Industrial Relations Commission New South Wales Medium Neutral Citation: Alameddine v City of Parramatta Council [2017] NSWIRComm 1041 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The applicant is to be reinstated to the position he held with the respondent immediately before his dismissal on 11 January 2017 on the same terms and conditions as applied to his position at that time. Catchwords: UNFAIR DISMISSAL – council ranger – physical altercation with members of the public – applicant assaulted twice – previous work performance issues – applicant trained in managing conflict and de-escalating aggressive behaviours – work health and safety investigation – applicant failed to withdraw from the scene after the first assault – applicant dismissed for failing to follow protocols and procedures – procedural unfairness – employer did not have sufficient regard to applicant's mental state after the first assault – errors of judgement amounting to misconduct – misconduct not of sufficient seriousness to warrant dismissal – substantive unfairness – dismissal harsh unreasonable and unjust – reinstatement not impracticable – reinstatement ordered – no order for back pay Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Bassam Alameddine (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: Mr A Howell (Applicant) Mr M Easton (Respondent) Solicitors: Mr D Papps, New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Applicant) Mr R Mouwad, Diplomacy Consulting (Respondent) File Number(s): 2017/00031166 DECISION 1. Prior to his dismissal, the applicant, Bassam Alameddine, was employed as a Ranger by the City of Parramatta Council ("Council"). On 14 June 2016, the applicant was involved in a physical altercation with members of the public while he was performing his duties for the Council. During that altercation the applicant was assaulted twice, on the first occasion by a male person named Khaled and, on the second occasion, by Khaled and two or three of his associates. 2. By letter dated 21 October 2016, Paul Lyth, the Council's Manager, Regulatory Services, wrote to the applicant in reference to his conduct and behaviour and an incident in which he was involved on 14 June 2016. Mr Lyth stated that the applicant had put himself in unnecessary danger by not using de-escalation responses to deal with members of the public and that this resulted in an unacceptable physical altercation and reputational damage to the Council. 3. The applicant was given notice of the Council's intention to terminate his employment effective from the close of business on 28 October 2016. The applicant was provided with an opportunity to show cause why the Council should not proceed with its decision to terminate his contract of employment. 4. Mr Lyth stated that, in reaching its decision, the Council had taken into consideration the following matters: 1. Your previous work performance issues that resulted in Council writing to you on 21 December 2015 to confirm meeting with you to discuss and address concerns with your work performance including your reported "aggressive manner and communication style to external customers". 2. The training and refresher training you have received in how to deal with conflict and de-escalating aggressive behaviours: • Certificate of Competency: De-escalating Aggressive Behaviours • Statement of Attainment: Manage Conflict through Negotiation More recently training sessions attended between 2011 and 2016: • Customer Aggression; • De-escalating Aggressive Behaviours; • Dealing professionally with Aggressive Behaviour (Right Brain); • Dealing professionally with Aggressive Behaviour (Refresher); and • Satisfying Customer Needs. 3. Despite the clear training and support provided to you, you appear to continue to fail to understand the importance of behaving in a manner consistent with a professional workplace and Council's Code of Conduct. 4. Your actions have brought Council into disrepute with customers, the NSW Police and members of the public. Your inability to address your behaviours has left Council no choice but to terminate your employment. 1. By letter dated 6 January 2017, the United Services Union ("USU") provided a detailed response to the Council's "show cause" letter. In that correspondence the USU stated as follows: The Union believes that a decision to terminate Mr Alameddine would be harsh, unreasonable, and unjust in light of the following: 1. Mr Alameddine was the victim of a violent assault by members of the public while undertaking his duties for Council; 2. The Union disputes that Mr Alameddine's conduct contributed in any significant way to this assault and to the extent that Mr Alameddine's conduct did contribute to the assault, this was a momentary lapse of judgement which was understandable if not predictable given that Mr Alameddine had just been assaulted; 3. Council knew, or should have known, that Mr Alameddine was being placed in a potentially dangerous situation and yet did not take reasonable steps to avoid/minimise this danger; 4. The 'previous work performance' which Council seeks to rely upon to establish a pattern of behaviour is factually incorrect and in any event, having formed a view about Mr Alameddine's prior behaviour Council failed to ensure that Mr Alameddine was provided with sufficient training to adjust this behaviour; 5. Council's investigation and proposed termination are effected by procedural errors which would render a decision to dismiss procedurally unfair. 1. Despite the representations made by the USU on behalf of the applicant, on 11 January 2017, the Council determined to terminate the applicant's employment. In correspondence addressed to the applicant, Leigh Yardy, Head of HR at the Council, stated that the Council did not believe that there had been any new information or evidence put forward to convince the Council not to proceed with the termination of the applicant's employment for the reasons outlined in the Council's letter of 21 October 2016. The dismissal of the applicant took effect from 11 January 2017. He was paid five weeks' pay in lieu of notice. Background 1. The applicant is 54 years of age. He commenced employment with the Council as a Ranger in 2002. 2. By its nature, the job of a Council Ranger will bring employees, such as the applicant, into situations of potential conflict with members of the public when issuing parking fines and the like. 3. In 2003, the applicant was counselled and received a verbal warning following receipt by the Council of three separate complaints from members of the public concerning the applicant's conduct during the execution of his duties. 4. Throughout his employment, the applicant received training and attended a number of training courses dealing with matters such as managing conflict through negotiation, de-escalating aggressive behaviours, conflict resolution strategies and dealing professionally with aggressive behaviour. 5. In July 2006, the applicant received a further warning in relation to a complaint that he was abusive and rude to a female customer while carrying out parking enforcement at a local public school. 6. In February 2013, the applicant was involved in an incident in which he and a colleague were ambushed by members of the public who became hostile and started hitting their vehicle with golf clubs. The vehicle was also rammed by another car and, when they tried to get away, they were chased by men on motorbikes. They eventually escaped and the police were called. As a result of this, the applicant was diagnosed with post-traumatic stress and required counselling. 7. In 2014, Mr Lyth had a number of conversations with the applicant concerning the manner in which he had approached a number of other employees of the Council, in one instance, and the manner in which he spoke to a customer over the telephone, in another instance. 8. In November 2014, death threats were made against the applicant. 9. On 23 October 2015, Mr Lyth met with the applicant and discussed with him three incidents about which Mr Lyth had serious concerns. On 21 December 2015, Mr Lyth wrote to the applicant in relation to these three matters, which are dealt with further, later in these reasons for decision. Mr Lyth confirmed that a verbal warning had been issued to the applicant and stated that, should there be no improvement in his work performance, further disciplinary action could and would be considered. Incident of 14 June 2016 1. On 14 June 2016, the applicant was in the office at around 12.30pm doing paperwork when he received a call from the supervisor of the cleansing team, Wayne Griffiths. Mr Griffiths requested that the applicant attend Mary Lane and Bridge Street, Rydalmere, to process some abandoned vehicles and dumped waste. 2. The applicant attended the location at around 1.30pm and observed several abandoned vehicles and several other unregistered vehicles outside 1 and 3 Bridge Street. While the applicant was processing the unregistered vehicles, the owner of a panel beating shop at 2 Bridge Street requested that he process other vehicles at 1 and 3 Bridge Street as they were taking up valuable parking space. 3. The applicant then commenced processing these vehicles by taking photos of them and placing "AV Green Notices" on the windscreens. At this point the owner of a balloon shop at 1 Bridge Street came out and started moving his vehicles. The applicant then entered the premises of Rydalmere Prestige Smash Repairs at 3 Bridge Street to speak with the manager. 4. According to the applicant, a man came out and spoke with him and said words to the following effect: My father is the Manager but he is not available at the moment but I can deal with the issue. 1. The applicant spoke with this person for approximately 30 seconds at which time he heard yelling from inside the smash repair business. The applicant then saw a slightly older man emerge from the smash repair business, walking in an aggressive manner and yelling. It emerged in the proceedings, that this man's name is Khaled. He is the son of the manager of the business and the brother of the first person who came out to speak with the applicant. The applicant did not know either brother. 2. According to the applicant, he introduced himself to Khaled and shook his hand. Khaled advised the applicant that he was the older brother of the other man. Khaled then told his brother to return to the smash repair business as he, Khaled, would now be dealing with the applicant. Khaled then said words to the following effect: Council has been picking on us all the time and you should pick on the other tenant the German mechanic. 1. At this point, Khaled became more aggressive and threatened to punch the applicant in the face. The applicant claimed that he took several steps back and advised Khaled that he knew the owner of the business, Khaled's father, as he, the applicant, had worked in the area for a number of years, and that Khaled should calm down. 2. According to the applicant, Khaled then said words to the following effect: I know you and everything about you and I don't give a fuck about you or council. Fuck off now. 1. According to notes taken during interviews with Eva Vizas, the Council's WHS Compliance Unit Partner, on 24 and 29 June 2016, the applicant stated what happened next in the following terms: 12 …Khaled then double palm pushed BA violently to the roadway. Khaled then again rushed at BA, again double palming BA in the chest, pushing BA further out towards the middle of the road and then again as BA turned his back to walk away he again rushed at him striking him with both palms and all his wait violently pushing him onto the middle of the roadway ground. 13 BA after hitting the ground complained that he was injured and was now calling the police in relation to being assaulted by Khaled. At that moment BA began taking photos and trying to dial emergency number 000 (refer to BA call history of 2 calls made at 1429). BA took photos of vehicles and the surrounding people and of the offender… 14 The third brother… of Khaled approached BA and tried to help BA up off the road. This unknown person was requesting BA not to call the police, he apologised on behalf of his brothers actions (Khaled's assault) they will comply and to BA please don't go to the police, stating to BA that it will only get ugly via the family. BA's interpretation of this statement was that he was being threatened that if he went to the police they would make further difficulties via his family. BA told the unknown brother Khaled should be apologising to BA not him. Whilst BA was conversing with unknown brother, Khaled was continuing to verbally abuse BA in Arabic and was being encouraged to return to his workplace by other workers, including his brother Mohamed. Khaled then proceeded to walk away, continuing to hurl abuse in an aggressive manner. 