Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Fire Brigade Employees' Union (on behalf of Brenden O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 1004 Hearing dates: 23 February 2012, 24 February 2012, 27 February 2012 Decision date: 31 January 2013 Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal application; Assault occasioning actual bodily harm; criminal charges conditionally dismissed pursuant to section 32 (3)(a) of the Mental Health (Forensic Provisions) Act 1990; No health or mental health issues disclosed to the Respondent prior to the dismissal; Wilful and deliberate conduct; Remorse/apology lacked sincerity. Legislation Cited: Industrial Relations Act 1996 Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Fire Brigades Regulation 2008 Workplace Injury Management and Workers Compensation Act Anti-discrimination Act 1977 Cases Cited: Police v Eade-Smith [2010] 200 IR 424; Wells v Commissioner of Police [2000] 100 IR 106; R v Pham [2005] NSWCCA 314; Murray Irrigation v Balsdon [2006] 67 NSWLR 73; Edelstein v Richmond [1987] 11 NSWLR 51; Gow v Cronulla Sutherland Leagues Club (2002) 119 IR 122; Casari v Sydney South West Health Service [2009] 185 IR 217; Franklins Ltd v Webb [1996] 72 IR 257; Hollingsworth v Commissioner of Police [1999] 88 IR 282; AMIEU v G & K O'Connor (2000) 100 IR 382; Patricks v MUA (1998) 153 ALR 626; New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440; Huggins v Mullins [2011] NSWSC 1123; Mourad v RailCorp [2011 NSWTAB 5; Crutcher v RailCorp [2011] NSW TAB 15; Commissioner of Police v Smith [2010] NSWIRComm 163; Director-General, NSW Department of Health v Industrial Relations Commission [2010] NSWCA47; Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22; Category: Principal judgment Parties: Brenden O'Donnell (Applicant) Fire & Rescue NSW (Respondent) Representation: Mr J H Pearce (Applicant) Ms J Camden, Manager Industrial Relations (Respondent) Ms M Buchanan (Principal Legal Officer, Employee Performance and Conduct Unit, Department of Education and Training) File Number(s): IRC 1777 of 2011 DECISION 1Mr Brenden O'Donnell (the Applicant) commenced employment with Fire & Rescue NSW (the Respondent) on 27 March 1987 as a Permanent Fire Fighter pursuant to the provisions of the Crown Employees (NSW Fire Brigades Permanent Firefighting) Award 2011. He took on the role of Communications Operator at Sydney Communications Centre in 1991, transferred to Albury in 2000 and returned to Sydney in 2006. BACKGROUND 2On 6 July 2011 Mr O'Donnell was attached to "A" Platoon at the Alexandria Communications Centre. 3At approximately 7.30 pm on that day, Messrs O'Donnell and Senior Firefighter (SF) Pavel Novotny were having a discussion regarding pizza in the mess room. 4SF Novotny had his back to the Applicant while he was cooking pizza. 5It was alleged that the Applicant approached SF Novotny and, using both his hands, pushed him in the back resulting in SF Novotny's head hitting a kitchen cupboard. 6As a result of the Applicant's actions, SF Novotny incurred injuries. He chipped his two front teeth and had an abrasion on his chin. 7Criminal proceedings were instituted against the Applicant by the NSW Police Force pursuant to section 59 (1) of the Crimes Act 1900. When he attended Redfern Police Station on 14 July 2011, he was arrested and cautioned on a charge of "assault occasioning actual bodily harm". He was advised that the charge against him was to be heard at the Downing Centre Local court on 23 August 2011. 8A "Letter of Charge" dated 5 August 2011 was forwarded to the Applicant by the Respondent advising that he had contravened Clause 15 (1) and Clause 18 (1) (h) of Part 3 of the Fire Brigades Regulation 2008 (the Regulation). He was required to admit or deny the charges within 10 calendar days. He was provided with details of all the support services available to him. 9A response was received from Anthony Samson, an Industrial Officer with the Fire Brigade Employees' Union, dated 18 August 2011. The union advised that the Applicant pleaded guilty to the charge of misconduct and recognised that his conduct had been highly inappropriate. The Union advised that the Applicant wished the following matters to be taken into account in mitigation of his conduct: (a)His conduct was neither systematic, nor ongoing and occurred only once; (b)He regretted his impulsive and inappropriate actions. He acknowledged it was unacceptable for anyone, let along someone of his rank and seniority; (c)He acknowledged the effect his actions had on SF Novotny and, for that, he accepted, full responsibility; (d)He had been experiencing considerable stress and had acted out of character in that instance; (e)On the advice provided to him immediately after the incident by the Respondent's Chaplain, Major Lyndsay Smith, he had sought professional assistance from a qualified counsellor; and (f)He was sincerely contrite for his actions, apologised unreservedly for those actions and had provided a written apology to SF Novotny. The submission provided by the union on behalf of the Applicant did not provide the Service with any detail of any underlying health or mental health issues that may have impacted on him either before, or during or after 6 July 2011. 10The Applicant forwarded a letter of apology to SF Novotny on 18 August 2011 in the following terms: I am tendering this letter as an open letter of apology to you.. I am apologising for my treatment of you on the evening of the 6th July at our place of work. Suffice to say my actions were completely unacceptable and I deeply regret any physical harm I caused you. The regard that each member of the NSW Fire and Rescue has always been very high and I hope my actions have not in any way detracted from your opinion of our great organisation and the generally high level of camaraderie that exists in it. Brendan O'Donnell 17 August 2011 11The criminal proceedings were adjourned to 14 September 2011. The Applicant advised Ms Kirsten Perry, Workplace Standards, Fire & Rescue NSW, of that development. 12The Applicant, on advice from his Solicitor dated 31 August 2011, obtained a professional assessment of his condition from his treating psychologist, Ms Murray. 13On 9 September 2011, Chief Superintendent Craig Brierley contacted the Applicant at home and advised him that he was officially suspended from duty with pay for the next two weeks or until advised otherwise. 14The Union responded on the same day on behalf of the Applicant indicating that there was nothing more to offer on the issue of his suspension beyond what had already been put to the Service in the 18 August 2011 correspondence. 15On 12 September 2011, Mr John Benson AFSM, Acting Commissioner, wrote to the Applicant advising that he had reviewed all documentation in relation to the charge against him and the submissions made on his behalf by the union, including the mitigation factors. He advised that he had considered all the options available to him pursuant to Clause 46 (1) of the Regulation in relation to how he could deal with the matter and was considering the option of terminating his employment. He advised the Applicant of the matters he intended to have regard to in deciding what action to take against him, including any previous breaches of discipline. The Applicant was invited to provide any material he wished him to take into account within 10 calendar days. 16On 14 September 2011, at the Downing Centre Local Court, the Magistrate adjourned the proceedings to 8 November 2011 on the basis that matters that are being considered pursuant to section 32 are usually decided on the basis of a report compiled by a psychiatrist rather than a psychologist. 17On 16 September 2011, the Acting Commissioner wrote to the Applicant confirming the suspension with pay and advising that it would remain in place until the completion of the disciplinary proceedings. 18On 22 September 2011, the Assistant Director Workplace Standards wrote to the applicant providing a copy of the Acting Commissioner's 12 September 2011 letter and provided additional time to make submissions. 19The Union requested, on 28 September 2011 that the Respondent disclose all material considered by the Commissioner in arriving at that decision. The Union requested an extension of time of seven days for the Applicant's reply. 20On 30 September 2011, the Applicant faxed to the Senior Investigator Workplace Standards, Ms Lisa Ridout, a copy of a medical certificate issued by his general practitioner, Dr Ng, covering the period 30 September to 28 October 2011. The certificate related to a medical condition he had been diagnosed with shortly after the altercation with SF Novotny. 21The Assistant Director Workplace Standards, on 5 October 2011, granted the Applicant additional time to make submissions to Commissioner Mullins. 22The Union responded on behalf of the Applicant on 14 October 2011 noting that: * the Respondent had not pursued any disciplinary action against the Applicant pursuant to Regulation 46 (1) in relation to any of the previous disciplinary matters; and * even if it had, Regulation 46 (2) provides that the disciplinary action be removed from a firefighter's personal record if the firefighter has been of good behaviour for at least two years since the taking of the action. The union noted that the previous breaches of discipline being considered by the Commission were matters that were 12, 7 and 5 years old respectively. In conclusion, the union noted that the matters it had raised were threshold issues that were required to be addressed by the Respondent prior to the Union being able to respond to the substantive issue - being the Respondent's decision to terminate the Applicant's employment. 23On 27 October 2011 the Applicant submitted a workers' compensation claim and filed an initial Work Cover Medical Certificate alleging post traumatic stress disorder and depression (both dated 21 October 2011) in relation to psychological injuries he had sustained as a firefighter. That claim was provisionally declined on 7 November 2011. The insurer has since confirmed that decision. 24Mr Greg Mullins AFSM, Commissioner, on 4 November 2011, commenced his consideration of penalty in respect of Mr O'Donnell's conduct on 6 July. 25Mr Mullins wrote to the Applicant on 7 November 2011 noting all the correspondence received from the union on his behalf. The letter was handed to him at his place of residence. The Commissioner advised that, in arriving at his decision, he had not taken into account the criminal proceedings as they had not been concluded and he had not taken into account his previous breaches of discipline as no action had been taken in relation to those. Nevertheless, he had taken into account the nature and circumstances of the assault on SF Novotny in arriving at his decision to terminate the Applicant's employment effective from 7 November 2011: ... I am satisfied that the attack from behind on Senior Firefighter Novotny, which resulted in injury to him, was unprovoked. There can be no circumstances in the workplace where any violence, and particularly that which results in injury, can be regarded as acceptable. Our employees should have the confidence that their workplace is free of violence, fear or intimidation. Our community has a right to expect that Firefighters will conduct themselves in a professional and respectful manner at all times and uphold the reputation of Fire & Rescue NSW. You are a qualified and experienced firefighter who should be well versed in the professional behaviour expectations of Fire & Rescue NSW. Your actions on this occasion resulted in the injury of a fellow Firefigher and failed to uphold the proud reputation of Fire & Rescue NSW. I can no longer have the trust or confidence that you will conduct yourself in an acceptable and professional manner in the future. 