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. THE EVIDENCE Disciplinary Letter of 21 September 2008 20Mr Jim Hughes, Operations Manager, Beaton Park Leisure Centre, wrote to the `Applicant on 21 September 2008 regarding customer complaints at Beaton Park Leisure Centre. The Applicant had been provided with copies of two written complaints regarding conduct of the Applicant whilst at that Centre. The Applicant had provided a written response to both customer incidents (which had occurred consecutively) together with supporting references from a previous employer. 21Nevertheless, the Council held the view that the Applicant's conduct fell short of the standard required in its Skills and Performance Management Assessment System - particularly in regard to respecting and responding to community needs. In addition, it did not meet the expected standards of performance and behaviour for the position of Assistant Superintendent at Beaton Park Leisure Centre. 22The Respondent considered the incidents to be the consequence of a lack of understanding of his role in service delivery and determined that the appropriate corrective action would be participation in a Skills and Performance Improvement Plan in order for him to gain a better understanding of the required service delivery standards throughout the Recreation Section. Council urged the Applicant to complete the training program offered to him and have it signed off by his supervisor and to participate, over the following six months, with the support and mentoring provided. 23The Applicant confirmed, during cross-examination, that he received a letter from Jim Hughes, dated 21 September 2008, raising some concerns about two incidents involving his behaviour and performance related to customer delivery. The letter referred to the belief of Mr Hughes that corrective action was necessary to address those performance related issues by means of a skills and performance improvement plan. 24The Applicant confirmed that he was required to undertake the Verbal Judo course - a course on how to use words and how to deal with people, on 21 November 2008. Disciplinary Letter of 16 February 2009 25The Applicant stated that he was appointed to the position of Night Shift Cleaner at the Continental Pool in Wollongong. His duties included ensuring that the pools and grounds of the facility were under constant surveillance during operating hours in order that no member of the public was put at risk. His priority was the rescue and protection of both the public and staff from danger and potential injury. In addition, the cleanliness and hygiene of the pools, amenities, concourses and the surrounding environment had to be maintained to a high standard. 26The Applicant said he was on the night shift on 11 November 2007 when the Continental Pool Superintendent, Brendon Miles, who lived on the premises with his wife Jenny, walked in and said to him in a very loud and aggressive voice: Miles: What the fuck are you doing slamming the door? Applicant: I am sorry for the door closing. I didn't mean to slam the door. Jenny: You're a fucking idiot [repeated three times]. (Jenny rushed down from the balcony and stood very close to his face and spoke to him with a raised voice.) Jenny: What the fuck are you doing idiot? Brendon: You are a fucking idiot. Applicant: I am sorry. I'm sorry if the door closed [repeated several times]. Brendon: Stop being a baby! Applicant: What do you mean? Brendon: Everybody at the other pools don't like working with you. The Applicant said he had been very upset at what had been said to him and about their anger. He said he walked away and went back to work. He said that he made a formal complaint to Peter Wilson, Aquatic Services Coordinator, about the abuse he had received from Brendon and Jenny Miles. He confirmed that he received a response to the complaint he had lodged against Mr Miles (regarding the conversations about the strainer and hypo) from Mr Mark Bond in November 2008. He acknowledged that the letter stated that there were no grounds to substantiate his claim of harassment against Mr Miles, however, the investigation had highlighted that the primary issue was one of unacceptable behaviour in the workplace. The Applicant was reminded to respect the rights of fellow staff and ensure that his behaviour was acceptable and in accordance with Council's Code of Conduct. 27Mr Mark Bond, Recreation Services Manager, wrote to the Applicant on 27 November 2008, advising that he had completed investigations into his claim of harassment as a result of the above and previous incidents. The outcome was a conclusion by both Mr Bond and Mr Wilson, the Applicant's immediate supervisor, that there were no grounds to substantiate his claim of harassment. The Applicant was advised that the investigation had highlighted the primary issue of what is acceptable behaviour in the workplace. The Applicant was reminded that he had a personal responsibility as an employee to respect the rights of fellow workers, ensure his behaviour was acceptable and in accordance with the Code of Conduct. The Applicant was informed that appropriate action had been taken with Mr Miles in relation to the unnecessary intervention of his spouse in the above incident. Copies of the letter were forwarded to the USU representatives, Ray McGorry (Delegate - Pools Section) and Scott Peterson (Secretary). 28The Applicant stated that he was appointed Acting Assistant Pool Superintendent for the period 29 December 2007 to 29 March 2008. 29The Applicant stated that he was at home on 12 November 2008 when he received a telephone call from Brendon Miles at approximately 6.30 pm. He recalled the conversation as follows: Miles: I want you to clean the toilets with Hypo. Applicant: Wayne cleaned the toilets at two o'clock this afternoon. Maybe you should have asked him to use the hypo. Miles: [In an angry voice] Look Gerry I am telling you what to do. Just use the bloody Hypo. Applicant: O.K. Brendon no problems. The Applicant stated that he rang Mr Peter Wilson and reported the above conversation to him. Nevertheless, when he commenced his next shift he did as he was instructed and cleaned the toilets with Hypo. 30The Applicant stated that about 6 pm on the same day, while he was hosing the 45 m pool Mr Miles spoke to him from the stairs above the pool: Miles: I found a dead fish in the strainer basket north. You didn't clean it. Applicant: I cleaned the strainer box earlier. I turned it on again to use the salt water pump to hose the concourse down. He said that Mr Miles did not respond. He merely walked away. 31The Applicant said that he attended a meeting on 16 December 2008 with Peter Wilson, Scott Petersen and Mark Bond called to address the behaviour of Mr Miles towards him and to attempt to resolve what he perceived to be the angry and contemptuous way in which Mr Miles was acting towards him as a supervisor. He said he believed that the issue had been resolved at that meeting. 32However, he said two further incidents occurred during which Mr Miles treated him in what he considered to be an unreasonable and unfair manner: Firstly, in early February 2009, Mr Miles directed him to pick up blue paint flags in the front garden outside the Continental Pool and put them in a plastic bag. Secondly, a short time later, at about 10.30 pm, Mr Wilson went into the Whale Room at the Continental Pool where he was vacuuming and just stood there in silence and watched him work. The Applicant said he regarded Mr Miles' behaviour as strange and intimidating. 33He confirmed that he had lodged a complaint with Mr Wilson in February 2009 in relation to Mr Miles standing and watching him vacuuming. He also confirmed that his complaint had been investigated. Both he and Mr Miles and Mr White were interviewed on 12 February 2009 by Mr Martin, Mr Peterson, Mr Bond and Mr Wilson. 34The Applicant confirmed that, on 16 February 2009, Peter Wilson, wrote to him and copied the USU representatives, Ray McGorry and Scott Peterson, regarding the events at the Continental Pool. Mr Wilson confirmed the meeting held with the Applicant on 13 February and advised that the investigation into claims of worsening working relationships at the Pool had been completed. The Applicant was advised that: (a)An interview panel, comprising Shaun Martin, Scott Peterson, Mark Bond and Peter Wilson had interviewed the Applicant, Brendon Miles and Rohan White on 12 February 2009. interview panel, comprising Shaun Martin, Scott Peterson, Mark Bond and Peter Wilson had interviewed the Applicant, Brendon Miles and Rohan White on 12 February 2009. The investigation revealed that the relationship between the Applicant and Brendon Miles was irreparable despite the fact that similar working relationship issues had been discussed with them on 16 December 2008 and it was believed then that the issues were resolved. (b)The allegation made by the Applicant regarding Mr Miles directing him to pick up blue paint flakes in the front garden and Mr Miles watching him work in the "Whale Room" at 10.30 pm had not been substantiated. (c)He was being laterally transferred to work at Port Kembla Pool as nightshift cleaner/pool attendant from 14 February 2009. (d)The provisions of the Council's Positive Working Relationship Policy should be adhered to at all times. 35The Applicant pointed out that working on a 6-day 35-hour a week roster meant that he was working more days a week on roster than any other attendant at the pool and was rarely being offered any overtime. Disciplinary Letter of 11 January 2010 36The Applicant said he was transferred temporarily to Berkeley Pool as an acting pool supervisor on holiday relief commencing on 3 January 2010. He said that while he was in the pool office, at approximately 3.00 pm, receiving instructions from the person he was about to relieve, Darren Baxter, on the duties of pool supervisor, three boys, aged between 12 - 13 years of age, entered the pool. He could see them through the office window. 37He said that Mr Baxter said to him, "Gerry see those boys walking over there? They are part of a gang in Berkeley. They were involved in trying to steal from the Berkeley servo and the attendant was belted by them." 38He said that he saw one of the boys he now knows as "Ahmed" walk towards the compound where the pool attendant's cars, including his own, were parked. He saw him ignore one of the pool attendants, Kris Commins, who yelled out to him that he would be barred for a month if he went into that compound. The Applicant recalled that he had approximately $300 in his wallet which he left in his car. He walked with Kris Commins towards the compound. Approximately 30 metres from the compound, he observed Ahmed turn and start walking out of the compound. When he saw them, Ahmed started to run towards the exit gate. 39The Applicant said that he jogged back towards the office and positioned himself by the office in front of the exit gate. Ahmed was still running towards him encouraged by his friends from outside the pool perimeter fence. He said he asked Ahmed, "What's wrong?" There was no reply. He said he held his arms slightly extended from his sides as Ahmed continued to run towards him. He said Ahmed jumped as he reached him and bumped off his shoulder and fell into the side of the office. His lip began bleeding. He helped Ahmed to his feet and asked him if he was okay and suggested that he get him some first aid. He said Ahmed said to him, "Fuck off you bastard. We are going to get you." He said that once he got outside the fence, Ahmed and his friends started yelling abuse at him and throwing rocks. Darren Baxter closed the pool for about an hour. 40The Applicant said that, at about 5.30 pm, Ahmed returned to the pool with a woman (who he now knows to be his mother) and a young girl of about 15. The woman came into the office and he recalled the following exchange between them: Woman: Are you the bastard who hurt my boy? Applicant: I didn't mean to do anything. Ahmed ran into me. Woman: [in a very angry raised voice] Have you seen his face you prick? You will get worse than that. You are going to pay the price. Do you know who his father and uncle are? They will fix you up. Applicant: Are you threatening me? I tried to help Ahmed. Why are you threatening me? 41The Applicant said that, at that point, Ahmed's mother rushed towards him. He thought she was going to hit him but Darren Baxter stepped in between them and asked Ahmed's mother to leave. The Applicant picked up her shoes and gave them to her son. He said he felt sickened by the mother's attack on him and Darren Baxter allowed him to go home for the rest of the shift. 