15 Whilst standing in the middle of the road BA continued taking photos of the surroundings and people. BA advised the unknown brother that he had witnesses, and proceeded to photograph them all. The unknown brother then stated to BA he'll fix that by warning them all not to come forward. BA then witnessed the workers, including the offender of Rydalmere Prestige Smash Repairs approach all the passing cars and couriers standing nearby and had conversations with them. BA then approached one of the couriers… located on the driveway property of 1 Bridge St. At this moment BA was alone conversing with the courier. BA asked him if he would become a witness. The courier said he can't as he had been now warned off by Rydalmere Prestige Smash Repair workers. The courier then drove out of the drive way and left the area. 16 Whilst the courier was leaving the driveway, BA then walked off the property of 1 Bridge st and called for other witnesses to come forward. Khaled's unknown brother then approached BA stating they are now willing to comply with BA's vehicle movement directions and were stating to BA not to call the police. During that moment, the workers from Rydalmere Prestige Smash Repairs were moving the offending vehicles. 17 After the offending vehicles were moved, Khaled returned to the roadway and again began hurling abuse whilst walking towards BA from the drive way of 3 Bridge st, in an aggressive threatening manner, speaking and swearing in Arabic. Khaled was making motions to strike BA again, whilst walking towards him. At the same time another man approached… and told BA "Why don't you just fuck off" in support for Khaled. BA told him "Why don't you mind your own business"… At this point, this unknown person in the black polo top and blue sleeves, Khaled and Mohamed and also possibly the unknown brother were motioning towards BA almost surrounding him whilst BA was walking backwards. Once all 3 (possibly 4) males got close to striking range, BA lunged forward and struck Khaled lightly on middle section of his jaw. 18 Immediately after Khaled with the support of his 2 brothers and the unknown male then attacked BA, repeatedly punching in the head and pushing, causing BA's jacket to come over his head making BA unable to see. The struggle lasted approximately 30 seconds and during that time BA's PDA was ripped off his body, his shirt torn, personal mobile phone lost and his personal equipment including notebook and pen were spread out on the ground. The fight then ended abruptly. BA then pulled his jacket back down and observed Khaled swinging the PDA over his head and smashing it onto the ground in a million pieces letting out a violent aggressive roar immediately afterwards. The PDA was initially attached to a shoulder strap and was placed around BA's shoulder and was pulled off his body during the scuffle. 19 Khaled, his 2 brothers and the unknown male in the black polo with blue sleeves then walked off back onto the private property of 3 Bridge st with Buddy. BA proceeded to pick up his equipment off the ground and gather his composure at that moment police arrived. 20 BA asked the police who called them because he didn't. Police stated someone else had rung them. BA then pointed the offender out to them and named him as Khaled. The female officer now known as Constable Weatherall asked if BA wanted to make a statement in relation to this incident. BA said he had threats being made by these people and needed their assistance. Constable Weatherall stated they could not take action without a statement as they did not see the incident and were relying on witnesses. During this conversation, Constable Weatherall's partner approached Khaled and his brothers at 3 Bridge st to gather in formation. Constable Weatherall's partner advised that the offenders (being Khaled and his brothers) had stated that BA was the instigator to this incident, that BA struck Khaled first and that their CCTV camera did not work so there was no footage of the incident for police to view. Police also stated that the owners of 1 Bridge st property informed them that their cameras also did not work and had no footage to view. The Police further stated to BA that there were 3 versions to the story one by Khaled, one by BA and one by an independent. Therefore police said they weren't taking action upon anyone and that if BA wanted to make a statement at a later date that they would allow that. 21 BA then returned to his vehicle and drove back to Wentworth St Car park. BA got out of his vehicle and proceeded to walk to the lifts when he came across 2 colleagues Indi and possibly Dave Grundy (BA is unsure of the other officer at this point in time). They proceeded to walk outside the car park where Indi suggested BA to take photos of his injuries… BA then proceeded to walk to his office located at level 8 126 church st and reported the matter to his Supervisor and Manager (Eleni McRae and Paul Lyth). 22 After providing the initial report, BA then left his office and attended his GP Dr Faraj located Panania. 1. Following this incident, an investigation was conducted by Ms Vizas which ultimately led to the dismissal of the applicant. Evidence of the applicant 1. Two witness statements prepared by the applicant were tendered into evidence. In his first statement the applicant dealt with the previous matters which had brought him to the attention of Council's management and then stated as follows: 40. In my twenty-two years experience as a parking officer/ranger I have found that it is not uncommon for members of the public to complain about our interactions with them. 41. Parking officers and rangers are required to enforce laws and regulations which are often unpopular and we are regularly placed in direct conflict with members of the public. 1. In relation to the first assault on him by Khaled, to whom he referred as the "second person", the applicant stated as follows: 63. He then said words to the following effect: "I know you and everything about you and I don't give a fuck about you or council. Fuck off now." 64. As stated above I had never met this second person before. 65. I then turned away in an attempt to leave the area when the second person pushed me from behind. 66. This caused me to stumble on the roadway and lose balance. 67. I continued to try and walk away at which time the second person pushed me a further two times until I finally fell onto the ground. 1. During his evidence in chief in these proceedings, the applicant corrected paragraph 65 of his witness statement as follows: Q. And paragraph 65, just read that to yourself. A. That statement is correct, but - sorry, I'm just a little bit nervous here, and a bit under pressure. Initially what happened was, he pushed me in the chest, and then I regained my balance, and then he's rushed me from behind. So that's all I wanted to clarify, because I was only pushed once in the chest, and the other two times from behind. 1. The applicant's witness statement then set out what occurred after the first assault on him by Khaled, up to and including the second assault on him by Khaled and his associates, in terms largely consistent with the record of interview made by Ms Vizas as set out at paragraph 24 above. 2. Under cross-examination, the applicant described the first assault on him by Khaled, and the immediate aftermath, in the following terms: A. Like, this is after he's - this is after he's ordered his brother back in. Q. Yeah? A. And his brother has complied and walked back in, and then he's complained about Franz down the road and how council is picking on him and all his vehicles. Why don't we pick on Franz? Why are we allowing him to get away with all this and picking on Prestige? Then he put his fist up against my face and threated to beat my head in. He said, "Why don't you fuck off now or I'll bash you." So I took steps back. As I walked away from him, he double-palmed me into the middle of the street. And because I didn't respond, I didn't challenge him in any way, I didn't give him anything, I just turned my back and walked away, so he charged me again. He hit me again with double palms at full pace, but didn't knock me to the ground. I regained my balance, and the reason I regained my balance on both occasions is because I'm a coordinated person. I'm physically fit and I'm coordinated. I've played football all my life. I've been hit like that in football all of my life. It was nothing. So I didn't actually even get upset. It didn't upset me at all. It was the third time when he hit me and I crashed onto the ground, that's when I went - I lost it. And I didn't want to lose it. I was in shock. I was confused. I was dazed. He hit me so hard that I crashed onto the ground, I injured my both elbows, both wrists, both knees, my hip and my back, and I didn't even know - when I was laying on the ground, I was just pain. I had no idea what was - I knew my shoulder hurt, I knew my back hurt, I knew my legs hurt, I knew my elbows, wrists, everything hurt, and he was standing over the top of me, stilling abusing me, and people gathering on top of me as well, and that's when the young bloke came down, stood beside me and started trying to console and get forgiveness for his brother, and I at that point was upset . I was upset at being hit. I'd have been upset at being attacked for no reason. So then I tried to dial police. Trying to have no conversation, just saying, "Yeah, mate, no, no, no, no. I've got to call police. I've got to call police," and as I'm trying to dial police, which I did, my phone came up with the camera. I thought, "Great. Great opportunity to take photos." So then I started taking photos. The photos you see there are not all the photos because sometimes the camera didn't work because I was shaking so much. I'd go to take the photo and it'd click but the photo was either blurred or it didn't come out or I didn't hit the right button. So I kept hitting the button and I just hit the button, I didn't really - I wasn't trying to set up - I was just taking photos of the area. I don't know whether they incriminate me or support me. I just thought if I don't take photos, there's no record of this incident. So I took photos and at the same time the phone was ringing to the police. So then when I got off the camera and realised the phone was ringing, and he's telling me, "Don't ring the police," the police are on the phone. They're saying, "Hello, hello," but I couldn't - because I was being threatened. I said no. But I did that twice, from my understanding. Apparently in my records I've dialled the police twice. I don't even remember that, I was under so much stress at the time, I was that - under adrenalin pumping and from being violently assaulted. I don't even remember taking photos. It's only because I took photos that I remember taking the photos but at the time I was under so much stress and duress that when I was clicking for the police, the camera came up and then I was taking photos. So the photos you've got there probably only - there's probably ten or fifteen photos that are missing, probably five photos are missing, I wouldn't know. 1. During the cross-examination of the applicant, he was taken to the Council's emergency two-way radio procedures which are to be adopted in situations where a Council Ranger has been physically assaulted. These procedures involve calling "Ranger Red" and stating the employee's call sign, location and the nature of the emergency and whether or not emergency services, such as the police, are to be called. The following exchange occurred: Q. That's the emergency radio procedure when you encounter an operationally high risk or dangerous situation, you understand that, don't you? A. Yes. Q. And that's exactly what you were in after the first assault, wasn't it? A. Yes. Q. And you, by this process, are required to call Ranger Red? A. Yes. Q. Using the correct voice procedure? A. Yep. Q. And then you're asked to give your call sign, location, et cetera? A. (No verbal reply) Q. And you didn't think - as I understand in your evidence, you didn't think at all to use your radio, let alone didn't think to call Ranger Red, is that right? A. No, didn't even think of it because I was - I had it on my - I had it on my body, on my - on my belt, on the property of my belt, but I didn't actually remember I had a two-way. I didn't even think of it. Not because I didn't want to, just because I was under too much stress and pressure. I wish I did. There's some mistakes there I made. I concede that. I mean there's - it's nothing I'm proud of, I can tell you right now, you know, but prior to that, prior to being assaulted everything was okay. It was only when I hit the ground that I lost, you know, the edge on - and I-- And later: Q. So 15 minutes - 14 minutes after the event you're still hanging around trying to talk to witnesses, is that right? A. Yes. Q. And you agree, don't you, that that was probably escalating the situation rather than de-escalating the situation at that point, don't