Industrial Relations Commission New South Wales Medium Neutral Citation: Scott Vassella and Ambulance Service of NSW [2017] NSWIRComm 1018 Hearing dates: 20 October 201521 October 2015 Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Industrial Relations Commission Before: Tabbaa AM, Commissioner Decision: Claim dismissed Catchwords: Section 84-Unfair Dismissal- grievance by employee against perceived inappropriate treatment by Manager-recurrence of anxiety disorder-workers' compensation claim-fitness to work on duties other than with the Respondent-engagement with other employers-requirement to complete Secondary Employment approval application-failure to seek approval-Acceptance of full-time permanent work with another employer-dismissal for abandonment of employment-employee claim that acceptance of alternative employment was for rehabilitation purposes-claim unsupported-finding that applicant abandoned his employment Legislation Cited: Industrial Relations Act 1996 Cases Cited: Boyd v Godfrey Hirst Australia Pty Ltd [1995] IRCA 31 Olagas v Impresstik [2006] NSWIRC 1057 Category: Principal judgment Parties: Mr Scott Vassella (Applicant) Ambulance Service of NSW (Respondent) Representation: Mr Scott Vassella (Self-represented) Mr M Sullivan Lander & Rogers Solicitors (Respondent) File Number(s): 45973 of 2016 DECISION Background 1. Mr Scott Vassella (the Applicant) was employed by the Ambulance Service of New South Wales (the Respondent) as a Claims Manager within the Risk Management division of the Operational Support Directorate from January 2011 until his termination on 12 May 2015, his last day at work being 2 January 2015. His role principally involved the management of insurance-related claims made against the respondent including public liability, motor vehicle and property liability and workers compensation programs. His role also involved the supervision of a team of Injury Management Co-ordinators (IMCs) who provide support services and facilitate return to work arrangements for employees who have suffered injuries in the course of their employment. 2. In late 2013, he lodged a series of concerns regarding alleged inappropriate operational management behaviour and failure to follow policies and procedures which was causing his team difficulties in the workplace and in the management of their work. 3. A further concern was raised with the Acting Deputy Director risk Management, Mr Noel Quinn, on 28 February 2014. The Applicant held the belief that the concern had the potential to adversely impact his wellbeing and that of several of his staff and was in contradiction of the Respondent's workers' compensation responsibilities. 4. The alleged inappropriateness of Mr Quinn's response resulted in Mr Vassella lodging his first formal grievance with Mr Michael Homden, Executive Director-Operational Support. 5. He proceeded to lodge a workers' compensation claim which was approved. He was certified as unfit for work from 10 March 2014 until 19 March 2014. 6. Approximately four days after taking the above action, Mr Vassella discovered that all his electronic access to Ambulance intranet, support services and the Employee Assistance Program had been disabled thereby isolating him from any workplace support. 7. All reasonable steps to effect a conciliated settlement failed in proceedings held on 7 July 2015 before Newall C and directions were issued. 8. The following gave evidence at the hearing: Mr Scott Vassella Applicant Laurie Whitehurst Manager, Human Resources Services The Evidence 1. Mr Vassella stated that it was his experience that the Respondent did not generally welcome any alerts of issues which may create adverse publicity for its operations or may attract union attention. Nevertheless, he stated that he felt obliged to report a number of concerns in late 2013: 1. A paramedic with suspected drug use issues where potential risk to the public had not been examined or mitigated; 2. Privacy issues with the distribution of private police reports regarding a paramedic where the issue involved was unrelated to work; 3. Irregularities on a patient health care record regarding the administration of drugs to a patient sometime after that patient had already been admitted to hospital; 4. A Paramedic who was suspected of dealing in drugs being nominated for medical retirement rather than being performance managed which would result in that paramedic receiving death and disability benefits despite no apparent medical condition; and 5. A significant conflict of interest and failure of management to comply with an agreed injury management plan. 1. On 26 February 2014, communication was circulated from the Chief Executive to all staff in "the beacon" relating to IMC processes. The communication advised: … To ensure a better experience for those staff who do unfortunately get Injured at work we are redesigning the IMCs processes, moving all IMCs under the operational support team; and providing our work health and safety insurer, QBE, with a more structured engagement process. Mr Vassella and IMCs expressed concern in a series of emails about an absence of consultation prior to that communication. Mr Vassella also sent an email to Mr Michael Homden, Executive Director, Operational Support Director on 27 February 2014 criticising the contents of the communication and describing its circulation as disgraceful. 1. Mr Homden responded by email on the same day assuring Mr Vassella that, although he did not agree with all of his comments, he would ensure that enough time was set aside to discuss them in detail and consider any supporting details at the focus meeting called for the following day. Mr Homden appreciated the need for managers to work closely together to ensure that all staff are supported through the dynamic change necessary to achieve continued and meaningful results in how injured workers are managed. He acknowledged that clear and unambiguous communication was central to the aim of the Chief Executive to set a strategic direction for the organisation where a patient centred and staff focused ethos is critical to the professional delivery of all the Respondent's services. Mr Vassella confirmed, during cross-examination, that Mr Homden had displayed a willingness to discuss with him the comments that he had raised. 2. During cross-examination, Mr Vassella said that the article in the beacon was not an issue of significance for him at all. He said that he had raised that issue with Mr Homden of behalf of the IMCs who had concerns. 3. On 28 February 2014, Mr Vassella raised the additional issue in paragraph 9 (e) above with Mr Noel Quinn, then Acting Director, Risk Management and Workplace Safety on behalf of one of his staff members. Mr Vassella held the view that the issue had the potential to adversely impact on the wellbeing of himself and several of his staff and was contrary to the respondent's workers' compensation responsibilities. Ms Natalia Hendricks-Cruz had emailed him earlier that day expressing concern at the inappropriateness of certain actions that had been taken by management without consultation with the sector DOM, the rehabilitation provider or herself. It had been determined unilaterally that suitable return to work duties for the injured worker, Ms Clare O'Rourke, would be assisting the A/Director Risk Management to implement the Risk Management Plan. 4. Mr Vassella took offence at the manner in which Mr Quinn reacted. He lodged his first ever formal grievance with Mr Homden. In an email of the same date, he complained that Mr Quinn was evasive whenever issues of concern were raised with him and was disrespectful in his treatment of staff. He referred to the fact that Mr Quinn would point at a chair for him to sit "like I am a dog who needs to obey him". 5. Mr Vassella forwarded a further email on 28 February 2014 to Mr Homden advising that he would not be attending the focus meeting scheduled for later that day until his grievance had been addressed. There were a number of emails backwards and forwards between both men during which Mr Homden sought to meet with Mr Vassella on the following Monday. Mr Vassella said he would be on sick leave from Monday, 3 March 2014. 6. During cross-examination, Mr Vassella admitted that he did not end up seeing the Doctor on 28 February. He said he had a panic attack and left work. He thought the weekend was coming up and he would settle down but it did not and so he went to Doctor Emad Ghannoum on Sunday, 2 March 2014. 7. On 4 March 2014, Mr Vassella forwarded an email to Mr Homden attaching a WorkCover Certificate from Dr Ghannoum for the period 3 March 2014 to 7 March 2014 certifying him as unfit for any work and attributing the fact to a meeting with his manager. He agreed, during cross-examination, that the certificate related specifically to his reaction to the meeting that he had with Mr Quinn. 8. Mr Homden referred Mr Vassella's grievance against Mr Quinn to Ms Kylee Wade, Executive Director, People & Culture who sought the assistance of Ms Louise Ashelford, Manager, Health Workplace Strategies, in dealing with it. 9. Approximately four days' later, Mr Vassella discovered that his electronic access to the intranet, support services and the Employee Assistance Program (EAP) had been disabled. He contended that he had reviewed or managed about 2500 workers' compensation claims over the period of his career with the Respondent and there was no precedent for such action being taken. The action, sanctioned by Mr Homden, effectively isolated him from any workplace support and prevented him from accessing any policies and procedures. 10. Mr Vassella concluded that it was in retaliation for the lodgement of his grievance as he had become aware that Mr Homden had been directly involved in the placement of Ms O'Rourke in the team. Therefore Mr Vassella's isolation would ensure limited communication between him and the co-ordinators and would delay the resolution of the matter. 11. Mr Vassella submitted another WorkCover Certificate for the period 8 March to 15 March 2014 in which Dr Ghannoum certified him as fit for work other than with his direct manager. He agreed, during cross-examination, that the certificate allowed for him to return to work with the Respondent provided he did not work directly with Mr Quinn during its currency. 12. He did not do so, instead, despite the WorkCover Certificate from Dr Ghannoum, Mr Vassella, on 10 March, consulted and obtained another WorkCover certificate from a Dr Shapiro which certified him as having no current capacity for any employment from 10 March 2014 until 19 March 2014 owing to an exacerbation of anxiety disorder with panic attacks recurring after an altercation at work with Mr Quinn. A management plan was recommended consisting of a CBT psychological assessment, psychiatric evaluation and cardiology assessment. 13. At the request of QBE Insurance, Mr Vassella consulted Dr George, a psychiatrist, on 12 March 2014. He was prescribed further treatment and rehabilitation with a view to returning to work for the Respondent in the future. Mr Vassella stated that he was advised not to resign from his employment with the Respondent. 14. Mr Vassella submitted a further WorkCover certificate for the period 19 March to 31 March 2014 in the same form as that referred to in paragraph 21. However, on this certificate, Mr Vassella ticked in the Worker Declaration section of the form that he had engaged "in any form of paid employment, self-employment or voluntary work for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided, that I have not yet declared to the insurer". Mr Vassella failed to provide details as he was required to do. During cross-examination, the Applicant stated that he had ticked the wrong box as he was not paying attention at the time. 15. Mr Vassella's workers' compensation claim was not accepted by QBE until 2 April 2014 due to the inadequacy of the medical evidence provided to that point in time. Prior to that date he was being paid sick leave and it was therefore necessary to make consequential adjustments. 