26The criminal charge against the Applicant was dismissed in the Downing Centre Local Court on 8 November 2011 pursuant to section 32 (3)(a) of the Mental Health (Forensic Provisions) Act 1990 subject to two conditions. Firstly, that the Applicant take prescribed medication/attend counselling/treatment in accordance with his psychiatrist's recommendation; and secondly, that the Applicant adhere to the treatment plan outlined in the psychiatrist's report. 27The Union filed an application pursuant to section 84 of the Industrial Relations Act 1996 (the Act) on 22 November 2011 seeking relief from unfair dismissal on behalf of the Applicant. The Applicant is seeking reinstatement to his former position. 28Conciliation attempts before Bishop C on 22 December 2011 failed to achieve a settlement of the claim. LEGISLATIVE FRAMEWORK 29The Fire Brigades Regulation 2008 provides: 15. Firefighters must acquire and maintain knowledge of legislation, orders and functions (1)A firefighter must acquire and maintain a thorough knowledge of, and must comply with the requirements of, this Regulation and the Commissioner's Orders. 18. Unacceptable Behaviour (1)(h) while on duty, by words or action, harass, intimidate or threaten another firefighter. 46 Disciplinary action by Commissioner (1) The Commissioner, after considering a report in which a firefighter is found guilty of misconduct and any submission made by or on behalf of the firefighter, may deal with the matter in ay one or more of the following ways: (a) by taking remedial action against the firefighter, (b) by giving the firefighter a caution or reprimand, (c) by imposing on the firefighter a fine not exceeding 10 penalty points, (d) by revoking the firefighter's appointment to a position, (e) by demoting the firefighter, (f) by terminating the employment or services of the firefighter. (2) The Commissioner must remove any record of disciplinary action taken under subclause 46 (1)(a), (b) or (c) from the firefighter's personal record if the firefighter has been of good behaviour for at least two years since the taking of the action. 30Section 49D of the Anti-Discrimination Act 1977 relevantly provides: Section 49D Discrimination against applicants and employees .... (2)(c) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) ... (b) ... (c) by dismissing the employee THE EVIDENCE The Applicant's Evidence 31Mr Brenden O'Donnell provided a statement in the proceedings in which he claimed to have had an unblemished service record up until the incident on 6 July 2011. He contended that no formal disciplinary processes or work performance issues had been brought to his attention. 32The Applicant described the relationship between him and SF Pavel Novotny prior to the incident on 6 July 2011. He said Novotny came to work in the Sydney communication centre at the beginning of 2010. 33He described it as "high pressure work situation" and therefore when he overheard other Operators criticise Novotny as lazy, he commenced to observe him and confirmed that view for himself. Unfortunately, Novotny had observed the Applicant laughing at a comment by another Operator about Novotny when he said asked "what's the difference between Pavel and Kim?" and provided the answer, "Pavel can cook" - Kim being a previous operator who had a tendency to do as little as possible. The Applicant said that he heard that joke repeated at least two or three times a week. He contended that Novotny took an interest in him from them on. He believed that Novotny considered him to be "vulnerable to being needled". 34Shortly after, Novotny pushed the Applicant's head set forward on his head thereby interfering with his ability to hear the conversation on the radio. Next time he was walking behind Novotny's chair, he retaliated in a similar manner. This became a regular occurrence - so much so that it happened at least once in every shift they worked together until, finally, Novotny yelled out "fuck off" to which he had replied with words to the effect, "What's the problem? Isn't it funny anymore? Or is it only funny when you do it to me?". That practice ceased from then on. 35The Applicant stated that, by then, however, the relationship between them had "deteriorated markedly " and was "poisonous". Mr O'Donnell said that Novotny had adopted the practice of putting him down in front of his peers questioning his expertise in the job and criticising him for drinking as he appeared not to approve of alcohol consumption. 36Things improved upon Novotny's return from annual leave as he had been spoken to by a senior firefighter on shift and he believed that a supervisor on shift had also spoken to Novotny. Nevertheless, there were two further exchanges between them - firstly, he had been very upset when Novotny asked if he was dyslexic because he used a certain piece of equipment in the gymnasium that was sometimes used to treat dyslexia. Secondly, Novotny was aware that the Applicant was yeast intolerant yet he persisted in organising pizza nights on their shifts in order to "snub" him as he knew that the Applicant resented being excluded. 37He gave the following account of the incident on 6 July 2011: A short time after sitting down to eat some steak and vegetables I had just cooked, Daryl Muzyczka - another of my work colleagues - sat down just near me and asked why I wasn't "having pizza with the rest of the shift". He quickly followed with, "what, not part of the team, huh?" He had responded with "well, it's hard to feel like part of the team if you're not kept in the loop". Novotny felt moved to defend himself and stated, "I told everyone yesterday that I'd be making pizza tonight". I replied, "well I didn't hear anyone say anything". In a more raised voice, Pav then - possibly feeling uncomfortable at my inferring that he had intentionally marginalised me by cooking something he knew I couldn't eat - said, "you were there you would have heard me and anyway as I recall you can't eat yeast. So unless you have had a miraculous recovery how was I to know you would want to be included?" There was a brief moment of silence and feeling he needed to defend himself further, Pav continued with, "what? Am I supposed to be a mind reader or something?" Referring to Pavel being overly defensive by not just letting the whole issue slide, I asked, "is there any reason why you are talking to me like this?" After brooding a short while over what I'd perceived to be a well orchestrated taunt, I eventually pushed myself away from the table where I was eating, walked across the mess room to where Pav was sanding and to get Pav to turn around and face me I said, "what is your problem, huh?" as I was saying this I pushed him in the back. Pav said something like, "what the fuck are you doing?" and Daryl quickly positioned himself between us. Pav and I glared at one another for a brief moment but I don't think the situation was ever going to develop into anything more. No sooner had Daryl put himself between us than I had turned and walked back to the table where I had been eating. Pav soon left the room to report the incident to the Supervisors. 38He said Novotny was about 10 metres away and yet had intruded in the conversation he was having with Daryl. He said there was only one exchange between them. He denied that he had invited Novotny to "come on" and have a go. He also denied that he stood "toe to toe" with Novotny or had he "aggressively stormed back over to" Novotny. He further denied the contention that he had said, "its all going to turnaround and look bad on him, he has got you three involved, I'm not the one going down, I've got stuff on everyone". He claimed that Novotny had provoked him. 39He agreed, however, that he had commented to Daryl Muzyczka words to the effect, "He is always having a go at me, any chance he gets he has a niggle, he is an ignorant "c...." he has not respect" and "his is disrespectful, he has no respect, he's always on my back". 40The Applicant stated that when he finished his meal, he returned upstairs and just as he was about to sit down at the console in the Communications Room, he was advised by Station Officer (SO) Peter Lewis that he was required for an interview with himself and Ray Dixon, and later by Inspector Glen Lord. 41SO Lewis advised him that he was directed by Inspector Lord not to go back downstairs and not to talk to Pavel Novotny. He was warned that if he did so he would be held to be in breach of a direct order. 42He recalled that, following his interview with SO Lewis and SO Dixon, he had felt very remorseful and remembered thinking that it was unfortunate that he had been directed not to approach SF Novotny as he had wanted to personally apologise to him for his actions. 43He recalled that during the interview with Inspector Lord (with SO Lewis in attendance) the Inspector had expressed disbelief on a number of occasions with words to the effect, "I can't believe this has happened"; "I can't believe it, you of all people"; "this is out of character" and " I did not see this coming at all". The Applicant said he had very little to say at that interview as he was "in disbelief" at what had just happened. He contended that he had only intended to give SF Novotny enough of a push to get his attention and the outcome was unintended. At the conclusion of the interview he was advised that the Police required to interview him. 44The Applicant said he was interviewed by two Constables from Redfern Police Station at about 9 pm and then resumed his duties. Prior to leaving the Centre at the end of his shift on 7 July 2011, he obtained from Inspector Lord the contact details for Major Lindsay Smith, the Brigade Chaplain. He said he made contact and the Chaplain visited him at home later that day to offer him some much needed support. 45Mr O'Donnell gave evidence that he consulted his family GP, Dr Richard Ng on 8 July 2011 who put together a mental health plan for him and referred him to a local clinical psychologist, Ms Fiona Murray who he saw on 19 July and six subsequent occasions up to and including 13 September 2011. 46On 21 September 2011, as a result of an emergency appointment arranged by his wife with Dr Ng, he was referred to the Manly Mental Health Team at Manly Hospital. 47The Applicant stated that, on 23 September 2011, two members of that Team visited him at home after he had experienced one of his most intense episodes to date. He had experienced invasive thoughts of critical incidents he had attended in the past leading to feelings of anxiety and an inability to get close to his own daughter who he was supposed to be minding that morning. It was because he was against being hospitalised and because his father was with him that morning that the team members did not insist on his immediate hospitalisation. One of the team members, over the following two weeks, made regular calls to him to follow up on his treatment. 