Gerard Meta and Wollongong City Council [2013] NSWIRComm 1023

Industrial Relations Commission New South Wales Medium Neutral Citation: Gerard Meta and Wollongong City Council [2013] NSWIRComm 1023 Hearing dates: 29 April 2013 30 April 2013 27 May 2013 Submissions closed 1 August 2013 Decision date: 04 November 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal-Accumulated record of inappropriate behaviour-Five disciplinary letters issued-Placed on stage 2 disciplinary procedure-Placed on stage 3 disciplinary procedure-Cannot be placed to work with a crew with confidence-Redeployed to a 3 month temporary position-Position created for the Applicant-Review conducted-Threats of self-harm-Threats to punch someone-No redeployment opportunities available-Dismissed-Ombudsman rejected Applicant's appeal-Representation of Applicant appalling-Substantial delay in prosecuting the case-No submissions filed on behalf of the Applicant-Claim dismissed Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Paul Matters (Agent for the Applicant) Representation: Roland Hassall (for the Respondent) Sparke Helmore Lawyers File Number(s): IRC 933 of 2012

DECISION

Background 1Mr Gerard Meta, the Applicant, commenced employment with Wollongong City Council, the Respondent, in 2001. He commenced as a casual List Pool Attendance and paid in accordance with Salary Band 7 of the Wollongong City Council Enterprise Agreement 2009 -2012. In 2003, he worked seasonally with the Respondent. Finally, on 9 December 2006 he became full-time Night Shift Cleaner. The Applicant undertook various tasks prior to his termination on 29 June 2012. 2The Respondent contended that the Applicant accumulated a record of inappropriate conduct and behaviour between 2008 - 2012. The Applicant was the subject of five disciplinary letters from Council in relation to his conduct or behaviour - 21 September 2008, 16 February 2009, 11 January 2010, 5 November 2010 and 24 December 2011. 3On 5 November 2010, the Applicant received a written warning about a breakdown of working relationships at the Port Kembla Pool where he was working. He was placed on a stage 2 disciplinary procedure and transferred to a night shift position at Thirroul Pool. 4The Applicant was elected union delegate for the pools and aquatic section in September 2009 and remained in that role until September 2010 when David Willdin was elected to that position. 5On 31 October 2011, the Applicant lodged a complaint against his then supervisor, Mark Willdin, alleging that he was treating the Applicant unfairly and was riding him regarding his work performance. 6On 1 November 2011, the Applicant received a telephone call from Shaun Martin who informed him that an allegation was made that he had made threats against Mr Willdin. Mr Meta denied that allegation. 7The Council conducted an investigation into the allegation against the Applicant. He was interviewed by Mr Barry Keenahan. At the conclusion of the investigation, the Council placed the applicant on a stage 3 disciplinary procedure and transferred him to a 3-month temporary position at Corrimal Tourist Park. The Applicant denied the allegation and denied that his conduct justified his transfer to the temporary placement at Corrimal. Once again, he said he was not provided with full particulars of the allegation - when it was made, to whom it was made and the substance of the claim; copies of documents relating to the complaint or investigation and Council findings. 8On 24 July 2012, the Council wrote to the Applicant informing him that his work at the Corrimal Tourist Park was no longer required and the Council did not have a permanent redeployment opportunity for him and was therefore proposing to terminate his employment. The Applicant did not accept that there were no permanent redeployment opportunities at the Council, or that the staff at the Tourist Park do not want to work with him or that his behaviour was such that he cannot be placed in a work crew with confidence. 9The Applicant sought legal advice and, on 26 July 2012, Turner Freeman lawyers wrote to the Respondent requesting that it provide the Applicant with a copy of his personnel file, including a copy of all documents relating to past incidents, including statements from the staff at Corrimal Tourist Park regarding concerns about applicant's alleged threat to self-harm. 10A response was received from Sparke Helmore, Solicitors for the Council, on 2 August 2012, refusing to provide documents regarding the Council's investigation reports. Council's Solicitors advised that it did not have any formal statements from staff at the park regarding concerns about the Applicant. 11A request by the Applicant's Solicitors, made on 3 August 2012, that he be provided with a copy of the Willdin investigation outcome, was, on 7 August 2012, also rejected. 12Turner Freeman Lawyers responded on 8 August 2012 setting out submissions showing cause as to why the Applicant should be maintained in employment. It alleged that the Willden complaint against the Applicant was "malicious and amounted to victimisation of our client". It was the Applicant's view that there was on-going work at the Tourist Park but noted that there was no substantive position at the Park. Council was advised that he was prepared and willing to resume work under the direction and control of Mr Willden. 13Mr Peter Coyte, Manager Property and Recreation, wrote to the Applicant on 24 August 2012, terminating his employment from 23 August 2012. He was paid five weeks' pay in lieu of notice and advised that he could access the Council's Employee Assistance Program for a further two months. 14The Applicant, 52 years of age, contended that his dismissal was harsh, unjust and unreasonable for a number of reasons. It was alleged that he was denied procedural fairness in relation to the Council's investigation into the complaint by Mr Willdin against him claiming that the Willdin complaint was motivated by the Applicant's complaint against him and constituted victimisation of the Applicant by Mr Willdin. 15The Applicant pointed out that the Respondent had failed to produce any evidence that he was a threat to Mr Willdin or that there were sufficient grounds to transfer him from his full-time position to a temporary position. 16The Applicant denied that he cannot be placed in a work crew with confidence and pointed out that, as at the date of his termination, there were a number of suitable full-time positions at the Council. 17The Respondent contended that the decisions it made were made for appropriate reasons. It pointed out that the Council's Ombudsman had reviewed the investigation and dismissed the appeal by the Applicant. The New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the USU) had consulted with Council in relation to potential redeployment of the Applicant and was unable to identify any suitable full-time positions. 18Conciliation proceedings on 14 September 2012 failed to resolve the claim. The Applicant, in his application, had ticked all three boxes relating to the relief he was seeking. Nevertheless, at the conciliation conference he insisted that he wanted only reinstatement to his former position or re-employment to another position and declined to settle the claim by the payment of monetary compensation despite the Respondent's offer to settle on that basis. Standard directions were issued which were revised on a number of occasions for reasons outlined below. 19The matter was heard on 29 and 30 April and 27 May 2013. Submissions were to be to be filed by 25 June 2013 but the dates were revised once again for the reasons outlined below resulting ultimately in the Commission declaring that submissions could not be filed after 1 August 2013.