16. Ms Ashelford sent a memorandum to Mr Homden, dated 2 April 2014, in which: 1. She advised that she held three teleconferences with Mr Vassella – 11, 14 and 31 March 2014; 2. She set out in detail the concerns held by Mr Vassella; 3. She set out in detail the response to those concerns as advised by Mr Quinn at a meeting on 28 March 2014; 4. She advised that Mr Vassella was prepared to meet with Mr Quinn and the latter was prepared to offer an apology if the Applicant felt offended by the manner in which he spoke to him. 5. Mr Quinn has indicated that there were a number of performance issues to be raised with Mr Vassella upon his return to work. 6. She recommended: 1. That a teleconference be held between Mr Homden and Mr Vassella to provide an update on his grievance together with his general concerns regarding his internet/email access and the arrangements regarding Ms O'Rourke at the earliest convenience. She offered to attend if she could be of assistance; 2. That, once Mr Vassella returned to work, a facilitated meeting be held between him and Mr Quinn to deal with the grievance and develop strategies on working together in the future; and 3. That the status of any complaints made by Ms O'Rourke against Risk Management staff be confirmed and any outstanding complaints be finalised. The involved Risk Management staff be advised of the outcome and consideration given to whether a facilitated meeting should be held between any individual Risk Management staff and Ms O'Rourke to reduce tensions and develop strategies on working together. 1. Mr Vassella provided a WorkCover certificate for the period 31 March to 14 April 2014 in which he declared that he had not engaged in any form of paid employment, self-employment or voluntary work. He was certified as not having any current capacity for any employment during that period. Dr Shapiro did not tick the box signifying whether a workplace rehabilitation provider was/was not recommended. 2. Dr Shapiro, on 14 April 2014, issued Mr Vassella with a WorkCover Certificate certifying him as fit for some type of employment from 15 April to 12 May 2014 for 8 hours per day, 5 days per week "besides for Ambulance NSW". Once again, he declared that he had not engaged in any form of paid employment, self-employment or voluntary work. Once again, Dr Shapiro did not tick the box signifying whether a workplace rehabilitation provider was/was not recommended. 3. Mr Vassella expressed his disappointment, given the upgrade in certification, at the lack of internal occupational rehabilitation support provided to him by the Respondent despite its whole team of IMCs. He said he was left with no option but to facilitate his own rehabilitation independently. 4. Mr Vassella agreed that whilst QBE Insurance was handling his workers' compensation claim, the respondent appointed Ms Jacquie Abraham, Health Coach, Healthy workplace Strategies, to be the internal IMC in relation to his claim. She had a telephone conversation with him on 31 March 2014 in which she updated him on developments to do with his claim. She sent an email to QBE on 2 April 2014 advising of that conversation, advising that "Scott genuinely wants to return to work and we at Ambulance are working towards having him fit for work again". She sought an update regarding the status of his claim. 5. A further certificate was provided on 12 May 2014 for the period 12 May to 11 June 2014. The certificates, under the heading "Capacity" stated: "work capacity as above besides for Ambulance NSW". The Applicant stated that the Doctor had certified him as fit to return to work on duties external to Ambulance Service in order to retain his confidence. 6. In late April 2014, he emailed Mr Lawrie Whitehurst, Human Services Manager, and advised of his intention to pursue alternative employment until such time as he was able to return to work with the Respondent: … while Ambulance is figuring out if they want to talk to me anymore I am thinking about picking up a couple of contracts to keep me amused. For one of them, I was wanting to ask you to be a reference for me if you are ok with that. Nothing too exciting, but it will keep me busy until something is sorted… Mr Whitehurst had responded: "No problem". Mr Whitehurst gave evidence that he did not consider the email to constitute advice of an intended rehabilitation plan it was merely a reference to keeping himself busy without any connection at all to his medical restrictions. 1. Mr Vassella said he commenced such external work on 13 May 2014 as a full-time Acting Workers Compensation Rehabilitation Manager for Bis Industries, a trucking company engaged in the mining industry. The engagement was initially for a 3-month period but it actually did not conclude until mid-December or mid-January 2015. That work was declared in the WorkCover Certificate under the heading "Worker Declaration". 2. Ms Sylvia Radovan, a rehabilitation consultant, on 14 May 2014 made telephone contact with Mr Vassella and advised that she had been referred to assist with mediation between him and the Respondent. She had not been referred to assist with occupational rehabilitation services. An appointment with Ms Kylee Wade, Executive Director, People & Culture, was not able to be arranged until 28 July 2014 for the purpose of obtaining information on the cause of the delay in the return to work of Mr Vassella. 3. The last WorkCover medical certificate expired on 12 May 2014. Such certificates are required to be forwarded to the Insurer within 3 days of being obtained and that was not occurring without follow-up from the Insurer previously. On 30 May 2014, QBE Insurance wrote to Mr Vassella reminding him of the requirement obtain and provide current WorkCover certificates of capacity, including the completion of the section relating to employment as advice had been received that Mr Vassella was undertaking employment elsewhere than with the Respondent. 4. QBE Insurance circulated an Injury Management Plan on 2 June 2014 noting that the return to work goal was the same job with the same employer. The Plan noted that Procare Injury Management had been appointed to assist with the Applicant's return to suitable employment. 5. The Respondent, on 30 June 2014, received advice that Mr Vassella had not provided a WorkCover medical certificate since the previous one expired on 12 May 2014. The Respondent ceased paying Mr Vassella until he complied. He subsequently provided certificates for the periods 12 May – 11 June 2014 and 11 June – 21 July 2014. Those certificates certified him as fit to undertake employment "besides for NSW Ambulance". Mr Vassella completed the declarations in which he confirmed that he was engaged in other paid work. He agreed that he had an obligation to advise QBE and the Respondent immediately on becoming aware of employment being available, whether paid or voluntary work. 6. On 25 July 2014, Mr Vassella received an email from Ms Radovan who relayed a request from Ms Wade for a return of his laptop at the 28 July meeting as it was to be given to another employee. As a result of such a demand, Mr Vassella did not hold much hope for the meeting on 28 July achieving a return to work: …. I called Kylee to talk to her about this as it was a bit of an awkward request given that we are potentially looking at getting you back to work. She said that they have reached a critical point with IT resources and have been unable to purchase anything due to EOFY et and that there is a new person starting Monday that they need to give it to them. 1. Mr Whitehurst stated that the laptop could not have had any impact on the Applicant's return to work. The laptop was assigned for use by a newly appointed IMC within the Applicant's division. Upon his return to work, the Applicant would have had resources re-allocated to him. 2. During cross-examination, Mr Vassella agreed that it was reasonable for the Respondent to ask for the return of the laptop but felt that the timing of the request was unusual. He did not raise his concern about the laptop with Ms Wade. 3. Mr Vassella stated that, at the meeting on 28 July 2014, Ms Wade suggested to him that the work he was performing externally could cause a conflict of interest but was unable to explain why she held that view given his explanation that he was engaged in assisting a mining transport company to organise its Comcare self-insurance licence mostly for Western Australia and Indonesia. 4. Ms Wade asked him at that meeting to complete an application for approval for secondary employment. He reminded her that he no longer had access to the system and asked that she provide him with the policy on secondary employment and the relevant application form. He stated that despite repeated requests those documents were never forthcoming. 5. Mr Whitehurst gave evidence that Mr Vassella had provided Ms Radovan with a list of agenda items for discussion in advance of the meeting with Ms Wade. Ms Radovan summarised the meeting in a report to QBE, a copy of which was attached to his statement. Mr Whitehurst said he was advised by Ms Wade that another subject discussed at that meeting was the need for Mr Vassella to obtain approval to engage in secondary employment in accordance with the Respondent's policy. 1. On 11 August 2014, the Case Manager at QBE Insurance forwarded an email to Ms Wade advising that Mr Vassella had put contract work he was engaged in on hold as he claimed that he had not received forms to complete regarding secondary employment. Ms Wade, as a result, sent an email to Ms Lauren Mitchell (Case Manager, QBE Insurance) and Ms Radovan later that day attaching the applicable policy and requesting that it be provided to Mr Vassella. The forms and policy were forwarded to Mr Vassella who responded on 26 August 2014 that they did not apply to his circumstances. 2. In early August 2014, Mr Vassella advised Mr Whitehurst of alleged errors in the calculation of his pay dating back to March 2014. He contended that, despite regular follow ups up to the time of his termination, the pay issue has not been rectified. 3. A meeting was arranged for Monday, 25 August 2014 between Mr Homden and Mr Vassella in accordance with the outcome of the meeting of 28 July and the recommendation of Ms Ashelford of 2 April 2014. Also in attendance were Ms Radovan, Ms Sue Cruttendon, Executive Support Officer, Executive Director, Operational Logistics and Mr Whitehurst. In an email exchange with Mr Whitehurst prior to that meeting, Mr Vassella wrote: Honestly though it has been fascinating to see this develop from this perspective. I'm stunned that it's taken since March for either Kylee or Michael to talk to me. That's how you turn a $250 claim into a $100,000 claim. Daft. 1. Mr Whitehurst reported that the meeting took around 90 minutes. Mr Vassella raised the following issues: 1. His concerns regarding the privacy of information relating to claims; 2. His perceived isolation from the workplace since going off on workers' compensation; and 3. Mr Quinn. 1. In relation to the privacy issues, Mr Whitehurst recalled that Mr Homden had suggested that they be examined upon the Applicant's return to work. In addition, Mr Whitehurst suggested that if, upon resumption, he still had any concerns in that regard, then he could seek a review from him or Ms Louise Clarke, Director Professional Standards Unit. Mr Whitehurst stated that Mr Homden explained to Mr Vassella that the reason why his access to emails and the intranet had been removed was because he was observed at the workplace despite having submitted a WorkCover certificate. Mr Homden also assured Mr Vassella that even though Mr Quinn was no longer acting in the role of Director Risk Management and Workplace Safety, he would arrange a meeting between Mr Quinn and Mr Vassella upon the latter's return to work in order to address his grievance. 