42The Applicant stated that, a couple of days' later, during a conversation with a friend who happened to be a former police officer, he found out that Ahmed's father and uncle were known to the police, the latter was in jail and both were considered violent and dangerous. As he lived in the next suburb, he held grave concerns for the safety of his family. In addition, he became anxious working alone on night shift. He acknowledged that the Respondent arranged for a workplace counsellor for him but she did not seem to take his anxiety seriously. He said that for two years he was anxious that he and his family would be harmed. 43Correspondence was forwarded from Mr Peter Coyte, Manager Property & Recreation, to the Applicant on 11 January 2010 into which he copied the USU representative, Scott Peterson. Mr Coyte confirmed the meeting held the Applicant on 7 January 2010 at which the Applicant, Peter O'Connor and Peter Wilson were in attendance. The meeting was held to discuss the complaint made by the mother of the boy involved in the incident at Berkeley Pool on 3 January 2010. The Applicant was reminded that Peter Wilson raised his concerns about the poor decisions the Applicant had made when interacting with, or dealing with, the public. The Applicant was advised: (i)His decision to try and stop the child from leaving the pool was considered to be inappropriate behaviour; (ii)Physical contact, unless dealing with a life threatening or emergency situation, is inappropriate and must not occur; (iii)He must address the concerns raised with him over the remainder of the season by not having any related issues and thinking about the consequences of actions before taking them; (iv)He would remain in his substantive position (ie Night Shift Cleaner, Port Kembla pool) and would not be used for any relief opportunities until the beginning of 2010/2011 season (ie September 2010); (v)Peter Wilson will contact Ms Cynthia Papenbrock from the Human Resources Department to arrange a discussion regarding training opportunities to help him address how to appropriately interact and deal with the public in difficult/conflict situations; (vi)Disciplinary action will be considered if further incidents of inappropriate behaviour occur; (vii)He can apply for relief list but must demonstrate what he has done to improve his ability to deal with difficult situations involving conflict and other interactions with the public; and (viii)Council was prepared to work with him to help him improve his decision making process before taking action. In turn, he was expected to positively work with Peter Wilson in pursuing improvement initiatives. 44During cross-examination, the Applicant confirmed that he had attended the meeting on 7 January 2010 during which Mr Wilson raised his concerns about him working on the pool deck due to previous poor decisions he had made at Beaton Park and Berkeley Pools. The Applicant also confirmed that he received the correspondence dated 11 January 2010 from Mr Peter Coyte. 45He agreed that he was provided with training as a result of this incident - Managing Conflict on 7 April 2010 and the Art of Being Assertive on 12 May 2010. He denied, however, that he had undertaken the eLearn Positive Work course on 1 March 2010 arguing that he could not have done that course because it was conducted on line. He said that he does not own a computer and does not know how to use one. 46Mr Hassall reminded the Applicant of the training he had received on 27 April 2009. The course, titled "Armed Hold Up/Robbery Safe" dealt with minimising risks in terms of when dealing with potential hazards in the workplace. Disciplinary Letter of 5 November 2010 47The Applicant said that, at about the time of the annual review (SPMAS) of his work in August 2010, he raised with his supervisor, Mr John Browning, the possibility of re-organising his roster at Port Kembla Pool to a 5-day roster. Mr Browning agreed to work on some options and, in September 2010, showed him some options for a 5-day roster system. 48In late October 2010, he said he had a conversation with Mr Browning during which he asked if the latter had made any decision regarding his roster. He said that he was surprised and felt let down when Mr Browning replied with words to the effect, "It's not going to happen. I've decided to leave you on the six day roster" because he had been led to believe that serious consideration was being given to changing it. His disappointment with the manner in which the decision was communicated to him was reflected in his reply to Mr Browning, "Well thank's for nothing JB". 49The Applicant said he telephoned Scott Petersen, the USU Union Delegate, and asked that the matter be taken up on his behalf. 50The Applicant said that, on 29 October 2010, he received a telephone call from Mark Bond who advised him that John Browning had lodged a complaint against him and a meeting was to be scheduled about it the following week. Mr Bond advised him that "the deal is off about the roster". He expressed surprise to Mr Bond indicating that he did not understand what was going on. He saw Scott Petersen at the Wollongong Depot about the complaint as, at that stage, he did not know what allegation had been made against him. 51Mr Mark Bond recalled that he spoke to Mr Browning and the other pool staff in confidence about the Applicant. He recalled that Mr Browning appeared physically distressed and shaking where he was speaking to him about the issues leading him to harbour real concerns about Mr Browning's welfare. 52The Applicant said he attended a meeting on 2 November 2010 at the Council offices with Shaun Martin, Mark Bond, Scott Petersen and David Willdin. He agreed that the Council had outlined its concerns to him. He said he was accused by Shaun Martin of adopting an "aggressive" attitude towards Mr Browning and expressing "negative attitudes" towards the Council and its management. He replied with words to the effect: I have only raised changing my roster. I am an Italian and I use my hands and raise my voice but no way am I aggressive towards anyone. I work hard and do a good job. There are no problems with my work. 53The Applicant said that there was a further meeting on 4 November 2010 at which time he was told that he had to answer the charges against him. He said that, once again, he denied any aggression towards anyone or a bad attitude towards the Council. He recalled Mr Martin saying to him: JB has told me that the other pool attendants don't want to work with you and there is a breakdown in the working relationship. 54During the meeting, Mr Willdin offered to take the Applicant on at the Thirroul Pool. At the conclusion of the meeting, he was told: Martin: Gerry, you are going to Thirroul. If there are any more complaints you will be sacked. You are on Level 2 now and you are out the door if there are any more complaints. Applicant: Why are you threatening me? I will do everything right. The Applicant said he was left feeling very worried that he was going to be dismissed. 55Mr Peter Coyte, on 5 November 2010, provided a written warning to the Applicant headed "Stage 2 Disciplinary Action" in respect to "significant concerns regarding your behaviour and impact on the working relationship with your supervisor John Browning and the Port Kembla Pool team". 56The correspondence outlined what had occurred during the two meetings held with the Applicant. At the meeting on 2 November 2010, the Applicant was instructed not to attend Port Kembla Pool or work in his substantive position until the following key issues were addressed, and appropriate commitment received from him at the next meeting: (1)His assertive, and at times, aggressive, behaviour towards his supervisor, John Browning; (2)His unpredictable, loud and erratic behaviour being openly displayed in public and directly impacting on operation staff at Port Kembla and other pools, via direct contact or by telephone; (3)His consistent criticism and negative view and opinion of his work conditions, fellow staff, Council and its Management being discussed in animated fashion with staff and/or in close proximity to patrons; (4)His inability to accept criticism or respect alternative approaches or points of view without responding in an assertive manner to fellow staff and Management; (5)His constant negative complaints to his supervisor, management and his work peers that other staff, either permanent or temporary in different classifications (Not Night Shift Cleaners) were unfairly advantaged by rosters or pay; (6)Raising his voice (yelling) to get a point across to other staff; and (7)His inability to accept responsibility that his behaviour and constant complaints in the work place were having a detrimental effect on other employees. 57Mr Coyte reminded the Applicant in the correspondence that, at the next meeting held on 4 November 2010, he had offered to provide an apology to the Port Kembla pool team indicating that he had been unaware of the impact his behaviour was having on these staff. The Applicant had also expressed concern that his Supervisor had not raised those matters with him during his recent SPMAS review. Shaun Martin advised at that meeting that he had received advice from John Browning that the Port Kembla pool staff no longer wanted to be exposed to the Applicant's inappropriate behaviour and that the working relationship was beyond repair. 58Mr Coyte went on in the correspondence to advise that a decision had been made to transfer him to the Thirroul Pool Nightshift Cleaner's position having considered all the issues and risks associated with the matter. He was advised that the decision was based on the following: i. the potential risk for further incidents; ii. the Council's willingness to provide him with a final opportunity to overcome concerns in relation to his behaviour in a new work environment. That was identified as particularly important given that there were no other pool Nightshift Cleaner positions available in the organisation. 59Mr Coyte went on to advise the Applicant that his behaviours were contrary to Council's values and the Positive Working Relationship Policy. He was advised that he would be placed on stage 2 of the disciplinary procedure for a period of 12 months with reviews being undertaken by Dave Willdin, Pool Superintendent, Thirroul Pool to assist him in addressing the concerns. In addition, Council had arranged for further conflict resolution training for him on 11 November 2010. 60In conclusion, Mr Coyte assured him in the correspondence that while the Council was committed to providing all reasonable assistance and support to him, he was, nevertheless, on notice that Thirroul Pool was the only option remaining for him to undertake his duties as Night Shift Pool Cleaner and if a further incident occurred at that facility which resulted in a breakdown of working relationships, his continued employment with Council may not be possible. 61Mr Bond gave evidence that he believed that Mr Meta was quite remorseful after that incident and pursued some independent counselling which, it was hoped, would assist him in dealing with his behaviour and conduct and there would be no further issues. 62During cross-examination, the Applicant confirmed receipt of that letter from Peter Coyte. He argued that he was friends with the pool team and had coffee with them prior to attending the hearing that morning. He pointed out that the only person he worked with was Mr John Browning. He questioned, therefore, how he could have a break up with the other employees. 