you? A. Well, I don't know, I mean like it all seemed to be pretty calm in that time, right, and I thought I was de-escalating it because they were getting what they wanted. I didn't call the police so they were happy. They moved all the cars. They weren't getting booked. They were happy so it was de-escalating and the fact that I hung around and wasn't intimidated by them, even though I was intimidated, but pretending not to be intimidated by them by just showing a little bit of strength and I wasn't trying to show strength, it's just the way I was - I was - I was behaving incorrectly. I shouldn't have been there. I should have decamped the moment I hit the ground, but I wasn't thinking correctly. I don't even know why I'm there taking photos. I shouldn't be. I should have just copped it sweet and left, but— Q. What do you mean trying to show strength? A. Well, it's easy to run away from situations like this and to have no evidence at all and council has been beaten. I represent council and I don't want council to feel like they've been beaten, so I have stood around trying to gather witnesses and evidence to show why I have been assaulted and who's assaulted me so that I can go back to the council and say, "These are the people who did it." Now, whether that was the right thing or the wrong thing to do, I don't know. I thought it was the right thing to do, but in hindsight now looking back on it, it was the wrong thing to do because I was assaulted, I was - wasn't in my right frame of mind. I was - I wish I was in my right frame of mind, I would have - I wouldn't have hung around for 14 minutes. I don't know why it was 14. It didn't seem like 14 minutes to me. It seemed like four minutes to me. Q. Are you saying that you were trying to show strength for the council by staying and not being intimidated on leaving? A. Well, sort of. Yes and no. Yes and no. I was trying to show strength, but by the same token I wasn't thinking clearly. I personally was trying to gather evidence from all the people that were there and I was getting no support so I was getting the wrong signals and me, me, once I get the wrong signals I'm out of there, but I wasn't in that case. I wish I did, but going round and speak to that person and then that person, that person is saying no and then having a female, the guy's mother, not even backing me and then the courier, so totally independent, not backing me as well and they saw what happened. 1. In relation to the second assault on him by Khaled and his associates, the applicant gave the following evidence in cross-examination: Q. All right. Now, the second assault, out comes Khaled again and he is walking towards you with others there and hurling abuse towards you whilst walking towards you from the driveway of 3 Bridge Street and he says to you, "Why don't you just fuck off?" and you say to him, "Why don't you mind" - no, someone else says, "Why don't you fuck off?" and then you say, "Why don't you mind your own business?" and once all three or four of them were in striking range, you lunged forward and struck Khaled lightly on the middle section of his jaw. Is that right? A. That's right. Q. And why do you say you did that? A. Because he was making motions towards me to attack me again. Q. So how was lunging forward and striking him in the jaw going to help? A. I don't know. I was terrified at that moment there because he's about 120 kilos, you know. He's a lot bigger than me. So as he was coming towards me, I was saying, "No. Stop. Don't go - stay away from me. Stay away from me," and I panicked and in that panic I leaned - I lunged forward and tapped him lightly on the jaw with no heart, no strength, no weight behind it. I wish I did. No, I don't mean I wish I'd knocked him over and broke his jaw, but I wish I hadn't struck him because as I was leaning I just didn't have it in my heart to hurt the bloke. I didn't have the heart to knock him. I didn't even want to hit him. I didn't even want to do it. It was just my body reacted to that. I didn't want to do it but my body just reacted naturally to it. I didn't want to do it. It was the last thing in my mind I wanted to do, but he just got so close to me, I got scared and my body reacted and it was like that. Now, whether that's right or wrong, I don't know, but I'm telling you now I didn't want to hit him. It's just my body - he scared me. I'd already been assaulted once. I'm in shock. I'm going through all this already. I've already gone through the stress of trying to gather witness statements and all that sort of stuff, and having no success there, getting all these wrong signals, and then when he came towards me and I was walking backwards - as he was walking towards me, I didn't think he was coming towards me but then he sort of made his motions towards me and so I took another step backwards and said, "Please don't come near me. Don't come near me." His brothers surrounded him and then I thought, "I'm going to get smashed again here," and I lunged out. I didn't want to. I didn't mean to. Q. So you didn't turn away at that point? A. Yeah, I did. No, no. As soon as I hit him, the four of them attacked me. Now, at the time the two brothers, they were quite friendly but when I hit their brother, they turned their aggression from being passive to supporting their brother, and at that moment three or four of them attacked me, everything went black and I believe when they attacked me there were so many arms I couldn't see past there, type of thing. If you know what I mean? There's so many arms and that in the way and then my jacket came over my head and then all I felt was getting hit and bashed and pulled, whilst my jacket was over my head. My PDA came off and my things fell out of my pockets and I was being pushed around and shoved. For about thirty seconds or a minute I was being pushed and shoved and hit and bashed by these four. So when I lunged at him, I wasn't doing it because I wanted to. I did it out of fear. I did it out of reflex. Reflex, not something that I planned to do or wanted to, but it was reflex really. 1. The applicant also gave evidence as to the effect that the loss of his employment with the Council has had on himself and his family, and the efforts which he has made since his dismissal to find alternative employment. Evidence of the Council Denise Maklouf 1. Denise Maklouf is employed in the role of HR Business Partner at the Council. Ms Maklouf gave evidence of the training that the applicant had undertaken in areas such as managing conflict through negotiation and de-escalating aggressive behaviours. 2. In Ms Maklouf's witness statement, she dealt with the applicant's work history and, in particular, the matters referred to at paragraphs 9-12 above. 3. Ms Maklouf confirmed the reasons for the Council's decision to dismiss the applicant, as set out in the letter to him from Mr Lyth dated 21 October 2016, an extract from which is reproduced at paragraph 4 above. 4. Attached to Ms Maklouf's witness statement was a document outlining the training given to council employees in a one day workshop concerned with dealing professionally with aggressive behaviour. Some extracts from that document are set out below: METHODOLOGY • Prevent • Avoid • Defuse • Defend – as an absolutely last resort. ……………… Legal guidelines of self defence A simplified translation of self defence within the Crimes Act provides the following framework for when and how you may act in self defence: 1. You honestly believe you are being threatened. 2. You use reasonable force - equal or matching the level of threat. 3. The aggressor is moving into physical contact range. 4. Reporting It is essential that you report incidents where your safety has been threatened. If the threat is immediate, request assistance from your colleagues, team leader, supervisor. Contact your supervisor/manager for any support you may need – e.g. medical, debriefing, counselling. If the matter is serious, discuss with your manager whether the police need to be contacted. Consider making some factual notes while the incident is fresh in your mind. Recording details immediately after the event may assist efficient reporting, and retain these notes as contemporaneous evidence. Fill in the incident report form. Ask witnesses if they saw what happened, and take their details if they are willing to assist. Conducting yourself in a professional manner may encourage witnesses to offer their details. If there is surveillance equipment, ensure the footage is retrieved and viewed promptly. 1. During her cross-examination, Ms Maklouf was shown a briefing note which she had prepared on 16 November 2016 for Greg Dyer, the Council's Interim General Manager, in which she recommended the termination of the applicant's employment. That briefing note contained the following: Background • Mr Alameddine was involved in two altercations (within a short period) with a member of the public on 14 June 2016. • The altercations resulted in two physical interactions including: - Interaction 1: Mr Alameddine was pushed by the person which caused him to fall to the roadway. - Interaction 2: Approximately 14 minutes after Interaction 1, Mr Alameddine punched a member of the public which started a brawl with three individuals. This resulted in Mr Alameddine sustaining a number of injuries. 1. This briefing note had the word "Approved" written on it in Mr Dyer's handwriting, together with his signature and the date "25/11/16". 2. Under cross-examination Ms Maklouf confirmed that the "gross misconduct" of the applicant, which caused the Council to dismiss him, was punching a member of the public in the face and failing to de-escalate the situation. In relation to the issue of failing to de-escalate the situation, the following exchange occurred: Q. When you say he failed to de-escalate? A. Mm hm. Q. What did he fail to do? A. He didn't call triple-0, he didn't walk away and he didn't ranger red. 1. On the issue of reinstatement of the applicant, Ms Maklouf gave the following evidence: If the Industrial Relations Commission of NSW was to find that Mr Alameddine was unfairly dismissed I do not think that it would be practicable to reinstate Mr Alameddine for the following reasons: a. Because there is a breakdown in the trust and confidence in him by the management and his fellow workers; b. Despite all of the training and refresher training provided, it appears that Mr Alameddine is not capable of descaling situations as is required by the job; c. In addition, there has been significant investment in time and resources helping Mr Alameddine to improve his conduct and behaviour but this has not worked as seen by the various warnings he had received prior to termination; d. His actions can and would put others in danger including co-workers and members of the public as demonstrated by his verbal altercations with members of the public. Paul Lyth 1. Mr Lyth gave evidence about a number of occasions when he had to speak to the applicant about his communication with customers and other employees of the Council, as well as in relation to a number of complaints which the Council had received concerning the applicant. These complaints included the following: 1. It was alleged that, on 13 June 2014, the applicant approached a number of the Council's cleaning staff and, in their words, he yelled at them for the alleged illegal parking of a council vehicle. 2. On 30 October 2014, Mr Lyth overheard the applicant speaking to a customer on the telephone and becoming very aggressive in his manner and communication. 3. Further complaints of the applicant's aggressive communication, while issuing penalty infringement notices. 4. Illegally entering the BCMP Restaurant in Church Street, Parramatta. 5. Directing traffic on Kliens Road, Northmead, without authorisation. 1. In his witness statement, Mr Lyth referred to a letter dated 21 December 2015, which he sent to the applicant and which dealt with Mr Lyth's concerns regarding the applicant's work performance, specifically in relation to the matters referred to at subparagraphs 42(c), (d) and (e) above. 2. The letter of 21 December 2015 stated, in part, as follows: Moving forward we agreed that you need to improve your communication with members of the public and use not only escalation responses where required, but de-escalation responses to better manage customers. Further that your term of reference in dealing with customer/offenders, "I like to put the fear of God into them, so they know who is in control" is unacceptable and all persons need to be treated equally and with appropriate and professional communicative responses appropriate to the situation. 1. In his witness statement, Mr Lyth stated as follows: Since December 2015, Mr Alameddine appeared for the next 3 months to again show some improvement in his communication and conduct. He was then under the management of an acting Service Manager until the incident of June 2015 (2016). 