1. Mr Whitehurst stated that none of the Applicant's issues got resolved at that meeting because Mr Vassella refused to accept any of Mr Homden's explanations or suggestions. Mr Whitehurst stated that he formed the impression that the Applicant did not have a strong desire to return to work for the Respondent. It was noted that his WorkCover certificates were submitted following an alleged incident with Mr Quinn yet Mr Vassella, both at the 25 August 2014 and the meeting with Ms Wade on 28 July 2014, made his return to work contingent on the other issues being resolved. Mr Whitehurst pointed out that there was no impediment to Mr Vassella returning to work given that Mr Quinn was no longer his direct supervisor and proposals had been put to him regarding the other issues. 2. Mr Vassella, for his part, formed the impression that the Respondent had no desire to address or resolve his issues. He held the view that it was inappropriate to seek advice from Ms Clarke or Mr Homden due to earlier dealings with Ms Clarke in relation to privacy issues involving a dismissal in 2013. 3. Mr Whitehurst received an email from Mr Vassella dated 27 August 2014 in which he raised a formal grievance regarding his email and intranet access being removed. Mr Homden had already taken steps to restore the Applicant's access to the intranet and health systems. He had advised Mr Vassella that email access would be provided immediately upon his resumption at work. Mr Homden sent an email to Ms Wade, on 29 August 2014, confirming that advice and stating: My concern given his stated medical position remains the potential effects of us introducing work related stress through this access. 1. In addition to writing to Mr Whitehurst, Mr Vassella also wrote to Mr Ray Creen, Chief Executive, on 25 August 2014 alleging a lack of care, support and contact from the Respondent and in particular Mr Homden and Ms Wade. He ignored the support and contact provided by Ms Ashelford and Ms Abraham. He advised Mr Creen that he was giving him the courtesy of an opportunity to do something about it before he escalated the matter further to agencies external to ambulance. The grievance was referred to Mr Mike Willis, then Deputy Chief Executive, for review. 2. Mr Vassella received an email from Ms Wade dated 3 September 2014 in which he was advised that his intranet access had been restored. He was advised on how to access the site on which he would be able to search for temporary positions that are only available to existing health employees in order to seek temporary positions. In the interim: I understand that you have met with Michael Homden, Executive Director Operational Services recently and identified your concerns that you would like to see resolved before returning to NSW Ambulance. Further, I am aware consultation is ongoing to facilitate your return to work in an appropriate position… 1. Mr Whitehurst stated that he commenced to explore the availability of suitable duties elsewhere with NSW Health given the fact that the meeting with Mr Homden did not arrive at a resolution and the Applicant was certified as fit for work other than with the Respondent. On 4 September 2014, he sent an email to Ms Michelle Murphy, Manager Insurance and Risk, Ministry of Health, enquiring about opportunities for Mr Vassella. 2. In response to an email from Mr Vassella dated 9 September 2014 as to the status of his grievance, Mr Whitehurst advised that it had been referred to Mr Willis as the next level manager of Mr Homden. He was also advised that all the information was being compiled for him and it would be reviewed by the appropriate senior manager. 3. On the same day, 9 September 2014, Ms Murphy responded to Mr Whitehurst advising that suitable duties were available at Royal North Shore Hospital (RNSH). Mr Whitehurst advised Ms Radovan to consult with QBE Insurance about offering those duties to Mr Vassella. Mr Vassella confirmed that he received a telephone call from Ms Radovan to discuss an opportunity arranged by Mr Whitehurst for him to perform external duties at Royal North Shore Hospital. 4. On 18 September 2014, Ms Radovan copied Mr Whitehurst into an email she sent to Mr Vassella in which she advised that it was the Respondent's preference that he remain within NSW Health and that approval had been received at a higher level for him to perform suitable duties at RNSH. 5. Also in that communication, Ms Radovan advised that Mr Whitehurst had offered to follow up for him regarding approval for secondary employment, that is, the contract work being considered by Kylee Wade. She advised him to liaise directly with Mr Whitehurst if he wanted to take up that offer. 6. On 22 September 2014, Mr Vassella replied to Ms Radovan and Mr Whitehurst advising that he cannot proceed with suitable duties at RNSH even though the duties sounded "okay" given that he had to abandon his suitable duties in secondary employment because of Ms Wade's intervention in seeking that he obtain approval for such employment. In his reply statement, Mr Vassella explained that the proposed return to work plan involved a significant decrease in hours and was only available for 3-4 weeks. He had decided that it would be a backward step for him and would not support the progress he was making in his recovery. 7. Mr Whitehurst responded immediately advising: Your grievance is being looked into by Mike Willis. I expect that you will be contacted regarding these issues in the next week or so. In the meantime it is entirely appropriate for us to organise suitable duties for you in a workplace other than your substantive position given the nature of the issues. I contact Michelle Murphy personally to seek the duties and she agreed no problem. Now that these duties are available it's not appropriate for you to continue with the other employment you have been doing. It is my understanding that you are fit for duties outside Ambulance and therefore I don't think it is reasonable for you to decline them. … In the meantime it would be appropriate for you to agree to the offer of suitable duties in an area with no direct connection or vested interest in the issues… 1. Mr Vassella declined to work on suitable duties at RNSH. 2. There was an exchange of emails between Mr Vassella and Mr Whitehurst during the period 30 September to 13 October 2014 regarding the former's concerns. 3. Mr Vassella sent an email to the Chief Executive, Mr Ray Creen, on 13 October 2014 expressing concern that six weeks after notification of his grievance, the investigation had not yet been completed as that was the key reason why his doctors were refusing to certify him as fit to return to work with the Respondent. He asked for a copy of the relevant policy to be provided to him. 4. An email response was received on 15 October 2014 advising that the complexity of the claim and the number of senior members involved has resulted in the matter taking longer than usual to complete. Mr Vassella was advised that the Deputy Chief Executive and Chief Operating Officer, Mr Mike Willis, was reviewing his grievance and would be in contact with him in the near future. Mr Vassella responded on the same day arguing that it was not a complex matter and pointing out that the only matter he had raised with Mr Creen was the removal of access to email and intranet. He opined that "In my experience, issues simply don't get resolved at Ambulance. There is no apparent appetite to do so…" 5. Mr Whitehurst tendered correspondence from Mr Willis to Mr Vassella dated 28 October 2014 in which he confirmed that he was investigating the Applicant's concerns as a grievance in accordance with the NSW Ambulance's Raising Workplace Concerns Policy (SOP2011-003) to ensure complete transparency. He afforded the Applicant an opportunity to meet with him upon his return from leave. He invited the Applicant to contact his office and arrange a mutually convenient time from the week commencing 24 November 2014. Mr Vassella omitted to mention this communication in his statement. 6. Mr Vassella gave evidence that, on 29 October 2014, Mr Willis forwarded an email to Mr Vassella in which he referred to Mr Creen's email and stated bluntly that: Whilst it will not be my intention to engage in protracted email debate, I can advise that I have not been gathering any information in relation to your current situation or any complaint you may have raised previously with Mr Creen or any other member of the Service. 1. Mr Willis repeated a request, made the previous day, to contact his office to arrange a mutually convenient time for them to meet from the week commencing 24 November 2014 in order that Mr Vassella may be afforded the opportunity to present any matters of concern to him. 2. The above email response was the result of Mr Vassella emailing Mr Willis on 29 October 2014 pointing out that his understanding was that Mr Willis had been gathering information over the previous eight weeks on "the bullying/harassment/discrimination/victimisation by Michael Homden" that he raised with Mr Creen. In fact, Mr Willis had prefaced the above quote with the clarification and reminder that Mr Creen had written to Mr Vassella on 16 October 2014 and advised him to "provide information to Mike Willis, Deputy Chief Executive that is relevant to your complaint". 3. The Applicant emailed Mr Creen on 30 October 2014 to express his confusion as he was of the understanding that Mr Willis had been investigating the matter over the previous eight weeks. He said he did not receive a response. 4. Mr Whitehurst stated that he sent an email on 30 October 2014 to Mr Vassella attaching a copy of the Raising Workplace Concerns policy. 5. The Applicant received an email from Mr Whitehurst, also dated 30 October 2014, on instructions from Mr Willis. Mr Vassella was offered details of the EAP and chaplaincy support. The email also reminded the Applicant that he can contact Mr Whitehurst if he needed assistance with any issues. The email concluded with the following statement: Regarding job application and your ability to apply, please contact me if you see any jobs you are interested in so I can facilitate the uploading of your application. It's no problem. Mr Vassella stated that he was not aware that if he had taken up Mr Whitehurst on that offer, then the Respondent would have considered him as having abandoned his employment. 1. Mr Vassella's current WorkCover medical certificate certified him as fit to work other than for NSW Ambulance in the period 27 October to 24 November 2014. Mr Whitehurst stated that he received an email from Mr Vassella, dated 10 November 2014, in which he was advised that the Applicant would be consulting his doctor that week and expected a clearance to return to work at NSW Ambulance. 2. Dr Shapiro provided Mr Vassella with a WorkCover certificate certifying him as fit for pre-injury duties from 24 November 2014 without any restrictions. Nevertheless, it set out a review date of 24 November 2014 and the box containing the Worker Declaration had not been completed by the Applicant. 