA delegates and officials who stood opposed to his union activities. He supported Mr Gonzales when he experienced similar bullying within Housing NSW. He has also witnessed PSA officials ridicule Mr Gonzales at Central Council meetings and suggest that he was a poor delegate and of bad character. 118He deposed that Mr Gonzales performed his duties as a Central Council Delegate in an exemplary fashion and was held in high regard by his fellow delegates within the Progressive PSA. 119He also deposed that at the 2008 PSA election the PPSA received 47% of the vote and narrowly missed out on taking control of the union. 120Ms Gream had held her current position (as at the date of filing her statement) since the end of June 2010 and had been with Housing NSW for 5 ½ years and had worked in the field of Human Resources for 12 years. 121She outlined her role when she was employed at Housing NSW (as at the date of the hearing she no longer worked for Housing NSW) which included providing expert HR practice and employment relations advice; managing the union relationship at a corporate level; taking the lead in negotiations with the PSA to develop workable arrangements for staff and Housing NSW; developing and implementing HR and ER strategies and systems aligned with business direction and current needs; managing the process of case management and excess staff, and developing and implementing OH&S policy and strategy. 122Ms Gream stated that she had never met Mr Gonzales personally but had had some involvement in his employment since approximately 2006. She stated that he had a history of making unfounded allegations of bullying and harassment and discrimination against officers in Housing NSW. In May 2006 he was attached to the Bankstown office when he made a complaint against the Operations Manager, the Team Leader and the Senior Client Officer. The allegations were investigated and found to be without substance. 123She deposed that as Mr Gonzales had been taking extensive sick leave in 2006 she referred him to HealthQuest to have his 'fitness to continue' assessed. Whilst HealthQuest issued a report on 23 January 2007 indicating that he was 'fit to continue', Mr Gonzales would not grant permission for the full release of the Report. 124Ms Gream deposed that Mr Gonzales was formally advised on 6 November 2008 that he was suspended on full pay because he was subject of misconduct allegations. The allegations concerned sexual harassment, bullying, behaving in an unprofessional manner, breaches of Housing NSW policy in managing tenancies, repeatedly failing to carry out the duties required of his position, failing to comply with directions of management and failure to treat work colleagues in a respectful manner. Mr Gonzales had not returned to work since that time. 125She generally deposed as to the events as set out in the background and chronology above and stated that in doing so she had access to documents from Mr Gonzales' Businesslink file, as well as access to staff who had been involved with Mr Gonzales. 126Ms Gream was asked in 2010 to work with Ms Ricaud in 2010 to have Mr Gonzales go to a second medical assessment. Ms Gream had prepared a Briefing Note for Mr Allen to sign directing Mr Gonzales to attend that medical assessment. Ms Ricaud organised to send the documents and emailed him to advise of the registered mail documents and attached Mr Allen's letter. Ms Ricaud subsequently copied her into all emails she sent Mr Gonzales and also forwarded on to her his emails in reply. 127Ms Gream had not been involved in the March 2010 referral to Medibank Solutions, that referral had been undertaken by Businesslink at the request of Mr Aslanis who was her line manager. She was aware of the procedure however. She was aware that Mr Gonzales had not attended the appointment. She was not aware of any contact being made with him about that. It would have been the area's responsibility to do that. 128Ms Gream confirmed that after the July referral and the email exchange between Mr Gonzales and Ms Ricaud that she did not contact Mr Gonzales by telephone at any stage. She had discussions with Ms Ricaud and was asked by her how to respond to him and Ms Gream asked her to advise him to attend the health assessment. She did not resile from the fact that he was directed to attend and there was the possibility of termination. 129She agreed that an employee had the right to initiate a health assessment and that an employer had to pay for it, but said that it had to be to an approved provider and she was not aware that he had asked to see one of the approved providers. She had not made any enquiries of him, but assumed he would not have known who were the approved providers. That information was not emailed back to him. 130She also indicated that the provisions concerning the use of approved providers arose from their legislation under the PSEM Act and confirmed the relevant extract from the Guidelines as being - " referrals can be directed to either the GMO or an approved medical practitioner in accordance with the agency's employing legislation". That had formerly been HealthQuest and then a list of suppliers provided by WorkCover. Mr Gonzales would not have been allowed to go to his own psychiatrist. He also had not provided a medical certificate from his doctor which said that in the doctor's opinion he should be medically examined for fitness to continue. 131Ms Gream said that when she read Mr Gonzales replies to Ms Ricaud she did not take it that he was commencing a self-initiated assessment and the employer still had the right to direct a staff member to attend a medical assessment. Mr Gonzales had never requested a self assessment before, and he had been off on sick leave for a number of months. 132Ms Gream agreed that she could have contacted Mr Gonzales to arrange for him to be provided with a list of approved providers but said that the employer particularly wanted to send him for a health assessment. She went on to say that even when an employee wanted to, or on the advice of their doctor, came to the employer and said they needed a fitness to continue assessment, the employer still had to prepare the referral documents, sick leave history, issues from the employer's perspective etc. They would not normally do that in this case given that Mr Gonzales did not turn up for the first assessment. It would be difficult to assume that even if they'd given him a list and prepared further documentation he would have turned up at an approved provider. 133She agreed that he was fairly prompt in his response to Ms Ricaud's email of 30 July. She was not aware of the details and timing of his GREAT appeal. Nor was she aware of the detail of previous medical referral apart from knowing it was sent by registered mail to his home address. She was advised by her line manager Mr Aslanis that he did not turn up for the appointment. She did not make any enquiries of him whether he received the documentation. 134Ms Gream was aware that Mr Gonzales was a PSA delegate. She was aware of the policies concerning union activities. Since being in HR she had not been aware of anyone being bullied because of their union activities. 135She was also aware that he had made a number of workers compensation claims but did not handle such claims, there was a Workers Compensation Manager who handled those quite separately. 136She confirmed that she was aware of the information sent out by Ms Ricaud concerning the second medical assessment and the contents of the referral letter. She agreed such referrals had to be objective. She did not provide that information to Ms Ricaud who would have had information on the workers compensation files, his personnel file and sick leave records. Ms Ricaud would also have spoken to his line manager. 137Ms Gream also outlined the general procedures followed within Housing in relation to investigations into complaints against management and indicated it depended on the context and nature of the complaint as to whether or not there was an external investigation and whether it came to HR as a formal complaint. Not all complaints came to HR. She was subsequently aware that Mr Gonzales had made a complaint in 2006 but had not seen it. It was investigated by a HR Manager not connected with the Department and engaged by the then Manager of HR and Employee Relations, Mr Robert Silvestreni. 138She maintained that when she worked for Housing there were definite attempts involving HR to work closely with the PSA and have a cordial relationship with them. She acknowledged that any employer could say union delegates were a thorn in their side. She was not aware of any petition organised by Mr Gonzales at that time but became aware of it after the event. 139Ms Gream confirmed she had referred Mr Gonzales for a medical assessment by HealthQuest in 2006 at the direction of Mr Silvestreni and on the request of Mr Cliff Haynes who headed up the Greater Western Sydney Region. She was aware Mr Gonzales had made complaints against Mr Haynes that had been the subject of investigation. 140She was also aware that two workers compensation claims had been accepted by GIO in 2006 and they would have investigated them before paying and confirmed that there had been no investigation by Housing NSW as a follow up. They wanted another independent assessment of his health at the time and that included a psychological assessment. 141Ms Gream was not aware of a restructuring in 2007 within Housing NSW but was aware of a working group formed to look at the Client Service Officer roles including the Senior Client Service Officer. She was on the evaluation panel as was a PSA representative. There was an evaluation done by an external organisation and updating of old Position Descriptions but no re-grading of the positions or increase in pay. She could not comment on the petition Mr Gonzales circulated seeking regrading of the positions. 142Ms Gream said she had no knowledge of Mr Gonzales being targeted to be gotten rid of out of Housing. 143She indicated that the termination letter was sent to Mr Gonzales' known address. She requested that the usual final clearance form be done in relation to the pay system and did not bother checking with Businesslink as it was usually automatic through the payroll system. From her subsequent enquiries she was told they had not received the form, she did not get a satisfactory explanation. 144Ms Gream confirmed that the Guidelines referred to in evidence were in place in 2006. She had referred Mr Gonzales for a health assessment because of concerns about his sick leave and Mr Haynes had expressed concern about his psychological well being. The letter she had written at the time and the information she had provided was the same as that done for referrals for other employees that she had undertaken, there was nothing remarkable about that of Mr Gonzales, apart from being longer than some she had seen. 145Ms Gream also indicated that she had discussed with Ms Ricaud alternate means of sending documentation to Mr Gonzales and a courier was used for the second medical assessment and she believed that happened in July. Ms Ricaud advised her she did this, but the courier came back to Businesslink with the documents. She did not have any documentation about this however. Other than registered post, ordinary post or courier, she was not aware of any other method of providing an employee with documentation when they were not at work. 146Ms Gream confirmed that she did not make contact with Mr Gonzales and he did not make contact with her. 147Mr Aslanis has held his current position for approximately three years, had previously worked with Businesslink and had been employed with Housing NSW and related entities for over 20 years and had worked in the field of Human Resources for some 36 years with the NSW State Government. 