48The Applicant said he saw his psychologist on three other occasions up to 4 October 2011. On 6 October 2011, he consulted Dr Ng who provided him with a referral to see psychiatrist, Dr Prem Naidoo. He said that referral was obtained at the request of the Manly Mental Health Team. 49Mr O'Donnell said he had his first consultation with Dr Naidoo on 12 October 2011 and saw Ms Murray again on 13 October. At his next appointment with Dr Naidoo on 19 October 2011, he said he was diagnosed with a major depressive disorder and suffering from post traumatic stress causing him, on 20 October, on advice from the union, to submit a workers' compensation claim for injuries sustained through exposure to various incidents during his 24 years of service with the Respondent. 50The Applicant saw his psychologist again on 20 October and Dr Naidoo on 27 October 2011. He advised Dr Naidoo that he required a Professional Assessment for submission to the Local Court. He obtained that report on 31 October 2011. 51The Applicant stated that he has continued to consult Ms Murray and Dr Naidoo and consulted an independent Psychiatrist, Dr Kaplan, as arranged pursuant to the Workplace Injury Management and Workers Compensation Act. 52Mr Scott Lynch provided a statement in which he advised that he has been a Communications Operator for the last 14 years of his 21 years employment with the Respondent. 53Mr Lynch had witnessed the altercation on 6 July 2011. He recalled that the lead up to the State of Origin match was airing when it occurred. He was sitting in the mess room beside SF Darren Pearson. 54His recollection of the incident is summarised as follows: He and SF Pearson were seated on the recliners. Seated behind them at the mess tables were the Applicant and SF Daryl Muzyczka. SF Pavel Novotny was in close proximity cooking pizzas in the kitchen for the whole shift crew. He heard someone ask why Mr O'Donnell was eating a dinner that he had brought in when, during the previous shift, SF Pavel Novotny had offered to cook pizzas that particular night. He heard the Applicant respond that he was not made aware of that and so had brought in his own dinner. When the Applicant implied that he had not been notified, had not been kept in the loop, Novotny had replied with words to the effect, "well I told everybody in yesterday morning in the room as a general announcement". He described the exchange between Novotny and O'Donnell as "playful banter" pointing out that there were no raised voices, or swearing, or any other hint to demonstrate that the conversation was getting heated or more serious. He submitted that such playful banter was normal on all shifts and in all locations within the service. This banter lasted approximately 10-15 minutes while everyone remained in their spots. He said he heard the Applicant rise and head towards the kitchen. He thought the Applicant was going to try a piece of Novotny's first lot of pizzas. Instead, he observed the Applicant push Novotny in the back which took everyone by surprise, especially Novotny who hit his mouth on the cupboards. He said that it was then that they all realised that the situation was serious. SF Daryl Muzyezka got up, went over and got between them in an attempt to cool the situation down. The Respondent's Evidence 55Mr Pavel Novotny relied on the written statement he had provided to management on the day of the assault. 56In his statement to management on 6 July 2011, Mr Novotny provided his version of the incident: SF Darrel Muzyczka said to SF O'Donnell "not a team player" suggesting why he is not having pizzas. SF O'Donnell replied that "I never got an invite". With that I advised him, I had told everyone yesterday of the cook up and that everyone was welcome. He denied hearing this. I reminded him that last time I had cooked pizzas he advised me that he was allergic to yeast and unless you have made a miraculous recovery what is the problem? I then turned back to the kitchen bench and carried on cooking. That is when I was shoved in the back, my face hitting the kitchen cupboards causing two of my front teeth being chipped and my chin sustaining an abrasion. It took me a few seconds to work out what had just occurred, as I was in shock. I then observed SF Muzyczka between SF O'Donnell and myself holding him back. SF O'Donnell kept shouting "come on then". At no stage did I try to pursue an altercation. I let him know he had chipped my teeth I went straight up stairs to report the incident to SO's Dixon and Lewis. That then sparked a chain of procedures... 57Mr Novotny said that he had suffered two chipped teeth, a painful injury to his jaw and lacerations on his chin as a result of the attack by Mr O'Donnell. He underwent extensive reconstructive dentistry to repair his damaged front teeth. He was fitted with porcelain crowns and an occlusal splint for night protection against him possibly grinding his repaired teeth. He said he was advised that he may require further treatment because his front teeth had been compromised long term. 58In addition, Mr Novotny said that his general practitioner had diagnosed him as suffering from an "acute stress reaction" and, as a result, attended three sessions of psychological treatment commencing from 26 September 2011. 59Mr Novotny observed, in the time that he worked with the Applicant, that he used his physical size and his confrontational and often aggressive demeanour to "stand over" and intimidate people. 60Mr Novotny contended that he was not confident that the work environment can be safe and free of harassment or threat of violence if Mr O'Donnell is permitted to return to work at Alexandria Communications Centre. He did not want to be placed in a position of having to work again with the Applicant as he would have genuine, on-going concerns for his safety if he has to regularly interact with him. 61Mr Darrel Muzyczka also provided a statement in the proceedings whish relied on the written statement he had made on the day of the incident to senior management. The statement basically confirmed the statements of all concerned as to where the altercation had its genesis. He was also of the view that the conversations involved "light hearted exchanges", "normal stirring" between the Applicant and Novotny that lasted approximately 5-10 minutes, "The exchanges appeared quite jovial, with no malice from either side. There were no threats exchanged, no swearing and no derogatory comments". 62Mr Muzyczka went on describe the actual altercation as follows: FF O'Donnell then stood up and made his way to the kitchen area where he pushed FF Novotny double handed in the back, causing FF Novotnys head to hit the kitchen cupboard. FF Novotny at that stage was making pizzas with his back to FF O'Donnell and was unaware of FF O'donnell approaching (I thought when FF O'donnell made his way over he was going to grab a piece of pizza). FF Novotny then turned around, he appeared quite shocked and said something like "what the fuck are you doing". Then FF O'donnell approached FF Novotny, in an aggressive manner where they stood toe to toe, they were approximately 30cms apart. I made my way over and pushed myself between them in an attempt to stop it escalating. I was facing FF O'donnell telling him to "calm down" and "what are you doing?" The stand-off lasted for about 30 seconds before FF O'donnell made his way back to his seat and sat down. I then made my way back to my seat, thinking the incident had finished. After a period of about 20 seconds, FF O'donnell then aggressively stormed back over to FF Novotny in the kitchen and again stood toe to toe with him. About 30cms apart. I again made my way over and pushed myself between them, as it appeared it might escalate into a punch up or something worse. The stand-off again lasted for about 30 seconds before FF O'donnell made his way back to his seat and sat down. FF Novotny then went into the change room. I am unsure whether if it was in between the stand-offs or after FF Novotny had left the room that FF O'donnell stated, in reference to FF Novotny, "He is always having a go at me, any chance he gets he has a niggle, he is an ignorant cunt, he has no respect:". During this whole time there was nothing said by either FF Pearson or FF Lynch and they remained on the recliner. FF Novotny then entered the mess room after about 2-3 minutes and had a heated exchange with FF O'donnell from about 4 metres apart stating that "my teeth are chipped, you are fucking idiot" and other exchanges along those lines. He then made his way out of the room, up to inform the station officers of the incident. FF O'donnell again stated "he is disrespectful, he has no respect, he's always on my back". This went on for a couple of minutes before he exited to the change rooms. Then FF Lynch, FF Pearson and myself had a brief conversation. We all couldn't believe what had happened and we didn't see it coming. After about 15 minutes FF O'donnell then re-entered the mess room. He stated to myself, FF Pearson and FF Lynch that "its all going to turn around and look bad on him (FF Novotny), he has got you three involved, I'm not the one going down. I've got stuff on every one". He then left the room. 63Mr Muzyczka also did not want to be put in a position where he has to work with Mr O'Donnell again given his genuine ongoing concerns for his safety and the safety of his colleagues if they are forced to regularly interact with him in the event that he is reinstated to his former position. He said he expected to work in an environment that is free from harassment or threat of intimidation or violence and he was not confident that his workplace would be safe from those threats if Mr O'Donnell is permitted to return to work at Alexandria Communication Centre. 64Mr Leonardo Cisternas provided an affidavit in the proceedings in which he advised that he is the Respondent's Workers Compensation Technical Advisor. He was aware that SF Novotny lodged a workers compensation claim on 7 July 2011 and attached relevant medical evidence of damaged teeth, an injury to the jaw and lacerations on the chin. He was also diagnosed as suffering an "acute stress reaction" as a result of the assault. 65The summary of expenses incurred on behalf of SF Novotny as at 1 February 2012 as a consequence of the incident is as follows: General Practitioner Expenses $ 474.00 Dental Treatment $ 5408.00 CT Scan $ 1105.00 3 sessions of psychological treatment $ 496.00 Total: $ 7483.00 In addition, weekly benefit payments while SF Novotny was absent from work over a period of 16 shifts totalled: $ 4334.72 In total, as at 1 February 2012, the total costs amounted to: $11,817.72 66From experience and in his professional opinion, Mr Cisternas anticipated that further psychological treatment may continue with resultant increase to costs yet to be incurred by the insurer. 67Inspector Jeffrey Honey provided a written statement in which he advised that he was employed in the role of Inspector Response Co-ordinator at the Alexandria Communications Centre but was not on duty on the night of the assault and a relief was acting in his stead. 68In his role as Inspector, he is responsible for all functions undertaken on his shift by all staff and therefore has direct contact with the Communications Operations and their Station Officers on his shift. He stated that his role allowed him to make observations of Mr O'Donnell's demeanour within the workplace since 2 June 2006 when the Applicant came under his command. 69Inspector Honey stated that he formed the view that the Applicant was a person "who displayed a dominant presence in the workplace. I observed Mr O'Donnell to be a person who would often demonstrate an aggressive demeanour. I also observed Mr O'Donnell to 'stand over' and either attempt to, or otherwise succeed in, intimidating people". Having said that, he pointed out that no staff member had ever made a formal report to him which would require intervention on his part or grievance resolution. 