63The Applicant denied he was assertive and, at times, aggressive towards his supervisor; he agreed that he was loud but denied that his behaviour was erratic; he denied that he was consistently critical or constantly made negative comments pointing out that he liked working with the Council and that was evidenced by his appeal against his dismissal. He claimed that it was a matter of interpretation; he denied that he was unable to accept criticism or responsibility claiming that he has always done what was required of him; he denied making constant negative complaints; and he explained that he cannot help his voice being naturally loud but that did not mean he was yelling. 64During cross-examination, the Applicant agreed with everything else in that letter. Asked why he was transferred to Thirroul Pool, he guessed it was because there was no other place to go and Mr Willdin might have said at the meeting "I'll take him" or something to that effect. Another employee working at Thirroul Pool with Mr Willdin was transferred to Port Kembla to make room for the Applicant. 65The Applicant agreed that, at the meeting on 4 November, he offered to provide an apology as he had been unaware of the impact of his behaviour on staff. Disciplinary Letter of 24 December 2011 66The Applicant commenced at Thirroul Pool on 6 November 2010. The Applicant stated that he was working alone during the night cleaning in February 2011 when the pool vacuum cleaner malfunctioned. He made an entry about it in the pool diary. On the following Wednesday afternoon, while he was working by himself, he was approached by Mr Willdin who asked in what he considered to be a sarcastic manner, Willdin: Gerry don't you like vacuuming. Part of this job is to vacuum Applicant: Dave of course I know vacuuming is part of my job. But the vacuum cleaner is breaking down. Willdin: What did you do for the rest of the night? Applicant: I cleaned the tea room, the first aid room, showers. I cleaned everything. I gave them a good detail. Willdin: [in a raised voice] Not good enough. If you don't like vacuuming you shouldn't be working here. Look Gerry we work as a team here. Applicant: [upset] Well Dave all the other guys are happy with my work. Willdin: I don't care what they say. I'm the manager here. Mr Willdin left the pool area and he continued with his work. 67The Applicant pointed out that, despite his report, the vacuum cleaner was not fixed and broke down again a week after the above conversation. He left another note in the Pool Diary. He said that Mr Willdin approached him again at the beginning of his next afternoon shift and the following exchange took place: Willdin: Gerry, you really don't want to vacuum do you? Applicant: Dave the machine has a fault. It keeps breaking down. Willdin: [smiling] If you don't like this job you shouldn't be working here. Applicant: [upset] Dave I am a good worker and I want to work here. You know I am on my last warning, you were at the meeting. Why are you riding me what's going on? The Applicant stated that Mr Willdin did not respond but laughed at him and walked away. 68The Applicant said that Mr Willdin spoke to him on an afternoon shift in March 2011 about the condition of the baby pool. Willdin: Are you cleaning the baby pool? Applicant: Of course I am Dave. It's part of my job. Willdin: Well it's not good enough. See those lines there? Applicant: [Glanced at the pool and it appeared to be in a very clean condition] Dave I am doing my best. Give me a go mate. The Applicant said that he became concerned about his continued employment and started crying. He said David Willdin merely laughed and walked away. 69The Applicant stated that, from that day onwards, David Willdin would not greet him at the start of each shift even though he greeted Mr Willdin and remained very friendly. From then on, Mr Willdin gave him instructions through Matt Graham who worked the Thursday night shift. The Applicant said he felt that Mr Willdin was treating him as a second class person and with contempt. 70It is unclear when those incidents occurred as the Applicant did not provide any dates in his evidence. What is clear, however, is that the Applicant provided medical certificates for the periods 2 March 2011 - 12 March 2011 and again on 13 March 2011 due to "reactive depressions situation". 71A meeting was held on 14 March 2011 between the applicant , Mr David Willdin, Mr Scott Petersen, Shaun Martin and Mr Mark Bond. Mr Shaun Martin, Employee Health and Safety Manager, stated that the Applicant denied any comments about self-harm but confirmed that he was suffering from depression. Mr Mark Bond stated that he had concerns about the Applicant's fitness to return to work and arranged for Shaun Martin to contact his GP. Mr Shaun Martin said he obtained an authority from the Applicant to speak to his doctor. Doctor Parrish confirmed the Applicant's fitness to return to work stating that the Applicant was suffering from some depression relating to some personal issues and had been advised to consult a psychologist. He stated that the Applicant had never mentioned self-harm to him. 72The Applicant said that Tony Konjarski, a casual cleaner, was working at Thirroul for three weeks on night shift with him. He noted that Tony Konjarski should have received an overtime shift on Sunday but that shift was allocated to Matt Grahams who, at the time, was also working at Continental Pool. He spoke to Mr Willdin about it before the commencement of one of his shifts on the first Thursday in October 2011: Applicant: Dave it's unfair that Tony is not getting the Sunday shift here. Matt is working a thirty five hour week at the Continental and he is getting every Sunday shift at another pool. Willdin: Gerry, I'm the manager here. And Matt Graham's working Sundays and that's it. 73The Applicant said he became increasingly anxious that he was being deliberately set up by Mr Willdin for dismissal. After the long weekend in October 2011, his annual performance review (SPMAS ) was conducted by Mr Willdin. He was advised that he was going to be scored Skills (1), Values (1) and Work Outcomes (2). He said he became extremely upset and began to cry because he had been downgraded as previously he had scored (2), (1) and (2) respectively. He agreed that he was not happy with the outcome of that review because he had worked very hard and had done what was asked of him. He asked the reason for those ratings. He said Mr Willdin was smiling when he said, "I rang the other pool managers where you used to work to find out what you were like as a worker". He thought that it was unfair to and told Mr Willden "That's unfair because you are going into the past. I don't mean any disrespect Dave but it's not fair". 74The Applicant said he contacted Scott Petersen and a meeting was organised with Mr Willdin on 20 (or 26?) October 2011 at Thirroul. He said that he walked around the pool to make sure that everything was clean and in good condition prior to the meeting. The Applicant said that the following exchange then took place: Willdin: I watched you walk around the pool Gerry. I can see by your body language you are proud of the work you have done. Applicant: Yes Dave I am proud of the work I have done. Willdin: The work here by Gerry hasn't been done up to standard. Let's go around the pool and I will show you. 75The Applicant said that he started to cry because he was scared that David Willdin was going to get him dismissed. He noted that David Willdin was smiling so he approached him with his hand outstretched pleading with him at which point he said his hand accidentally touched Dave Willdin's hand: Willdin: Gerry, personal space. Don't touch me. Applicant: [stepped back, still crying] I don't appreciate you laughing at me Dave. Willdin: [as they walked around the pool] Gerry's been complaining about the cleaning pole. He wants a longer one. We have been using this one for thirty years without any complaints. I told Gerry to take a break every half hour. Applicant: Dave I have been doing that but I still get sore hands. Could you just look at it and see if something can be done about it. Willdin: We should look at the areas where Gerry hasn't been doing his job up to scratch. 76The Applicant said that Mr Willdin led them over to the seats and pointed to black marks on the concrete. He had not seen the marks when he cleaned up the previous night. He queried why Mr Willdin had not noted them in the diary to bring them to his attention. 77Mr Willdin led them to an expansion joint, took out a rag and started rubbing the joint hard at first then slowly. The Applicant said Mr Willdin showed Scott Petersen some dirt on the rag. He said he felt that Mr Willdin's actions were very demeaning and he started to cry again. (The Applicant said that on Thursday, 27(21?) October 2010, he approached Mr Willdin and asked whether he had noticed that he cleaned all the expansion joins on the concourse and he indicated that he had not. The Applicant felt disappointed because he thought Mr Willdin would have checked to see if he had fixed up the problems identified the previous day.) 78Mr Willdin then proceeded to the shower area and he pointed to a black mark on the floor and an ingrained mark on the concrete shower wall. That area was the responsibility of Matt Graham, the night cleaner. (The Applicant said that later that night, he tried to remove the black mark on the floor but it was ingrained in the concrete.) 79Mr Willdin then went over to the seats on the sea side of the pool where a carpenter had been working He pointed to a rusty nail indicating that there was a bolt under the seats. 80Next, Mr Willdin proceeded to the computer room where he pointed out a cobweb on the corner of the wall near the ceiling and an unwashed coffee cup. 81It is noted that there is an issue with the date on which the following conversation took place. From the Applicant's recollection and that of Mr Brooks, it occurred late in October 2011. Mr Matthew Graham, nightshift cleaner at Thirroul Pool, stated that it was towards the end of a nightshift and they had just finished cleaning the pool on 4 October 2011 when Mr Meta said to him in a loud voice that David Willdin was always picking on him and giving him more tasks that other employees. He said that he felt like hitting him. He stated that Mr Meta seemed angry and was speaking in a loud voice. Nevertheless, it did not indicate to him at that time that he was serious or that it was a threat because "Gerry used to go off a lot. He'd yell out a lot...". He did not tell anyone because Mr Meta told him not to. 82Mr Graham said that he worked with Mr Meta on Tuesdays and Sundays. On a Sunday shift at Corrimal Pool, on around 17 October 2011, he found out, during a conversation with Mr Garth Swan, a Thirroul Life Guard, that the Applicant had also told someone else that he wanted to hit Mr Willdin. During cross-examination, he pointed out that there were two lifeguards on duty at the time at Corrimal Pool - Garth Swan and Ray McGorrie. He was 90% sure that it was Mr Garth Swan who told him that Mr Meta told someone at Corrimal Pool that he wanted to hit Dave. He did not ask any questions as his head was spinning because he had not expected to hear it again. 83Mr Graham said he thought it over for about 5-10 minutes and realised that the comment to him could not have been an off-the-cuff comment and that it must have been a genuine threat against Mr Willdin. He said he approached Mr Swan and told him that Mr Meta had also made that statement to him. He said he also advised Mr Willdin the following Wednesday when he was next at work. During cross-examination, Mr Graham said he felt that he had to tell Mr Willdin about that conversation "Because when someone says it once, to me that's just off the cuff, flippant sort of remark, but when you hear it again through, you know, a third party, well, there might be some meaning to that comment he made." He recalled that Mr Willdin was cranky when he told him what Mr Meta said. He denied the allegation by the Applicant that the story was made up. He agreed that he was already working in Mr Meta's job when he made the statement to Mr Keenahan. He denied that he was motivated financially by the fact that he wanted to keep Mr Meta's job. He pointed out that he already had a second job but would not deny that a 35 hour week with the Council was a bonus "but it wasn't, wasn't on me agenda...". 