1. Attached to Mr Lyth's witness statement were extracts from a council document entitled "Ranger Services, Standard Operating Procedures". One of the these extracts set out the procedures to be followed in cases of physical assault. That document stated, in part, as follows: Procedures Relating to Assault In the event of a physical assault, officers are required to adopt the following: (a) The officer shall immediately seek Police assistance. If there is a delayed response from the Police: "In the event of a serious assault, nothing should prevent the officer from the defending him / herself in the manner as outlined in this manual. Officers may be required to effect an arrest to prevent further injury. In the case of the latter, officers must exercise extreme caution (see Special Constable Powers, in this policy)" (b) It is advisable for any officer having been assaulted to seek medical attention as soon as practical after the incident, regardless of the nature of the injury and obtain a medical report. (c) It is further advisable that photographic evidence be obtained of the injury to support criminal proceedings. (d) Officers are required to report an assault to the Team Leader - Regulatory Services who, in turn will notify the Manager – Environment & Health. (e) Officers are further required to complete appropriate internal documentation as well as an officer's statement. (f) If any property has been damaged as a result of an assault, it may be required as an exhibit and should be treated as such. Again all appropriate internal documentation will need to be completed Proceedings for Assault If Police assistance is obtained as a result of an assault, the offender may be arrested and charged by Police or proceeded against by way of information and summons, which in both cases the investigating Police act as the informant and the assaulted officer the witness. Situations may arise whereby Police are unable to proceed as the informant. Factors influencing this could be conflicting statements from both parties in which no evidence can be established as to guilt. In this instance, the assaulted officer must reply (rely) on other supportive evidence together with his / her own testimony and undertake criminal proceedings independently to Police. Assaults upon officers in the execution of their duties are a serious offence and must be treated as such. It shall be policy that every assault be reported to Police and relevant Council personnel as soon as practical. 1. Mr Lyth was cross-examined in relation to the second assault on the applicant, during which he first punched Khaled in the face. The following exchange occurred: Q. You've not said anywhere in your evidence that that punch in the circumstances described by the applicant was inappropriate, have you? A. No, I haven't said that. Q. And that's because you understand that if a person feels under threat and is being threatened and use a reasonable and proportional response, a person is entitled to defend themselves, right? A. Yes, they are. Q. And indeed a ranger in the employ of the council, if they feel they are about to be assaulted, is entitled to defend themselves, right? A. Like any other person is. Q. Like any other person. Indeed your policy manuals expressly say a person is entitled to defend themselves, that's right? A. That's correct. That's correct. Q. And they're trained that they're entitled to defend themselves? A. That's correct. 1. I note, at this point, that the evidence of Mr Lyth concerning the applicant's punch to the face of Khaled is entirely contrary to the evidence of Ms Maklouf referred to at paragraph 40 above. Ms Maklouf regarded this punch by the applicant as one of the elements of the his misconduct which justified his dismissal. 2. On the issue of reinstatement of the applicant, Mr Lyth gave the following evidence: a. If the Industrial Relations Commission of NSW was to find that Mr Alameddine was unfairly dismissed I do not think that it would be practicable to reinstate Mr Alameddine for the following reasons: b. Bassam was a reasonable Ranger relevant to his volume of work completed, however the level of aggressive behaviour continually reported by both internal and external customers is simply unacceptable. Bassam in my time as his Service Manager or Unit Manager had been spoken to on numerous occasions in relation to his aggressive communication and his inability to de-escalate his communication. Bassam would be observed to improve for a short time after informal or formal counselling sessions, but within a few months he would consistently return to his unacceptable aggressive communication. c. Communication and de-escalating training was provided prior to my commencement at the City of Parramatta Council and I obtained further detailed and interactive de-escalating and personal safety training which Bassam was given including an annual refresher only three (3) months prior to the assault incident in June 2016. d. In this incident he did not follow reporting or retreat protocols, clearly communicated several times to all staff which would have avoided this situation. Bassam has continually shown his inability to adjust his behaviour and communication on a permanent basis and as such in my opinion he is not suitable to work in the Regulatory or Enforcement industry. I could not consider reinstating him if the Commission finds that the dismissal was unfair due to the impact to himself and his fellow workers and members of the public who would be subjected to his continual aggressive communication and conduct. Yendy Cao 1. Yendy Cao is employed by the Council in the role of Community Safety Officer (Parking Patrols). On the afternoon of 14 June 2016, Ms Cao was in the company of David Grundy, another employee of the Council, when she encountered the applicant in the Wentworth Street car park after he had returned from the location where he had been assaulted. Ms Cao gave the following evidence in her witness statement: 4. We waited to see if Bassam saw us and would close his door so that we could park, but from what I could see he seemed frustrated and paced up and down in front of his car muttering to himself. 5. David got out to see if Bassam was ok and whilst I was still in the car I heard Bassam saying "no, not ok". David then parked the car in the designated spot and went back and spoke to Bassam. 6. After about 5 minutes I got out of the car. David told me that Bassam had been assaulted. 7. I asked Bassam if he was ok. He said "no, I just got bashed" and showed me his PDA which was broken and he told he (me) that he also lost his mobile whilst getting bashed. 8. I remember Bassam talking to David about the fight and Bassam said to David: "They hit me but it was all right because I got one in." 9. We walked with Bassam to the office and I noticed that he had a minor cut on his right cheek which looked like a shaving cut and he was in distress. Michelle Burke 1. Michelle Burke is employed by the Council in the role of Supervisor - Community Safety Unit. In her witness statement Ms Burke outlined the training course provided by the Council to all Parking Officers and Rangers in de-escalating aggressive customers. 2. Ms Burke also gave evidence about the "Ranger Red" procedure to be used by employees utilising their two-way radios whenever an employee is at risk of being assaulted. 3. On the issue of reinstatement, Ms Burke gave the following evidence: If the Industrial Relations Commission of NSW was to find that Mr Alameddine was unfairly dismissed I do not think that it would be practicable to reinstate Mr Alameddine for the following reasons: a. He lacks the level of empathy required to safely complete the role of Ranger, b. He drives dangerously and staff do not feel comfortable being a passenger in his car, c. He does not know how to effectively de-escalate aggressive customers, d. He does not communicate in a professional manner, often talking over customers when on the phone, e. He talks with his hands when trying to make a point to customers by slapping one hand on top of the other but this body language is often intimidating, f. He focuses on quantity of output rather than quality of output. 1. Ms Burke was not required for cross-examination. Eva Vizas 1. Ms Vizas conducted the investigation into the incident of 14 June 2016 during which the applicant was assaulted and injured. She interviewed the applicant on 24 and 29 June 2016 for approximately nine and a half hours in total. 2. In addition, Ms Vizas interviewed a number of other employees of the Council for the purpose of obtaining an understanding of how they have been trained to, and how they would in fact, deal with an aggressive member of the public. 3. Attached to Ms Vizas' witness statement was her investigation report, of which the following is an extract: INVESTIGATION After identifying the what, when and where issues surrounding this incident, Council needs to explore the how and why to ensure we can identify potential corrective actions and ensure Council's commitment to creating a safe working environment. Consequently, the investigation will adopt the ICAM methodology, focusing on people, equipment, environment, procedural and organisational factors to tease out the "How and Why" factors that led to the incident. A summary of these causes follows: Causes and Contributing Factors The investigation report provides a detailed yet succinct analysis of the causes and contributing factors to the incident. The investigation report concludes that it was a combination of specific behavioural requirements coupled with a lack of clearly defined and regularly communicated processes in the absence of direct supervision which caused the incident. These factors are listed below: a) Individual human behaviour. i. the basic cause of the First Altercation was that, following a verbal conversation, the aggressor physically pushed the employee, causing him to fall onto the roadway; ii. the basic cause of the Second Altercation was a combination of the aggressor and the employee's behaviour, including the first punch thrown and laid by the employee and the subsequent punches laid by the aggressor and the other individuals. b) Failure to use two-way radio to call for assistance. i. The employee did not act in accordance with Council's 'ranger red' safe operating procedure by using two-way radio to call for assistance. This factor contributed to the Second Altercation and the escalation of the First Altercation. c) The employee's history of the similar incidents involving members of the public. i. The employee over the course of his employment has sustained a number of significant incidents involving physical and verbal violence with members of the public resulting in physical and psychological injuries. As a consequence, his employment had been modified to minimise exposure to perceived high risk community groups. With the proclamation of the new Council the modified work practice was relaxed (at the request of the employee). It was noted that his displayed behaviour in certain situations had been the subject of disciplinary action throughout the course of his employment and had undergone several different training programs in how to diffuse and handle difficult situations. ii. As a result of the previous incidents subsequent medical evidence noted that the employee was particularly sensitive in situations where he perceived himself to be the subject of bullying or intimidation, and in these circumstances his behaviour and approach is likely to become dogged, resulting in an escalation of conflict. iii. The investigation identified that the employee's behaviour differed significantly from other employees when confronted with similar situations. Other council regulatory staff reported that if approached by an aggressive member of the public, their training was to remove themselves from the threat, and/or call 'ranger red' on radio.1 (this was confirmed by three different staff members) According to the timeline in the investigation report, there was a 14 minute window between the two altercations. This would appear prima facie to be sufficient time for the employee to remove himself from the 'threat' that led to the second altercation. iv. The employee's behavioural tendencies to escalate conflict, could be seen by his alleged comments to another employee at the time, "it was alright cause I got one in." We also note from interviewing the NSW Police force Constable who attended the scene, that she would not pursue matters because both parties were deemed to be "equally as bad". d) Previous history associated with the location - potentially hostile site. i. The investigation identified that Council has received complaints from businesses adjacent to the Site in respect of XXXXXX the property owner of 255 Victoria Road, about the number of vehicles illegally parked in this area. ii. This has led to frustration by adjacent business