70Inspector Honey stated that, up until the said incident, he was not made aware either by the Applicant or his union or any health care professional about the existence of any long term pre-existing health issue or any mental health issue that may have impacted on his behaviour in the workplace. He pointed out that, had Mr O'Donnell disclosed those health or mental issues, then they would have been drawn to his attention. 71In conclusion, Inspector Honey stated that he does not consider the Applicant to be a fit or proper person to be employed by the Service based not only on the violent, unprovoked physical outburst directed against SF Novotny but also on his lengthy period of workplace observation of the Applicant. 72Inspector Honey pointed out that he would be extremely concerned that he would be placed in a position where he cannot reasonably deliver on his regular obligations in the event that Mr O'Donnell was reinstated to his former work location as he does not have the confidence that the Applicant will be able to handle the highly stressful, time critical situations, such as the Triple Zero calls, and therefore would have safety concerns for his ability to provide a safe work environment for all staff, the public and the Applicant himself. 73Inspector Robert Packham AFSM provided a statement in the proceedings in which he advised that he is currently in the role of Inspector Response Co-ordinator on "C" Platoon at the said Communications Centre. He gave evidence that he had regular direct contact with Mr O'Donnell when the Applicant worked on his shift when he transferred to that platoon on 17 July 2000 to 2 August 2001. 74Inspector Packham said he was made aware of an incident involving a lap top in May 2001. There was no evidence before the Commission that the incident went beyond the information stage to Inspector Packham and therefore it will not assist in these proceedings. 75Inspector Packham explained that it is the role of the Station Officer at the scene of an incident to make a judgment call as to whether or not to send an additional pump appliance to assist. The role of the Communications Operator is merely to dispatch additional assistance as requested. Inspector Packham, while observing the Applicant with regard to the laptop incident, had it reported to him that the Station Officer first responding to an Automatic Fire Alarm call scene, noted from the main fire control panel that there were a number of buildings that required checking. A radio call was taken by Mr O'Donnell who reportedly refused to turn out the second pump as requested. 76Inspector Packham directed Mr O'Donnell and his union representative to attend his office to discuss his work performance on that day. He recalled that Mr O'Donnell did not provide direct answers about both work-related matters he put to him but explained that he had "family problems" which were impacting upon him. It was suggested to him that he seek assistance from the Fire Brigades Chaplain. 77Inspector Packham recollected that Mr O'Donnell went on sick leave following the conclusion of that shift and, on 26 May 2001, applied for and obtained a transfer to Albury: Application for transfer to Region South 2 Owing to some personal issues (which I have discussed with the NSW Fire Brigades Chaplain), I am hereby applying for a transfer to Region South 2, to resume normal firefighting duties at the Brigades' earliest convenience. 78In conclusion, Inspector Packham expressed grave concern about the possibility of Mr O'Donnell's return to the Communications Centre given his behavioural problems in the workplace over time culminating in the assault upon SF Novotny. 79Mr Paul McGuiggan, Chief Superintendent, provided a statement in the proceedings in which he advised that he was a member of the Senior Leadership Team and, in addition, held the rank of Assistant Director Preparedness and Response at the relevant time. In the latter role, he was required to manage, direct, control and monitor the operations undertaken at the Alexandria Communications Centre and interact with the many Service employees stationed there. 80Mr McGuiggan admitted that he had limited direct dealings with the Applicant. Nevertheless, he had personally made his own observations of the Applicant's demeanour within the workplace. Mr McGuiggan pointed out that had Mr O'Donnell or his union made it known through the chain of command that he had any long term pre-existing health or mental health issue that may have impacted on his behaviour in the workplace, then he would have been made aware of their existence. 81Mr McGuiggan expressed doubt as to his ability to deliver on his obligations to provide a safe and health work environment if Mr O'Donnell is reinstated either at his former work location or any other work location within the agency. He did not have confidence that Mr O'Donnell would be able to handle the often stressful, time critical situations associated with the Respondent's workplaces and therefore held safety concerns for the Services' employees, the public and Mr O'Donnell himself. 82Chief Superintendent Craig Brierley provided an affidavit in the proceedings in which he advised that his position within the Service, that of Assistant Director Recruitment and Staffing, is responsible for ensuring that, operationally, there are sufficient staff resources rostered and readily available to respond to emergency incidents. He is also aware of staff management matters. 83Chief Superintendent Brierley, is aware that Mr O'Donnell asserts that he has an unblemished record of service. In reviewing a range of corporate files and records relating to conduct, service, leave and attendance records for Mr O'Donnell, Chief Superintendent Brierley focused on his history for the period 6 July to 9 September 2011. The record revealed - * a number of occasions when the Applicant was absent from duty without leave (25 August 1991 and 24 September 1999); * a number of occasions when the Applicant exceeded the threshold within a calendar year of unsupported sick leave permitted by the Service (1993 and 1997); * 1999 report of abuse, threats and insubordination towards SO Gaul for which he was required to provide a written apology; and * Involvement in July 2004 in an off-duty alcohol-related incident at Albury for which he was criminally charged. Although the charge was ultimately dismissed, the Applicant had made a number of important concessions about his conduct towards police on the evening, his need to seek assistance and bringing the department into disrepute. 84Chief Superintendent Brierley, on 6 July 2011, was acting in the role of Professional Standards and Conduct Officer. He had been made aware of the incident between the Applicant and SF Novotny. He said that from the date of the assault until he was suspended with pay on 9 September 2011, Mr O'Donnell was absent from duty on a mix of either paid sick leave, long service leave at half pay or refresher training. He attended work as an operational firefighter on two night shifts only. 85Chief Superintendent Brierley believed that his 27 years of employment with the Service and the experience gained in both operational firefighting and senior management roles qualified him to comment on the standards of personal behaviour and attributes that can reasonably be required and expected of firefighters in the context of community standards, the work they do and the environment in which they undertake that work. 86He concluded that, based on his findings from the review into the Applicant's personnel file and other records and the latest incident involving SF Novotny, there was ample evidence to conclude that the Applicant's demonstrated character attributes and patterns of behaviour fall below the standard reasonably required of a firefighter and the Service cannot have the necessary confidence and trust in him. 87Mr Gregory Mullins, Commissioner of Fire & Rescue NSW, commenced, on 4 November 2011, to consider what penalty to impose in relation to Mr O'Donnell's conduct towards SF Novotny. He stated that he took into account the following matters only in arriving at his determination: * the nature of the misconduct; * the representations by the union of behalf of Mr O'Donnell; * the significant injuries sustained by SF Novotny; and * the effect of the misconduct on the employment relationship. 88Mr Mullins stated that he was satisfied that the Applicant had been afforded procedural fairness by the Nominated Officer and was given fair and reasonable opportunity to comment and make submissions in relation to the allegation, his guilt, matters he wished to have considered in mitigation of guilt and consideration of the termination of employment. 89Mr Mullins stated that he reached "a resolute conclusion", a "steadfast conclusion" in relation to the following: * that the Applicant's conduct was "entirely unacceptable"; * that the Applicant was no longer a fit and proper person to exercise the functions of a firefighter; * the actions of Mr O'Donnell were not compatible with the maintenance of a safe, professional workplace; and * he could have no trust or confidence in Mr O'Donnell's ability to again discharge his duties as a firefighter in the required manner. 90Mr Mullins was emphatic that no material had been placed before him or provided to him by the Applicant or his union prior to the termination of the Applicant concerning the nature of any formally diagnosed health or mental health illness affecting the Applicant. 91Associate Professor Robert Kaplan, Forensic Psychiatrist, provided an affidavit in the proceedings in which he stated that he met with and interviewed Mr O'Donnell on 13 December 2011 for a psychiatric assessment. 92Associate Professor Kaplan commented on the various stages of the interview with the Applicant: Mr O'Donnell provided him with a trauma list in response to his question as to why he had filed a worker's compensation claim for Post Traumatic Stress Disorder (PTSD). The Applicant advised that he was still affected by those incidents. Associate Professor Kaplan commented that the Applicant's "account of PTSD symptoms is mechanical and stereotyped" and is "based on the misconception that exposure to a number of traumatic events per se will automatically lead to PTSD". The Associate Professor found that "all of his problems can be attributed to other difficulties such as abuse of alcohol and depression". Mr O'Donnell attributed his good progress to a number of things which mainly involved his absence from the stresses of the Centre and not having to take 000 calls. Associate Professor Kaplan commented that: These statements tend to undermine his claim that his problem is due to traumatic events seven years ago. 93Mr O'Donnell told him that he started drinking when he joined the Service and was bingeing at least four times a week leading to aggression, relationship difficulties and disciplinary issues which he did not detail. He stated that he had several low range DUI offences over the years and frequently had fights with colleagues which he did not detail although he mentioned that they mainly occurred when they were playing cards. Associate Professor Kaplan noted that Mr O'Donnell "comes from a family background of depression and alcoholism, two factors which make him predisposed to drinking problems". 