148Mr Aslanis had been involved with Mr Gonzales' employment since about 2009 although he was also aware of his employment from his own earlier time at Housing NSW. He had been involved with a meeting with Mr Gonzales and Mr Shane O'Brien from the PSA and Mr Lee Toohey in 2003 concerning use of noticeboards in the office and removal of personal notes and replacement by PSA promotional information. He had been requested by local management to come. He could not recollect that work loads were discussed at that meeting. 149He also had general knowledge of the Deloitte's investigation, Mr Gonzales' performance history and his relationship with staff, management and Housing NSW clients. 150He deposed that he was aware that Mr Gonzales was seeking reinstatement and it was his considered view that reinstating him to his former position, or to any other position within the organisation, was impractical. He considered that there were reasons, both individually, and cumulatively, that prevented reinstatement. He then outlined the reasons why, in his belief, reinstatement of Mr Gonzales was impractical as follows: After an extended period of absence he was directed by the Chief Executive to attend a fitness to continue but chose not to follow this direction. The direction was given in accordance with the provisions of the PSEM Act and Regulations. Given his protracted absenteeism, resulting from both explained and unexplained sick leave, Housing NSW needed to be satisfied that he was fit to resume work so as to satisfy its obligations under the OH&S Act to both him and other staff and clients. His history of performance and conduct issues coupled with his refusal to follow the Chief Executive's direction to attend a medical examination and other directions throughout the course of his employment indicated that he continued to have difficulty taking instruction from management. He continued to deny wrongdoing in relation to the conduct the subject of the Deloitte's investigation. This lack of acceptance and self-awareness indicated that the behaviour which led to the investigation had not been addressed and was likely to continue. He had challenged and continue to challenge the authority of the Department Head to direct him to attend a medical examination. There were practical impediments to reinstatement as he had not been in the workplace since 6 November 2008 some three years and three months. There had been extensive technical changes in the organisation since that time including the introduction of a new computer tenancy management system called "Homes" and the new document management system called "TRIM". He did not currently have the requisite level of skill to undertake the inherent duties of the role and would require extensive retraining. The performance issues displayed by him in the course of his employment with Housing NSW indicated that such retraining would be unlikely to improve his performance having regard to the fact that he had been employed since June 1998. On 19 January 2010 after finalisation of the Deloitte investigation the Acting General Manager of the Greater Western Sydney Division wrote to him and directed him to report personally to him but he did not comply with this direction. At the time of the Deloitte investigation commencing he had been on a 12 month Performance Management Plan which commenced about in November 2007. 151Mr Aslanis deposed that the employment relationship with Mr Gonzales had, in his view, irretrievably broken down. Management in the geographical area of Western Sydney had no confidence that Mr Gonzales was able to perform the inherent duties required of staff and to conduct himself in an acceptable manner. He went on to say that, given the performance problems and conduct issues he had referred to, he would find it difficult to confidently place Mr Gonzales in another part of the organisation because the issues had not been addressed or acknowledged by him. In addition the organisation had lost some 717 positions in the last six months as a result of the transfer of the Assets to another department. 152Mr Aslanis confirmed that the document management system had been totally replaced and that the computerised system that Mr Gonzales had worked with had also been replaced and with something far more enhanced and requiring a lot of training. He was not aware of how long the training took. He was not aware of Mr Gonzales' computer skills. He acknowledged that any new CSO would have to learn these systems. 153Mr Aslanis generally had no knowledge or involvement in the issues raised by Mr Gonzales, his workers compensation claims, his organising of the petition, his union activity and was not involved in the Deloitte's investigation and report. He was aware Mr Gonzales was demoted and to be placed on a performance management plan. He confirmed there were references to earlier performance management in the Briefing Note of Mr Rodney Hodder of July 2009 (Exhibit 22-B). 154Mr Aslanis was aware that Mr Gonzales had been dismissed for failing to follow a direction and thought he might have seen the dismissal letter. He was not involved in the preparation of the Employer's Reply. He had not had any conversations with Mr Gonzales about reinstatement as he had been dismissed and that was not a conversation they would normally have. He had not been given any updated information as to whether he would be able to perform the inherent duties of the position. 155He then went on to explain the changes that had taken place in the organisation including the transfer of the housing properties to Finance and Services. Housing NSW retained responsibility for tenancy management. They were consolidating with Family and Community Services, a number of positions had been lost and there was to be a review of corporate and administrative areas which in all likelihood would reduce the number of admin staff and perhaps even Client Service Officers at some point in time. He confirmed they still had offices in the four regions (which he later gave more detail about in response to questions from the Commission). He also indicated that as a result of having to find budget savings as a result of a Treasury directive that equated to about 87 positions, they were not filling vacancies unless it needed to be filled. 156He maintained that it would be very difficult to bring Mr Gonzales in now, both for business reasons, and reasons of his past performance, and his relationships with his colleagues. They would have to invent a job for him. They had been waiting for him to return (at the beginning of 2010) to Julian Neylan who was the Acting General Manager at the time and they would have manufactured a job in the Regional Office where he wasn't with Client Service Teams. 157Mr Aslanis denied that Mr Gonzales was going to be performance appraised at that stage, or that it was a tool employers used to work a person out of their organisation. He considered that it was "a tool used to make people do what they were paid to do". It was possible to use it for that purpose, but it was not something they would do, or he would do. 158Mr Aslanis confirmed that within the public service a person could not be transferred from one organisation to another without the agreement of that organisation. 159Mr Aslanis said that Mr Gonzales' past performance would also indicate performance in the future, and he also took into consideration the fact that in the Greater Western Sydney region there would be problems finding anyone who would be comfortable having him return. There was still the unresolved issue of his health assessment and that would have to be resolved. They had no documentary evidence to say he was fit. Submissions on behalf of the Applicant 160Ms Howard made oral submissions in addition to the written submissions as tendered (Exhibit 24). 161It was noted at the outset that Mr Gonzales was unfairly dismissed by Housing NSW to his knowledge in March 2011, and not in December 2010 when it was alleged by Housing NSW that they had sent him a termination letter by ordinary post. While Housing NSW said that the application was out of time it did not take issue with this at the hearing. Ms Gream's evidence was that notwithstanding he was terminated by letter of 15 December 2010, Housing kept sending him payslips until March 2011 due to a lack of communication between Businesslink and Housing NSW. 162It was submitted that the termination letter simply referred to Mr Gonzales being terminated because of a failure to attend medical examination. However in its 'Employer's Reply' to Mr Gonzales' claim for Unfair Dismissal Housing NSW raised prior misconduct. This had never been put to him at the time of this termination, either in the letter of 15 December 2010, or when he found out he was dismissed in March 2011. Further, Housing NSW added extra grounds and background to the reasons for his dismissal as it may have been aware of the weakness of the reason for dismissing him, that being a failure to attend a medical examination while he was on sick leave. 163It was submitted that in evidence Housing NSW agreed to the proposition that they did not attempt to contact Mr Gonzales in any other way such as via email, or personal visit to his home, or a telephone call to see if he had received the termination letter. This was in the knowledge of the fact that the first time he had responded to the request to attend a 'fitness to continue' assessment was in July 2010, although a prior letter had been sent without response earlier that year. There was no satisfactory response as to why Housing should have sent this most important document only by ordinary post at Christmas. Ms Gream had acknowledged that she was aware of Mr Gonzales' previous two applications that were promptly made to GREAT and HREOC upon his demotion in 2009. 164Housing must also have been aware that it had received 'Return to Sender' mail previously sent to his home by registered mail. It was Housing NSW's own behaviour in continuing to send payslips to him until March 2011 and not even contacting him in any other manner to see that he had received this most crucial and open letter, that led him to not knowing he was terminated until March 2011. 165It was submitted that Mr Gonzales' dismissal was harsh, unjust and unreasonable on the basis that the reason for termination was a failure to attend a medical appointment. He sought reinstatement, or to be placed into another position within the public service or a maximum of six months compensation. 166It was submitted that even though the reason for termination was given as his non-attendance at the medical appointment and he had previously been given a warning about not complying with attendance at the appointment, he was in contact with Ms Ricaud, acting on behalf of Housing NSW by email stating that he wished to obtain his own medical practitioner for the assessment rather than the employer's choice of medical practitioner. The Premier's Guidelines stated that the employee had the choice of a medical practitioner and could initiate their own assessment when they were on sick leave and had medical certificate stating they were unfit for to work. Ms Ricaud's advice to Mr Gonzales that he had no choice but to attend in the manner and to the doctor of Housing' NSW's choosing was incorrect. This was clear from NSW Department Premier and Cabinet's Personnel Handbook which indicated where a person was on sick leave with relevant medical certificates to cover the period of absence that they could choose their own doctor for an assessment and the employer had to pay for that assessment. 