owners, including the aggressor, and was identified to have been a factor affecting the decision making of individuals involved in the Incident. e) Failure to ensure Council procedures including service request and incident register procedures were updated and followed. i. Wayne Griffith (Cleansing supervisor) did not follow the normal service request procedure. He contacted the employee directly to address a potential regulatory matter and thus the supervisor was unaware of the work request and may/ may not have had the opportunity to brief the employee on potential WHS issues associated with the area. ii. The agreed work practice is for identified high risk properties to be recorded in Council's Pathways system this process did not occur for unknown reasons. iii. Council failed to follow service request procedures including recording complaints in the incident register on Pathways so that rangers were notified of potential high risk locations and properties. This resulted in a failure to record Franz Borscht and the surrounding area as high risk and this was identified as strongly contributing to the Incident. iv. Compliance with these procedures may have resulted in the employee and other individuals involved in the Incident behaving differently had they been made aware that the site was a high risk area. v. The employee may have also breached Council procedure by not disclosing an extended familial relationship with the aggressor. This infringed the Council's Code of Conduct. f) Absence of safe work method statements and risk assessments. i. Apart from ranger services standard operating procedures, there is no requirement for rangers to undertake a risk assessment nor is there a Standard operating procedure that addresses WHS issues for attending sites. g) Failure to formally implement procedures for how rangers carry out their tasks. ii. Council's investigation revealed that informal procedures exist for how rangers carry out their duties, for example in regard to how rangers respond to illegally parked cars. An inconsistency in how rangers carry out their tasks may have created frustration within the community. iii. In addition, as rangers can carry out their work alone, there is considerable discretion in how rangers undertake their tasks. There is no process for monitoring rangers, other than Council being made aware of any issues from customer complaints concerning rangers. ………………… Conclusion In summary it would appear that the employee sustained significant injuries as a result of an altercation between himself and several members of the public. From the currently available evidence, it would appear that there were a number of contributory factors that led to the incident occurring, namely adhoc local practices, indirect supervision, enforcement of agreed protocols and the employee making a number of poor decisions and failing to follow these procedures. 1. Under cross-examination Ms Vizas was taken to a number of the records of interview with other employees which she had prepared in the course of her investigation. The following exchange then occurred: Q. So these are statements, as you describe them, taken by you as a part of your investigation? A. Statements, yes, some are statements, yes, and others were just - I just had interviews and I was just gathering facts, information. Q. So we have Webber Pale Eli? A. Yes. Q. Then we have Gary Hulbert? A. Yep. Q. Then we have Andrew Lillas? A. Mm-hmm. Q. Then we have Yendy Cao? A. Yes. Q. David Grundy? A. Yes. Q. And Constable Wetherall? A. Yes. Q. Now, they're all the interviews other than the applicant? A. Interviews, yes, but I have spoken to other people just for fact gathering, but, yes, because I spoke-- Q. Who were the other people? A. Many people. I spoke to supervisors, managers, other colleagues. I spoke to a lot of people to get an understanding of the facts. Q. In your - I should say, do you have any records of those conversations with other people? A. No, because they were just conversations that I had just reconfirming information that was originally provided by these people. Q. Are we right then in assuming that to the extent you've had those other conversations they supplement views you'd otherwise already formed by reference to these statements? A. Views that I had formed, no, I was just fact gathering, so they just reconfirmed the information that was originally provided by other people. 1. Ms Vizas was then taken to that part of her witness statement where she stated: My investigation identified that Mr Alameddine's behaviour differed significantly from other employees who have been confronted with a similar situations; 1. Ms Vizas was then taken to one of the records of interview with a council employee, where the employee was asked about how he would respond if approached out in the field, one out, by an aggressive member of the public. The following exchange then occurred: Q. So first box on the page, "Why did you commence working - when did you - where did you commence? What's the procedure for dealing with abandoned vehicles?" Over the page, the last box is the question that you asked of them. "You're out in the field, one out, dealing with an illegally parked abandoned vehicle and are approached-- A. Yep. Q. --by an aggressive member of the public. How do you respond?" A. Yep. Q. That was the question that you asked each of them. What I'm saying to you is you didn't ask them how they would respond or how they understood that they ought respond after they had been assaulted, did you? A. No, I didn't ask that direct question. Oh, actually, I don't know because that is a broad question and that would be my starting point and my style is, is that I would get them to answer and then get them to talk through the process so I can have an understanding of what they will do. So, to answer your question, no, I didn't ask that. I don't - I don't know, actually. I don't even know what I asked. That's just - that's my starting point. That was - that question was my starting point. 1. It emerged that Ms Vizas had not asked any of the other employees who were interviewed by her, how they would respond if they had, in fact, been assaulted by an aggressive member of the public. It does not appear from the records of interview which she prepared, that any of those employees provided any information as to how they would have conducted themselves in such a situation. 2. Ms Vizas was then questioned about that part of her witness statement where she stated: Rather than starting conversations in a non-confrontational way, Mr Alameddine's approach seemed to instead commence at an escalated level as demonstrated by his determination to issue fines. 1. The following exchange then occurred: Q. No. So his approach to these two gentlemen, there's nothing in your report which, nothing in your investigation which suggests he was confrontational in his approach to these gentlemen, that's right? A. No. It's when he says "Hang on a sec, I know your father". Q. That's confrontational is it? A. To a degree, yes, because at this point in time this individual is already showing aggression and instead of de-escalating he continued on with that. Q. You don't see that as de-escalating behaviour? A. No. 1. I note, at this point, that there was no evidence produced in the proceedings to support the proposition that the applicant, at any stage during the incident of 14 June 2016, attempted to, or indicated any determination to, issue a fine to anybody. His unchallenged evidence was that he was simply asking that illegally parked vehicles be moved. 2. On the issue of reinstatement of the applicant, Ms Vizas gave the following evidence: If the Industrial Relations Commission of NSW was to find that Mr Alameddine was unfairly dismissed I do not think that it would be practicable to reinstate Mr Alameddine because, in my professional opinion, Mr Alameddine's behaviour breached Council's work health and safety standards placing himself and others at risk. On this basis I would consider that there would be a high risk of further similar instances should he return to being employed by Council. Applicant's evidence in reply 1. In a reply witness statement prepared by the applicant and tendered in these proceedings, he responded to the various matters concerning his work history which were referred to in the evidence of Ms Maklouf and Mr Lyth. 2. I note, at this point, that neither Ms Maklouf nor Mr Lyth was a witness to any of these past incidents, apart from the telephone conversation of 30 October 2014 between the applicant and a customer, which was overheard by Mr Lyth. Aside from that telephone conversation, the only direct evidence before the Commission concerning these past incidents is that given by the applicant himself. Submissions of the applicant 1. Counsel for the applicant provided the Commission with comprehensive written submissions which traversed the evidence relating to the incident of 14 June 2016. In particular, those submissions dealt with the applicant's failure to retreat, his failure to engage the "Ranger Red" protocol and his striking of Khaled. 2. In relation to the applicant's failure to retreat, it was conceded that, upon reflection, he should not have remained at the scene for the 14 minute period between the first and second assaults, taking photos and trying to gather evidence by speaking to witnesses. The written submissions then continued as follows: 86. The Applicant's conduct up to the point of the first assault was entirely appropriate. There is no evidence that could support a conclusion that his behaviour or communication with Khaled in any way precipitated the first assault. The Commission would accept that the first assault by Khaled, a vicious and violent assault by a much younger and physically larger man in the company of others that was not precipitated by any conduct of the Applicant, left the Applicant confused, disorientated and in shock. 87. Whilst his speaking to witnesses and taking photographs was not consistent with the unwritten retreat protocol, in doing so he was not off on a frolic of his own. Gathering evidence was the Applicant's first instinct. As Mr Lyth accepted in cross-examination, it is what Rangers are trained to do, and do in the day to day course of their job. As the Applicant said in oral evidence, he was trying to gather information for Council and Police to explain and support his situation and Khaled's prosecution. 1. In relation to the applicant's failure to engage the "Ranger Red" protocol, the following was put: 93. The Applicant did not deny in oral evidence that it would have been appropriate for him to have engaged the Ranger Red protocol in the period between the first and second assault, but emphasised he ought really have retreated to his car. 94. It is submitted the failure to retreat or to more quickly communicate with the Council are, in substance, the same failure: the Applicant failed to take appropriate steps to deal with the situation presented to him after the first assault, either by retreating or engaging the emergency radio protocol if he could not have left. In light of Mr Lyth's evidence, the substantial failure to deal with this situation was the Applicant's failure to retreat from it before the second assault by Khaled. 95. His explanation for not having done so was, as described above: the first assault left the Applicant confused, disorientated and in shock. Again, whilst the Applicant ought not have remained in the vicinity after the first assault, it is submitted that it is a gross-exaggeration to characterise the Applicant's conduct in remaining on scene as misconduct, let alone gross-misconduct. It certainly provides no justification to dismiss. To dismiss him in part on these grounds is "harsh". 1. It was submitted that the Commission should be well satisfied that the applicant's dismissal was substantively harsh, unjust and unreasonable. 2. The applicant's written submissions then proceeded to identify a number of "manifest procedural deficiencies in the decision making process". 3. Firstly, it was submitted that it would appear that the decision to dismiss the applicant was made by Mr Dyer on 25 November 2016, six weeks before the USU's response, on behalf of the applicant to the "show cause" letter of 21 October 2016, was received by the Council on, or shortly after, 6 January 2017. There is no evidence that Mr Dyer was provided with this response or was invited to reconsider his decision to dismiss the applicant in light of the matters set out in the response. 4. Secondly, according to the applicant's submission, the briefing note prepared by Ms Maklouf on 16 November 2016 for Mr Dyer, did not present what occurred on 14 June 2016 in a fair and balanced manner, and may well have misled the decision maker. 