84He said in his statement he had only a professional relationship with Mr Willdin and only saw him occasionally outside of work as their sons play in a football team together. 85In cross-examination of Mr Matthew Graham, Mr Matters attempted to establish "a relationship of favours" between the witness and his supervisor at Thirroul Pool, Mr Willden. 86Mr Graham stated that he met Mr Willdin when their sons were young and played rugby league in the same team for about 2-3 years. His son is 13 and is still playing for the Thirroul Butchers team but not Mr Willdin's son. He would see Mr Willdin at their games on Saturday mornings sometimes but not often as Mr Willdin worked on Saturday mornings. 87Mr Graham said he applied to the Council some four or five years ago for the position of casual pool attendant. He vaguely remembered having a discussion with Mr Willdin about applying for the position and he could have used him as a referee but could not remember. 88Mr Graham said he did not live too far away from Mr Willdin - he knew where he lived because their sons played together and because Mr Graham's second job was rubbish removal and Mr Willdin had paid him to dispose of rubbish from his house on about three or four occasions in the past. Usually it would be Mrs Willdin who called him and arranged the pick up. 89As a casual employee, he was working 20 hours per week at Continental Pool. He was asked, a couple of weeks following Mr Meta's termination, to move into the position he vacated. He was told by Mr Peter Wilson that he would have to formally apply for the position when it was advertised but that never happened. He remained a casual employee but working 35 hours for that season. At the commencement of the next season, about October 2012, he became a seasonal employee. 90He said he was not aware that Mr Meta had raised with Mr Willdin the unfairness of allocating shifts to him rather than to Mr Tony Coniasci. He did not think that Tony Coniasci was allowed to work at Thirroul Pool because he was a lifeguard. 91Mr Matters pointed out that there was evidence from Mr Brook that the conversation actually took place on 30 October yet Mr Graham was giving evidence that he was told about it about 14 days before it actually happened. 92The Applicant said that while he was working with Matt Graham at Thirroul on the night shift on Wednesday, 26 October, he made the comment that Mr Willdin was riding him hard claiming that he was not working well and had pointed out marks on the concrete which he could not get out. He recalled that Mr Graham said to him "That's ridiculous. But you have to do what he says he's the boss". 93The Applicant said that, on 29 October 2011, he went to Corrimal pool to swim laps and had a coffee with Rob Brooks, the Manager. He mentioned to Mr Brooks: Rob I am really stressing. I just can't hold back the tears. Dave is really riding me at Thirroul. He criticises me for the smallest things. He noted that Mr Brooks was writing down what he was saying. Mr Brooks then gave him the two pages of paper to give to Scott Petersen on the following Monday. A copy was annexed to the Applicant's statement. The Applicant denied that he said that he felt like "punching somebody" to Mr Brooks. 94Mr Robert Brooks, Pool Superintendent, gave evidence that he first met the Applicant when they both worked at Western Suburbs Pool and he formed the impression that the applicant was "headstrong" and "a bit of a hothead" having observed him yelling at some young blokes at the pool. He said that the Applicant often sought him out for advice if he was having problems at work. 95Mr Brooks recalled a conversation with the Applicant at about 12.30 or 1 pm on 29 October 2011 at the Corrimal Pool: Applicant: I feel like I am being harassed by Mr Willdin. He treats me unfairly. My performance is coming up for review and Dave doesn't think my work is up to scratch. The other guy who does the cleaning is not given a hard time. Brooks: If you feel like you are being harassed then there are ways of getting this fixed through following the proper procedure. You can report this to the harassment officer or a union delegate. Applicant: I don't want to do that or get anyone else in trouble. Brooks: You are not getting anyone in trouble. You have to be treated fairly. Why don't you write down your grievances? Applicant: I can't because I can't read or write. Brooks: Ok, well that's not a big issue. I can help you and write them down for you if you tell me what to write. You can then give it to Scott Petersen our union representative. Applicant: I just feel like punching them out. Brooks: Calm down. Don't say that to me again. If you say that you will probably be sacked. You need to go and see a doctor and get help. 96He said he wrote down the Applicant's grievances on a piece of paper and gave it to him. He said that during the whole conversation Mr Meta was crying because he was upset. He said it was usual for him to cry when he was upset. He would give him advice about how to fix things knowing that he would not agree with the advice and would seek out other people to talk to about his problems. 97Mr Brooks said he telephoned Thirroul Pool and spoke to Ray McGorry who was on duty on 29 October 2011. He warned him that Mr Meta had been speaking to him and made threats about punching people out. He told him that they should be care at Thirroul Pool. Mr Brooks then sent an email to Mr David Willdin and copied it to Ms Lauren Ackerly, Acting Manager Recreation Services to advise of his discussion with the Applicant. He explained that he did that because he was concerned that Mr Meta would carry out his threat as he told him previously that he had punched out his brother-in-law while on holidays. The email read as follows: Gerry Meta asked me for help with his work troubles as he was very stressed. I advised him to firstly seek medical help for stress and depression and contact a harassment officer if need be. I documented some of his concerns for the union rep or harassment officer to deal with as he said "he did not have the skills to write or spell". The Serious issues I shall keep in confidence at this stage. Garry needs to seek professional help after my discussion with him today. He may be unsafe to work alone or a danger to himself or others. I contacted his superior to let him know Gerry has issues that need addressing. After talking to Dave I now believe he is incapable of understanding directions as I have explained time and time again what is required of him to carry out his job. This is the fourth time Gerry has come to me for problem solving in the last couple of years. I also know Brett and Ray have assisted him many times in the past with counselling. He never listens to advise or take on what he is told. After speaking to Dave, I think Gerry needs to talk to a councillor urgent. I know I'm not qualified but something is wrong. 98Mr Brooks pointed out that he would not like to supervise the Applicant as he is very difficult to manage because he does not listen to instructions, argues about everything and cannot accept authority. He pointed out that the Applicant is very animated when he speaks and speaks very loudly. Therefore he did not believe that the Applicant is suited to working in a position where he has to talk and interact with the public. 99The Applicant said that, on 31 October 2011, he went to Corrimal pool to have a coffee with Brett Parry, a pool attendant. He saw Peter Wilson leaving the pool and asked if he could speak to him, off the record, about what was happening at Thirroul pool. Mr Wilson excused himself stating that he was busy but would give him a call. The Applicant said that Brett Parry advised him to consult his doctor. 100Mr Brett Parry, Assistant Pool Superintendent, Corrimal Pool said that he had known the Applicant for about four years but never worked with him. He said the Applicant occasionally showed up where Mr Parry worked to visit and have a chat, usually to discuss his dissatisfaction with work. Mr Parry said that the Applicant visited him on 31 October 2011 at about 8.30 am and left about 10 am. He said Mr Meta appeared extremely agitated and stressed and, as he had a tendency to do. dragged up old history as he seemed not to be able to let things go. He recalled their conversation as follows: Applicant: I am feeling pressure from Dave Willdin at the pool. I feel like I am being singled out because Dave doesn't say anything to the other cleaner that works with me. Parry: You just need to do what Dave tells you to do. If he wants things done a certain way then just do it. You are just a night cleaner. You should just do as you're told and then go home. Don't worry about it. Applicant: I am angry at Dave for treating me like this. I was dismissed from my last job as a patient delivery persons for punching someone. Parry: If you do that here you will get the sack. You should go and see your doctor immediately and get some help. You shouldn't go to work if you are feeling like this. Go through the right channels and tell them you're not coming to work. 101Mr Parry said he gave that advice because he was concerned for the Applicant's well-being and was concerned for the safety of others at the Thirroul Pool in case the Applicant did the same thing to someone as he did in his previous job. He said he persisted in telling him to see a doctor about 3 or 4 times. 102Mr Parry said that he was so concerned that he forwarded an email to Mr Peter Wilson, Aquatic Services Coordinator, into which he copied Mr Mark Bond, Recreation Services Manager, as follows: Today Gerry Meta was here and came across extremely agitated and under a lot of stress. I advised him that I was concerned about his mental state and told him to seek medical attention. I am not a supervisor but felt that what behaviour I witnessed warranted me to offer the advice I took. 103The Applicant omitted to mention that he was called into a meeting to discuss his wellbeing on 31 October 2011. Mr Mark Bond stated that he held a meeting with the Applicant that afternoon and also in attendance were Mr Peter Wilson, and Mr Peterson. Mr Meta brought up his concerns with his performance review scores and it was agreed that it would follow the normal grievance procedure. In conclusion, the Applicant agreed to seek professional help and he was provided with a card with the details of a suitable professional. 104Mr Mark Bond stated that, in early November 2011, he was copied into an email from Mr Wilson to Mr Martin about concerns Mr Willdin held about his personal safety at work. Mr Willdin had been told that the Applicant had made physical threats against him. He said that he was not involved in the subsequent investigation but recalled that he thought that the Applicant was demonstrating the same historic behaviour he had displayed at other pools and was now turning on Mr Willdin who had advocated for him following the incidents at Port Kembla Pool. Mr Bond's advice to Council was to consider terminating the Applicant. He said that despite that advice, a decision was made to seek redeployment options for him. He had therefore suggested that a position should be found for him that involved minimal contact with the public and other staff. After the Applicant was redeployed to a temporary position created at the Tourist Park. he ceased to have little involvement with Mr Meta. 105The Applicant said he was devastated when, on 5 November 2011, he received a call from Shaun Martin who advised him that a complaint had been made against him but would not tell him the nature of the complaint or who had made it. He had only three days to go before his level 2 warning was lifted and he was desperately worried about Mr Willdin getting him sacked. He denied categorically making any threats against David Willdin to Matt Graham or anyone else, or making threats against anyone working for the Respondent. 