94In conclusion, Associate Professor Kaplan found that the Applicant had Major Depressive Disorder and Alcohol Abuse Disorder both of which were in remission and neither of which was attributable to his work nor was his work a substantial contributing factor to his condition. 95In response to questions as to any restrictions he would place on the Applicant's current fitness for work from a psychological perspective, Associate Profession Kaplan replied, on 24 January 2012 that, firstly, at the time of the assault on SF Novotny, the Applicant's actions were not prompted in any way by a work-related psychological injury. Secondly, he could not discount the possibility of a relapse in future noting the history of his alcohol abuse; and thirdly, the same would apply to his depression although the possibility of that affecting his work was lower. It was considered that it would be reasonable for him to work provided he is under the care of a psychiatrist for two years after resumption at work. SUBMISSIONS 96It was submitted by Mr Pearce, on behalf of the Applicant, that the dismissal of the Applicant was harsh, unreasonable and unfair because the Respondent failed to afford Mr O'Donnell procedural fairness for the following reasons: (a) The Respondent based its decision on matters that have no bearing on the termination of the employment; the dismissal was not a commensurate penalty for the conduct of the Applicant on 6 July 2011 if regard is had to the mitigating circumstances that existed, viz. his health condition which was a contributing factor; the likelihood that the Respondent breached Section 49D (2)(c) of the Anti-discrimination Act 1977 by its failure to take account of that health condition; and, the failure of the Respondent to consider the outcome of the local court proceedings. The failures outlined above demonstrate that the Respondent did not adhere to the principles of natural justice nor did it ensure procedural fairness throughout the process. 97Mr Mullins said he terminated the Applicant upon being satisfied that the assault on Mr Novotny was unprovoked. Mr Pearce pointed out that the evidence refutes this version of events. 98The Union had written to the Respondent objecting to the matters that had been taken into account in arriving at a decision to consider terminating the Applicant. Mr Pearce pointed out that the Union had objected to consideration of the fact that there were local court proceedings on foot which were yet to be finalised; alleged previous breaches of discipline and Mr O'Donnell's service record. The Respondent did not take into account the local court proceedings in arriving at a decision to dismiss the Applicant but gave no such undertaking in relation to alleged previous breaches and his service record. Mr Pearce submitted that the Union did not intend to exclude consideration of the local court proceedings. Rather, it intended that the Respondent await the outcome of such proceedings. 99Mr Pearce pointed out that the alleged previous breaches ought not to have been taken into account bearing in mind that no disciplinary action had been taken against the Applicant in relation to same. The service record have not been produced and therefore also ought not to have featured in the decision making process. 100It was pointed out that the Union contends that there was no urgency in arriving at a decision to terminate Mr O'Donnell the day before he was to appear in the local court and questions the timing of the delivery of the letter of termination. 101The charge against the Applicant was conditionally dismissed by the local court. It was point out that Mr O'Donnell has fully complied with the conditions placed upon him. It was also pointed out that none of the conditions either prevent the Applicant from performing the functions of a firefighter or present any burden on the Respondent. Indeed, it was submitted, the Respondent has currently in its employment other employees who suffer from the same or similar condition and who are frontline fully operational fire-fighters. 102It was pointed out that the Applicant recognised that his actions were out of character and sought medical assistance in relation to his mental health. Unfortunately, it was submitted, the Respondent has failed to give consideration to the fact that his mental health condition was a significant contributing factor to the incident on 6 July 2011 despite being aware of it since the lodgement of his workers' compensation claim on 20 October 2011. 103Mr Pearce submitted that the Respondent's disciplinary procedures have been criticised in the past by Sams DP for a similar denial of procedural fairness in an unfair dismissal case: New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440. 104The Union contends that the Applicant's disability falls under the definition of "disability" in that Section 4(e) of the Anti-Discrimination Act 1977 defines it as being "(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". On that basis, it was concluded that the Respondent unlawfully discriminated against the Applicant when it terminated his employment for a matter that was contributed to by his disability: (section 49D (2)(c)). 105It was pointed out that it was one-off episode of misconduct, "a single outworking of his condition" which has since been diagnosed and controlled. The treatment does not require any accommodation by the Respondent and it does not require the Respondent to tolerate any on-going criminal or quasi-criminal behaviour. It was concluded that the matter should be treated as a characteristic of the disability and the termination should be therefore be considered to be a consequence of that disability. 106Mr Pearce went on to address the issue of penalty. The penalty afforded to Mr O'Donnell was compared to penalties awarded for comparable workplace incidents both within the Respondent's department and more broadly: Huggins v Mullins [2011] NSWSC 1123; Mourad v RailCorp [2011] NSWTAB 5. The current matter was distinguished from those matters in that the matter involving the Applicant is of far lesser gravity than in Huggins and, although in appropriate, was not malicious or intended or calculated to do harm: Mourad. 107It was submitted that favourable consideration has to be given to the fact that Mr O'Donnell has admitted that his behaviour was wrong, has expressed remorse, apologised and undertaken not to repeat his behaviour: Mourad. 108Similarity was drawn between Mr O'Donnell's circumstances and the position presented in Crutcher v RailCorp [2011] NSW TAB 15 in that Mr O'Donnell also has had an unblemished record with the Respondent and he is suffering from a diagnosed major depressive disorder and post traumatic stress disorder which were significant contributing factors to the incident. 109 Mr Pearce relied on the well-settled applicable principles as follows: (i) It is appropriate to take into account the facts of the Applicant's illness at the time of the impugned conduct and the medical evidence at the time of termination in determining whether the dismissal was harsh. In that regard the Applicant relied on the well-settled principles set out in Police v Eade-Smith [2010] 200 IR 424 and Wells v Commissioner of Police [2000] 100 IR 106. (ii) It is appropriate to take into account the facts of the Applicant's illness at the time of the impugned conduct, because when mental illness contributes to the impugned conduct, in a material way, the Applicant's moral culpability will be reduced. For this reason dismissal may not be warranted when it might otherwise be appropriate: R v Pham [2005] NSWCCA 314. (iii) The finalisation of disciplinary proceedings and termination of the employment of an Applicant prior to the conclusion of concurrent criminal proceedings may be in the appropriate circumstances, and in its own right, harsh, unfair and unjust: Murray Irrigation v Balsdon [2006] 67 NSWLR 73; Edelstein v Richmond [1987] 11 NSWLR 51. (iv) In dismissals involving assaults in the workplace it is necessary to consider all of the circumstances surrounding the events including the relationship between the individuals concerned and whether there was provocation: Cronulla Sutherland Leagues Club v Gow [2002] 119 IR 122. (v) Is the act complained of deliberate, wilful, and of such a nature as to strike at an essential element of the contract of service? The question of whether the conduct was wilful and deliberate focuses attention on the Applicant's state of mind at the time of the conduct, and hence, his mental illness: Casari v Sydney South West Health Service [2009] 185 IR 217. (vi) In a dismissal where the employer alleges the existence of clause justifying termination of employment the employer must prove the misconduct which is alleged including the requisite state of mind of the Applicant: Franklins Ltd v Webb [1996] 72 IR 257. (vii) If a dismissal is harsh, unfair or unjust reinstatement is the primary remedy. It is only where it is impracticable to reinstate an Applicant that the other remedies available under s 89 of the Act may be applied: Casari; Hollingsworth v Commissioner of Police [1999] 88 IR 282. (viii) The advent of corporate employers has diminished the importance of this element of trust and confidence in employment relationships because corporate employers have no sensitivity: AMIEU v G & K O'Connor (2000) 100 IR 382; and vendetta is not the Australian way: Patricks v MUA (1998) 153 ALR 626. 110Mr Pearce addressed the evidence under the following headings and referred to the evidence before the Commission in support of those headings : (A) The Applicant was suffering from major depressive disorder with significant anxiety component at the time of the impugned conduct. (i) The Local Court issued a section 32 (3)(a) certificate which required the Applicant to adhere to a treatment plan; (ii) a diagnosis by Dr Naidoo that the Applicant was suffering a major depressive disorder with significant anxiety component at the time of the incident; and (iii) a finding by Dr Kaplan that he was suffering from a major depressive disorder which was in remission and alcohol abuse which was also in remission. Dr Kaplan gave evidence that whilst he could not be specific as to when that started, Mr O'Donnell certainly had a mental illness at the time of the earlier assault incident in 2004 if not longer. He agreed that the Applicant was certainly suffering from that mental illness on 7 July 2010. (B) The Applicant's illness was a significant contributing factor to conduct on 7 July 2011 and his state of mind. (i) The section 32 (3)(a) certificate required the Applicant to adhere to a treatment plan; (ii) Dr Naidoo reported "He would by the nature of his illness have been vulnerable to stressors at the time. His raised anxiety levels would have been a significant source of this vulnerability and his frustration tolerance level would have been significantly compromised by his illness... his psychiatric symptoms ... lead him to be vulnerable leading to the event where he pushed his colleague". (iii) Dr Kaplan agreed that he did not express any view about whether the Applicant's actions were prompted in any way by his mental illness. (C) The Applicant now is fit to work and there is no likelihood of relapse. (i) Dr Naidoo responded positively on a number of occasions in his report and in his oral evidence: ".... his prognosis is very good. Given the above, taken with conjunction with his current state, there appears to be no evidence to believe that he would not be able to return to his work and behave in an appropriate manner there. "One would have to be optimistic about his prognosis". Camden: Doctor, in your professional opinion does Mr O'Donnell have insight into the serious nature of his assault on Mr Novotny? Naidoo: Yes. Q: He does? And did he ever tell you of the nature of the injuries suffered by Mr Novotny? A: Yes, he did tell me. Yes. Q: Yes he did, okay. Doctor would it be fair to say that Mr O'Donnell is an aggressive individual? A: Not in my understanding of him, no. ........ Q: Doctor in your report of this month, you say that you can give no absolute guarantee that there will be no relapse of either Mr O'Donnell's drinking disorder or of anything else. Now in your opinion if a relapse occurred is it more likely than not to be another violent episode? A: No, what I meant by that is I meant that obviously in depression, major depression, or in alcohol abuse I suppose, you can't say that the person may not become depressed again, or in fact abuse alcohol again. That's what I meant. I certainly wouldn't have thought that an aggressive outburst, especially given in what's happened and his insight and understanding of the situation, I would have thought that would be extremely unlikely. (ii) Dr Kaplan also responded positively on a number of occasions in his report and in oral evidence: "It would be reasonable for him to return to work provided he is under the care of a psychiatrist for 2 years after he returns". Camden: From your review and talking to Mr O'Donnell do you feel that he displayed insight into the actions and the consequences on 6 July? Kaplan: I think - thought he was very remorseful, so I would assume that implied a degree of insight. Pearce: Was assisting him in his recovery, you actually concluded he'd recovered, didn't you? Kaplan: Well yes he .. Q: He was in - sorry, was in remission, you actually concluded he was in remission didn't you? A: Yes, he'd stopped drinking which was really great. Mr Pearce suggested that the Commission can make it a condition of a reinstatement order that he remain under the care of a psychiatrist for a period of two years but pointed out that it would not be necessary as the Applicant was very diligent. In addition, Mr Pearce submitted that even if there was a relapse, there was no likelihood of aggression. (D) Evidence of the circumstances surrounding the Events indicate that the Applicant was provoked or saw himself as provoked before the assault. Mr Pearce pointed out that Mr O'Donnell had given evidence of that in his written statement. In addition he had provided oral evidence to the following effect: Camden: What was his [Novotny] tone of voice? O'Donnell: Belligerent. Very direct, stern. .... Q: So there's a little bit of a time lapse, you got - you're still there, you're eating your dinner, you've got some time to think about it, maybe 30 seconds, maybe 20 seconds, why'd you push away from the table and go over to him? A: I wanted to know why he was wanting to make such an issue of the whole thing. Q: Well weren't you making an issue of it? A: Well he just kept offering, without me saying anything more he just kept saying something more, like it was sort of a baiting. Sometimes he'd initiate something that I'd finished saying what I'd said. ... Q: What prompted you to push him Mr O'Donnell? A: I guess I was aggravated by the lengths that he'd gone to to aggravate me. .... Q: I want to make sure I clearly understand what you just said. You've just told the Commissioner, and I'm summarising here, that by pushing this man you intended him to turn and do something to you, is that correct? A: Well that's what he seemed - he seemed to want to bring the whole thing to a head. Q: Had he shown you any physical aggression before you pushed him in the back? A: Yes. Q: How did he do that? A: In the workplace he would ... Q: I mean that evening. That evening. A: Not that evening, no, but on other occasions. In the workplace he'd push my headset off my head. .... Q: So you wanted to provoke something further from Mr Novotny? A: I guess I'd reached a point where I thought if I don't confront him this could go on for who knows how long. .... Q: Do you agree that this isn't just a simple push shove? A: ... I never intended to incur that sort of injury on him. I've never, never ever, done anything like that to any of my work colleagues and the whole thing upsets me. Mr Pearce turned to the affidavit of Mr Lynch which described the exchange between the Applicant and Mr Novotny as "playful banter". During examination-in-chief, Mr Lynch gave evidence that "the TV was on quite relatively loud". Pearce: Do you recall what happened then? A: I do. I believe at that stage Pav may have entered the argument at that point or the discussion I should say... ... Q: Did Pav raise his voice a little bit? A: Umm - I would say probably yes. Mr Lynch gave evidence that Mr O'Donnell never went back again and approached Mr Novotny a second time. Q. Can I suggest to you that Brenden said in front of the three of you, he's always having a go at me, any chance he gets he has niggle. He's an ignorant - then he used an expletive,, he has no respect, is that? A: Words to that effect I do remember. I remember saying, he's always having a go at me and the respect part. Q: Can I suggest to you that he might have said more than once that he was disrespectful, he has no respect, he's always on my back? A: Yeah. ... Q: No other fire fighter in the room said anything in response to that, did they? A: Well, no. In relation to the evidence provided by Mr Muzyczka, Mr Pearce drew the Commission's attention to his affidavit evidence as well as his oral evidence: Mr Muzyczka had referred to the discussion between the Applicant and Mr Novotny "like normal stirring between fire fighters". He demonstrated a poor recall of the detail of the conversation during cross-examination. Pearce: But didn't he - well can I ask you this, didn't he say to you afterwards, immediately afterwards, he's disrespectful, he had no respect, he's always on my back? Muzyczka: That's correct. ... Q: Okay. And you also heard him say he's going around, sorry, you also heard him say he's always - he's disrespectful, he has no respect, he's always on my back? A: Yes I did. Q: ..... and I think Mr Pearson and Mr Lynch were present when that was said? A: That's right. In relation to the evidence provided by Dr Kaplan, Mr Pearce drew the Commission's attention to his oral evidence: Pearce: And also can I suggest to you that Mr O'Donnell said not long after the incident "he's disrespectful", about Mr Novotny, "He's disrespectful, he has no respect, he's always on my back"? Kaplan: I do recall Mr O'Donnell saying that Mr Novotny was disrespectful and quite possibly the other phrase. Q: Can I suggest to you that at least from Mr O'Donnell's point of view as indicated by those statements there was an element of provocation in the incident? Do you agree with that? A: Yes. Yes, I was left with no doubt that Mr O'Donnell saw himself as being provoked. Mr Pearce then referred to the evidence of Mr Novotny who confirmed that personally he would find it offensive if someone suggested to him that he was not part of the team; that Mr O'Donnell was definitely not a person, as at 7 July, that one could banter with; he felt the need to correct Mr O'Donnell in relation to not being aware of the pizza night; he accepted that the correction was a criticism of Mr O'Donnell and that, ultimately he had the last word on the subject. As to the evidence of Dr Naidoo, Mr Pearce referred to the response he gave in relation to what had triggered his actions on 7 July. Dr Naidoo responded that the Applicant told him that he felt singled out and he felt particularly picked on, targeted. (E) Evidence of prior events - relationship between O'Donnell & Novotny had been unsatisfactory for a significant period of time and there was mutual antipathy/friction between them. Mr Pearce referred to the cross-examination of Messrs Lynch and Muzyczka who confirmed the evidence of the Applicant in relation to Mr Novotny's work performance. Mr Lynch gave evidence that there was always banter between the Applicant and Novotny but went on to add that it happened a lot with Operators; they pushed one another's buttons; Up to one point, it was 50/50 but towards the end, he told the Applicant that "he was laying it on a bit thick". Mr Novotny had given evidence of the antipathy and friction with Mr O'Donnell. He pointed out that he never started anything with the Applicant. It was always the Applicant who started the banter and it was always in a crowd and always across the room so everyone else could hear. The Applicant would make comments such as "How do those shoulders hold up that huge head of yours?" He agreed that while he did not initiate anything physical with the Applicant, he had openly criticised him. Mr McGuiggan prided himself on his reputation for not standing for any sort of workplace bullying. He pointed out that, apart from the report provided by Mr Muzyczka in relation to the incident, he had not received any complaint from the Applicant in relation to bullying. (F) Re-instatement is practicable - evidence called to the contrary recited rote incantations and was uninformed on the real circumstances concerning the assault. No evidence has been called from the Applicant's actual supervisor saying re-instatement is not practicable. Mr Pearce pointed out that the evidence of Mr Packham was based on hearsay evidence and was limited to concern about a return by the Applicant to the Communications Centre only. Messrs Packham, McGuiggan and Brierley admitted, during cross-examination, that they had not been aware that the criminal charge was dismissed because the Court accepted that Mr O'Donnell was not responsible for his conduct on the day because he had a mental illness. Mr Pearce described as "revealing" the evidence given by Mr Honey that the criminal charge had been dismissed because "he was unsound...". Messrs Packham and Honey both admitted they had not read the evidence provided in these proceedings or the doctors' reports provided by the Applicant. Mr Honey had relied on the report provided by Mr Lord (who was not called to give evidence) in relation to what he termed "a violent unprovoked physical outburst" as he had been on leave at the time of the incident. Mr Muzyczka was merely concerned about the possibility of a relapse. Mr Honey opined, "I would think anyone with a history of being open to a psychiatric illness, that's not a place for them to go to work". Mr McGuiggan was emphatic in his response that violence is totally unacceptable in the workplace, provoked or otherwise. (G) The evidence of Decision maker (Mullins) indicated that many important matters had not been considered in the original decision or thereafter in considering the present application. Mr Pearce pointed out that the Commissioner had not had regard to, nor appreciated: the evidence of Mr O'Donnell's major depressive disorder with significant anxiety component; he fact that the Applicant's illness was a contributing factor to his conduct on 7 July 2011; the significance of that evidence nor the significance of the Local Court findings; the circumstances surrounding the event which indicated that the Applicant had been provoked; and the unsatisfactory pre-existing relationship between the Applicant and Novotny. Mr Pearce submitted that the evidence of the Commissioner revealed a rigid application of a "blind" policy - the type of conduct that was criticised in Burge - pointing out that, had there been physical or other provocation proven, then two people rather than one would have been facing disciplinary proceedings. 