5. Thirdly, it was submitted that there was no disciplinary investigation in this case. The investigation by Ms Vizas was not an investigation into allegations of misconduct. The report prepared by Ms Vizas did not present what occurred on 14 June 2016 in a fair and balanced manner, and may well have misled the decision maker. 6. In his final address to the Commission, counsel for the applicant concluded as follows: To the extent the commission might consider that some sanction is warranted for that conduct, I'm instructed that my client would not press an order for back pay. So that the substantive relief which is sought is reinstatement with continuity of service. Submissions of the Council 1. The submissions of the Council focussed on the failure of the applicant to leave the scene after the first assault on him by Khaled, when the situation was still "hot" due to the presence of Khaled in the vicinity and the fact that he was "still aggressive". 2. The Council's submissions then referred to the evidence relating to the training given to, and expectations of, employees when dealing with aggressive people. 3. It was also submitted that the Commission should reject any evidence that the applicant thought that he was "required" and/or "forced" to remain in the vicinity to collect evidence on behalf of the Council. 4. The Council's written submissions then stated: 8. Because of all this evidence of Council's safety first approach to dealing with aggressive customers, the Commission must see Mr Alemeddine's conduct on 14 June to have been far more serious than a mere mistake or a mere bad judgement call. 9. Mr Alemeddine remained at the location in defiance of the requirements and the expectations held by Council. It is obviously unfortunate that he was the victim of the second assault but the Commission must understand this second assault to have been a preventable incident and that Mr Alemeddine's active defiance of his employer's protocols was the substantial causative factor on the day. 10. It is unsatisfactory conduct, in fact criminal conduct, that Khaled assaulted Mr Alemeddine. Whilst Mr Alemeddine should not therefore be held wholly responsible for the criminal conduct of Khaled, Council is entitled to hold Mr Alemeddine fully responsible for his actions that failed to prevent the second incident from occurring. 1. The Council then addressed the applicant's different accounts of the event and criticised the applicant for being an unsatisfactory witness who "was prone to exaggeration, prone to unresponsive and self-serving speeches, and gave contradictory accounts of the same events to suit different purposes". 2. It was then submitted that, from his initial contact with the applicant, Khaled was hostile towards the Council and was hostile towards the applicant. The whole initial conversation and assault took place within a four minute window. In these circumstances, it was imperative that the applicant follow Council's requirements and: a. Notify his supervisor immediately; and b. Notify the police; and c. Move away from the area. 1. The applicant was criticised for having given three different versions of the first assault. It was submitted that, in the first of these versions as recounted to Ms Vizas during her interviews with the applicant in June 2016, he did not record any attempt by him to move away from the highly agitated Khaled until after the second time that Khaled pushed him with two hands in the chest whilst the applicant was "still squared up to Khaled". It was then put that it was "extraordinarily reckless" and "obviously contrary to Council's procedures, expectations and the training provided to" the applicant for him "to still be squared up to Khaled". 2. It was submitted that the next version, as set out in the applicant's witness statement tendered in these proceedings, "gives a very different description of the event and in this version Mr Alameddine 'turned away in an attempt to leave the area' before Khaled touches him at all ". 3. The Council's written submissions then continued as follows: In the third version, provided 11 months after the event (under cross-examination), Khaled put his fist to Mr Alameddine's face, threatened him and then Mr Alameddine stepped back before Khaled moved forward and pushed him in the chest with a push so hard that Mr Alameddine travelled backwards 4-5 metres but managed to stay on his feet because of his athleticism. After this he turned to move away but was pushed a second time and then a third. This version is unlikely to be correct because it renders the account given in June 2016 extraordinarily inaccurate, particularly the words "Khaled then again rushed at BA, again double palming BA in the chest, pushing BA further towards the middle of the road and then as BA turned his back to walk away he again rushed at him…" (Ex 3 at [12]). That is, if one accepts that the May 2017 version is correct, one must accept that in Mr Alameddine's version only two weeks after the event he recalled important matters spectacularly wrongly. 1. In relation to the second assault, it was submitted as follows: a. Council's concern was that Mr Alameddine initiated the second physical altercation by assaulting Khaled and that Mr Alameddine prior to this, in defiance of Council's protocols and procedures, remained in the vicinity of the assault and in the vicinity of the aggressor and continued to provoke the situation rather than deescalate the situation; b. in the first assault, Mr Alameddine did not properly try and deescalate the situation at all (on the most likely version of Mr Alameddine's story) and his decision to continue to remain in the vicinity arose from his decision to not back down in an aggressive situation; c. Mr Alameddine's comment, which he read, re-read, and endorsed on 29 June 2016 when asked "how do you think the incident could have been prevented?" that "the moment Khaled the aggressor began yelling and threatening me then [I] should have a run away like a little girl and show that Council has no authority" (Ex 3 at [39]) reveals Mr Alameddine's true reason for not leaving the vicinity immediately after the first result (assault); d. Mr Alameddine's alterations to the initial account (ie his various subsequent inconsistent accounts) can only be understood as attempts to either erase or smooth over his decision in the heat of the moment to stand his ground against Khaled before the first assault, and then stand his ground for 14 minutes after the first assault. 1. The Council's submissions then went on to expand upon what, according to the Council, the applicant should have done after the first assault. 2. In relation to the second assault, the submissions of the Council emphasised the fact that it was the applicant who "threw the first blow" and then continued as follows: 47. Firstly the Commission can note that Mr Alameddine would not be able to move backwards if he was surrounded by three or four people - if this were true he would have collided with at least one of them. 48. Secondly, the photographs…. reveal that he was not moving in the few seconds prior to the second assault, or at least only slightly moving. 49. Thirdly, by his account Mr Alameddine had ample opportunity to move away immediately prior to the second altercation. On Mr Alameddine's account: a. Khaled milled around for some time (after yelling abuse on and off for 15 minutes), and then b. Mr Alameddine started taking photos, and then c. Khaled moved towards Mr Alameddine, and then d. he and Khaled spoke for approximately 15 seconds, or at least are in the same vicinity for 15 seconds (waiting for the man in the photos to come into the vicinity as well); and then e. Mr Alameddine initiated physical violence by lunging forward and striking Khaled. 50. The reality is that despite all of the events that had transpired in the previous 15 minutes, Mr Alameddine squared up to Khaled and threw the first punch. 51. The submission/suggestion that Mr Alameddine threw the first punch "in self defence" must be disregarded: a. Whilst Mr Lyth accepted that officers may be justified in defending themselves against an assault, Mr Alameddine was not justified on this occasion; b. His decision to punch Khaled could not be understood to have defended him. That is, to the extent that an officer might need to take offensive action as a defensive measure in order to defend themselves, Mr Alameddine's offensive action did not make him safer or reduce any risk to him; c. To the contrary Mr Alameddine's aggressive physical action made it inevitable that he would be assaulted. 52. In throwing the first punch Mr Alameddine took and (an) aggressive situation into further violence. His decision to "get one in too" made the second physical assault inevitable. 1. The Council also relied upon the applicant's work history in support of its decision to dismiss him. 2. Further, the Council contended that the applicant had been accorded procedural fairness. Was the dismissal of the applicant harsh, unreasonable or unjust? Procedural fairness 1. The process which led to the dismissal of the applicant was procedurally unfair in a number of ways. 2. The investigation which preceded the dismissal of the applicant was conducted by Ms Vizas. It was not a disciplinary investigation but rather, a work, health and safety incident investigation. As such, Ms Vizas did not adopt the approach that should be adopted by an investigator conducting a disciplinary investigation into allegations of misconduct by an employee. 3. For example, in her report Ms Vizas stated that the applicant had a work history in which he had sustained a number of significant incidents involving physical and verbal violence with members of the public resulting in physical and psychological injuries. However, nowhere in her report are these previous incidents particularised and it does not appear from the record of her interview with the applicant, which Ms Vizas prepared, that she raised any previous incidents with the applicant so that he could give his side of the story to her. 4. As far as previous incidents involving physical violence are concerned, the only evidence before the Commission of such an incident was given by Ms Maklouf in relation to situation which arose in February 2013 when the applicant and a colleague were "ambushed by some members of the public who became hostile and started hitting their vehicles with golf clubs". This incident is referred to at paragraph 12 above. Ms Maklouf did not suggest that this incident of physical violence, which was directed at the applicant and his colleague, was, in any way, provoked by the applicant. 5. The remaining matters were, for the most part, incidents involving allegations by members of the public of verbal aggression by the applicant in circumstances where the applicant was attempting to enforce the Council's rules and regulations, which it was his duty to enforce. 6. By way of another example of procedural unfairness, neither Ms Maklouf nor Mr Lyth, in their evidence in these proceedings, made any criticism of the applicant's conduct in the lead up to the first assault on him by Khaled. However, Ms Vizas apparently saw things differently (see paragraphs 62-64 above). Putting aside the inherent unlikelihood that the applicant's comment to Khaled "Hang on a sec, I know your father" could be fairly characterised as "confrontational" in the context in which it was made, nowhere in the record of interview with the applicant does it appear that Ms Vizas put to the applicant the proposition that, by making this comment, he was escalating the situation rather than de-escalating it. Nowhere does it appear that the applicant was given an opportunity to explain what his thought processes or intentions were in making this comment. 7. As already put at paragraph 62 above, in her witness statement Ms Vizas stated: Rather than starting conversations in a non-confrontational way, Mr Alameddine's approach seemed to instead commence at an escalated level as demonstrated by his determination to issue fines. 1. Ms Vizas was cross-examined on this statement as follows: Q. And I should hasten to add, you didn't actually enquire of the applicant about how he approached other dealings with customers of the council did you? A. With Bassam, no. Q. No. So what you're recording there is something somebody else told you? A. Ah, this here-- Q. About how the applicant would generally approach things. Rather than starting conversations in a non-confrontational way. You had no information, other than what had been told to you by others of opinions that they had formed, that informed that conclusion? A. No. There were other incident reports and also information from others, correct. Q. Again you don't discuss that with the applicant at all? A. No. And later: Q. What I'm saying is, you did not independently conduct some enquiry into whether, the truthfulness or otherwise of the earlier complaints raised, that were raised with you. A. It wasn't my job to conduct enquiries relating to other matters. My job was just to read, refer to evidence. 