3. Mr Willis wrote to the Applicant on 28 November 2014 advising that, pending resolution of his grievances, alternative duties had been arranged for him within Health Workplace Strategies commencing on 8 December 2014, or earlier if he wished, as an interim placement until his grievance/complaint had been assessed and resolved. Mr Willis went on to add that the position had now changed and the Respondent was able to offer him a return to his substantive work unit. He was asked to provide a completed medical certificate upon resumption of duties. Mr Vassella agreed, during cross-examination, that there remained a resolve from the Respondent to assess and resolve his outstanding grievance issues, nevertheless, he felt that doing alternate duties at that point in time would put him outside his comfort zone. In addition, he could not understand why he could not go back to his previous position as Mr Quinn was no longer working in his section. In relation to his grievance/complaint matters, Mr Willis noted; … that on 25 August and again on 13 October, you emailed Mr Creen raising concerns about: The systematic issues regarding the care and support provided by NSW Ambulance, and Serious systematic failures to address workplace concerns and potential public risk from specific claimants. The matter was referred to me and I wrote to you on 28 October 2014 requesting that you provide me any relevant information. Your response, dated 29 October, did not provide this information but instead indicated that your concerns related to bullying, harassment, discrimination and/or victimisation by Mr Homden and requested advice as to what action I had been taking in the previous eight weeks to inquire into these matters. On 30 October 2014, I again afforded you the opportunity to meet with me and present the matters that are of concern to you. Given your imminent return to duties, I request that you provide me a written summary of your concerns by 5 December 2014. I will then review your concerns and meet with you as soon as possible on your return. In relation to his secondary employment, Mr Willis noted that approval had not been sought nor given nevertheless, details of income earned from such employment since February 2014 were sought to assist the Respondent to review his payments and entitlements. 1. Mr Vassella, during cross-examination, said he took exception to being asked for information on his earnings as the Respondent had no right to ask him what he earned with another employer. 2. Nothing was heard from Mr Vassella in the period 28 November to 8 December 2014 leading Mr Whitehurst to contact him on 8 December at which time the Applicant advised that he was consulting his doctor later that day and would advise if he was cleared to return to work or not. The applicant was asked to provide a medical certificate either way. Instead, Mr Vassella wrote to Mr Creen wanting an update on his grievance. He stated that he had attempted to arrange a meeting with Mr Willis a couple of weeks before but did not hear anything. There was no evidence from either party as to what attempts were made by Mr Vassella to arrange such a meeting. 3. Mr Whitehurst contact Mr Vassella on 10 December 2014 who advised that he was receiving medical advice that week. In the absence of any further information, Mr Whitehurst again contacted Mr Vassella on 15 December 2014. Mr Vassella replied by email on 17 December 2014 estimating that he expected to be on alternate duties at NSW Ambulance for some 12 months based on the length of time it has taken for his grievance to be investigated. He contended that there was concern that such delay would exacerbate his symptoms. He advised that he had referred his grievance to the Minister. 4. Mr Willis, once again, wrote to the Applicant on 17 December 2014 noting that despite communicating with Mr Creen and Mr Whitehurst since his letter of 28 November, the applicant had not complied with his request for an updated medical certificate, provision of information regarding his secondary employment and provision of information regarding his return to work. Mr Willis went on to issue clear directions: I now lawfully direct you under clause 20 of the Health Services Regulation 2013 to provide a current and complete medical certificate advising NSW Ambulance whether you are fit for duties no later than Friday 19 December 2014. If this certificate states you are fit for duties, you are lawfully directed under the regulation to meet with Ms Louise Ashelford, or her Healthy Workplace Strategies representative, at 10 am on 22 December to commence the alternative duties as outlined in my letter dated 28 November 2014. Further, and as previously requested, I now lawfully direct you under the regulation to provide details of the dates you have engaged in secondary employment (if any) as well as any income earned from employment other than with NSW Ambulance since February 2014. This is to be provided no later than 22 December 2014. 1. Mr Vassella responded to Mr Whitehurst on 18 December 2014. It is noted that evidence of this exchange was not provided by Mr Vassella. In his email, he made reference to the correspondence from Mr Willis "Letter made me chuckle. Mr Willis sounds cross. … ". The applicant explained that there were concerns about the alternate duties exacerbating his symptoms but that had not been included in his current medical certificate. He sought advice from Mr Whitehurst. Mr Whitehurst explained to Mr Vassella that his last certificate was out of date and he had advised on various occasions over the last 2-3 weeks that he was consulting his doctor/psychologist but no up to date certificate had been received. Mr Whitehurst suggested that Mr Vassella do as directed: Provide me with a current and complete medical certificate no later than COB Friday 19 December 2014. If you are unable to provide this certificate by the deadline then provide me with advice today regarding the date you will be seeing your Doctor and immediately following that visit provide me with the certificate. If you have an up to date certificate that confirms your fitness for duty then as directed in Mr Willis's recent letter (attached) you are directed to provide that certificate to me today and met with Louise Ashelford at 10 am on 22 December 2014 to commence duties as indicated. You are also directed to provide details of the dates you have engaged in secondary employment as well as any income earned from employment other than NSW Ambulance since February 2014. To be provided no later than 22 December 2014. Regarding a meeting with Mike Willis, you need to contact Ms Merinda Breen, EA to Mike Willis to set up an appointment to discuss your grievance,,, 1. The applicant returned to the workplace on 22 December 2014 and provided a WorkCover medical certificate certifying him as fit for his pre-injury duties. He was to be reviewed on 4 February 2015. He was not placed back in his substantive position but on alternate duties as his grievance had not yet been finalised. He met with Mr Whitehurst prior to reporting to Ms Ashelford. Mr Whitehurst made an email note of the outstanding issues as advised by the Applicant; Removal of email access after he turned up at work while unfit for duty. His issue is that Michael Homden upon becoming aware that Mr Vassella had been onsite elected to cut his access without first contacting him to ask why he had been at work and how he was feeling following the lodgement of a grievance. He is seeking acknowledgement that he should have been contacted first prior to any action being taken. He states that this had the highest level of impact on him. Noel Quinn – bullying and harassment claim. He would like Mr Quinn's behaviour in terms of his management of Mr Vassella investigated and advice provided to him as to whether or not his alleged behaviour amounted to bullying and harassment. Suitable duties staff placed in Risk Management – he would like advice as to why the employee(s) who had made complaints against two injury Management Coordinators (Mr Forsythe and Ms Hendricks) were then placed on suitable duties within the area and what had been done to prevent a reoccurrence. I believe these employees made a presentation to the Executive regarding their injury management experience and a decision was then made to place them in Risk Management. Scott advises that he complained about this but no action was taken. The investigation into his grievance. Scott has asked for advice regarding why the only action taken to this point was the removal of his access by Michael Homden. Mr Whitehurst stated that Mr Vassella told him that he obtained sporadic employment with Bis Industries during the period 20 May 2014 to 3 November 2014. He agreed to provide a statement of earnings relating to that employment. Mr Whitehurst repeated to Mr Vassella why he was being placed in alternative duties. 1. Mr Whitehurst gave evidence that Mr Vassella met with Mr Willis and Ms Louise Clarke, Director Professional Standards, on 23 December 2014, the outcomes of which were confirmed to Mr Vassella in a letter from Mr Willis dated 15 January 2015. 2. Mr Vassella was declared unfit for duties after 2 January 2015 but fit to undertake duties with another employer. He sent an email to Mr Richard High, Health and Wellness Program Manager, dated 5 January advising that he was off sick that day and would provide an update once he had seen a doctor. Mr High asked on 6 and 8 January when Mr Vassella believed he would be back at work but did not receive a response until 12 January 2015 when the latter merely advised that he was still off sick and would be seeking his doctor on the following Wednesday. 3. Mr Vassella sent an email to Ms Ashelford on 14 January 2015 chasing up wages which he believed were due to him. She responded on the same day promising to look into the matter. 4. Mr Willis forwarded an email to Mr Vassella dated 15 January 2015 which is reproduced in part below: Your current absence from duties I note your email advice to Mr High and Ms Ashelford that you are currently sick. This was advised by email to Mr High on Monday 5 January 2015 and despite his follow up emails you did not make further contact until Monday 12 January, then again with Ms Ashelford on Wednesday 14 January 2015. No anticipated return date has been nominated and no detail regarding the nature of any illness has been provided. Additionally, as far as I am aware, no current medical certificate has been provided for the absence. I note that the previous medical certificate you provided had declared you fit for pre injury duties. As such, I now request that you provide an updated medical certificate within 48 hours of receipt of this letter and advise Ms Kylee Wade (until Mr Lawrie Whitehurst's return to work on 2 February) of your status regarding fitness for duties/sick leave status on a regular basis. I also note your advice to Mr High on 14 January 2015 that you could not forward the work you had undertaken in your time working at HWS over the Christmas period. I have been advised this work was conducted on your personal computer, and so is not accessible by NSW Ambulance staff. I am not of the view that forwarding this work would be onerous. As such, I now direct that you provide this information to Mr High as requested within 48 hours of receiving this letter. Please cc Ms Wade into this so I can be advised when this has occurred. I also direct that when you return to duties you carry out allocated tasks on a NSW Ambulance computer and save the work to appropriate accessible drives. 1. In that correspondence, Mr Willis advised Mr Vassella that he had approved back-pay from 24 November 2014 but not for the period 8 -18 December 2014 as he had failed to comply with the direction to return to duties as requested in his correspondence dated 28 November. Mr Vassella was advised that he would not be approved payment for the period 5 January to the present as he had not provided any supporting medical evidence for his absence from the workplace. He was warned that Mr Willis' approval of such payment would be subject to the provision by Mr Vassella of written confirmation that he has not engaged in any other employment during the period from 24 November to the date of the said confirmation. He was asked to provide that written confirmation by no later than 23 January 2015. In the interim, he was directed not to engage in any secondary employment without written approval from Mr Willis or his approved delegate. 