167Mr Gonzales was never given the opportunity to explain his position to Housing in any further email exchange with Ms Ricaud. In circumstances where he was on sick leave without pay it was incumbent upon Housing NSW to take further steps to ensure that, as he was already sick, he was receiving the correspondence sent and had a chance to respond. 168It was also submitted that it was harsh, unjust and unfair to dismiss him while he was on sick leave for one issue as stated in the letter. 169It was submitted that after Mr Gonzales had filed his unfair dismissal claim Housing NSW then broadened its reasons for dismissing him to include misconduct. In response to the Deloitte's Report, Housing NSW found "relatively minor" problems under the heading "seriousness of the misconduct" that taken together meant he should be demoted after a lengthy period of suspension that had already occurred from October 2008 to July 2009. The "remedial action" Housing NSW took was to put him on a strict regime of performance appraisal reviewed every month for six months to commence with. Housing NSW had the choice to take other types of remedial action under s.47 of the PSEM Act but did not do so. 170It was submitted that Ms Gream had agreed that putting an employee on a performance appraisal was a form of action to taken to remove employees from the workplace, agreed that this could occur, but did not recommend it herself. She also agreed she had no control over management decisions notwithstanding her recommendations. Mr Gonzales had earlier been suspended during the time of investigation for many months and was then informed by letter that he would be demoted because of his performance. He was not offered the opportunity to "improve his performance" at that time by training and development of his skills to a better level. He appealed this decision to GREAT and HREOC at that time. 171It was submitted that for Housing NSW to treat Mr Gonzales in this manner rather than help him see the error of his ways by upskilling or counselling as an option revealed their attitude and motivation to continue to try to oust him from employment. 172It was also submitted that Housing NSW knew that Mr Gonzales had been paid for 2 previous compensation claims in 2006 for harassment and PTSD as a result of the first claim of harassment. They also knew about his union activity and his organising of a petition against restructuring. Ms Gream was well aware of the restructuring although she called it something else. He had also made complaints of harassment against some of his managers, including one manager who suggested to Mr Silvestreni and on to Ms Gream that he should be assessed on his fitness to continue. He had also told Deloittes, the investigator, of the claims in 2006 that he was being harassed for his union activities. 173Ms Howard made reference to various evidence concerning Mr Gonzales and his union activities. 174It was submitted that because of Mr Gonzales' union activities, his complaints to the insurer CGU in 2006 twice for harassment by managers at the workplace, were found to exist. Ms Gream agreed that the insurer would have investigated these claims. It was submitted that no insurer would pay out a claim that it was not satisfied was bona fide. 175It was submitted that there emerged through the evidence during the hearing a pattern of attempts to get rid of Mr Gonzales over period of time. Ms Gream's evidence was that it took years to do this in the public service. However it was submitted that what was occurring was as follows: Mr Flynn, who Mr Gonzales complained about in 2006, asked for him to have a 'fitness to continue' assessment but he was found fit; Various allegations were then levelled at Mr Gonzales to allegedly warrant his suspension in 2008 - 2009 and were found to be minor but a demotion occurred with a performance appraisal, a well-known tool for constructive dismissal; A termination because he didn't attend a medical appointment in 2010. 176It was submitted that the venomous and subjective letter of referral for the medical assessment of Mr Gonzales of 7 July 2010 from Ms Ricaud, that had been approved by Ms Gream, spoke volumes as to the attitude of management and Housing NSW to Mr Gonzales. Mr Gonzales was being sent to a 'fitness to continue' assessment on an objective view of the 7 July letter which was coloured and nullified anything good that he had achieved in the workplace since he began working there. There was not one positive things said about him and this revealed much about the reason he was being dismissed. Anyone reading that letter could not have gained anything but a very negative view about Mr Gonzales. There was no mention made of Dr Milic's report of his fitness to continue, only references to reports (Dr Mahadev and Dr Potter) who Mr Gonzales stated were both terrible assessments due to their behaviour. There was also no mention that he had been paid two workers compensation claims for workplace harassment by his managers. 177It was submitted that Mr Gonzales was not given a chance to respond in a submission as to the disciplinary action Housing NSW were initiating and as it was supposed to do under s.47 of the PSEM Act. The last email being Ms Ricaud's direction to him to attend a medical assessment with no further communication in any way until the December 15 termination letter was sent. It could have been expected that there would have been some compassion for Mr Gonzales given that he was on sick leave at the time. On this basis the termination was harsh, unjust and unreasonable in the circumstances. 178Mr Gonzales sought reinstatement in the first instance and re-employment in the alternative. He had been looking for work as his career was, and is, in the public service. He had tried to find employment outside the public servers. He had been on Newstart since shortly after he was dismissed in 2011. He was not required to look for work but has been doing so. There was no evidence that he was now unfit to work and there was report of March 2011 finding he was for work that Housing NSW could have used as part of a reason to accept Mr Gonzales back to the workplace. If Mr Gonzales was totally unfit for work he would be on sickness benefits or a disability pension and even people in those categories were being made,or encouraged, to work by Centrelink. 179It was submitted that Housing NSW could direct that Mr Gonzales be transferred to another public sector agency notwithstanding Mr Aslanis' evidence that they could not. This was possible under s.87 of the PSEM Act and the Department Head of Housing had this power. It was admitted that there would be a suitable position within Housing NSW even on the evidence as he would be going back as a Grade 2 maximum and there were jobs within that area even within Housing NSW. 180It was submitted that Housing NSW were aware of his union activities in recruitment and had warned him about using their facilities to disseminate union information. It would be difficult to find any employer who wished to have a person in their employment who was active union delegate, that did not mean that he did not have the right to work. He had no other position to go to in terms of work. He was an older gentleman and would find it very difficult to obtain work easily after such a period of absence even though he was fit to continue. 181It was admitted that if the Commission was the view that Mr Gonzales could not practically be reinstated or re-employed within the public service then the maximum six months' compensation was sought. Submissions on behalf of the Respondent 182Ms Brus made oral submissions in addition to the written submissions as tendered (Exhibit 25) and in doing so referred to the relevant evidence upon which Housing NSW relied. 183It was submitted that Mr Gonzales's employment was terminated because it was determined that he had failed to comply with a reasonable directive (to attend a medical assessment) from the CEO of Housing NSW. In failing to attend the medical assessment as directed, the employer determined that the applicant had engaged in misconduct. Housing NSW accepted that it bore the onus of proof in respect of the alleged misconduct. 184It was submitted however that Housing NSW did not bear the onus of proving, or disproving, that there was some other reason for the termination of the employment. That burden rested with Mr Gonzales. He had asserted, and continued to assert, that there was another reason for his termination and that he was being bullied and harassed or persecuted because of his union activities. The three pieces of evidence he relied on were the petition of 2006, the email exchange with Mr Bone in 2008 regarding use of email, and the statement of Mr Hawkins, together with the workers compensation claims which were accepted by the insurer. 185Ms Brus traversed that evidence and submitted that the following conclusions could be drawn: The petition:- the evidence did not establish that any adverse action was taken against Mr Gonzales and in itself did not provide evidence he was persecuted, picked on, bullied or harassed because of his union activity. The email exchange with Mr Bone: - Mr Bone's language was "profoundly benign" in pointing out there was a departmental policy in place, and Mr Gonzales' reply asserted his rights as he was entitled to do. There was no evidence of anything adverse happening. Mr Hawkins' statement: - this was a sweeping statement and of little value. There was nothing first hand and it should be given zero weight as it was Mr Hawkins' perception of Mr Gonzales being treated badly but nothing from a first hand perspective. The workers compensation claims: the claim was simply expressed as a claim for bullying and harassment and there was no evidence before the Commission to support the nexus. 186Ms Brus submitted that Mr Gonzales had not established that there was any basis about his union activities connected to the ultimate dismissal. If Housing NSW had wanted to dismiss him because of his union activities then they had the perfect opportunity to do so following the 2009 Deloitte's investigation. They did not do so. He had not been in the workplace since 2008 and therefore he had not been an active union delegate from that time. To say in 2010 Housing NSW decided to get rid of Mr Gonzales as a rebel rousing union delegate simply did not make sense and there was no evidence to support that contention. 187Ms Brus also rejected the submissions made on behalf of Mr Gonzales that his placement on a performance management plan, in conjunction with the demotion directive in 2009, was a way of getting him out of the public service as being a jaded interpretation of what a performance program was. One of the findings of the 2008-2009 inquiry was that there were flaws, or deficiencies, in his performance. If Housing NSW had wanted to get rid of him it could have done so, they imposed a demotion and a proposal to manage his performance. It made no sense to use a management program to get rid of him and there was no evidence to support that assertion. 