1. Ms Vizas stated in her report that the investigation identified that the applicant's behaviour "differed significantly from other employees when confronted with similar situations". It emerged during her cross-examination that Ms Vizas had not asked the other employees she interviewed how they would respond to being assaulted by a member of the public. 2. In her report, Ms Vizas stated that the applicant's behavioural tendencies to escalate conflict could be seen by his alleged comment to another employee at the time, "it was alright cause I got one in". However, it does not appear in the materials before the Commission that Ms Vizas ever asked the applicant whether or not he made this comment and, if he did, to explain the context in which it was made and what he was trying to convey by making it. 3. Lastly, Ms Vizas stated that the applicant may have also breached council procedure by not disclosing an extended familial relationship with the aggressor and that this infringed the Council's Code of Conduct. Nowhere in the materials before the Commission is there any indication of the basis upon which Ms Vizas formed this opinion or whether it was ever put to the applicant for his response. 4. While it is accepted that the findings in Ms Vizas' report were not the end of the disciplinary process, the procedural irregularities identified above had the potential to, and in my opinion did, in fact, impact on the process which then followed in a manner which was adverse to the applicant and which was unfair. From that point on, the cards were stacked against the applicant. 5. Following receipt by Ms Maklouf of the report and a briefing from Ms Vizas on 24 August 2016, the Council decided that further and separate disciplinary inquiries were unnecessary to ascertain the facts already established by the admission of the applicant and the approach of the police to the matter. After looking at all of the information already available, the Council decided that the "show cause" letter of 21 October 2016, providing the applicant with formal notice of the Council's intention to terminate his employment, should be prepared and sent to the applicant. 6. On 24 October 2016, the USU wrote to the Council on behalf the applicant and asked that it be provided with the report of Ms Vizas and other documentation. The union also asked the Council to postpone its decision on the applicant's employment to permit receipt of the requested documentation and to subsequently afford the applicant reasonable time to read it and to formulate a response. 7. By correspondence dated 28 October 2016, the Council provided the USU with certain documents, but not the report of Ms Vizas. There then followed correspondence between the USU and the Council, including an email dated 2 November 2016 from the Council which attached Ms Vizas' report. 8. On 4 November 2016, the USU wrote to the Council on behalf of the applicant and gave notice of an industrial dispute in accordance with section 130 of the Industrial Relations Act 1996 ("Act") and of the union's intention to seek an order restraining the dismissal of the applicant under subsection 137(1)(c) of the Act. The USU also referred to the "status quo" provisions in subclause 35(v) of the Local Government (State) Award 2014. 9. On 30 November 2016, Mr Lyth wrote to the applicant and noted that the Council had agreed with the USU to extend the time for the applicant's response to the "show cause" letter to 4 November 2016, but that no response had been received. Mr Lyth also referred to several unsuccessful attempts by Ms Maklouf to contact the applicant. The applicant was instructed to attend an "Outcome Meeting" on 6 December 2016. 10. However, prior to Mr Lyth's letter of 30 November 2106, Ms Maklouf had, on 16 November 2016, prepared her briefing note for Mr Dyer in which she sought approval to terminate the employment of the applicant on the grounds of gross misconduct. In that briefing note, Ms Maklouf stated, in relation to the second assault, that the applicant had punched a member of the public in the face which started a brawl with three individuals (see paragraph 38 above). 11. Although Ms Vizas' record of her interview with the applicant was attached, Ms Maklouf did not, in the briefing note, draw Mr Dyer's attention to the applicant's statement to the effect that, before he punched the member of the public, he had been surrounded and menaced by three or four male persons, including the person who had assaulted him in the first interaction. Ms Maklouf made no reference to the possibility that the applicant was acting, or at least thought he was acting, in self-defence. This left Mr Dyer without adequate information as to the context in which the applicant punched the member of the public. 12. On 25 November 2016, Mr Dyer wrote "Approved" on the briefing note and signed it. This occurred at a time when the Council was on notice of the USU's intention to seek relief in this Commission in relation to the threat to dismiss the applicant. It also occurred before the Council had received and considered the comprehensive response to the "show cause" letter which was forwarded to the Council by the USU on 6 January 2017. It is sufficiently clear that, by this time, the decision to dismiss the applicant had already been made. 13. For the reasons stated above, it is my opinion that the process which led to the dismissal of the applicant was procedurally unfair. Substantive unfairness 1. According to Ms Maklouf, the misconduct of the applicant which warranted the termination of his employment was his failure, after the first assault, to contact the police through the triple-0 emergency number, to remove himself from the scene and to call "Ranger Red" on his two-way radio. In addition, by punching a member of the public, the applicant committed a further act of misconduct. 2. Ms Vizas expressed the view that the applicant was at fault even prior to the first assault. I do not accept as correct, the statement of Ms Vizas that the applicant's comment to Khaled "Hang on a sec, I know your father", was confrontational. I accept that the applicant was attempting to de-escalate a situation in which he was being confronted by an aggressive member of the public for doing nothing more than attempting to do his job in an appropriate and reasonable manner. Neither Ms Maklouf nor Mr Lyth has disputed that this was the case. This fact alone distinguishes this incident from other past allegations against the applicant, which were raised in these proceedings. Unlike those allegations, there was no complaint from any member of the public about the applicant's conduct in relation to the 14 June 2016 incident, prior to him first being assaulted by Khaled. 3. On the evidence before the Commission, I find that the first assault on the applicant was entirely unprovoked and occurred within such a short timeframe that he had no opportunity to withdraw from the situation, even if he had wanted to. 4. I also reject the criticisms of the applicant's varied recollections of how the first assault was perpetrated upon him by Khaled, which are referred to at paragraphs 83-85 above. In making those criticisms, the Council neglected to refer to the fact that, out the outset of his evidence in chief, the applicant corrected his witness statement by stating that the initial contact with him by Khaled was a push in the chest followed by two subsequent pushes from behind (see paragraph 28 above). 5. The applicant was cross-examined at length about apparent discrepancies in the different versions he had given of the first assault on him. As already pointed out, in his witness statement as filed in these proceedings there is no reference to the applicant being first pushed in the chest by Khaled. In the witness box, the applicant corrected this and stated that he had been pushed once in the chest. According to the record of interview with Ms Vizas, the applicant described being pushed in the chest twice by Khaled before being pushed in the back onto the roadway. I place little significance on these apparent discrepancies. What is clear is that the applicant was the victim of a violent and unprovoked assault on him by Khaled. In my determination of this application, it matters little that the applicant has given, at various times, slightly different versions of what occurred in the lead up to, and during, the first assault on him. 6. There were, in reality, only two versions of the first assault given by the applicant. The first version, as recounted to Ms Vizas in June 2016, was that the applicant was pushed twice in the chest and then once in the back by Khaled, causing him to fall onto the roadway. In this version there is no mention of the applicant attempting to move away from Khaled until after he was pushed in the chest the second time. 7. The second version, as given in the applicant's corrected witness statement and under cross-examination during these proceedings, was that the applicant stepped back before Khaled pushed him once in the chest and then twice in the back. It is unsurprising that a person, such as the applicant, who, on any view, had been subjected to a violent and unprovoked attack by someone like Khaled, which resulted in significant personal injury to him, would be traumatised by the experience and would, at different times, recall the exact sequence of events differently. The later, slightly different recollection of the incident by the applicant in these proceedings does not, in my opinion, render his earlier version, as recounted to Ms Vizas in June last year, either "extraordinarily inaccurate" or "spectacularly wrong". I reject entirely this attack by the Council on the applicant's credit. 8. I find that nothing that the applicant did in the lead up to, or during, the first assault on him could, on any view, constitute misconduct by him. 9. As noted above, the Council quite properly focussed its submissions as to the applicant's misconduct on what he did after the first assault and in the lead up to the second assault. 10. The Council contended that the applicant should have contacted the police via the trip-0 emergency number, he should have removed himself from the area and he should have called "Ranger Red" on his two-way radio (see paragraph 40 above). Instead, he remained in the area for approximately 14 minutes taking photos and attempting to solicit support from potential witnesses. 11. With respect to calling the triple-0 emergency number, Ms Vizas' record of her interviews with the applicant in June 2016 contains the following: BA after hitting the ground complained that he was injured and was now calling the police in relation to being assaulted by Khaled. At that moment BA began taking photos and trying to dial emergency number 000 (refer to BA call history of 2 calls made at 1429). 1. There seems to be no dispute that the applicant did attempt to call the triple-0 number immediately after being assaulted on the first occasion. According to the applicant, he was then threatened that, if he called the police, there would be repercussions. Ms Vizas recorded the following: The third brother… of Khaled approached BA and tried to help BA up off the road. This unknown person was requesting BA not to call the police, he apologised on behalf of his brothers actions (Khaled's assault) they will comply and to BA please don't go to the police, stating to BA that it will only get ugly via the family. BA's interpretation of this statement was that he was being threatened that if he went to the police they would make further difficulties via his family. 1. Under cross-examination the applicant described the situation in which he found himself (see paragraph 30 above). From this I conclude that the applicant attempted to contact the police but did not persist with his attempts because of the threat that "they would make further difficulties via his family". 2. I note that Ms Vizas made no reference to the applicant's failure to ring triple-0 in her report. 