2. Mr Whitehurst stressed that if Mr Vassella had sought and obtained approval for secondary employment as he was obliged to do, then there would not have been any obstacle to him working for Bis Industries. 3. In relation to previous lawful directions, Mr Willis noted that they had not been complied with by the Applicant and were therefore undermining the process of returning him to his substantive duties. Mr Vassella was directed to provide not only the information sought but also the reasons for his failure to comply with lawful directions by 23 January 2015. He was warned that failure to comply may result in Mr Willis considering whether a misconduct of show cause process is required which could result in dismissal or cessation of his employment. 4. As for Mr Vassella's grievances, Mr Willis reminded the Applicant that he had agreed, at the meeting on 23 December 2014, that he would provide further information, in writing, about his concerns by 10 January 2015 so that they could be assessed. Mr Willis noted that Mr Vassella had not complied. He was asked to provide such information by the revised date of 23 January 2015 if he wanted his grievances assessed. 5. Mr Whitehurst tendered the Findings and Recommendations on Merit Review by WorkCover NSW dated 13 February 2015. Despite Mr Vassella stating that he had abandoned his secondary employment as a result of Ms Wade's requirement for approval to be obtained from the Respondent, the Review Report relevantly states: 23. Mr Vassella did not return to work with Ambulance NSW after 28 February 2014. On 13 May 2014 he commenced work with Bis Industries on a full-time contract basis in the role of Acting Workers Compensation and Rehabilitation Manager. Mr Vassella ceased working in this role in approximately mid December 2014 as a result of his contract coming to an end. Mr Vassella is currently not working although he remains employed with Ambulance NSW. …. 36. As noted above, Mr Vassella commenced employment with Bis Industries on a full-time contract basis on 13 May 2014 in the role of Acting Workers Compensation and Rehabilitation Manager. In a telephone discussion with the Authority on 10 February 2015, Mr Vassella advised that the role was initially for a 3 months period however was extended to approximately mid December 2014…. 1. Mr Vassella argued, during cross-examination, that he had not been asked if he was working anywhere else and he had not mentioned that he commenced with Warringah Council on 5 February 2015 as it had not been relevant to the Review. Nevertheless, he claimed that WorkCover and QBE knew about his employment with the Council. 2. The Review concluded that: Accordingly, as I have found that Mr Vassella has a present inability arising from an injury such that he is not able to return to work either in his pre-injury employment or in suitable employment, it follows that Mr Vassella has no current work capacity. As a consequence, the Applicant was awarded weekly payments of compensation calculated in the amount of $1,974 per week. The Applicant explained that current work capacity does not mean current medical capacity. 1. Mr Vassella responded on 28 February 2015 setting out his grievances: Mr Quinn 1. He lied to the Applicant about a serious matter impacting staff safety; 2. He attempted to blame Natalia [Cruz] for his own actions; 3. He failed to respond adequately when issues regarding the welfare of staff were raised; and 4. His disrespectful behaviour towards the Applicant resulted in a workers compensation claim. Michael Homden 1. Mr Homden has actively tried to isolate the Applicant as much as he can from any support at ambulance; 2. That action continued despite his awareness that it was having a profound impact on him, doing damage; 3. It was a discriminatory and vindictive action taken because the Applicant had lodged a grievance and claim which continued unaddressed; and 4. He has failed to complete the grievance against Mr Quinn. Kylee Wade 1. She was involved in the decision to disable the Applicant's access; 2. The Applicant had raised numerous issues with her with the assistance of his rehabilitation provider and, despite agreeing that they were serious and she would investigate, he was still waiting; 3. His inability to access the intranet meant he could not access a secondary employment application form. He completed one manually but did not hear of the outcome. He asked for another form and was still awaiting its arrival 6 months down the track; and 4. He was still awaiting the outcome of matters he had raised with her for investigation such as Mr Quinn's undeclared conflict of interest in the redeployment of an employee within Ambulance and Mr Quinn's failure to abide by ambulance procedure regarding notification of serious safety risks. 1. Mr Willis wrote to the applicant on 18 March 2015: 1. seeking medical certificates for the periods 5 January – 29 January 2015 and 16 February – 6 March 2015; 2. confirming receipt of details of his grievances which were forwarded to the Professional Standards Unit for review and appropriate action; and 3. offering him a return to his substantive work unit and directing him to meet with Mr Grant Whitehorn, Chief Risk and Safety Officer, to discuss duties and the future structure of that work area. 1. Mr Vassella provided a sarcastic response by email on 20 March 2015 bringing up a number of issues which included relevantly: 1. He required advice in order to provide his doctor as to what had changed in the workplace that would allow him to return to work in his substantive position; 2. He expressed concern as to the delay in finalising the investigation considering it was already in excess of 13 months since it allegedly commenced; 3. He expressed concern that despite acknowledgement of receipt of his letter of 23 January 2015 and reminder letters on 24 February and 11 March 2015, Mr Willis had not provided a response; and 4. He sought a copy of the most up-to-date Sick Leave policy. 1. Mr Vassella provided a WorkCover medical certificate dated 9 March 2015 declaring him fit for pre-injury duties on the proviso that he "can work anywhere besides Ambulance". His next review date was 06 April 2015. He agreed, during cross-examination, that he was already working for Warringah Council at the time. 2. Following receipt of advice from the Professional Standards Unit, Mr Willis responded as follows to Mr Vassella on 8 April 2015: Mr Quinn 1. The grievance against Mr Quinn was reviewed by Ms Ashelford who obtained information from a number of sources including Mr Vassella and Mr Quinn. She did not identify any misconduct that required referral to the Professional Standards Unit. She had recommended to Mr Homden that Mr Vassella be updated on the grievance and a facilitated meeting be arranged between him and Mr Quinn upon the former's return to work. 2. Ms Ashelford had advised Mr Vassella, in general terms, of the outcome of that grievance as had Mr Homden in a meeting in August 2014; and 3. Mr Quinn had expressed willingness to resolve the issues between them at a facilitated meeting to be arranged upon his return to work. Michael Homden 4. It was noted that Mr Vassella acknowledged that Mr Homden provided reasons for disabling his IT access – the Applicant was at work and photocopying documents in circumstances where he had lodged a grievance and advised that he was taking a period of sick leave – an allegation refused by Mr Vassella; 5. The Respondent was satisfied that Mr Homden considered his action to be part of a risk management strategy and was not motivated by any finding of misconduct. The Respondent was also satisfied that that Mr Homden's action did not constitute adverse action. It was satisfied that Mr Homden acted in good faith and out of a genuine concern for the Applicant's welfare as well as that of the organisation; and 6. Mr Willis accepted that the disabling of IT access should have been accompanied by discussions with Mr Vassella about the concerns held by Mr Homden at the time. On that basis, it was acknowledged that Executive Directors should receive additional case management support to ensure effective communication in matters such as this. Mr Willis advised that he would be asking Directors of HWS and the Professional Standards Unit to assist in establishing a process to ensure that strong case management is applied to such matters. Kylee Wade 7. Ms Wade, following her meeting with the Applicant, contacted Mr Homden to ensure that Mr Vassella's IT access was reinstated; 8. When the Applicant advised her that it was not yet restored, she contacted IT directly and passed on the information to Mr Vassella and to his rehabilitation provided that he needed to contact the Helpdesk to obtained a new password; 9. Ms Wade advised that she had emailed a copy of the secondary employment form to the Applicant's rehabilitation provider; 10. In relation to the other issues which he had not clarified in his letter of 24 February, firstly, Ms Wade recalled that she advised the Applicant that she had investigated and found no conflict of interest existed as Mr Quinn had not been responsible for the decision regarding the redeployment of the employee of concern to Mr Vassella. Secondly, she had provided the Applicant with advice that she was confident that the sharing of information between risk and the broader organisation was consistent with privacy principles. She opined that neither of those issues warranted the Applicant's on-going absence from the workplace. In addition to the above, Mr Willis, noted the following: 11. Whilst acknowledging Mr Vassella's expressed frustration with the process, that too was not satisfied that any of the issues raised in his letter merited his on-going absence from the workplace; 12. Mr Vassella was continually making disrespectful comments regarding the capacity of senior managers in his emails and correspondence to the Respondent. He was advised that it was inconsistent with the Respondent's Core Values and would no longer be tolerated; 13. The secondary employment form was available to the general public and did not require any access to the intranet. In addition, the Applicant had a strong working relationship with Mr Whitehurst and would have been able, quite easily, to obtain an email copy if he had sought one; 14. Systems changes in relation to case management support for Executive Directors and business rules around disabling IT access will be further considered with a view to improving the Respondent's systems in these regards; and 15. The grievance review was now completed. The outstanding issues from the Applicant's initial grievance would be actioned on his return to duties. 1. Mr Vassella responded to the above in an email to Mr Creen dated 16 April 2015 criticising the responses given above but not raising any new issues. 2. The final WorkCover medical certificate provided by Mr Vassella dated 20 April 2015 certified him as fit for some type of full-time employment from 20 April to 18 May 2015 on the same proviso as previously, that he "can work anywhere beside Ambulance". 