188It was also submitted that, despite Mr Gonzales' assertions to the contrary, the evidence about the failure to comply with a reasonable direction was essentially uncontested as demonstrated by the following chronology (which was also expanded upon in oral submissions): In November 2008, he was suspended from work with pay so that an investigation into allegations of misconduct could be carried out. In May 2009, the investigation into allegations of misconduct was completed and in July 2009, he was advised that some of the allegations have been proven and disciplinary action - a demotion to Grade 1/2 was to take place. He exercised his right to appeal the disciplinary action to GREAT and applied for leave on 19 July 2009. On 13 January 2010 he withdrew his appeal to GREAT. On or about 19 January 2010, Housing NSW directed him to attend the Parramatta office so that he could be allocated a position. He did not attend as directed, having advised Housing NSW that he was unwell and would proceed on sick leave without pay. On or about 19 March 2010, he was forwarded correspondence to his home address via registered post directing him to attend a fitness to continue assessment. This correspondence was returned to Housing NSW unclaimed. On or about 17 July 2010, he was again forwarded correspondence via registered post. This correspondence once again directed him to attend a medical appointment for a fitness to continue assessment. On or about 30 July 2010, he was contacted by telephone and email by Ms Ricaud advising him of the correspondence sent by registered post which he then collected from Australia Post on or about 2 August 2010. He advised Housing NSW that he would not attend the fitness to continue assessment. Housing NSW advised him that his reason for not attending the assessment was not acceptable and he was again directed to attend. He did not attend the fitness to continue assessment. Housing NSW commenced disciplinary action in respect of Mr Gonzales' failure to comply with the direction to attend the medical assessment. He was advised of Housing NSW's decision that he had engaged in misconduct by registered post and invited to make any submissions about this decision before any further action was taken. He did not respond to this correspondence and the materials forwarded by registered post were returned unclaimed. Mr Gonzales did not make any submissions with regard to Housing NSW's finding that he had engaged in misconduct. On 15 December 2010, Housing NSW proceeded to terminate Mr Gonzales' employment. A letter advising him of this was sent by pre-paid post on 17 December. 189It was submitted that the direction to attend fitness to continue assessments were reasonable and in accordance with the Premier's Memorandums which were operative at the time. 190Ms Brus also rejected the contentions made concerning the characterisation of Ms Ricaud's letter of 7 July. Ms Gream's evidence was that the information was pretty much the same as all letters sent off for medical assessment. They contained a full history for the assessing doctor, and there was an opportunity, and indeed an invitation, for the person referred to put forward their own records, and a right and opportunity to challenge the letter when he went for his medical examination. 191At the time the first direction was issued (March 2010) Mr Gonzales had been absent on sick leave for nearly 2 months. At the time the second direction was issued (July 2010), he had been absent on sick leave without pay for nearly 7 months. 192Housing NSW had received no information from Mr Gonzales as to the likely duration of his absence other than that contained on the certificates provided to Centrelink by a Dr Asar. These certificates enabled him to claim sickness/disability benefits and copies had been forwarded without further explanation to Housing NSW. 193It was also submitted that the directions were within the statutory power of the Department Head as set out in the provisions of Clause 13 of the Public Sector Employment and Management Regulation 2009 which states, inter alia: 13 Health and safety (1) For the purposes of this clause, a member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member remaining on duty or, if the member of staff is absent from duty, by the staff member resuming duty. (2) If the appropriate Department Head has reason to believe that a member of staff is not fit for work, he or she may direct the member of staff to submit to such medical examination or other health assessment as the Department Head may, on the advice of a nominated medical assessor, consider necessary. (3) If the appropriate Department Head has issued a direction under subclause (2) to a member of staff, the member of staff: (a) must, if on duty, cease duty immediately, and (b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of a nominated medical assessor is first obtained or a certificate is furnished by a medical practitioner that the member of staff is fit for work. (4) If the appropriate Department Head receives a health assessment from a nominated medical assessor that a member of staff: (a) is fit for work, the Department Head is to direct in writing that the member of staff, if absent from duty, must resume duty, or (b) is not fit for work, the Department Head is to direct in writing that the member of staff must cease duty immediately or, if absent from duty, must not resume duty. (5) If a direction has been given to a member of staff under subclause (4), the nature of the leave, if any, to be granted to the member of staff during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of the nominated medical assessor. (6) A member of staff to whom a direction has been given under subclause (4)(b) must not resume duty unless the appropriate Department Head, on the advice of a nominated medical assessor, approves in writing. 194It was submitted that given Mr Gonzales' prolonged absence on sick leave, Housing NSW acted responsibly and reasonably in directing him to attend a medical assessment. See also Youssef v Western Sydney Area Health Service [2002] NSWIRComm 8 at pps 72(2) and 72(3). 195It was submitted that Mr Gonzales' refusal to comply with the direction was not reasonable given the explanation/s provided by him in the course of his evidence to the Commission. 196It should be noted that the only explanation proffered by him to Housing NSW in late July, early August, 2010 about why he would not comply with the direction and attend a medical assessment was as set out in the email exchange with Ms Ricaud. In his oral evidence he claimed that the emails did not tell the whole story of what he meant at the time he wrote them. He claimed that he was in fact "exercising his right" to initiate his own medical assessment with a medical provider of his own choice. He claimed that he was entitled to do this as per the Premier's memo. That interpretation of the guidelines was not available to Mr Gonzales and not the correct interpretation in any event. 197The Commission was reminded of the evidence of Ms Gream on this issue and the manner in which employee' initiated health assessments are processed. It remained unclear from Mr Gonzales' evidence how Housing NSW was meant to know what he was doing other than through the emails he sent. He did not provide any information directly to Housing NSW about his health throughout 2010. For reasons known only to him, it appeared that he thought that any information about his health- whatever it may have been, would be conveyed by the AHRC to Housing NSW. 198It was submitted that the four emails sent between 30 July and 2 August 2010 needed to be considered in conjunction with other important pieces of evidence as follows: 1.The first email of 30 July 2010 to Ms Ricaud. This was clearly written before he had received the information sent to him via registered post. He advised Ms Ricaud : 'Unfortunately I will not be able to attend the assessment...... as I have an appointment with my psychologist." It became clear during cross-examination that at the time he sent that email he did not have an appointment with a psychologist as claimed. He stated that he was in fact trying to obtain an appointment at this time as he had decided to initiate his own health assessment. In support of this claim he tendered a medical certificate dated 31 July 2010 from a General Practitioner from the Bonnyrigg Medical Centre. He confirmed however, that he did not provide this medical certificate to Housing NSW in 2010. He further relied upon a referral for opinion and management , dated 14 August 2010, from a Dr Nguyen, another General Practitioner at the Cabravale Medical Centre. Again he confirmed that he did not provide this document to Housing NSW. He also tendered a document dated 9 February 2012 from Dr Asar, apparently his usual General Practitioner at the Nirimba Medical Centre which stated that he "made an appointment to see me on 4 August 2010 but due to his health condition he could not attend...... had to defer to the next day on 5 August when he attended my surgery...". This document does not however indicate when the appointment for 4 August had been made. It was clear that Dr Asar was able to accommodate a cancelled appointment and reschedule for the next day. If this was the appointment cited by Mr Gonzales in his email of 30 July 2010 as clashing with the appointment arranged with Dr Walker on 4 August, then clearly it was not with a psychologist nor was it the impediment to attending the fitness to continue assessment claimed by him in his email. 2.The second email of 2 August 2010 at 2:14pm from Ms Ricaud to Mr Gonzales. He was advised, inter alia, that he was once again directed to attend the health assessment appointment on 4 August. The third email of 2 August 2010 at 3:44 pm from Mr Gonzales to Ms Ricaud with a letter to the CEO - Mr Allen. In this letter, he again claimed to have an appointment - now characterised as "a prior commitment" on 4 August which prevented him from attending the health assessment. There was no mention of the medical certificate provided by the Bonnyrigg Medical Centre on 31 July nor any mention of his now claimed belief that he could self-initiate a medical assessment from a practitioner of his own choosing. He claimed that he had certain "rights" regarding medical assessment under workers compensation legislation. There was no reference to the Premier's Memorandum or an employee initiated health assessment. He then asserted that he had an appointment on 12 August for a psychiatric assessment and that he would provide a copy of that report to Housing NSW. There was no evidence before the Commission of any appointment having been made or having taken place with any psychiatrist on 12 August 2010. No psychiatric report was ever provided by Mr Gonzales to Housing nor was any report referring to an assessment on that date tendered by him in these proceedings. Housing NSW did not accept his explanation. 3.The fourth email of 2 August at 5:14pm from Ms Ricaud to Mr Gonzales. He was once again directed to attend the fitness to continue assessment on 4 August and also advised again that if he failed to attend then disciplinary action may be taken against him. He did not respond to that email nor was there any further communication from him to Housing NSW about this issue until the time his employment was terminated. 199It was submitted that during cross-examination, Mr Gonzales maintained, that he had never previously, or on this occasion failed to comply with a reasonable direction. The evidence however demonstrated that he not only failed to comply with the direction but in attempting to avoid the direction he was untruthful to officers of Housing NSW and continued to be untruthful in his evidence to the Commission. 