106Mr Stephen Keyte, Human Resources Claims & Injury Management Coordinator, gave evidence that the Applicant submitted, on 7 November 2011, a workers' compensation certificate stating he was unfit for work from 6 - 14 November 2011 due to a "reactive stress disorder" resulting from a performance review with his supervisor (Dave Willdin) on 26 October 2011. He said he rang Dr Parrish who spoke to him about the Applicant: Gerry is very upset with the allegations against him and refutes it completely. Gerry feels there has been a breakdown of the working relationship of the two and I think Gerry should be off work while this gets resolved. I don't think Gerry has a psychiatric illness and he is a very emotional person who waves his arms around and often raised his voice, which may appear as anger. 107Council accepted provisional liability of the claim while Mr Keenahan investigated the claim. 108Mr Meta provided a further certificate dated 14 November 2011 for the period from 14 - 27 November 2011 due to "reactive stress situation". Mr Keyte once again rang Dr Parrish on 25 November during which he advised the latter of the various disputes between Mr Meta and his supervisors, his transfer to three different pools, the level 2 warning on which he was on, the assault on a boy at Berkeley Pool and his outburst at Beaton Park to members of the public. Dr Parrish was advised that the Applicant had availed himself of the EAP and was, basically, on his last warning. Dr Parrish advised that he was not aware of those issues and would discuss them with the Applicant at his next appointment. 109The Applicant made a statement to Mr Barry Keenahan who investigated that complaint on 17 November 2011. He annexed the notes kept by Mr Keenahan to his statement. 110The Applicant provided another workers' compensation certificate for the period 28 November 2011 - 5 December 2011 due to "reactive stress situation". The next certificate, for the period 5 - 8 December 2011 cited "resolving stress situation" as the reason for the absence. He was declared as fit for pre-injury duties from 14 December 2011 having "resolved stress situation". 111The Applicant said he received correspondence from Mr Peter Coyte, Assistant Director Infrastructure and Works on 24 December 2011 advising that he was placed on a stage 3 Final Warning for two months and transferred from the Aquatic section to the role of General Assistant at Corrimal Park. 112Mr Peter Coyte, Acting Director Infrastructure and Works, wrote to the Applicant on 24 December 2011 about allegations that he had made threatening comments towards his supervisor, Mr David Willdin which were subject to an investigation by Mr Barry Keenahan. 113He reminded the Applicant that he had attended a meeting with him, Shaun Martin and Paul Wesley (USU) on 12 December 2011 to discuss the outcomes from that investigation and give him an opportunity to respond to those outcomes. 114The Applicant was reminded that he was advised at that meeting that the investigation had confirmed that he made threats involving Mr Willdin to which the Applicant had, in response, complained about Mr Willdin treating him unfairly and "riding" him about his work performance and "setting him up". Mr Coyte advised that, as a result of those comments, Council engaged Mr Keenahan to interview colleagues and obtain statements from them about their views on Mr Willdin's conduct toward him. In addition to that, Shaun Martin and Mark Bond put the Applicant's concerns direct to Mr Willdin. 115The Applicant was also reminded of the meeting held on 16 December 2011 at which Mark Bond, Shaun Martin and Paul Wesley (USU) were in attendance with him and the Applicant. He was reminded that Mr Coyte had advised the Applicant had his concerns about Mr Willdin had not been substantiated. Council had reviewed the record of discussions kept by Mr Willdin in relation to the discussions he had with the Applicant. The Council took the view that Mr Willdin had directed him appropriately in order to assist him to improve his performance and conduct. On that basis, Mr Willdin's discussions with him were necessary because his performance and conduct did not meet required standards. 116Mr Coyte went on to advise in that correspondence that Council, having concluded its investigations and considered his responses to the outcomes, had decided that disciplinary action against him was appropriate having regard to the threatening comments he had made toward, and involving, Mr Willdin. 117Mr Coyte had reminded the Applicant of his employment history and the break downs in his working relationships at the various work locations he was placed in and, on one occasion, an inappropriate interaction between him and a member of the public. He was reminded that he had been cautioned about his continued employment with Council should a further incident occur. 118Mr Coyte pointed out that Council had intended to provide him at that meeting, with a "show cause" letter as to why Council should not terminate his employment. However, Paul Wesley appealed to Council not to terminate the Applicant's employment and to seek other employment options for him with Council. Council had agreed to consider information presented by Paul Wesley and the Applicant at that meeting. 119Mr Coyte reminded the Applicant that there was a third meeting, on 22 December 2011, which included Mark Bond, Shaun Martin and Paul Wesley with the Applicant and himself. The Applicant and Paul Wesley were advised that the information put forward by Mr Wesley had been considered and it had been determined that: (i) Council would not be terminating his employment at that time; (ii) He would be placed in stage 3 disciplinary, Final Warning, for a period of 12 months; (iii) He would be removed from the Night Shift Cleaners position and from the Aquatic section; (iv) He would be placed as a general assistant at Corrimal Tourist Park at his existing rate of pay for a period of three months; (v) A review would be conducted at the expiration of the three months period to determine if, and what other employment opportunities may be available. That would be strongly influenced by his work performance within a team environment; and (vi) Council supported his continued participation in its Employee Assistance Program (EAP). 120It was acknowledged that the temporary placement was a position created for the Applicant due to the fact that Council was not able to identify a permanent redeployment option him. There were no guarantees given to him that the temporary placement would lead to a permanent position. 121As to the consequential financial loss resulting from the loss of shift allowances and overtime, it was pointed out that an opportunity existed, subject to satisfactory performance, for him to access overtime in the Tourist Park. 122Mr Coyte assured him that Council was committed to assisting him in making a success out of his new career. 123Mr David Daghita, Manager of Corrimal Tourist Park, gave evidence that he received advice from Mr Lachlan Walker, Commercial Business Manager, that Mr Meta would be working in his park for a three month period. Mr Meta commenced working on a temporary basis for three months commencing in January 2012. He was not advised of any disciplinary matters involving the Applicant or the reason for the transfer. 124Mr Daghita explained that the Applicant undertook work at the Park (such as painting, repairing and other maintenance work) that he would normally provide to the five casuals he had access to. He said that during the first three months he was relatively happy with the work the Applicant was doing and his attitude. 125Mr Lachlan Walker wrote to the Applicant on 22 March 2012, advising that his temporary placement at Corrimal Pool was to be extended for three months up until 29 June 2012 for two reasons. Firstly, his satisfactory performance during the first three months and, secondly, the fact that Council was unable to identify a permanent redeployment option at that stage. In addition, the Applicant was advised that his request to work a 9-day fortnight was approved. 126Mr Walker was required to go to the Park to see Mr Meta on 28 March 2012 because of his demand to work 10-4 rosters. He forwarded an email to Mr Mark Bond and to Mr Shaun Martin in relation to his conversation with the Applicant. He reported that he tried to explain to the Applicant that he was replacing casual staff who did not work weekends but he did not seem keen to accept his answers. He reported that the Applicant had become agitated. He explained to the Applicant that the two outdoor staff were the only people on that roster across the three parks who worked those rosters and as it was part of their contract of employment, it would not flow on to anyone else should they vacate the position. He would be offered their hours if he was to replace either of them when they were on leave and, in fact, he was doing just that in that fortnight. He was cautioned to keep his problems with management and the union away from the parks as he had created potential problems for his co-workers in the park as a result of him highlighting that issue with the union. Whilst the Applicant indicated that he had not intended to do that, Mr Walker formed the impression that not only did he not realise the potential impact of his actions but he also did not seem to care. 127Mr Keyte stated that, on 27 April 2012, he received a telephone call from the Applicant's counsellor, Mr Ken Davis and he recalled the conversation as follows: Davis: Gerry is under the impression that after his probation period at the Tourist Park he would go back to his substantive role. He still thinks he has been set up and has no issue with his supervisor Dave Willdin. Gerry wants access to the heated pools in winter because he feels it has helped his condition as he has fallen back into retrospection since he stopped swimming. Gerry also told me he has had a loss of earnings. He only has 6 consultations left with me under Medicare. Keyte: Gerry has a letter dated 24 December 2011 clearly stating he is not going back to the pools. Gerry has never been on pool deck, and would not be going there because of past incidents he has had and his inability to take reasonable directions. The investigation doesn't show he was set up. He can't have free access to the pools as he is not working in lifeguard services and is not a lifeguard or on relief list, so I can't approve this. I have only given provisional liability and on all the evidence I should have disputed liability under section 11A which related to performance appraisal and disciplinary action, which was the cause of his condition. 128Mr Daghita stated that he started to notice a change in Mr Meta's attitude - he seemed increasingly frustrated and made comments to him that he was "pissed off" with Council. Mr Daghita interpreted that to mean he was upset about the roster arrangements. He recalled that on 27 June 2012, Mr Gebbinck, his Assistant Manager, advised that that Mr Meta told him that he would not be attending work on that day because Council was "stuffing him around". He reported what he perceived to be abuse of the sick leave provision in an email to Mr Lachlan Walker. He understood that Mr Walker contacted Mr Meta and advised that his temporary contract at the Park would be extended to 27 July 2012. 129Mr Daghita said that when Mr Meta returned to work on 29 June 2012, he told him that he cannot use his accrued sick leave when he was not really sick. 130Mr Mark Bond, Recreation Services Manager, wrote to the Applicant on 27 June 2012 advising that his temporary placement was extended to 27 July 2012 to permit permanent redeployment options to be further explored within the Infrastructure and Works Directorate. 131Mr Daghita said Mr Meta spoke to him about his redeployment options on or about 29 June 2012: Meta: I'm worried because the letter says they're looking for redeployment options in the Infrastructure and Works Division. This isn't right because I'm going back to the pools. Daghita: This might not happen Gerry. You need to be prepared for this. Meta: No I'm going back to the pools. Daghita: Gerry, you need to know that this might not happen. If you can't go back to the pools, do you want to stay here as your redeployment option? Meta: Yes, but only if I can't go back to the pools. 