111In conclusion, Mr Pearce made the following points in support of the Applicant's claim for immediate reinstatement, with no break in continuity of service and back pay for the period since the termination: The Applicant pleaded guilty at the earliest opportunity; He accepted full responsibility for his actions and demonstrated significant contrition for his role in the events that led to his suspension and charge; He has apologised unconditionally for his action; The action was neither systemic, nor ongoing and occurred only once; He understands the full ramifications of his actions and immediately sought to rectify his behaviour and seek professional assistance; this professional assistance has since resulted in him being diagnosed with post traumatic stress disorder and major depressive disorder that was previously undiagnosed at the time of the incident and a significant contributing factor that led to the incident; Mr O'Donnell has fully complied with his Court order and treatment regime; Mr O'Donnell has acknowledged that his conduct fell below an appropriate standard during this incident, and He has behaved with grace and an understanding of the gravity of his actions. 112Ms Camden, on behalf of the Respondent, urged the Commission to place significant weight on the evidence adduced during the proceedings. That evidence was addressed under the sub-headings set out below. It was pointed out that the evidence confirms the following: * The attack on SF Novotny was from behind and unexpected; * the attack on SF Novotny was unprovoked; * SF O'Donnell was the agent provocateur on many occasions prior to 6 July 2011; * There was an element of pre-meditation on the part of the Applicant and an intention to provoke a violent response from SF Novotny which was not forthcoming; * the misconduct was freely admitted by the Applicant; * The Applicant had consulted with, and had assistance from, his Union. He discussed his motivations with medical professionals, including Dr Kaplan who was engaged on behalf of the employer for workers' compensation purposes; * The Applicant admits that he has a problem with authority. Such an attitude cannot be tolerated in a hierarchical disciplined emergency service; * The attitude of the Respondent to violence in the workplace and issue of provocation was clearly explained by Commissioner Mullins and Chief Superintendent McGuiggen in their evidence. (A) The attack on Mr Novotny was from behind and unexpected. Lynch: .... I believed at that point, right up until the point he pushed Pav in the back that there didn't seem to be a problem because I think I said previously there was banter between the two and I just thought it was another night, just another day at the office so to speak when they.. .. Camden: Can you describe the force of that push? So you're showing two hand to the Commissioner, and quite a significant push? A: Yeah... Q: Is that fair? A: Yes. That is fair. Muzyczka: He walked over behind him, Pav had his back turned and he sort of braced and pushed him double handed. Camden Are you showing the Commissioner two hands are pushing? A: Yes, that's right. Q: That's Mr O'Donnell pushing Pav? A. Yes. Q: Did you see where the hands connected or if the hands connected? A: It was sort of mid-back. Q. Mid-back? A: The high-back Q: Was it a really hard push, or just a push? .A: Well he braced his legs before he pushed, so it seemed like a hard push. ... Q: Well what did you think - well I'm asking you your impression, what you thought ... A: Well for a push it was quite violent. Q: I see. My question was you think it was something that was designed to get Pavel's attention? A: More of a tap would have got his attention on the back, not a push. (B) The attack on SF Novotny was unprovoked. Indeed Mr O'Donnell was the agent provocateur on many occasions prior to 6 July 2011. Mr Lynch gave evidence that, as to the instigation of those banters, he considered it was 50/50, but towards the end he had commented to the Applicant that he was laying it on a bit thick and that was evidenced by the fact that Mr Pearce, the Station Officer, approached the Applicant an had a word with him about it. Mr Novotny gave evidence that the incident had caused him, in addition to his physical injuries, mental injuries that he has to live with for the rest of his life and his wife had been affected too. Mr Novotny was emphatic that he never started anything with Mr O'Donnell; that he never criticised his work; never criticised the fact that he was a drinker or that his alcohol consumption had killed off his brain cells; and he never suggested to him that he was dyslexic - in fact, it was the other way around. He stated "I dong have the gift of the gab like Brenden does, I can't compete with that, I wouldn't want to compete with that and the way I deal with that is I ignore it ... Well, when I say that, 95%, 99% of the time I don't go there". In relation to the headsets, Mr Novotny said there was only one incident with the headsets. He claimed that the Applicant had "ripped it off" him while he was on a 000 call which he had just finished causing him to swear at him "f" off (C) There was an element of pre-meditation on the part of Mr O'Donnell and an intention to provoke a violent response. It was submitted that the Applicant freely admitted during cross-examination that there was an element of pre-meditation in the assault, a clear desire for the initial assault to form part of a wider physical altercation. Camden: When you approached him from behind did you let him know that you were standing there? O'Donnell: No, my push let him know I was there. Q: He must have totally unexpected it ... A: I guess so. Q: All right. After you pushed him what did you do? A: I stook a slight step back... Well I was hoping that the whole thing might precipitate into him having a lash at me, or telling me what his problem was... I guess I'd reached a point where I thought if I don't confront him this could go on for who knows how long. (D) The misconduct was freely admitted by the Applicant. O'Donnell had consulted with and had assistance from his Union. Mr O'Donnell discussed his motivations with medial professionals, including Dr Kaplan engaged on behalf of the employer for worker's compensation purposes. Mr O'Donnell agreed that he had pleaded guilty to the charge on advice from the police officer; that he had been assisted in preparing his guilty plea by his union; and that his lawyer had ensured that he was aware that his review with Dr Kaplan would be reported to the Respondent. Mr O'Donnell could not recall describing the incident with Mr Novotny leading up to the push as a "niggle" or telling Dr Kaplan that he had assaulted the wrong man. He did recall telling him something along the lines that his real hostility on 6 July was actually towards his superiors, "I constantly feel let down by the system and due to a lot of things that have happened to me over the years I do have a problem with authority". Camden: Mr O'Donnell, why did you want to apologise to Mr Novotny? O'Donnell: Well after all he's a - he's a human being and it was an overreaction..... it was an over reaction and I regret the injury I caused Pav. Camden: Do you agree with me that there were alternatives to what you did that night, you at the time? O'Donnell: My current state of mind at the time maybe there was potential there for - for worse, I don't know. Q: From you towards him? A: No. I mean a worse outcome. You know - what if he'd put his foot out to stop himself falling and slipped and landed on an implement. Q: And while the red light was on and very close to the end of the call you interfered with Mr Novotny's headset? A: I may have Mr O'Donnell acknowledged that medical certificates he had provided from July through August 2011 contained that a statement that he had been diagnosed with "a condition" but that condition had not been disclosed to the Respondent. Mr O'Donnell stated that because he had consulted the brigade chaplain, he assumed that "the left hand knew what the right-hand was doing" and that management staff were talking to one another. He was unsure whether he had advised his union of his state of health when he was being assisted to put together the final submission to the Commissioner. (E) Attitude of FRNSW to violence in the workplace and issue of provocation. Ms Camden referred the Commission to the evidence of Mr McGuiggan as to his zero tolerance in relation to violence, provoked or otherwise and the need to provide a safe and health workplace for other employees, for the Applicant himself and for the wider community. (F) Evidence of Commissioner Mullins on the reasons grounding his decision Commissioner Mullins said he had been provided with a factual account of what had occurred on the night of 6 July 2011. Dr Naidoo's report and the local court decision had played no part in his decision making because of their timing. It had been reported to him that Mr O'Donnell had walked through the communication centre on the morning after the assault holding a copy of his report and asking who wanted "a copy of the truth". During cross-examination, Commissioner Mullins had been questioned about the desirability of awaiting the outcome from the local court proceedings. He had pointed out that, firstly, there was an admission of guilt, an apology and nothing else put in mitigation before him. Secondly, the standard of proof required in the Regulation is on the balance of probabilities and not the criminal standard. Thirdly, the union had written to him on behalf of the Applicant specifically asking that he not consider the criminal proceedings at all. He also noted that provocation was not raised with him by either Mr O'Donnell or his union in mitigation: Look I'm not being flippant but I'm not a mind reader, we wrote to Mr O'Donnell and the Union on, I think three separate occasions, saying please give us any material you want us to consider and nothing of that nature was put to us. So while that was buried in one statement in a very large file, it wasn't highlighted by either the union or the employee. Commissioner Mullins was emphatic that his decision that the Applicant was no longer a fit and proper person to be a firefighter was based on the onerous responsibilities imposed by the Occupational Health and Safety legislation to provide a safe workplace for employees and the fact that the organisation is built on discipline and has a high standing in the community. 113The Respondent relied on a number of other authorities. It was pointed out that, unlike Commissioner of Police v Smith [2010] NSWIRComm 163, no procedural error exists because the union specifically sought that the criminal proceedings not be taken into account and his health issues had not been raised in mitigation despite several opportunities being given to do so. 114 The Commission was reminded that there is no power to order re-employment which involves no return to work: Director-General, NSW Department of Health v Industrial Relations Commission [2010] NSWCA47 and of the definition of "reinstatement": Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22. Ms Camden submitted that consideration needed to be given to whether or not either of those remedies would meet the test of practicability in section 89 (1) and (2) of the IR Act given the evidence of Commissioner Mullins and Chief Superintendents McGuiggan and Brierley who gave evidence that the employment relationship had been irretrievably damaged. 