200It was submitted that Housing NSW had satisfied its onus of proof to the requisite standard that Mr Gonzales did misconduct himself in failing to comply with the direction to attend the medical assessment. 201There was no evidence before the Commission which suggested specifically that he was incapable of dealing with the issue of the disciplinary action. He had been on notice as at 30 July that if he failed to comply with the direction to attend the medical assessment disciplinary action may ensue. He knew that he had not attended the medical assessment contrary to the clear direction of Housing NSW. If there was some reason, medical or otherwise why he was unable to deal with the ensuing disciplinary action it was incumbent upon him to advise Housing NSW of this fact and he did not do so. Housing NSW took all reasonable steps to inform him what it was doing, and why, and as such Mr Gonzales was not denied procedural fairness. 202It was also submitted that Housing NSW had satisfied their obligations under any concept or notion of procedural fairness and there had been compliance with, and no departure from, the procedure for dealing with disciplinary matters (see Antonokopoulos v State Bank of New South Wales (1999) 91 IR 385). 203It was submitted that if the Commission accepted that Mr Gonzales engaged in misconduct by refusing to comply with a reasonable direction, the next question for consideration was whether the decision taken to terminate the employment relationship was an appropriate step for Housing NSW to take. 204While it was argued by Mr Gonzales that Housing NSW should have been more sympathetic to his circumstances given his ill health, the problem with that position was that it had very little information about his health as at the time it decided to terminate the employment. He had provided very little information prior to 30 July 2010 - copies of the Centrelink forms - and absolutely no information after 2 August 2010. The primary function of the fitness to continue assessment was to obtain information about his health after a prolonged period of absence. He stated in his email to Mr Allen on 2 August : "I appreciate that present circumstances cannot go on..." but then did nothing to address the very matter he had acknowledged, by keeping his employer informed about his health and/or his capacity and preparedness to return to work. 205It was submitted that Mr Gonzales was provided with an opportunity to address the employer's concerns, as it was required to do, and he was sent correspondence by registered post which was returned unclaimed. There was no dispute that this correspondence was correctly addressed. However, it should be noted, that there is a flaw in using registered post, as it requires the posted item to be claimed in person at the post office after a notification of the existence of the item is issued by Australia Post. The evidence clearly showed that Mr Gonzales was aware that Housing NSW had already forwarded him correspondence by registered post in March and July and it is therefore likely that any further registered post articles addressed to him were also from Housing NSW. 206It was submitted that it was open to the Commission to draw an inference that failing to collect such items would be a way in which Mr Gonzales could avoid the content of the correspondence and possibly any subsequent ramifications. 207It was also submitted that Mr Gonzales was receiving other mail from the respondent in the period August - December 2010 as demonstrated by the pay advice slips. While the collection of pay advice slips was incomplete the evidence was that he did receive 2 such slips for the period 20/8 to 16/9 which corresponded with the time that he was sent advice that his failure to attend the medical assessment was to be the subject of disciplinary action (31 August). 208It was also submitted that Housing NSW were entitled to take into account Mr Gonzales previous conduct during the employment relationship when it was considering what disciplinary action to impose. See John Lysaght (Australia) Limited v Federated Ironworkers Association of Australia, New South Wales Division & Ors (1972) AILRR 517 and Youssef v Western Sydney Area Health Service [2002] NSWIRComm 8. 209The Commission's attention was also drawn to s.41(1) of the PSEM Act concerning the various disciplinary and remedial actions which may be imposed. Mr Gonzales had already been demoted in 2009 for misconduct. Had he returned to work in 2010 he would also have been placed upon a performance improvement program. He had not provided Housing NSW with any information that may have been regarded as mitigation of his failure to attend the medical assessment nor had he provided his employer with any information about his then status. In such a context, it was submitted that Housing NSW's decision to terminate the employment relationship was not harsh; unreasonable or unjust. 210Should the Commission determine however that the dismissal was harsh; unfair or unjust within the meaning of the Act, Housing NSW submitted that it was impracticable to reinstate or re-employ Mr Gonzales for a number of reasons as set out in the evidence of Mr Aslanis and expanded upon in oral evidence. These reasons were not manufactured or imaginary. Public sector restructuring was a fact of life and had impacted upon the staffing arrangements at Housing NSW and its capacity to find a position for Mr Gonzales. 211As to finding Mr Gonzales employment in another government agency, Mr Aslanis' evidence was that this could only be done if the other agency was willing to take Mr Gonzales, and, given his employment history this would be "a hard product to sell". 212It was submitted that the most significant matter making reinstatement impracticable however was the fact that Mr Gonzales had not provided any evidence to indicate that he was in fact fit to continue in employment with Housing NSW. His evidence was that he was in receipt of sickness/disability benefits from CentreLink for the entirety of 2010 and 2011 and that this was on-going as at the date he gave evidence. He tendered a " very qualified" report from AusviePsych - HuyAnh Nguyen, Forensic Psychologist dated 19 May 2011 which stated that Mr Gonzales was fit, as at May 2011 to return to work in another department. In any event, the report was both out of date and contradicted by the assessment by Dr Asar of his fitness to work at that time and continuing. 213On the issue of compensation as a possible remedy Ms Brus, drew the Commission's attention to the provisions of ss. 89(5) & (6) of the Act and submitted that the evidence showed that Mr Gonzales was unfit for work during the 6 months prior to the termination of his employment and that he has been unfit for work since the date of the termination. He had opted to proceed on sick leave without pay in January 2010, and having exhausted his paid sick leave entitlement was regarded as being on (sick)leave without pay up until the time his employment was terminated. He did not earn any remuneration during this period, nor could he, owing to his illness, and was paid CentreLink benefits for the entire period. It would be manifestly unfair to compensate him as if he had been able to attend work during this period. In this regard reliance was placed on the Full Bench decision in D & R Commercial Pty Limited v Flood (2002) 113 IR 344 (at p.363) as to the discretionary power of the Commission under s89(6). 214It was submitted that it was within the Commission's discretion to not award any compensation to the applicant; and given the circumstances it should not make any such order. 215It was submitted in the alternative that if the Commission were inclined to make an award of compensation it should be for a period less than 6 months and for no greater amount than the difference between the amount received by Mr Gonzales from Centrelink benefits received and the amount he would have been paid as a Grade 2 (max) clerk. Further, the Commission should order that the applicant notify Centrelink of the compensation order within 7 days. Submissions in Reply on behalf of the Applicant 216Ms Hawkins in reply submitted that Mr Gonzales' evidence dealt with the chain of events that eventually led to his dismissal beginning with him being harangued by Mr Haynes who then asked through Mr Silvestreni for the medical assessment. There was a line of connection of behaviour going on from both sides, but specifically for the employer, from the point in time in 2006 when he was awarded the workers compensation claims. Mr Gonzales had his own viewpoint, but even objectively, the evidence showed these were live issues. 217Ms Hawkins also reiterated the submissions concerning the use of the management plan and pointed out the acknowledgement of both Ms Gream and Mr Aslani as to such being used for that purpose even though it was not Ms Gream's practice. Although the plan was not put in place because he did not engage in the process, the documents he was sent concerning this plan outlined very stringent points as to zero complaints by both management and clientele and one hundred percent attendance. 218Ms Hawkins rejected the submissions made concerning the 7 July letter and reiterated that it was an unreasonable and damning letter and it was not until he got to the doctor that he would have had a chance to defend himself. 219Ms Hawkins rejected the submission that it was a refusal to attend, particularly when the dictionary definition was considered. He did not say he would not do it. He was attempting to negotiate with them as to the manner in which he would attend and it was clear from the Premier's guidelines that he had the ability to initiate such but not clear as to how that interacted. He was also in the Human Right Commission negotiating with them through the AHRC. He was told by the lady from the AHRC that she would pass the information on. 220It was also emphasised that Mr Gonzales was not defiant and that he was trying to organise an appointment but it was clear from his evidence that people did not want to do it without money. He should have known, but didn't, and didn't have the benefit of legal advice. 221Ms Hawkins emphasised that there was a lack of contact with him from the employer and that they should have done a lot more before December than just send a letter one letter on 31 August. There were also gaps in him receiving payslips. It was a serious thing to dismiss someone when they were on sick leave and they did not follow procedure especially when they knew letters were coming back. Consideration 222I have very carefully considered the relevant evidence and the submissions of the parties in this matter. 223As Ms Brus rightly pointed out Housing NSW as the respondent bears the onus of establishing that misconduct on the part of Mr Gonzales took place (see Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 as affirmed by the Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164.) The standard to be applied to that onus is the civil standard arising from the dicta in Briginshaw v Briginshaw (1938) 60 CLR 336 (again see Prior) 224In considering the concept of misconduct I have also been mindful of the following decision in Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371, which has also been consistently applied in numerous cases by this Commission, wherein Cook J said at 374: ..... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to lawful commands of the employer and the right of the employer to enforce discipline.......(emphasis added). 225In North v Television Corporation Ltd (1976) 11 ALR 599, Smithers and Evatt JJ said at 608-609 also relevantly observed: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct but not regarded as grounds for termination. In such a situation it is reasonable to interpret that the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. 226However it has also been held that in misconduct cases, even if it is established that misconduct did occur, the Commission needs to examine whether termination, in all the circumstances, was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise, the Commission must also consider and make specific findings as whether the termination was harsh and/or unjust and/or unreasonable, or any combination thereof, per s.88 of the Act (see Bankstown City Council v Paris (1999) 93 IR 209 as reaffirmed in National Union of Workers' New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras. [64] and [65]) . Here however, the evidentiary onus moves back to an applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 227It should also be indicated that Housing NSW were entitled to take Mr Gonzales' previous misconduct into account when considering the appropriate disciplinary penalty to be imposed under s.47 (and as defined in s.42) of the PSEM Act for the latest act of misconduct per the observation of Sheppard J (as he then was) of the former Industrial Commission in John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517, concerning a past act of misconduct: "...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..." 228That decision continues to be relevantly cited, and was so as recently as Connor C in Grant Thomas v Boral Cement Limited [2011] NSWIRComm 1045 229What does need to be considered however is whether any past acts of misconduct/formal warnings, or earlier disciplinary action, is firstly, sufficiently recent to still be of relevance (e.g matters many years in the past with a subsequent good record would probably not be relevant) and secondly, whether the issues about which disciplinary action was taken in the past are individually, or collectively, sufficiently relevant to the current issue under consideration (e.g warnings about very minor issues only, or related to an entirely different subject matter such as incorrectly filling out a form etc.). 230In the case of Mr Gonzales the former misconduct, the findings of the Deloitte's investigation which resulted in his demotion, were sufficiently recent (2009) and were also sufficiently relevant (inter alia deliberately failing to comply with policy and procedures) to be entirely appropriate to be taken into account by Housing NSW when considering further disciplinary action. It was also very relevant, and entirely appropriate, for Housing NSW to indicate this in the Employer's Reply. 231It should be emphasised that Mr Gonzales' s.84 application does not permit the Commission to re-visit Mr Gonzales' demotion by Housing NSW in July 2009 as a consequence of the findings made after the independent, and fairly extensive investigation, conducted by Deloittes. Nor does it permit the Commission to overturn those findings. Those findings remain, the demotion of Mr Gonzales stands. 232However, a great deal of the evidence and cross examination concerned ventilating issues that predated that investigation and that were the subject of Mr Gonzales' extensive complaint to the Australian Human Rights Commission which was terminated by the AHRC in November 2011 on the basis firstly, that it was incapable of being settled by conciliation, and secondly, that the additional complaint concerning trade union activities was out of time and lacking in substance. 233In any event there was insufficient evidence before the Commission about those matters to form any concluded view about which side was right. On one view (that of Mr Gonzales) he was bullied, victimised, harassed and discriminated against because of his union activities and ethnic background. For its part Housing maintained that those complaints were invariably made (as were the workers compensation claims) following attempts by management to manage (as it clearly had the right to do) his performance in the workplace. 234There was also no evidence as the nature or extent of any investigation made by GIO in relation to the two workers compensation claims in 2006 where liability was accepted. Nor was there any evidence as to the basis for such claims. Mr Gonzales maintained that they were made because of bullying and harassment by managers and it was submitted on his behalf that Housing NSW did not investigate those managers and take any action against them. The only reference to those claims was the summary included in Ms Ricaud's 16 March 2010 letter to Medibank Health Solutions referring Mr Gonzales for the fitness to continue assessment (one claim in 2005, three in 2006 and one in 2008) . The issues referred to in the first three claims were said to be 'anxiety/stress reaction', 'anxiety disorder', 'unfair treatment', and the last two (which were not paid) referred to 'feeling intimidated by staff' and 'mixed anxiety and depression due to work harassment'. If there was no specific issue of workplace bullying raised in the claims that were accepted it is hard to see what Housing NSW could have investigated. 235The Commission makes it clear however that bullying in the workplace is an issue that must be taken extremely seriously and acted upon appropriately by an employer. When Mr Gonzales lodged his grievance against his managers in May 2006 alleging bullying, harassment, victimisation, racism etc, Housing NSW did take action and had that grievance investigated by an external HR manager who found there was no substance in the grievance. 236In relation to his claims about his union activities I find it hard to see Mr Bone's 17 March 2008 email as "discrete bullying". I can observe no such language. I note that the reference in the email was not to 'union activity' per se but to "inappropriate internal PSA purposes". I also note that on the evidence of Mr Gonzales and Mr Hawkins they were both members of the Progressive PSA (PPSA) and Mr Hawkins indicated that in 2008 that factional group opposed the elected officials in the 2008 PSA union election. Use of an employer's email (and facilities such as the notice board etc) would be standard in relation the usual industrial activities of a union on behalf of its members, but whether that extends to the internal "politiking" between rival factions in the context of competing membership and union elections may be a different matter. In any event as Ms Brus pointed out there was no detail provided as to just what was considered to be inappropriate. 237I also note that one of his complaints against a senior manager about allegedly disparaging/sarcastic comments made about him at some kind of local large meeting also extended to the elected PSA officer doing the same. 238I emphasise that the only relevance of those issues to this matter was that Mr Gonzales sought to establish that he had been dismissed, essentially, as a result of an ongoing campaign by Housing NSW to target him and force him out of the organisation because of his union activities and his complaints about bullying, harassment and victimisation by management. 239I can find no such connection has been established in any way. Neither Ms Gream nor Mr Aslanis had first hand knowledge of, or involvement in, any of the events/issues raised by Mr Gonzales. Ms Gream had been responsible for sending him for referral for the fitness to continue assessment in 2006, but on the instruction of other managers. 240In my very firm view the relevant events for my consideration occurred after the findings of the Deloitte's investigation and the decision of the Chief Executive (made after considering those findings and Mr Gonzales' response), to demote Mr Gonzales to a Grade 2 Clerk and impose upon him a strict performance management regime. However it is necessary to make some observations about the Chief Executive's decision as set out below. 241Ms Hawkins maintained that the issues found sustained were conceded as "relatively minor matters". That is true, but what the July 2009 Briefing Note of Mr Hodder did say however was this: Considered separately each of the proven allegations against Mr Gonzales may be considered relatively minor. However taken together they do reveal a pattern of poor performance amounting to misconduct, a disregard for the situations and circumstances of clients, an apparent lack of understanding of the consequences of his actions for clients, a willingness to cut corners and avoid following policy and procedure in difficult cases, and a lack of commitment to providing high standards of service. 242It is also apparent from the Briefing Note that the Deloitte's findings were not just considered in isolation, but against a background of extensive specific documentation about poor performance (listed under some 13 bullet points), including specific numbers of complaints from clients, colleagues, external professionals and various other issues, in arriving at the decision to demote. 243Also taken into consideration by the decision maker was the fact that Mr Gonzales was not prepared to acknowledge any fault, or failings, or accept responsibility for his actions. 244Ms Hawkins was correct in saying that there was a stringent performance management plan to be imposed upon Mr Gonzales. The aim was clearly to improve his performance. Mr Hodder also commented on previous issues to do with performance management as follows: It is also recommended that a more rigorous performance improvement programme being required of Mr Gonzales. In the past, there appears to have been some issues with the adequacy of performance management strategies imposed on Mr Gonzales. It is also recommended that the Director General take a prominent role in monitoring the performance management process: Setting minimum performance standard targets to be included in the plan, and Requesting that reports on Mr Gonzales' progress in improving his performance be provided to the Director General for an initial period of six months. 245Whilst it is understandable that Mr Gonzales would be very distressed and upset as to the outcome, as evidenced by his written reply to the Director General (as part of the 'show cause' process), his response to the decision and the instruction to report for duty to Mr Neylan (the Acting Regional Manager) on the 13 July 2009 was to attend a doctor on that day and obtain a medical certificate indicating that that he was 'suffering persistent depression and anxiety related to Adjustment Disorder'. He subsequently sought unpaid leave to enable him to lodge and proceed with his disciplinary appeal to GREAT. This was granted and there is no evidence of any pressure/direction from Mr Neylan (or any other manager) being applied/given to Mr Gonzales to return to the workplace and report for duty at any stage during the ensuing five and a half months. 246Mr Gonzales also lodged his extensive complaint with the AHRC seeking a reversal of the adverse findings against him and his demotion, restoration to his Grade 4 position and an apology from management. There was evidently conciliation conducted (by phone and with each side individually) in the latter part of 2009 but with no conciliated outcome. 