132Mr Daghita stated that up until that time, Mr Meta's performance was satisfactory although his attitude was a problem. Although he did not have a substantive position for him, he was happy to accommodate him working at the Park beyond June 2012 although, leading up to that time, Mr Meta would not work alone. He only wanted to work with Mr Dean Vause, another employee, which was not an ideal situation. Nevertheless, he was prepared to deal with it in the short term and so, on 4 July 2012, he forwarded an email to Mr Walker (into which he copied Shaun Martin, Scott Peterson and Peter Coyte) advising that he could accommodate Mr Meta as a redeployment option if that was viable to the Council: I have seen Gery and have had a talk with him about his letter that stated that he is here until the 27th of July 2012. The content says that Gery will be redeployed within the Infrastructure and Works Division this concerns Gery. If Redeployment does happen and Gery cannot go back to the Pools he would like to stay here as his Redeployment Option. I have no Problem with Gery Staying here at Corrimal Beach Tourist Park. I understand that this Decision is out of my hands and what ever Happens, Happens. Thank You all for your time. 133Mr Daghita said that on 10 July 2012, when he called on the Park to check on things on his day off, he was approached by Mr Gebbinck, Assistant Manager, who advised him as follows: Gebbinck: Linda came and saw me and told me that she had seen Mr Meta out the back of the residence crying. I went down and saw him and he was rolled up in a ball crying. I told him to get on the mower to take his mind off things. Daghita: Ok, let's go and see how he is. Mr Daghita said that he and Mr Gebbinck approached Mr Meta and had the following conversation: Daghita: Gerry how are you feeling? Are you ok? Are you going to hurt yourself? Meta: Yes, I think I will. 134Mr Daghita said he instructed Mr Gebbinck to telephone Mr Walker and Mr Shaun Martin, Employee Health and Safety Manager and ask them to get out to the Tourist Park immediately. He instructed Mr Gebbinck to interrupt Mr Martin who was in a training course and get him out to the Park immediately as he was needed urgently. Mr Daghita explained that a guest at the Park had committed suicide on the premises the previous year and so he took threats of self harm very seriously. He left Mr Gebbinck in charge and left the Park. Mr Meta did not return to the Park after that day. 135Mr Daghita said that he had a conversation with Mr Gebbinck on or around 10 July 2012 during which the latter said to him: Gerry has been crying and breaking down over the past few weeks. He is threatening self-harm and doesn't want to work by himself however he does have trouble working with other staff. I am worried about him. At his request, Mr Gebbinck confirmed the above in writing to him: hello Dave some of the concerns for Gerry who is working at Corrimal breach tourist park are that over the past few weeks is that he has broken down and cried and was quit [sic] depressed, he also has threatened self harm he also has trouble working along side some of the other staff. he does not like working by him self Gerry tells me it gives him so much time to think about his problems that he ahs in his private and work life. 136Mr Daghita decided that he could no longer accommodate Mr Meta at the Park given his behaviour and emotional unpredictability. He said Mr Meta was negative and moped around despite his numerous attempts to motivate him. It was unsafe to allow him to work alone, yet it was unfair to expect Mr Vause to keep working with him which had the potential to affect the latter's well-being. He felt he needed someone vibrant to make the guests feel welcome and Mr Meta, as at July 2012, was not fulfilling that role. On that basis, he forwarded an email to Mr Walker on 10 July 2012 into which he copied Lachlan Walker: To Take it from what Ray is saying below is that we work in the public's eye and Gery's behavor is becoming a problem with breaking down and crying and wanting to do self harm I feel its only a matter of time before something bad will happen. the budget cannot sustain Gery out here. When he came here it was only for 30 days, that 30 days now has turned into 6 months. I cannot take the time neither can the staff take the time to ensure that Gery does not do something Crazy. I can say Gery is a hard worker but I and Ray can see something is building up and again with us being in the public eye I cannot afford for something to happen. To pin point exact stuff is hard because its all over the place one day he is fine the next day he is so depressed its like he is Bi-Polar. Sorry I cannot be specific but I feel its time for Gery to go and experience something different. 137Mr Daghita said he still holds the same view and cannot have Mr Meta reinstated at the Tourist Park. 138Mr Bond was involved in a meeting with Trevor Jones (HR Manager, Mr Martin, Mr Coyte and Mr Martin on 12 July 2012 to discuss redeployment options for the Applicant as his temporary redeployment at the Park was coming to an end. It was decided that he could not return to the pools given the requirement to interact with the public and other colleagues given his past conduct, given his final warning for conduct issues and given the breakdown in relationship with his supervisors at the various pools. It was decided that further redeployment with other divisions of Council would be considered and discussed with the Union. 139Mr Bond remained of the view that reinstatement or re-employment of the Applicant to any of the Council's pools would highly likely lead to an adverse impact on the welfare of staff at those facilities. Termination Letter of 24 July 2012 140A review was conducted at the end of the 3 months' period of employment at Corrimal Tourist Park as a result of which the Applicant's temporary placement was extended for a further period up to 29 June 2012. 141Mr Peter Coyte, Manager Property and Recreation, wrote to the Applicant on 24 July 2012 referring to a meeting involving him, the Applicant, Scott Peterson and Trevor Jones on 23 July 2012 at which time they had discussed a number of incidents involving the Applicant's supervisors and work colleagues. 142Mr Coyte advised that, while at the Tourist Park, his conversations with other staff caused them to raise with management serious concerns that he was going to do self harm and to express their discomfort working with him. 143The Applicant was reminded of the various transfers he has had as a result of the break downs in working relationships. He was also reminded of the caution he received on 5 November 2010 that his placement at Thirroul was the only option available to him to continue in his duties as Night Shift Cleaner. 144Mr Coyte advised the Applicant that the role he had at the Tourist Park was no longer required. In addition, Council did not have a permanent redeployment opportunity to move him to as his previous incidents meant that Council was not able to place him in a work crew with confidence that there would be no risk to himself and other employees. In the absence of any redeployment options, his employment at Council could not be maintained and he was formally required to show cause, by 31 July 2012 why Council should not discontinue his services. 145To assist him in preparing a response, Council advised that he was not required to attend work and could remain off work with pay until the matter was finalised. He was also offered the assistance of Scott Peterson or Trevor Jones in the preparation of a written response. He was also reminded of the EAP if he wished to discuss any personal or work related issues with an independent professional counsellor. Training 146The Respondent pointed out that it had provided the Applicant with numerous training opportunities to assist him in overcoming his aggressive behaviour - Bullying and Harassment (July 2007, September 2010); Positive Working Relationships (July 2008, March 2010), Verbal Judo (November 2008), Code of Conduct (April 2009), Managing Conflict (April 2010), Art of Being Assertive (May 2010), Negotiations Skills (April 2011), and Dealing with Difficult Situations (May 2011). 147The Applicant agreed that, over the course of his employment with Council, a large number of courses were specifically selected for him to deal with issues that he had with either staff, his interactions with staff or customers. 148In relation to further training, the Applicant: (a) agreed that he was nominated to undertake a course titled, Conflict Aquatic Recreation, on 11 November 2010 but he did not undertake it; (b) confirmed he undertook a course titled "Deal Difficult Situations" on 11 May 2011; and (c) He undertook the course titled "Computer Essentials" although he does not operate a computer. Psychiatric Assessment 149Mr Matters sought a psychiatric assessment of the Applicant for the purposes of these proceedings as a result of the alleged unfair dismissal of the Applicant, the alleged "systemic and prolonged bullying by his supervisors" and the alleged threat to his life and safety by a member of the public. 150An assessment was provided by Dr Irwin Pakula, Consultant Psychiatrist, dated 7 December 2012. Dr Pakula noted that recent stressors included financial problems (as he was not working and was living off his savings) and his relationship with his girlfriend had ended. 151Dr Pakula noted that one of the Applicant's brother passed away in 1990 and he currently lives with his other brother and one of his two sisters. It is noted that there was no mention whatsoever in the report regarding his sister's alleged disability which the Applicant alleged in his statement to the Commission. The report states in part: .... The mood described was distressed. The affect appeared to be appropriate to situation and ideation. During the interview Mr Gerard Meta did not show evidence of any tearfulness. .. Mr Gerard Meta does not have suicidal ideation. He does not have suicidal plans. Mr Gerard Meta is not irritable, angry, hostile, menacing, threatening or homicidal. He speaks in a loud voice and uses a lot of expressive hand movements and he is very passionate about the events leading to his dismissal..... My opinion is that the diagnosis is an Adjustment Disorder with Depressed and Anxious Mood.... There is no evidence of a recognizable psychiatric disorder. Mr Meta has a stress related illness not a specific psychiatric disorder. The Adjustment Disorder started initially several months prior to his dismissal from work with the development of a sense of being harassed and bullied at work and then worsened with his increased level of anxiety and depressive symptoms immediately after being dismissed from work. Representation 152Tendered in the proceedings was correspondence from the General Secretary of the USU, Mr Graeme Kelly, to the Applicant dated 4 July 2012 in which the latter was advised that the Union would no longer be advising, or acting on his behalf, in relation to his dispute with the Council in relation to returning to the position of nightshift cleaner in the pool system. The Applicant was advised that his behaviour had led to that decision. Mr Kelly did not wish to provide an exhaustive list of those behavioural matters advising that it was sufficient to say that his behaviour on the previous day was such that he had caused significant distress to a USU organiser. 153The Commission, as currently constituted, on 14 September 2012, issued standard directions as follows when the matter was unable to be resolved by conciliation: The Applicant was to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 5 October 2012; The Respondent was to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 26 October 2012; The Applicant was to file and serve any reply to the Respondent's documents by 9 November 2012. The matter was listed for hearing in Wollongong on 3 and 4 December 2012. 154Mr Paul Raymond Matters filed a Notice of Appearance on 27 September 2012 as agent representing the Applicant. 155A Notice of Ceasing to Act for the Applicant was filed by Turner Freeman Lawyers on 29 September 2012. 