3. Mr Vassella contended that he emailed Mr Creen on 1 May 2015 seeking advice on the progress of his grievance review matters. He said he did not receive a response until 7 May 2015 which was to the effect that he was seeking advice and would be responding in the near future. However, his work telephone was disconnected on 1 May. 4. Mr Whitehurst gave evidence that, when it came to the attention of the Respondent that Mr Vassella had been permanently appointed to the position of WHS/Worker Compensation Manager with Warringah Council commencing on 2 February 2015, he recommended to Mr Creen that his employment be terminated. He noted that: 1. Mr Vassella had overlooked all attempts to understand and address his grievances; 2. When it became apparent that the Applicant had no intention of returning to work before all grievances had been resolved, he had obtained suitable duties for him within NSW Health as the Applicant had been an employee of the Government of NSW. The applicant had declined those duties and opted, instead for work external to NSW Health; 3. When the Applicant was certified as fit to return to work at NSW Ambulance, he was placed in alternative duties on the expectation that he would return to pre-injury [substantive] duties once his grievances had been resolved. Mr Vassella ceased to attend work in those duties; 4. Mr Vassella commenced permanent full-time employment with Warringah Council without approval from the Respondent to engage in secondary employment. 1. Mr Vassella received a letter from Mr Creen dated 12 May 2015 setting out the following: 1. The Respondent had become aware that Mr Vassella has been working in a full-time position of WHS/Workers Compensation Manager since 2 February 2015; 2. He was considered to have abandoned his employment by taking up permanent employment with another employer thereby providing grounds for termination; and 3. His termination was effected on and from 2 January 2015 being the last day that he attended the workplace to perform duties. 1. Mr Vassella submitted that he had not been made aware that the Respondent considered his undertaking of external duties for the purpose of workers compensation and his injury management plan as abandonment of employment. 2. He contended that his constant communication trail should have demonstrated his intent to return to his employment with the Respondent. He was not given an opportunity to discuss such intent and therefore was not provided with procedural fairness. 3. He also contended that the Respondent obviously did not consider him to have abandoned his employment when, on several occasions, he was directed back to work despite the contents of his WorkCover medical certificates. 4. He further contended that his termination was "manufactured" given the several offers of assistance from managers in the People and Culture department to support him in obtaining some external work and to provide him with references to achieve that in order to assist his rehabilitation. He contended that his termination was designed to avoid addressing his grievances and to avoid resolving the wage underpayments issue. Mr Whitehurst, in cross-examination, responded to Mr Vassella as follows: I think you've got to stop confusing secondary employment and what you've done, because you moved across to another employer permanently, whereas secondary employment usually revolves around us being the primary employer and somebody else working there part-time on the weekends or whatever. So I don't think that, you know, that really applies. The fact is, and tell me if I'm wrong, you are employed by Warringah council permanently, which is a pretty good indication you're not going to work for us anymore. You have no intention of coming back to us. Submissions 1. Mr Vassella submitted that his whole case revolved around two issues – firstly, that the full circumstances of the case were not considered at all and, secondly, there was a deliberate effort to ensure that there was not an opportunity for him to provide any response. 2. Mr Vassella admitted that he had made plenty of mistakes over the previous two years but how he handled his rehabilitation and his health was not one of them. He did not lose his job because of his workplace injury. He was terminated because he did not sit back and claim workers' compensation benefits. If he had not been proactive in his rehabilitation, the extent of rehabilitation he was offered over the 15 months leading up to his dismissal was 4 weeks of work. 3. Whilst it was no secret that he taken up employment with Warringah Council, he was surprised that no other option was considered besides termination of his employment. Mr Vassella pointed out that the Respondent had adopted a narrow approach and failed to consider the whole picture. He pointed out that he had a medical certificate covering the period of his dismissal, and over the previous 18 months he had complied with the grievance procedure and he had requested procedural reviews without obtaining an outcome. 4. Mr Vassella held the view that it was the Chief Executive who was not following his own process. He stated that the directions issued by Mr Willis were inappropriate. He believed that if his requests for Mr Creen and Mr Willis to review those directions had not fallen on deaf ears then the issue of secondary employment would have been resolved far sooner. 5. Mr Vassella pointed out that the pay issues had not been resolved and neither had the privacy issues. 6. He pointed out that Mr Whitehurst had confirmed, during cross-examination that the secondary employment policy was not enforced for workers' compensation cases simply because it was unworkable. He emphasised that Mr Whitehurst had twice agreed to provide him with references for external employment and Ms Wade was willing to submit employment applications on his behalf. He agreed, nevertheless, that it was for employment within Health and his employment with the Council did not fall within that distinction. 7. Mr Vassella submitted that he had no intention to abandon his employment with the Respondent. He considered that he ought to have been asked to show cause as to why his employment should not be terminated as that would have given him an opportunity to explain his intentions. He acknowledged that he his employment with Council had been subject to the successful completion of a 3-month probationary period. He also acknowledged that if he considered leaving the Council's employment at any time, he would have had to give one month's notice of termination. 8. In conclusion, Mr Vassella confirmed that he was seeking reinstatement to his previous position with the Respondent. He acknowledged that all the outstanding matters contributed in varying degrees to his refusal to return to work and those matters remained unresolved. However, with the benefit of time the impact on him of those stresses had eased. 9. Mr Sullivan submitted that despite the Commission having to have regard to evidence of a number of complaints/grievances spanning a period from late November 2013 to 2015, the focal point in these proceedings remains the circumstances in which the employment of the Applicant ceased. 10. Mr Sullivan pointed out that, during cross-examination, the Applicant had not only confirmed that he was aware of the Respondent's secondary employment policy through the course of his employment but acknowledged receipt of a copy of that policy and the necessary application form for approval of secondary employment. Despite all of that, he took the view that the policy was not applicable to workers' compensation cases. 11. Mr Sullivan relied on the definition of secondary employment and the responsibilities of staff as outlined in that policy to submit that there was nothing in the policy that would distinguish the obligation to seek approval for engagement in secondary employment. It was therefore lawful for Mr Willis to give the direction when it was discovered that the Applicant had been engaged in secondary employment with Bis Industries. 12. Mr Sullivan reminded the Commission that Mr Vassella admitted that he was aware that he had to advise both his employer and QBE Insurance of any other employment he might undertake and complied with that obligation albeit belatedly. That obligation was not complied with, however, in relation to his employment with Warringah Council. Mr Vassella completed an application for employment with the Council which led, on 20 December 2014, to his acceptance of an offer of permanent employment and eventually commencement of employment with that Council on 2 February 2015. 13. During that period of time, he was placed on alternate duties by the Respondent on 22 December 2014. He ceased those duties on 5 January 2015. He claimed to be away sick and consulting doctors. A medical certificate was eventually submitted on 9 March 2015 simply stating that he was fit for pre-injury duties but it did not include reference to any period of coverage. In the section set aside for declaration by the injured worker including space for the provision of details, Mr Vassella merely stated "as previous work other than at Ambulance" without making any mention of Warringah Council. Yet Mr Vassella made submissions that he did not miss a single day of work from Ambulance. 14. Mr Sullivan noted that the last medical certificate produced to the Respondent by Mr Vassella was for the period 20 April to 18 May 2015 and that noted he had capacity for work other than with Ambulance. Mr Sullivan conceded that the legal accuracy of the date of abandonment of employment identified by the Respondent as being 2 January 2015 was questionable. Mr Sullivan stated that repudiation of the contract by abandonment occurred on 12 May 2015. Nevertheless, despite that concession, he submitted that nothing turned on that given that the Applicant was absent from work without an appropriate medical certificate from 5 January until the certificate of 9 March and he commenced full-time employment with Warringah Council on 5 February 2015: Boyd v Godfrey Hirst Australia Pty Ltd & ano. 1995 IRCA 31 (cited with approval by Ritchie C in Olagas v Impresstik [2006] NSWIRC 1057). 15. Mr Sullivan submitted that the respondent was entitled to draw the conclusion that the Applicant, in commencing permanent employment at Warringah Council without seeking approval from, or consulting with, the Respondent evinced an intention on an objective basis to no longer be bound by the terms of his employment contract with the Respondent. His repudiation of his employment contract was accepted by the Respondent in its letter dated 12 May 2015. Mr Sullivan referenced s 83 (5) of the Act in relation to definition of dismissal. 16. Mr Sullivan submitted that the Respondent was entitled to dismiss the Applicant for serious misconduct for his failure to comply with lawful directions. Nevertheless, it chose to confirm his repudiation of the employment contract in that his conduct in accepting full-time alternative employment effectively terminated the employment relationship. 17. If the Commission was not inclined to accept that submission, then it was submitted that the dismissal was neither harsh, unreasonable nor unjust because the Applicant had accepted and commenced permanent employment at Warringah Council without consultation with, or approval from, the Respondent. It was argued that an investigation or show cause into that alternate employment would have been wasted exercises as neither result would have affected the outcome as was borne out by the documents produced under summons from the Council. 18. Mr Sullivan noted that the Applicant argued that he was undertaking his own rehabilitation and that he would have given the Council four weeks' notice of his resignation once he was given medical clearance to return to work. It was submitted that the argument is not one that should be accepted by the Commission given the chronology in the matter. 