247The GREAT appeal did not settle at conciliation and it is appreciated that Mr Gonzales was not able to proceed further due to financial circumstances, and there is no evidence as to whether or not the PSA had been approached to assist with running his case. That simply left the status quo as being in place. Mr Gonzales was demoted and Housing NSW had the right to seek to direct him to return to the workplace and take up his new duties. At that stage Housing NSW did not have any medical certificates that would have suggested that he was unfit to report for duty. 248It was not until Mr Gonzales formally withdrew his disciplinary appeal to GREAT on 13 January 2010 that Mr Neylan took further, and entirely appropriate, action in writing to him on 19 January 2010 to direct that he report to him personally on Wednesday 27 January, with advice that failure to follow that direction might lead to formal disciplinary action. Mr Neylan also invited Mr Gonzales to contact him by phone (number supplied) if any further information was required. 249Mr Gonzales' response was to forward by mail, on 27 January with no other explanation or covering letter, or phone call, two Centrelink Medical Certificates covering the period 15/08/2009 to 16/02/2010. There were no further Certificates forthcoming until 31 May 2010 (by email and again without any other communication) covering the period 15/02/2010 to 17/08/2010. 250Again there is no evidence that Mr Neylan or any other manager initiated any further disciplinary action as foreshadowed or issued further letters/directions (and in any event that may well have been considered by Mr Gonzales as harassment). The only evidence about any subsequent contact is contained in Ms Ricaud's 7 July letter of referral to Medibank Health Solutions (the second referral) where she indicates as follows: Management has made several attempts to contact Mr Gonzales by phone without success. Additionally an email was sent to Mr Gonzales using the same email address that his Centrelink certificates were received from but there was no response from Mr Gonzales. Registered mail was sent to his last known address which is the same as the address stated on the medical certificates but this was sent back unclaimed. 251In March 2010 when Ms Ricaud sent her letter to Medibank Health Solutions for a fitness to continue assessment and the letter to Mr Gonzales (by registered mail) advising of such referral and the appointment with the psychiatrist on the 14 April 2010, Mr Gonzales had at that stage not been able (or prepared) to resume his position, had been absent from work without approval for some six weeks and without any response to the direction issued by Mr Neylan, (apart from simply sending the Centrelink certificates) without even taking into consideration the previous six months leave without pay/part sick leave without pay, and Housing NSW did not have a current medical certificate. As indicated above, the medical certificate for the period following 16/02/2010 was not forwarded until 31 May 2010. 252Again, I consider that it was entirely appropriate for Housing NSW to take that referral action, particularly in the light of no communication or contact from Mr Gonzales despite the attempts evidently made by management. 253This brings me to the second attempt of Housing NSW to have Mr Gonzales attend a fitness to continue assessment through the 19 July letter, this time from Mr Allen the Chief Executive. Due to his failure to attend the previous appointment, and lack of any contact with Housing NSW, he was now, quite rightly, being directed to attend the scheduled appointment on 4 August 2010. 254In relation to the attempt to have this correspondence and the relevant documentation sent to, and received by, Mr Gonzales it was Ms Gream's oral evidence that a courier was unsuccessfully used by Ms Ricaud but she did not have any documentation as to that attempt. 255However, I note that in the 7 July letter to Medibank Health Solutions, after referring to the return of the registered mail of the documentation of the first referral (as mentioned above) Ms Ricaud relevantly indicated as follows: As a final measure a copy of this report and all associated documentation referred to will be couriered to Mr Gonzales. 256It is also relevant to note at this stage that M2001-11 Revised 'Fitness to Continue' Procedures specifically provides as follows: Employers should hand the referral material to the employee in person where possible. When the employee is absent from the workplace, the material should be delivered by registered mail or courier to ensure that every reasonable effort is made to provide the employee with the information regarding their referral. 257Notwithstanding those provisions Ms Ricaud took the additional and precautionary step (no doubt in the light of the returned couriered material) of sending an email to Mr Gonzales on 30 July advising, not only that she had sent him registered mail, but also attaching Mr Allen's letter directing him to attend the assessment. She had sent the registered mail on 26 July, it was noted as accepted and processed by the Leightonfield Distribution Facility on 27 July, that would suggest a delivery of the appropriate registered mail collection notification card by the local Postal Officer on 28 July at the earliest, but no later, I would consider than, 29 July. In any event Mr Gonzales indicated in evidence (in response to the Commission's questions) that he did take the card to the Post Office. That would strongly suggest to me that those cards (both the earlier and the subsequent card) were actually being delivered to his mail box in the usual way by Australia Post. Mr Gonzales was simply choosing not to collect the registered mail. 258No doubt the tone (which was entirely appropriate and warranted in my view) of Mr Allen's letter prompted Mr Gonzales' swift response by email to Ms Ricaud later that same day and the undertaking to pick up the registered mail which he did the next day, Saturday 31 July. I have no doubt whatsoever that if Ms Ricaud had not contacted Mr Gonzales by email as she did on 30 July and attach Mr Allren's letter that Mr Gonzales would not have collected the registered mail and it would have been returned to her as unclaimed as had the March registered mail. 259Yet again Mr Gonzales' response was to go the doctor and seek a medical certificate, which he did on 31 July, (the day he picked up the registered mail) for the period 31 to 6 August notwithstanding that he had a current Centrelink Medical Certificate valid till 17 August 2010. He maintained in his written evidence that he emailed this 31 July certificate to his employer and in oral evidence said he could not remember doing so and said he told the AHRC about it, but did not send them a copy. 260I have carefully considered the contents of Mr Gonzales' email exchanges with Ms Ricaud on 30 July and on 2 August as well as his letter of response to Mr Allen of 2 August. 261I do not believe, on the balance of probabilities, that on 30 July Mr Gonzales did in fact have another appointment on 4 August as he claimed, and he certainly did not have an appointment with "his psychologist". He was not truthful to Housing NSW. I do not believe that at the stage of sending those emails he had yet made any attempts (he may have done so subsequently), to get himself on any kind of wait list. The 9 February 2011 letter of Dr Asar, (his GP not his psychologist), does not indicate in any way just when he made the appointment for 4 August 2010, and as Ms Brus pointed out this was readily able to be changed to 5 August, it would appear, at very short notice. 262Similarly, at the stage of his email letter to Mr Allen of 2 August I do not believe he had any appointment, or had made any arrangement whatsoever, to have a Psychiatric assessment on 12 August 2010. I note that he did obtain a subsequent referral to a psychiatrist from Dr Vincent Nguyen on 14 August, but again, there is no evidence as to just when he made the appointment to obtain that referral. That referral was not activated until 15 March 2011 when he subsequently attended for his first consultation with Mr Huy Nguyen, Forensic Psychologist, with two subsequent consultations and a report prepared for the purposes of this application (and addressed to the Commission). 263At no stage in his email exchange (and he had two opportunities to do so) did he say that he had not received the earlier March referral documentation sent by registered mail. Nor did he say that he was initiating a self assessment as per the Procedures. I do not accept that he somehow did so in the language he used or that it was somehow implied or that the 'black and white language' of the email did not allow him to convey this information, not that he was just focusing on the main issue of the "intimidatory" direction. His language and the information he did convey was very precise and specific. In response to his claim to have arranged his own appointment he was also told quite clearly and without any equivocation by Ms Ricaud that he was still directed to attend the appointment and the consequences of non-compliance. 264For Mr Gonzales to say that he was complying, and not disobeying, because he was seeking his own assessment is not only disingenuous, but plainly incorrect and wrong. 265Similarly, the submissions made on his behalf that he had the right to seek a self assessment in lieu of complying the employer's direction was also plainly incorrect and wrong. The Procedures make it crystal clear that the employer has the right to direct an employee to attend a fitness to continue assessment. An employee is "obliged to comply with an employer request to attend a fitness to continue assessment". As Ms Gream explained in her evidence (and the Procedures make quite explicit) an employee (or their doctor) who seeks to initiate a self assessment must do so through the employer and with the provision of appropriate documentation from the employer. 266In any event Mr Gonzales did not make any subsequent contact with Housing NSW or enquire as to any action proposed to be taken by Mr Allen. Given the very clear and direct language of both Ms Ricaud's email and Mr Allen's letter Mr Gonzales could not possibly have been unaware of the very real possibility and indeed likelihood of disciplinary action being initiated. To believe he could just ignore the situation and it would go away was just not reasonable. He had indicated to Mr Allen that the situation could not continue. Housing NSW, not unreasonably, also considered that the situation could not continue in the face of Mr Gonzales' failure to comply with directions. 267He maintained that he was conveying information about his position and his intentions to the AHRC, (and had been doing so at different times in 2010), and expected them to convey that, in turn, to Housing NSW, but he acknowledged that he never asked if that had been done, or received any feedback about the passing on of such information. However that did not remove Mr Gonzales' obligation to contact his employer directly rather than rely on some third party, particularly when apparently there had been no more conciliation involving Housing NSW in 2010. 268Mr Gonzales never did proceed with any consultation with a psychiatrist in 2010 and thus the report he undertook to provide to Mr Allen never eventuated. 