156On 22 October 2012 correspondence addressed to the Industrial Registrar was received from Mr Roland Hassall, Partner, Sparke Helmore Lawyers, asking for the matter to be re-listed for directions. He advised that neither the Applicant nor his representative had complied with the directions and filed any evidence. Mr Hassall pointed out that had written to Mr Matters on two occasions since the Applicant's statements were due (8 and 12 October 2012) to clarify when the Applicant intended to file his evidence and to propose an amended timetable to ensure the matter would be ready for hearing on the scheduled dates. Mr Hassall advised that one response was received from Mr Matters, on 11 October 2012, in which he apologised for the delay and explained that the delay was due to his recent instructions in the matter but did not give any indication when the statements would be filed and did not respond to the suggested amended timetable. No response was received to the second letter. 157Mr Hassall attached a copy of yet another letter he had forwarded to Mr Matters on 22 October 2012 confirming the advice that had been provided to the Commission and further advising that contact was attempted by telephone but there was no answer on the number Mr Matters had provided on the Notice of Appearance. No response was received by Sparke Helmore to that correspondence. 158Commission staff (Ms Audrey Blackstock) attempted, on two occasions on 22 October 2012, to fax a Notice of Hearing to Mr Matters to the facsimile number he had provided on the Notice of Appearance. The transmission was not successful. 159Commission staff (Ms Audrey Blackstock) also attempted to call Mr Matters on the telephone number provided in the Notice of Appearance. The call was not answered. 160Commission staff (Ms Audrey Blackstock) therefore rang the Applicant and provided him with details of the directions hearing. He was advised of the difficulties in contacting Mr Matters and asked to advise him of the listing. 161The listing of the directions hearing was forwarded to Mr Matters by post. 162Another attempt was made on 23 October 2012 to fax the listing to Mr Matters. Once again the transmission was not successful. 163Another attempt to contact him by telephone was also unsuccessful. 164Commission staff (Ms Audrey Blackstock) called Telstra Directory Assistance and requested a telephone number for Mr Matters whose address on the Notice of Appearance was a Wollongong address. Telstra did not have a listing for him. 165The directions hearing held on 29 October 2012, was specifically to deal with Mr Matters' admitted failure to comply with previous directions of the Commission. On that occasion, Mr Matters addressed the Commission as to why an extension of time should be granted to the Applicant. He stated that the Applicant wished to call two witnesses - firstly, Dr Irwin Pecula, Psychiatrist, who was not available to examine the Applicant prior to 3 December 2012. In addition, Mr Matters wished to provide a copy of his report to the Respondent for its consideration prior to the hearing. Secondly, the Applicant wished to call a psychologist he has been consulting, Mr Graham Tremath and wished to produce a report from him as well. The Applicant also wished to call an employee of Council and a former workmate of his, Mr Terry Hagan, but he was overseas until early December and so the Applicant was unable to obtain a statement from him. Mr Matters acknowledged that it was open to the Commission to make a costs order at the conclusion of the proceedings. Mr Matter urged the Commission not to penalise the Applicant as a result of representative error. 166The following exchange took place with Mr Matters: Commissioner: I am not going to set a timetable that is not going to be adhered to ... Matters: Yes, understood Commissioner. Commissioner: ... otherwise the matter will be struck out. Matters: Yes, I understand Commissioner. Thank you. 167Mr Matters advised that he intended to brief an expert psychiatrist to provide an report in relation to the Applicant. The Commission directed Mr Matters to send the brief he had prepared for the psychiatrist to Mr Hassall by 31 October 2012. The Respondent would then have an opportunity to consider the brief with a view to either joining in the brief or obtaining the Respondent's own independent psychiatric evaluation. The Commission urged the parties to prepare a joint brief to avoid the possibility of obtaining competing psychiatric evidence. 168The filing schedule was revised as follows: The Applicant was to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 4 January 2013; The Respondent was to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 25 January 2013; The Applicant was to file and serve any reply to the Respondent's documents by 1 February 2013. The matter was set down for hearing on 11 - 13 March 2013 inclusive. 169Mr Hassall forwarded to the Commission a copy of a letter he wrote to Mr Matters on 2 November 2012 in which he pointed out that Mr Matters had not complied with the direction of the Commission to provide him with a copy of the brief to the psychiatrist by 31 October 2012. Mr Hassall advised that the Council was reserving its rights in relation to seeking costs incurred for his, or the Applicant's failure to comply with the amended timetable. 170Mr Hassall forwarded to the Commission a copy of another letter he wrote to Mr Matters on 12 November 2012 in which he pointed out that Mr Matters had neither replied to his letter of 2 November 2012 nor provided him with a copy of the brief to the psychiatrist, as directed. Mr Hassall advised that the Council had instructed its Solicitors to seek costs incurred for his, or the Applicant's failure to comply with the amended timetable and to provide a copy of the brief to the psychiatrist. Mr Matters did not comply with the direction and did not respond to Mr Hassall's letter. 171Mr Hassall wrote to Mr Matters yet again on 27 November 2012 advising that there was no value in continuing to write to him about his failure to comply with the orders made by the Commission given that he had not responded to any of their previous letters. Mr Hassall put Mr Matters on notice that his failure to provide a copy of the brief to the psychiatrist to consider may impact on the Respondent's ability to comply with the timetable and a re-listing may be sought if that occurred. No response was received from Mr Matters. 172The Applicant failed to comply with the direction issued on 29 October 2012 that any medical evidence was to be filed and served by 17 December 2012. Neither the Applicant, nor his representative, communicated any reason for the failure to comply with that order. 173Mr Hassall wrote to the Commission on 18 December 2012 into which he copied Mr Matters. Mr Hassall sought an urgent re-listing of the matter to deal with the Applicant's continual non-compliance with the timetable. 174The Applicant failed to comply with the direction to file and service the evidence upon which it was relying by 4 January 2013. Once again, neither the Applicant, nor his representative, communicated any reason for the failure to comply with that order. 175Mr Matters, on 8 January 2013, served a copy, by email, of a psychiatric assessment undertaken by Dr Pakula on 7 January 2013 as a consequence of a letter of instruction dated 4 December 2012. No explanation was provided as to the reason for the delay in filing that report and no explanation was received as to why the Applicant had not complied with the direction on 29 October 2012 to provide the letter of instruction to the Respondent for consideration. 176In the email to Sparke Helmore dated 8 January 2013, Mr Matters undertook to file and serve the Applicant's witness statements on the following day. That did not occur. 177The matter was listed for directions on 15 January 2013. Mr Matters filed the Applicant's statement on the same day. The Respondent, once again, sought to have the matter struck out on the basis that the Applicant had failed yet again to comply with practice direction 17. Mr Matters would not provide a straight answer as to why the Applicant failed to comply with the schedule: Commissioner: ... So when do you expect this matter to be heard if he's looking for reinstatement? Matters: That's to the prejudice of Mr Meta and I stand responsible for that. Commissioner: You said that on the last occasion. Matters: I did. Can I say this commissioner, I'm doing this as a volunteer. I'm doing my best. I am not the third biggest employer in Wollongong. I don't have ratepayers' money to back me up. I'm doing my best. It's not good enough, I accept that. But I'm trying to help a man ... Commissioner: Mr Matters, let's clear something up. Ratepayers' money is not there to be spent just because it's ratepayers. They have to account for it. Matters: This is a council which has a finding in ICAC... Commissioner: Mr Matters, confine your statements to me. Matters: Thank you, commissioner, I'm sorry. This employer has a toxic culture of bullying ... I really don't want to see anyone else bullied Mr Meta is simply trying to get his case before the Commission. I'm very inadequately trying to represent him. He's not my client. I receive no money from him. I only say this because the implication may be that in some way I'm profiting from this, I'm not. Commissioner: There's no implication. You've just got to be careful that while you're assisting him you don't end up incurring for him a costs order or you don't end up having the matter dismissed. 178Mr Matters confirmed that the claim was for reinstatement only and not a claim for either monetary compensation or compensation for past economic loss. The application by the Respondent to have the matter struck out was not granted. The Respondent's rights were reserved in relation to costs and the filing schedule was revised yet again: The Respondent was to file any medical evidence, if any, by 1 March 2013; The Respondent was to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 22 March 2013; The Applicant was to file and serve any reply to the Respondent's documents by 28 March 2013. 179The Commission indicated to Mr Matters that if the Applicant did not wish to file a statement in reply to the Respondent's statements, then he was to advise the Registry in writing with a copy to Mr Hassall. No statement in reply was received from the Applicant. Yet neither the Applicant nor his representative complied with the direction to advise of that fact. The scheduled hearing dates, 11-13 March 2013, were vacated. The matter was eventually heard on 29 and 30 April 2013 and 27 May 2013. The Applicant was granted leave to access the transcript of the evidence for the purpose of preparing submissions. 180Mr Matters filed the required certification under section 90A of the Industrial Relations Act 1996 on 18 January 2013 as directed. It is noted that the notice bore the same address, telephone and facsimile contacts for Mr Matters as those contained on the Notice of Appearance. 181The taking of evidence concluded on 27 May 2013 and it was agreed that the parties would provide written submissions in the matter. The following directions were issued: The Applicant was to file and serve written submissions by 11 June 2013; The Respondent was to file and serve written submissions by 18 June 2013; The Applicant was to file and serve any reply to the Respondent's submissions by 25 June 2013. 182Mr Hassall forwarded to the Commission a copy of a letter he wrote to Mr Matters on 12 June 2013 noting that his firm had not received any submissions from the Applicant in compliance with the first direction. Mr Matters was advised that the Respondent intended drafting submissions in response without regard to any submissions on behalf of the Applicant unless Mr Matters sought further orders from the Commission. 