115Ms Camden distinguished the circumstances applying in Eade-Smith to the present circumstances where the workers' compensation claim has not been accepted. Ms Camden also distinguished Wells pointing out that Mr O'Donnell did not have previous instances of assaults on him; the likelihood of Wells re-offending was held to be unlikely as opposed to O'Donnell where no such guarantee can be given based on the medical evidence; Commissioner Mullins had not taken into account the outcome of the criminal proceedings for the reasons set out above and Commissioner Mullins had not knowledge of the alleged medical condition. In relation to Franklins, Ms Camden pointed out that O'Donnell can be distinguished on the basis that he had entered a guilty plea with the support of his union and he does not have an unblemished service record. CONSIDERATION 116His Honour, Justice Walton, made a number of relevant findings in Gow v Cronulla Sutherland Leagues Club (2002) 119 IR 122 which Ms Camden helpfully extracted and which are relevant in the present circumstances: 269 There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Nor is there any rule of law defining what constitutes misconduct for this purpose... 284 The appropriate test for misconduct justifying instant dismissal is well settled: is the act complained of deliberate, wilful, or of such a nature to strike at an essential element of the contract of service? 285 ... all circumstances surrounding the dismissal are relevant, including the relevant position or status of the employee ... 288 The Full Bench held that it was overly simplistic to regard involvement in a fight per se as misconduct: it was necessary to examine the circumstances of the fight, to consider who was the aggressor and to consider the actions of the accused employee in the actual fight. 291 ... Those matters which the respondent did not take into account were, in our view, proper and necessary to be so considered rather than, as it would seem, the respondent applying its no-fighting policy without regard to the particular circumstances as they existed ... the policy was applied without relevant regard to all the circumstances... 292 ... Thus, in determining whether an employee's involvement in a fight at work constituted serious misconduct or whether a dismissal of the employee was harsh, unjust or unreasonable, in such a case it is necessary to consider fully the circumstances under which the employee became and was involved in the fight, including, for present purposes, a consideration as to what extent the employee's actions were compelled by a need to defend himself, or by fear or intimidation. Clearly, it will also be necessary to consider the extent to which the employee was the aggressor. 293 .... However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable... 296 ... I agree with the observations of the South Australian Commission in Foster v BHP Long Products that it would be inappropriate to "finely weigh" the conduct of the parties in such a heated situation, but the applicant's actions could not, on any view, be described as other than inappropriate, unreasonable and disproportionate given that the appliance was not punched once... 300 ... Where a procedure for dealing with the termination of a contract is specified in an instrument governing the relationship, a failure to properly follow that procedure may (particularly where a large organisation is involved) result in the dismissal being harsh, unreasonable or unjust... 117Fire & Rescue NSW provides fire protection, hazardous material (Hazmat) response and non-fire rescue capabilities to the major cities, metropolitan areas and towns across rural and regional New South Wales. It is the largest urban fire service in Australia with 339 fire stations providing fire protection to over 90% of the state's population and 100% of the state for responses to Hazmat incidents. I concur with Mr Pearce that the Respondent is a classic example of a Corporate employer. 118Delegation of authority was not in dispute in these circumstances. Pursuant ss 3.21.2.1 of the FRNSW Manual of Operation, personnel and other non-financial delegations, Deputy Commissioners may act as the Nominated Officer. I am satisfied that the appropriate delegation existed. 119The facts relating to the assault are, in the main, not in dispute - that is, the conversation with Mr Muzyczka about team players; the banter between the Applicant and Novotny and the events up to and including when Muzyczka stood between O'Donnell and Novotny to separate them. 120The following evidence are a cause for concern: * The Applicant has described the banter as "a niggle" which I consider to be synonymous to grumbling. The other team members present in the mess room and who witnessed the incident were taken by surprise by the Applicant's reaction as the banter was of no great consequence. The evidence of Mr Muzyczka was very convincing. He described the banter as "light hearted exchanges", "normal stirring", "quite jovial with no malice from either side". Mr Lynch, the Applicant's own witness, described it as "playful banter". The Applicant provided his own definition of the banter : Pearce: Do you recall what happened then? A: I do. I believe at that stage Pav may have entered the argument at that point or the discussion I should say, it wasn't an argument, it was a discussion, .... * The Applicant admitted that his anger was aimed at senior management. There was no evidence before the Commission that the Applicant had lodged any grievances regarding any matter directly with management or through his union. * Mr Novotny had not initiated the banter - It was Muzyczka who had teased SF O'Donnell about not being a team player and it was only when SF O'Donnell complained that he did not know about the pizza night that SF Novotny pointed out that he had made a general announcement the night before. It does not matter much whether the Applicant heard the announcement or not, he is yeast intolerant and could not participate in any event. SF Novotny already knew that so he would not have deliberately excluded the Applicant from the announcement. It was SF O'Donnell who had made a big deal out of it on 6 July 2011. * The other team members gave evidence to the effect that both they and SF Novotny had been taken completely by surprise, hence the extent of his injuries which were considerable. They all thought that the Applicant was going to the kitchen to get himself a slice of pizza. SF O'Donnell had used both hands to push SF Novotny in the back throwing him forward against the kitchen cupboard. I prefer the account provided by Mr Muzyczka as more credible evidence of the incident. If the Applicant had turned around and returned to his seat there would have been no need for the Mr Muzyczka to push himself between them to stop the incident escalating. His evidence was to the effect that SF O'Donnell approached SF Novotny in an aggressive manner and stood facing him, toe to toe, resulting in both men being approximately 30 cm apart. SF Novotny had not retaliated at any time. I find that the Applicant's action had been wilful and deliberate. * According to Mr Myzyczka, SF O'Donnell approached SF Novotny again but no other witnesses confirmed that, including the Applicant and SF Novotny. * I find it astonishing that, despite the assault on, and despite the injuries caused to, SF Novotny, the Applicant returned to the dinner table and finished his meal. * It is also astonishing that, the very next day, SF O'Donnell would walk through the Communications Room prepared to hand over a copy of his report to anyone who was interested "in the truth". I do not accept that the Applicant demonstrated significant contrition for his actions on 6 July 2011. There was no sign of contrition, no sign of remorse. * The incident occurred on 6 July 2011. The criminal charge was due to be heard in the local court on 23 August 2011. On 18 August 2011, the Applicant wrote to SF Novotny apologising for his unacceptable conduct. I do not believe that the Applicant offered a timely apology in relation to this assault. One can be forgiven for believing that the apology lacked sincerity and was intended to assist the Applicant in mitigation submissions before the local court. 121Mr O'Donnell denies that he had attempted to keep the altercation going after the initial push. The COPS narrative, prepared after interviews with O'Donnell, Novotny and the witnesses stated: The Victim spent a few seconds recovering before turning around. The Accused was standing facing the Victim, with the Witness standing between them. The Accused was attempting to move around the Witness to get closer to the victim and shouting "Come on, I've had enough of you". 122It is noted that the first time that the Respondent would have had the opportunity to find out about SF O'Donnell's mental health issues was on 27 October 2011 when he lodged a workers' compensation claim. That claim was provisionally declined on 7 November 2011 on the same day when Commissioner Mullins had delivered to the Applicant's home correspondence regarding his termination. The Workers' compensation claim was not an issue at the time because it had been rejected by the Insurer, no mental or other health issues were before the Commissioner in relation to the Applicant for the purposes of mitigation and, finally, the union had requested that the criminal proceedings not be considered by the Respondent in determining what penalty to impose on Mr O'Donnell. 123The Respondent had provided its employees with training. During education sessions provided to FRNSW staff, it is made clear that FRNSW has a zero tolerance for conduct of this nature, given the standing in the community of that organisation. 124Of grave concern to the Commission is the evidence provided by Dr Kaplan which has been detailed above. In his conclusion, he opined that at the time of the assault on SF Novotny, the Applicant's actions were not prompted in any way by a work-related psychological injury. The evidence in these proceedings leads me to concur with that assessment. In addition, he could not discount the possibility of a relapse in future given the history of the Applicant. 125There was evidence before the Commission from other team members to indicate their concerns about having to work with Mr O'Donnell again. 126I find that the Respondent thoroughly investigated the incident and afforded the Applicant natural justice and procedural fairness in allowing a number of opportunities for him to mitigate his actions. The Commissioner had accepted the union's submissions on behalf of the Applicant and taken into account only those matters the union wished for it to rely on. 127Was the dismissal harsh, unreasonable or unfair at the time of the termination? The matters which the Applicant has sought to put before the Commission were not available to the Respondent at the time the dismissal decision was made and therefore, in conclusion, I find that the decision to terminate Mr O'Donnell was neither harsh, unreasonable nor unfair as he had been afforded natural justice and procedural fairness and dealt with in accordance with the evidence available to the Respondent. DECISION 128Matter IRC 1777 of 2011 is hereby dismissed. I Tabbaa AM 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: 01 February 2013