19. The observations by Mr Vassella relating to the Respondent's attitude towards grievances/concerns and Mr Hobden's attitude towards him, it was submitted, were merely his own opinion and were unsubstantiated and irrelevant. Mr Hobden had, as the evidence demonstrated, advised the Applicant that while he did not agree with his comments regarding the article in The Beacon, he would ensure that sufficient time would be afforded to discuss the Applicant's concerns and consider any supporting evidence in detail at the focus meeting called for the next day. 20. In relation to the issue with Mr Quinn, once again Mr Hobden indicated a preparedness to meet on the same day the issue arose, however, the Applicant chose not to attend on the basis that he would be at his doctor's. In actual fact, as conceded in cross-examination, the Applicant did not consult his doctor on that day and did not do so until the following weekend. 21. It was noted that during cross-examination, the extent of the alleged inappropriate conduct the Applicant referred to in regards to Mr Quinn was described as follows: Specifically I do not think it appropriate that he points to the chair for me to sit like I am a dog who needs to obey him. I do not expect him to be evasive when I raise specific concerns with him. 1. The medical certificates confirmed that the Applicant's panic attacks recurred after the altercation with Mr Quinn. That matter was not ignored. It was referred to Ms Ashelford who held three teleconferences with the Applicant prior to issuing a memorandum to Mr Homden with her findings in which noted that despite the fact that Mr Quinn was willing to provide the Applicant with an apology if he had offended him, it was rejected by the Applicant as insufficient. She also advised that Mr Vassella had rejected a facilitated meeting or mediation with Mr Quinn as being possible solutions to the impasse. The Commission was reminded that Mr Quinn was no longer acting in the role of Director Risk Management and Workplace Safety and therefore the Applicant, had he returned to work on 10 March 2014, would not have had any interaction with him. 2. It was submitted that it was clear from the summary of the meeting between the Applicant, Ms Radovan and Ms Wade that from Mr Vassella's perspective his return to work was not contingent just on resolution of the matter involving Mr Quinn. He also wanted the other grievances he had raised prior to his meeting with Mr Quinn, including the privacy issues, not just resolved but he wanted to see some progress in relation to those grievances. 3. At the meeting on 25 August 2014, Mr Hobden suggested to Mr Vassella that the Director of the Professional Standards Unit take responsibility for any privacy matter that he had. Mr Vassella was not satisfied with that outcome. In conclusion, what commenced as a workers' compensation claim in relation to an interaction with Mr Quinn (as confirmed by the medical certificates) became a demand by the Applicant for various other grievances and issues being progressed towards resolution prior to a return to work. 4. Mr Sullivan pointed out that the Applicant had been provided with an explanation as to the removal of his intranet and email access but he chose not to accept that explanation. Nevertheless, his intranet access was eventually restored and he was advised that his email access would be restored on his resumption at work. 5. In relation to secondary employment, the matter was first raised with the Applicant by Ms Wade. The Applicant conceded, during cross-examination, that he received a copy of the application for secondary employment but he decided that it was not applicable to his set of circumstances and ultimately did not comply with the direction given in that regard. 6. It was noted that the Applicant had cross-examined Mr Whitehurst on putting him back to work under the direction of Ms Wade about whom he had raised a grievance. Mr Sullivan pointed out that that the grievance with Ms Wade was first raised in the particulars which the Applicant provided on 28 February 2015, post his return to work on 22 December 2014. It was noted that his grievance against Ms Wade was that she had made an untrue statement in that she claimed to have emailed a copy of the Secondary Employment Policy to Ms Radovan when she had actually sent it to Ms Mitchell. The evidence before the Commission demonstrates that Ms Wade sent the policy in an email to both Ms Radovan and Ms Mitchell on 11 August 2014. 7. The Respondent sourced out suitable duties within New South Wales health for Mr Vassella. Such duties, at Royal North Shore Hospital, were declined by Mr Vassella without articulating a reason. Mr Vassella confirmed, during cross-examination, that he worked with Bis Industries from around 13 May 2014 until at least mid-December 2014 and possibly into January 2015. It was noted that the Respondent attempted in vain to obtain details from the Applicant of when he was working at Bis Industries and the earnings he obtained from such employment. It was also noted that the Applicant had advised Mr Whitehurst that he had abandoned suitable duties as a result of Ms Wade's intervention! 8. It was pointed out that Mr Whitehurst had given unrefuted evidence that Mr Vassella told him that he did not want to work within NSW Health on suitable duties because it was effectively the same employer and the same type of issues may have arisen. 9. Following receipt of the WorkCover medical certificate dated 24 November 2014 certifying the Applicant as fit to perform pre-injury duties, the Respondent decided to place him in alternative duties as a first step in a return to work plan in accordance with his desire to resolve all his earlier grievances commencing on 8 December 2014. When he did not turn up for work on the commencement day, Mr Whitehurst contacted the Applicant who advised that he would not be attending for work and would be seeing his doctor. The Applicant wrote to Mr Creen once again voicing his dissatisfaction with the investigation process. There was an exchange of correspondence between the parties since that date. 10. The Applicant gave oral evidence that a medical certificate was issued to him on 22 December 2014 certifying his fitness to perform his pre-injury duties. He met with Mr Whitehurst on the same day and again on the following day with Mr Willis and Ms Clarke and yet again on each occasion referred to the various issues he had raised for investigation and resolution. 11. There has been no explanation for the fact that in December 2014 he was declared fit to return to work without restrictions and in March 2015 he was declare fit to return to work but not at Ambulance. If the Applicant is seeking reinstatement, the Respondent needs to be satisfied that he is fit for his pre-injury duties. 12. Mr Sullivan submitted that the Applicant's acceptance of employment at the Council made a mockery of his attendance at the meeting on 22 December which proceeded on the premise that he would transition to pre-injury employment on resolution of the various issues/grievances. 13. In conclusion, Mr Sullivan submitted, firstly, that the Applicant accepted employment with the Council at the time when he was certified as fit to return to pre-injury duties with the Respondent and immediately prior to his attendance at meetings with senior management about his return to work and grievances; secondly, he did not disclose his employment with Council to either the Respondent or to its Insurers. He did not provide any details in the area earmarked for the injured employee's declaration on the WorkCover Medical certificate; thirdly, despite all the questioning he received in the preparation of the Merit Review document, the Applicant did not disclose his employment with the Council and finally, he had been informed on numerous occasions of the need to apply for approval for secondary employment and directed and seek such approval before commencing such employment. 14. Mr Sullivan submitted that Mr Vassella's actions had fundamentally breached his obligations to the Respondent to act in good faith. On the evidence before the Commission, the Respondent would not have the trust and confidence in the employment relationship being restored and reinstatement would be impracticable. The Commission was reminded that his fitness for work was also in question and there were still issues and grievances outstanding. 15. If the Commission was minded to award compensation, then it was reminded that from 5 February 2015 until his termination, he was earning significantly more income that would have been the case had he remained in employment with the Respondent. Consideration 1. Mr Vassella commenced employment with the Ambulance Service of NSW in January 2011. He gave evidence that it was his experience that the Respondent did not generally welcome any alerts of issues which may create adverse publicity for its operations or may attract union attention. Whilst that view may be applied to employers generally, there was no concrete evidence before the Commission to support that viewpoint. 2. On 26 February 2014 the Chief Executive circulated a communication to all staff within the newsletter titled "the beacon" advising that on 11 and 12 February 2014, "staff from across the executive, service delivery and operational support (risk management) met to develop a strategy for the implementation of a safety management framework supported by the concept of destination NONE – Not One; Not Ever". The intention was that "when it comes to injuries we should strive for destination NONE. However, if one of our staff does unfortunately get injured, they should get the best possible care and attention that we, as a caring organisation, can deliver". Mr Vassella expressed concern about an absence of consultation prior to that communication. Obviously the organisation cannot consult with each and every member of its staff but it is obvious from the opening paragraph that a cross-section of the organisation were involved in the development of that strategy. Nevertheless, the Respondent arranged for sufficient time for the Applicant to raise his concerns at a focus meeting scheduled for the following day, Friday 28 February 2014. The Applicant acknowledged that Mr Homden had displayed a willingness to discuss his concerns with him. Also, during cross-examination, the Applicant agreed that contents of the article was not of significance to him and that he had raised the matter on behalf of his staff. 3. Mr Vassella met with Mr Quinn, then Acting Director, Risk Management and Workplace Safety in relation to one of his staff members. He said that he took offence to the fact that Mr Quinn had pointed at a chair for him to sit. He likened that motion to being treated "like I am a dog who needs to obey him". The Applicant left work without attending the Focus meeting. He forwarded an email to Mr Homden to advise that he would not be attending until his grievance had been addressed. Mr Homden suggested that they meet in his office at 3.30 pm on that afternoon. Mr Vassella declined and pointing out that he was going to be at his Doctors. Mr Homden attempted to arrange a meeting for the following Monday to discuss the matter. Mr Vassella did not respond until Monday, 3 March 2014 at 9.10 am when he advised that he was off on sick leave on that day. 4. The Applicant did not, in fact, consult his doctor on that day. He said he had a panic attack and went home hoping that he would get over it over the weekend. He consulted Dr Ghannoum on Sunday 2 March 2014 and obtained a WorkCover medical Certificate for the period 3 - 7 March 2014 stating that his symptoms commenced following a meeting with his Manager. No reason was put forward as to why the Applicant did not advise Mr Homden about the certificate and the period of absence when he emailed him on 3 March 2014. He did not provide the certificate to Mr Homden until 4 March 2014. 5. Mr Vassella was observed after hours at work allegedly photocopying whilst suffering from a recurrence of an anxiety disorder. That allegation was denied by Mr Vassella however, it resulted in the Respondent disabling his intranet and email access which became another source of angst for the Applicant. 