183The Commission's Support Staff (Mr Tome Simonovski) contacted the Applicant on 18 June 2013 in relation to his submissions as Mr Meta was not able to be contacted by any means. Mr Meta provided two new contacts for Mr Matters - a land line and a mobile telephone number. As there was no answer from his land line, a message was left for him on his mobile telephone number. Mr Matters returned the call later that day and advised that he was awaiting the transcript of 27 May 2013 in order to conclude his submissions and had been advised that it would be available on 19 June 2013. He advised that he would be in a position to file the submissions within one day of perusing the transcript. He was requested to make a written request for an extension of time for filing his submission. A written request was made by Mr Matters later that day for the timetable to be revised to allow for filing of the Applicant's submission by 24 June 2013. Mr Matters apologised for his inability to comply with orders of the Commission but explained that it was due to the unavailability of the transcript. 184The timetable for the filing of submissions was revised. The parties were advised, by email at 10.33 am on 19 June 2013, that the following applied: The Applicant was to file and serve submissions by 8 July 2013 The Respondent was to file and serve reply submissions by 22 July 2013 The Applicant was to file and serve reply submission by 29 July 2013. 185On 9 July 2013, Mr Hassall forwarded a copy of a letter he had written to Mr Matters on the same day noting that neither the Applicant nor his representative had complied with the filing schedule, despite the extension of time. Mr Matters was advised that the Respondent intended drafting submissions in response without regard to any submissions on behalf of the Applicant unless Mr Matters sought further orders from the Commission. Mr Matters did not comply with the schedule and, to date, has not filed submissions of any sort in this matter. 186Mr Hassall emailed Mr Matters on 22 July 2013, to which he copied the Commission's support staff, in which he advised that, despite the fact that the Applicant's submissions had not been received, the Respondent had complied with the directions and filed its submissions on 19 July 2013. THE SUBMISSIONS 187No submission has been filed on behalf of the Applicant. During the proceedings, however, Mr Matters attempted to tie the dismissal with the industrial dispute between the Respondent and the USU regarding manning. He contended that, by the removal of Mr Meta, the Respondent achieved a restructuring during the process because they did not replace Mr Meta with a full time permanent employee. He was replaced with a seasonal employee. I note that Mr Matters did not call evidence from the USU or its site delegate who happened to have attended the majority, if not all of the meetings held with the Applicant in relation to all of the disciplinary matters outlined above. 188It was submitted on behalf of the Respondent that its witnesses provided credible and honest evidence before the Commission which was either not challenged or unshaken under vigorous cross-examination and, on that basis, should be accepted and preferred to the evidence adduced by the Applicant. 189It was pointed out that the evidence of Dr Pakula, Consultant Psychiatrist, does not serve a useful purpose for the following reasons - he did not examine the Applicant until approximately three months after his dismissal; he diagnosed the Applicant, not with a psychiatric illness, but an adjustment disorder with depressed and anxious mood; he did not offer an opinion in relation to his fitness for work; he did not outline what the Applicant relayed to him as "the clear history of the background related to his dismissal"; the evidence does not support the brief provided by Mr Matters to Dr Pakula that the applicant was subject to "systematic and prolonged bullying by his supervisors"; the history provided to Dr Pakula was one-sided and from the Applicant's perspective only; Dr Pakula stated in his report that "He [Mr Meta] did not suffer from this condition prior to having been dismissed from work" yet went on to say to make a contrary finding that "The Adjustment Disorder started initially several months prior to his dismissal from work.."; if the latter finding is correct, then the disorder started in about April/May 2012 yet Mr Meta gave no evidence about events occurring in the last eight months of his employment; and the report does not provide any evidence of any discernible psychological condition during the relevant time the Applicant was employed by Council and does not provided a basis for undertaking a "psychological harm risk assessment" at Thirroul Pool in early November 2011. 190It was pointed out that Mr Meta did not file any evidence in reply to the Respondent's evidence. The fact that the Applicant did not include the following events which occurred after 24 December 2012 (apart from the termination letter) detract significantly from, if not considered fatal, to his application for reinstatement: his claim for workers' compensation due to stress; his meeting with the USU on 3 July 2013 and his subsequent reaction to it; the letter he received from the USU dated 4 July 2013, and the events which occurred on 10 July 2012 while he worked at the Tourist Park; his failed complaint to the Ombudsman; and the procedure followed by the Respondent during the course of terminating his employment. 191The Respondent relied on what it considered to be unsatisfactory evidence of the Applicant in that he responded quickly and directly when questioned about non-controversial matters but could not recall or avoided responding to matters involving his inappropriate conduct. 192The Respondent pointed out that, during cross-examination, the Applicant vigorously denied making statements about wanting to hit staff yet he did not dismiss such a suggestion when participating in the inquiry by Mr Keenahan suggesting that he did not recall making such threats. 193The Respondent also pointed out that the evidence (outlined in detail above) indicated that a large amount of the fact are not in dispute. 194The Respondent identified the issues in disputes as being - firstly, whether the Applicant made threats of physical violence against staff sufficient to justify disciplinary action being taken against him in December 2011; secondly, whether Council properly considered Mr Meta's issues raised on 12 December 2011 about the way he was treated by Mr Willdin; and thirdly, whether the Council had grounds, in July 2012, to justify termination of the Applicant. 195The Respondent submitted that the Applicant had indeed made threats about physical violence, including threats against his supervisor at Thirroul Pool, Dave Willdin to both Mr Brooks in late October 2011 and Mr Graham on or around 4 October 2011 and took the Commission to the evidence in support of that conclusion. 196The Respondent pointed out that Mr Willdin had offered to take Mr Meta on his staff at Thirroul Pool and, in order to do so, displaced another staff member who was transferred to Port Kembla Pool. It was pointed out that Mr Willdin's actions were not consistent with those of a person who wanted to "set up" a fellow employee. Mr Meta acknowledged that the Council had made inquiries into his allegations of being treated unfairly. It was also noted that Mr Meta had not formally challenged the rating he received in his appraisal review by Mr Willdin. Finally, it was noted that the Applicant did not provide any evidence in reply to contradict the evidence that he made threats of self-harm. Council concluded that it had reasonable grounds for terminating the Applicant's employment taking into account his effect on other employees, the resolution passed by the USU and the Applicant's own actions. Relevant Legislative Provisions 197Section 88 of the Industrial Relations Act 1996 requires that: SECTION 88 MATTERS TO BE CONSIDERED IN DETERMINING A CLAIM 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) If any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed; and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. CONSIDERATION 198The Commission is satisfied that the Respondent provided the Applicant with detailed reasons for his dismissal both in the show cause letter dated 24 July 2012 and repeated in the termination letter of 24 August 2012. 199The Show Cause letter traced his movement from one work location to another (as detailed above) and finally to the Tourist Park, due to break downs in working relationships and inappropriate interaction between the Applicant and a member of the public which had resulted in his removal from the Casual Relief List. 200The Show Cause letter then traced the reason behind his Stage 3 disciplinary final warning and his subsequent deployment to the Tourist Park on a temporary placement which was extended three months at a time. It was noted that it was a position "created" for him in the absence of any other identifiable permanent redeployment option. It was also noted that, while at the Tourist Park, serious concern and discomfort were expressed by staff over his threat to self-harm. 201Finally, the Show Cause letter advised the Applicant that Council did not have any redeployment opportunities for him to move into given those previous incidents had resulted in loss of confidence in him being able to be placed with a work crew without risk to himself and others. 202The termination letter of 24 August 2012 advised the Applicant that termination was appropriate given the reasons set out in the Show Cause letter. 203It is noted that Turner Freeman Lawyers wrote on behalf of the Applicant proposing that he can return to Thirroul Pool and work under Mr Willdin's supervision. It is also noted that it was considered by Council but rejected on the basis that there were no available positions as a night cleaner at Thirroul Pool and, in any event, Council considered that the relationship between the Applicant and Mr Willdin had irretrievably broken down. 204It is noted that Mr Graham was working in Mr Meta's job and subsequently was confirmed in the position without having to apply for it. However, I agree that the relationship between Mr Meta and Mr Willdin had irretrievably broken down and irrespective of whether Mr Graham was in the position or not, it would not have been feasible for Mr Meta to return to that position. 205Despite his denials in the Commission, it is noted that the Applicant, in an interview with Mr Keenahan on 17 November 2011, when the incident would have been fresh in his mind, stated: In my mind I have not threatened anybody, I was emotional and stressed and cannot remember saying things like I felt like bashing somebody or hitting somebody or make suggestions like that. I am not saying somebody is telling lies I just don't recall saying it. 206I am satisfied, having set out the evidence in detail above, that the Applicant was, on each occasion, advised of the cause of concern or the allegations against him; provided with the opportunity to be heard in relation to those concerns/allegations; provided with the opportunity to have a union representative present during those discussions; provided with, or offered, appropriate training; and a solution found to the problem by transfers to other pools. 207I am satisfied that, when the Council ran out of appropriate transfer options, it relented to approaches from the Union and transferred the Applicant to a "created" position at the Tourist Park. The Applicant was well aware that he was on a third and final warning and that the position was temporary. 208I am satisfied that the Applicant was, while in the employment of the Council, a very hard worker. That fact has not been denied by the Council or any of its witnesses. However, I am satisfied that the Applicant cannot return to work in his previous position at Council without risk to himself, or to his fellow staff or to the public. That is evidenced by the fact that, despite the Applicant being warned not to approach anyone at the Tourist Park, he returned upon receipt of the Show Cause letter, to investigate who had made complaints about him. 209In all of the circumstances described above, I find that the dismissal was neither harsh, nor unjust nor unreasonable. The Commission declines Mr Meta's application for reinstatement. ORDERS 210The proceedings in Matter No IRC 933 of 2013 are 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: 04 November 2013