269The significance of Mr Gonzales' failure to state at any time in the email exchange that he had not received (as he claimed in evidence) Ms Ricaud's letter of 19 March was that this would have left Housing NSW in the position, not unreasonably, of holding the belief that he had just ignored that registered mail, declined to collect it. There was also the returned couriered documentation earlier in July, although there was no evidence as to the basis of such return. 270In the absence of any further communication from Mr Gonzales, and given that he did not attend the scheduled appointment as directed, it was not surprising that Mr Allen moved to the next stage of initiating disciplinary action and hence the letter of 31 August in which Mr Gonzales was advised that dismissal was now being considered and given the opportunity of providing a written response. Again, this was sent by registered mail, again it was not collected and returned. 271In the absence of any written response, or any contact whatsoever, from Mr Gonzales, Mr Allen then took final step of issuing a letter of dismissal on 15 December 2010, some three and a half months later. Hardly hasty action. Again the letter was sent by registered mail, again it was not collected and again returned to Housing NSW in late January 2011 (as shown by the documentary evidence). 272NSW Businesslink/Housing NSW are certainly deserving of criticism for continuing to send out payslips to him until March 15, 2011. It was accepted that he did not receive formal notification (in the absence of him collecting the 15 December registered mail) of his dismissal until he was advised of such on 15 march 2011. There was no issue of his application being lodged out of time therefore. 273Mr Gonzales maintained in his 14 April 2011 letter to Ms Gream that he had not received registered mail and that it "may have been never been delivered or mis-delivered." Frankly it stretches the bounds of credulity that out of four registered mail letters sent to him (the two referrals, the "show cause" letter and the dismissal letter) the only one delivered and collected (on his evidence) was the July mail about which he had received the email advice from Ms Ricaud enclosing Mr Allen's letter. Housing NSW should not have had to resort to sending emails to Mr Gonzales to advise him of such registered mail so as to ensure he would pick it up. I have no doubt that had Mr Allen's letter not been attached to Ms Ricaud's 30 July email then Mr Gonzales would not have collected that registered mail. 274It should also be noted that during 2010 Mr Gonzales was receiving mail from NSW Businesslink - his payslips. While he maintained he did not receive all of them he did receive those in the critical month of August 2010 so he was accepting mail when it suited him. 275However this continued avoidance of Housing NSW's registered mail correspondence also accord's with the assessment of Mr Nguyen, the Forensic Psychologist who in his 19 May 2011 Report noted as follows: ...... 3. Mr Gonzales's (sic) interpersonal style is characterised by an exceptionally strong need to be accepted by others. This strong need for acceptance may cause him to feel uncomfortable with interpersonal confrontation or conflict. 276He went on to conclude inter alia as follows: 1................ In my clinical opinion, he is psychologically fit to resume his previous work duties. However, as his personality profile indicated, his tendency to avoid conflict may be a major obstacle for him to return to work with his previous managers. If possible, it is more rehabilitative for him to be transferred to another department to start afresh (emphasis added). 277Two observations need to be made about that conclusion. 278Firstly, transfer to another department was never a practical possibility given the provisions of s.87 of the PSEM Act. Approval of the other department would have been required as Mr Aslanis stated. I also do not believe that the transfer of Grade 1-2 Clerk was ever a viable option or possibility in the climate of the Treasury imposed budgetary constraints across the public sector in recent years which has resulted in various restructures/consolidation in some departments and generally greater regard for whether unfilled vacancies did need to be filled, and in some instances non-renewal of temporary appointments (as a result of knowledge gained through a variety of s.130 and s.84 matters). 279Secondly, I note that the reference is to Mr Gonzales' "previous work duties". This would seem to suggest the former Grade 4 position rather than the Grade 2 position to which Mr Gonzales had been demoted in 2009 and to which he had not been prepared to return. Indeed I can see no reference in any history referred to in the report to the issue of his demotion. The absence of the usual relevant documentation provided by an employer for such an assessment (as included in Housing NSW's March and July referrals), together with this reference would suggest that Mr Nguyen did not have all relevant facts before him to enable a properly considered and reliable opinion, no fault of Mr Nguyen I hasten to add. 280This raises doubt as to whether Mr Gonzales is fit, at this point in time, to return to work in the public service. Even if the Commission had been minded to consider reinstatement or re-employment he would still have had to be subject of an appropriate and properly referenced health assessment. I also note that as at the date of the hearing, and consequent upon his dismissal, he had been moved by Centrelink from sickness allowance benefits to Newstart (with disability) benefits which evidently continued to mean that he was not obliged to search for work. 281I also note Mr Gonzales' response when asked whether he had any idea in August 2010 as to how long he would be away from work that his expectation was that "Housing will conciliate the matter and see the merit of my case for reinstatement and I'm sure I will definitely rise to the occasion to be well and fit for my job description." That seemed to strongly suggest to me that he meant his former Grade 4 job description. 282This position also fits with Mr Gonzales' s.84 application in this matter in which he sought as one of the remedies re-employment in " any State Government job within my capacity and Grade 4 - Maximum Clerk". It was conceded, however, by Ms Hawkins in oral submissions that were the Commission minded to order reinstatement or re-employment then it could only be to the Grade 2 (supernumerary) position he formally held prior to his dismissal. 283In relation to Mr Gonzales' dismissal I consider that Housing NSW followed the procedures it was obliged to follow under the PSEM Act and thus no issue of procedural fairness arises per Antonokopoulos. 284True it is that Housing NSW did not make any contact either by phone or further email with Mr Gonzales and chase up any response to Mr Allen's 31 August letter and this could possibly be viewed as a lack of procedural fairness being extended to Mr Gonzales (in that he did not exercise his right to respond and have that taken into consideration by the decision maker). However, Housing NSW had no way of knowing Mr Gonzales (as he had claimed) was not receiving their registered mail (with the exception of the July referral) and in the absence of any information provided by him to the contrary were entitled to believe that he had received such mail and was just not prepared to collect such mail hence its return. 285However, even where there are held to be procedural flaws and/or defects in a process, that does not necessarily mean that it is fatal to the eventual outcome. There have been numerous cases dealing with procedural fairness issues in formal arbitral proceedings. The decision in D & R Flood Commercial Pty Ltd and Flood [2002] NSWIRComm 88 traversed the various authorities in that context (and in particular where there had been reference/reliance by the decision maker below on a matter raised/referred to in conciliation) and the Full Bench indicated at para 53 as follows: A convenient statement of the appropriate general approach is that set out in the judgment of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the Court, having referred to the "general principle ... well expressed by the English Court of Appeal" in Jones v National Coal Board [1957] 2 QB 55 at 67 that "everyone ... is entitled [to] a fair trial at which he can put his case properly", observed at 145 - 146: That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. .................. 286I consider that the general principles enunciated above are equally applicable to a disciplinary process. The crucial question to be asked is whether that alleged flaw/defect in procedural fairness would have affected the outcome. As indicated above, in the face of Mr Gonzales' continued avoidance of returning to work in the Grade 2 position and his failure to comply with the direction to attend the 4 August medical and make any kind of contact or response to Housing NSW, I have no doubt whatsoever that any response he could have made to Mr Allen's 31 August letter would not have made any difference to the disciplinary outcome of dismissal Mr Allen subsequently determined for the misconduct committed by Mr Gonzales, namely failure to comply with a direction to attend a fitness to continue assessment. There is no evidence that he was prepared in any way either to attend a fitness to continue assessment organised by his employer, or accept his demotion. 287I should also indicate that I consider that the direction issued was lawful, entirely reasonable and in accordance with the "revised Fitness to Continue Procedures' not to mention Housing NSW's rights and obligations under the PSEM (General) Regulation. 288I am fully aware of the consequences of a dismissal from the public service for an older worker (see D'Sousa v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042). However after carefully considering all of the relevant circumstances of this matter I do not consider that it is either appropriate to reinstate Mr Gonzales or re-employ him in the public service. He did commit misconduct in failing to follow the direction of his employer, that misconduct was serious and the only penalty available was dismissal. 289Whilst I have some sympathy for Mr Gonzales' position and his circumstances, it is abundantly clear that he retains deep seated, firmly held, and unshakeable beliefs that are unfortunately unlikely to be changed by any findings or observations in this decision. 290Having carefully considered all the evidence and submissions in this matter, as well as the appropriate authorities, I do not consider that the termination of Mr Gonzales was either harsh or unreasonable. I come to this conclusion based on the seriousness of the misconduct which occurred, the circumstances of the misconduct, and Mr Gonzales' ongoing intransigence in relation to his demotion. I can find no procedural fairness of sufficient consequence to render his termination unjust. 291It is not strictly speaking necessary to deal with the issue of practicability of restoring the employment relationship, however in my considered view it would be impracticable due to the practical considerations traversed by Mr Aslanis in his evidence (which is accepted), the length of time Mr Gonzales has been absent from the workplace and the nature of the misconduct which strikes at the heart of the employer/employee relationship and the confidence an employer is entitled to have in the conduct of an employee. Consideration of monetary compensation in lieu thereof does not then arise. 292Mr Gonzales' application is therefore dismissed. Elizabeth Bishop Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2012