6. The second certificate, also from Dr Ghannoum, for the period 8 – 15 March 2014, certified the Applicant as fit for employment providing it was not with his direct Manager. Mr Vassella confirmed, during cross-examination, that he could have returned to work if that requirement had been met. However, Mr Vassella chose to consult another doctor, Dr Shapiro, who provided him with a certificate for the period 10 – 19 March 2014, certifying him as having no capacity for work. It is noted that the symptoms are described in the same manner as in Dr Ghannoum's certificates. 7. It is noted that if Mr Vassella had returned to work on Monday, 10 March 2014, as per the second certificate of Dr Ghannoum, there would not have been any necessity for interaction with Mr Quinn as the latter was no longer acting in the capacity of Director Risk Management and Workplace Safety. 8. The workers' compensation claim was not accepted by QBE until 2 April 2014 owing to the alleged inadequacy of the medical evidence provided and he was therefore being paid sick leave up until that time. 9. I am satisfied, based on the detailed chronology I have set out above extracted from the evidence before the Commission that the Respondent took all the necessary steps to try to resolve the issues/grievances raised by the Applicant, both before, and during, his period of absence on sick leave/workers' compensation. I am satisfied, given that chronology, that the Applicant was not minded to find a mutually acceptable resolution to those issues/grievances. He wanted them resolved his own way. 10. Mr Vassella agreed that each of the WorkCover medical certificates related specifically to his reaction to the meeting that he had with Mr Quinn. Two issues are relevant in this regard. Firstly, Mr Quinn was no longer his direct Manager when the second WorkCover Medical Certificate was issued. Secondly, a statement by Mr Quinn that he was sorry that Mr Vassella had taken offence was not regarded by the latter as an apology. He did not believe that a facilitated meeting or mediation would solve the problem as he did not consider that such meeting/mediation would stop it happening again. He believed that corrective action was the way to go in relation to Mr Quinn. In my view, that was an unreasonable expectation held by the Applicant. 11. In relation to the other issues/grievances, which it is noted were not the subject of the WorkCover claim, Mr Vassella was of the view that what Mr Homden was doing was delaying addressing the issues he had raised. His dissatisfaction with Mr Homden resulted in him sending emails direct to Mr Creen and Mr Willis. I do not accept that Mr Homden, given the chronology above, was delaying in any way. In any event, his absence from work, according to his doctors, did not relate to those issues. 12. Mr Vassella found suitable alternate external duties with Bis Industries for whom he worked from 13 May 2014 as a full-time Acting Workers Compensation Rehabilitation Manager until mid-December 2014 or mid-January 2015. 13. In the WorkCover medical certificate provided for the period 12 May 2014 to 11 June 2014, Mr Vassella declared on 12 May 2014 that he had worked partial hours. He did not identify the employer or what work was undertaken. 14. In the WorkCover medical certificate provided on 24 November 2014, which declared the Applicant fit for his pre-injury duties without any restrictions, the Applicant did not declare that he was undertaking any secondary or suitable alternative external duties despite the fact that he was still working with Bis Industries. 15. The evidence before the Commission demonstrates that Ms Wade sent the Secondary Employment policy in an email to both Ms Radovan and Ms Mitchell on 11 August 2014 to pass on to the Applicant. Mr Vassella conceded during cross-examination that he had, indeed, received a copy of the Secondary Employment Policy and application form. He decided that it was not applicable to his set of circumstances and therefore did not comply with the direction to seek approval. Yet, as at 16 April 2015, Mr Vassella was going to great lengths, in an email to Mr Creen, to protest that Ms Wade had not forwarded the documents to him. 16. It is noted that the Applicant had cross-examined Mr Whitehurst about putting him back to work under the direction of Ms Wade about whom he had raised a grievance. I accept that the evidence demonstrates that the grievance with Ms Wade was first raised in the particulars which the Applicant provided on 28 February 2015, post his return to work on 22 December 2014. The grounds for his grievance, as has been demonstrated, are irrelevant as he was already in possession of both the Policy and the application form. 17. The said policy, which is stated to cover all Ambulance employees, defines "Other Employment", also known as secondary employment, "as paid or unpaid (voluntary) work for a company, government organisation, business, charity or community group. It includes self-employment, or using your professional or clinical skills to provide an unpaid service". There is no doubt that the definition covers the employment of the Applicant while with Bis Industries and Warringah Council. 18. The Policy also provides quite succinctly that employees of the Respondent cannot, as of right, engage in other employment without its explicit approval. The Policy relevantly provides: 6.1 General Principles There is no right to engage in other employment. The permission granted under the Regulation is made or withdrawn at the discretion of the delegated officer. This means: The employee must be available for rostered and on call shifts as required, and at the time required, by Ambulance; … 6.2 Making an Application Employees should submit their application by completing Form 144, Application for Approval to Engage in Other Employment, and returning it to their supervisor who will forward it on as appropriate. Employees will be advised in writing of the outcome i.e.: Whether their application has been approved; Whether any special conditions have been placed on it; and Where an application is not successful, the reasons for this. 6.3 Common Conditions If the application is approved the following conditions will apply: …. Employees are not permitted to engage in other employment until they have received written advice that the application has been approved. … 1. In particular, the Respondent reserved the right to withdraw or suspend approval when an employee is on sick leave or on workers' compensation: 8. WITHDRAWAL OR SUSPENSION OF APPROVAL TO ENGAGE IN OTHER EMPLOYMENT Permission to undertake other employment may be withdrawn or suspended at any time by the delegated officer for the following reasons: When an employee is on workers compensation leave; When an employee has taken or is on sick leave;…. It follows, therefore, that if an employee is on workers' compensation leave or sick leave, the Respondent needs to be notified before that employee takes on secondary employment. The Applicant should have been aware of his obligations particularly in light of the position he held while in the Respondent's employment. 1. Despite numerous recorded requests for him to do so, Mr Vassella refused to apply for approval for Secondary Employment because he held the view that it did not apply to his circumstances. 2. Mr Vassella admitted, during cross-examination, that he was aware that he had to advise the Respondent and QBE Insurance of any other employment. He complied, somewhat belatedly, with respect to his employment with Bis Industries. He did not inform either organisation of his employment with the Council. 3. Mr Vassella was placed by the Respondent on alternate duties on 22 December 2014. He ceased those duties on 5 January 2015 claiming he was sick. He did not provide medical certificates for the periods 5 – 29 January 2015 and 16 February – 6 March 2015. A WorkCover medical certificate was eventually submitted on 9 March 2015 stating that he was fit for pre-injury duties. 4. It is noted that Mr Willis wrote to the Applicant on 18 March 2015 offering him a return to his substantive position. In his sarcastic email response on 20 March 2015, Mr Vassella did not disclose that he was working with the Council. He sought advice as to what had altered in the workplace that would allow him to return to work. Mr Vassella was aware that the only issue referred to in his WorkCover medical certificates was his grievance about Mr Quinn who had not only ceased acting in the position where he was supervising the Applicant months before but had offered an apology to the Applicant if he was offended by his behaviour. It is noted that Mr Vassella did not disclose his employment with the Council in that correspondence. 5. Warringah Council forwarded a letter of offer to Mr Vassella dated 16 December 2014 setting out an offer of permanent full-time employment and the terms of that employment. His letter of acceptance was dated 20 December 2014. A remuneration package of $142,156.61 applied from commencement of that employment on 2 February 2015. He completed an on-line induction course prior to his start date. He also successfully completed a three month probationary period upon commencement. 6. It is noted that the Contract of Employment entered into with Warringah Council stipulates in clause 4.1 (h) of Clause 4, Responsibilities, that the applicant will not engage in other remunerated work without the prior written consent of the General Manager. 7. The Applicant was still employed by Warringah Council at the time of the arbitration proceedings. He agreed that he had not informed the Respondent of that employment prior to the receipt of his termination letter on 12 May 2015. 8. Mr Vassella said that he accepted work at the Council as he considered it a contingency plan to fall back on in case things did not work out with the Respondent. That argument does not hold much weight considering that he would have to have given one month's notice of his resignation from Warringah Council to resume his position with the Respondent. 9. Mr Vassella confirmed that he was seeking reinstatement to his former position but nothing had changed in relation to his issues. Those issues had not been resolved to his satisfaction. The last medical certificate he produced stated that he could work on his pre-injury duties anywhere except with Ambulance. He did not want to work in alternate duties at the Respondent at the time it was arranged because he was concerned that if he worked in another department, other employees would walk past and comment about the fact that they thought he had been dismissed. 10. Asked how that would be different now, considering that he had indeed been dismissed and lodged an unfair dismissal claim, Mr Vassella stated that he was "in a better place … where I've got a bit more perspective on how to make sure that that sort of stuff doesn't affect me in the same degree it did previously…". 11. Based on the evidence before the Commission, confirmed by oral evidence of the Applicant, I find that the cessation of the employment relationship between the parties was occasioned by the abandonment of employment by the Applicant when he formally accepted full-time permanent employment with Warringah Council. Decision 1. The Applicant evinced an intention to cease the employment relationship with the Respondent when he accepted full-time permanent employment with Warringah Council. 2. The employment relationship between the parties ceased as a result of the Applicant abandoning his employment. 3. Matter 45973 of 2016 is hereby concluded by dismissal of the claim. 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: 24 April 2017