3. Under cross-examination, Ms Maklouf gave the following evidence: Q. So your understanding is he attempts to call triple-0, he stops and threats are made to him that things will get ugly with the family if he does make that call, right? A. Based on this, correct. Q. And you say that amounts to gross misconduct, do you? A. No, not just that. Q. Well is it misconduct at all? A. Not this on its own, no. Q. Indeed, in this context, that's likely to have been a de-escalating behaviour, do you accept that? A. I can't comment. And later: Q. It says it will get ugly by the family if he doesn't stop, yes. That's as you understand the circumstances in which he then terminates the call? A. Yes. Q. He terminates his efforts to call the police? A. Yes. Q. And you say, as I understand your earlier evidence, that that is part of what amounts to gross misconduct in your recommendation? A. What I said earlier was that it's all part of the de-escalation process. And still later, after Ms Maklouf was taken to paragraphs 13 and 14 of Ms Vizas' record of interview with the applicant (see paragraph 24 above): Q. Firstly, let's just make sure that foundation is sound. That was one of the three things, Ms Makhlouf, that you identify as being the failure to de-escalate the situation? A. To de-escalate, correct. Q. And it's one of the things that you identify as informing your recommendation that the applicant engaged in gross misconduct? A. Can you repeat that? Q. Sure. The failure to call the police, triple 0, is one of the factors that you said a moment ago you relied upon informing the view that the applicant engaged in gross misconduct. Is that right or wrong? A. Yes. ………………… Q. Yes, you say that amounts to gross misconduct? Sorry, I withdraw that. Yes, you say that's part of what you relied upon in expressing the view that the applicant had engaged in gross misconduct. Is that right? A. Not that particular paragraph, no. So, yes, calling triple 0 was de-escalation, is a de-escalation. …………………. Q. So calling triple 0 in that circumstance would have been a de-escalating behaviour, would it? A. At that point, correct. Q. At what point? A. Of this paragraph. Q. Sorry, now— A. He could have called triple 0 at other points, but on this particular paragraph is what I'm saying, yes, it was a part of de-escalation. Q. Which paragraph are you pointing to, I'm sorry? A. The one that you - 13, 14, the one that you referred to. Q. So just to be clear about this, in paragraph 13 he says, "BA began taking photos and trying to dial the emergency number, triple 0", right? A. Correct. Q. He then goes on to say, this is in paragraph 14, "The third brother approached, tried to help him up, requesting him not to call the police, apologising on behalf of his brother, they'll comply, 'Please don't go to the police', stating that, 'It'll only get ugly by the family.'" The interpretation of this statement was that he'd be threatening - that he was being threatened. Just so I understand this, do you say by stopping his efforts to call the police it is de-escalating behaviour or escalating behaviour? A. De-escalating. Q. How do you then say it can possibly amount to gross misconduct or even part of gross misconduct for that matter for a failure to de-escalate? A. At that point, yes, he did, but there was an incident and he could have called at other parts of that incident, at other parts of that time is what I'm saying. 1. Ms Maklouf did not specify at which "other parts of that incident" the applicant could have or should have called the police. In any event, is apparent that the police arrived on the scene very shortly after the second assault on the applicant had concluded. 2. On the basis of this evidence, it is difficult to see how the Council can maintain that the applicant's failure to contact the police via the triple-0 number was an omission on his part amounting to misconduct. 3. With respect to his failure to withdraw from the scene after the first assault, the applicant has accepted that this was an error of judgement on his part (see paragraph 31 above). However, the applicant had just been the victim of an unprovoked violent assault which resulted in him suffering physical injury. He gave the following explanations: I shouldn't have been there. I should have decamped the moment I hit the ground, but I wasn't thinking correctly. I don't even know why I'm there taking photos. I shouldn't be. I should have just copped it sweet and left, but— ………………….. I thought it was the right thing to do, but in hindsight now looking back on it, it was the wrong thing to do because I was assaulted, I was - wasn't in my right frame of mind. I was - I wish I was in my right frame of mind, I would have - I wouldn't have hung around for 14 minutes. I don't know why it was 14. It didn't seem like 14 minutes to me. It seemed like four minutes to me …………………. I was trying to show strength, but by the same token I wasn't thinking clearly. I personally was trying to gather evidence from all the people that were there and I was getting no support so I was getting the wrong signals and me, me, once I get the wrong signals I'm out of there, but I wasn't in that case. I wish I did, but going round and speak to that person and then that person, that person is saying no and then having a female, the guy's mother, not even backing me and then the courier, so totally independent, not backing me as well and they saw what happened. 1. With respect to the applicant's failure to call "Ranger Red", the applicant's explanation was as follows: No, didn't even think of it because I was - I had it on my - I had it on my body, on my - on my belt, on the property of my belt, but I didn't actually remember I had a two-way. I didn't even think of it. Not because I didn't want to, just because I was under too much stress and pressure. I wish I did. There's some mistakes there I made. I concede that. I mean there's - it's nothing I'm proud of, I can tell you right now, you know, but prior to that, prior to being assaulted everything was okay. It was only when I hit the ground that I lost, you know, the edge on - and I-- 1. What distinguishes these failures from the other matters which were raised against the applicant during these proceedings, was the fact that, in none of the previous incidents was the applicant suffering from the trauma of having been the victim of a recent, violent, physical assault. This factor also stands this matter apart from the experiences of the other employees who were interviewed by Ms Vizas as to their approach when dealing with aggressive customers. 2. Whilst the applicant readily accepts that he should have left the scene rather than remain there taking photos and speaking to potential witnesses, it cannot be said that by doing so he was operating completely outside of the Council's policies and procedures. The Council's own self defence training materials contain advice such as the following: Ask witnesses if they saw what happened, and take their details if they are willing to assist. Conducting yourself in a professional manner may encourage witnesses to offer their details. 1. I accept that advice such as this did not force or require the applicant to remain in the vicinity of the incident for as long as he did or, indeed, at all. However, such advice, nevertheless, demonstrates that the applicant was not acting entirely contrary to the Council's expectations of him. 2. I do accept that the failure by the applicant to withdraw from the scene, and his failure to call "Red Ranger", constituted misconduct on his part. However, I also accept that, as a result of the first assault, he was in shock and not thinking clearly. This is a factor which should have been anticipated by the Council and which warranted greater consideration than it was apparently given. For example, in Ms Maklouf's briefing note of 16 November 2016, there is no reference to the possibility that the applicant's judgement during the 14 minute period between the two assaults, may have been adversely impacted upon by the trauma he suffered during and after the first assault. 3. While the applicant's decision to remain on the scene for has long as he did was certainly ill advised, given the circumstances in which he found himself, having just been the victim of an unprovoked and violent assault, his admitted errors of judgement in this regard do not, in my opinion, constitute misconduct of sufficient seriousness to warrant his dismissal. 4. Another matter which has been relied upon by the Council to justify the dismissal of the applicant is the contention that the he punched a member of the public which started a brawl with three individuals. This is set out in Ms Maklouf's briefing note of 16 November 2016 (see paragraph 38 above). To describe the second assault in these terms completely ignores the applicant's uncontested account of this altercation as given by him to Ms Vizas (see paragraphs 17 and 18 of the record of interview at paragraph 24 above). 5. According to the account given by the applicant, at the time he threw the first punch he was being set upon by Khaled and two or three of his associate. It is completely understandable that the applicant would attempt to defend himself in these circumstances even if, with the benefit of hindsight, his attempt can be seen to have been completely ineffectual. 6. Mr Lyth was cross-examined specifically about the punch thrown by the applicant. His responses are set out at paragraph 47 above. 7. The submissions of the Council on this issue, as set out at paragraph 88 above, have a heavy air of unreality about them. For example, the proposition that the applicant would not have been able to move backwards if he was surrounded by three or four people without colliding with at least one of them, simply cannot be accepted. In his interview with Ms Vizas the applicant stated that his assailants were "almost surrounding him" whilst he was walking backwards. In any event, depending on the distances between the individuals involved and the direction of their movements, the fact of being surrounded by three or four aggressors does not make it impossible for someone to move backwards without colliding with anybody. Further, it does not appear that, at the time when the applicant made this statement to Ms Vizas, she pulled him up for stating something which was physically impossible. 8. Having accepted that employees may be justified in defending themselves against an assault, the Council has offered no explanation as to why the applicant was not justified in defending himself on this occasion. The fact that the applicant's offensive action did not make him safer or reduce any risks to him, does not mean that his "reflex action" (so described by the applicant himself) in punching Khaled, should not be regarded as an attempt by the applicant to defend himself. Similarly, even if it is accepted that the applicant's "aggressive physical action made it inevitable that he would be assaulted", this does not rule out also accepting that the applicant was attempting to defend himself, even if that attempt was futile. This remains so even if it is accepted that, sometime after the incident, the applicant was heard by Ms Cao to say to Mr Grundy "They hit me but it was alright because I got one in". Such an attempted display of bravado on the part of the applicant in the aftermath of the attack on him by a gang of thugs, does not alter the nature of his action in punching Khaled which, on the basis of the evidence before the Commission, must be accepted as an attempt by the applicant to defend himself. 9. The Council's proposition that, despite all of the events that had transpired in the previous 15 minutes, the applicant "squared up" to Khaled and then threw the first punch, discloses a complete lack of understanding of the dynamics of the situation in which the applicant found himself, or an unwillingness on the part of the Council to accept the applicant's account of the incident, despite there being no basis for the Council to disbelieve him. 10. In the circumstances in which the applicant found himself, his attempt to defend himself by punching Khaled first did not constitute misconduct and, to the extent that the Council relied upon this to justify the dismissal of the applicant, that was unfair. 11. I also note that, in her report, Ms Vizas concluded that there were a number of "contributory factors", in addition to the applicant's poor decisions and failure to follow procedures, which led to the incident occurring. In these circumstances, it would be unfair for the applicant alone to bear the consequences what occurred on 14 June 2016 in an incident in which he was very much the victim rather than the perpetrator. 12. I find that the dismissal of the applicant by the Council was harsh, unreasonable and unjust. Taking these concepts in reverse order, I find that the dismissal of the applicant was unjust because it was affected by procedural unfairness and because weight was given to matters, such as the applicant's conduct in the lead up to the first assault and his throwing of the first punch in the second assault, which do not, in my opinion, constitute misconduct. 13. I find that the dismissal of the applicant was unreasonable because insufficient consideration was given by the Council to the applicant's mental state after the first assault, which should have been taken into account as a significant mitigating factor. 14. I find that the dismissal of the applicant was harsh because the penalty of dismissal far outweighs the seriousness of the applicant's misconduct in remaining at the scene for as long as he did after the first assault. Is reinstatement impracticable? 1. I have given serious consideration the views expressed by Ms Maklouf, Mr Lyth, Ms Burke and Ms Vizas as to the impracticability of reinstating the applicant. These opinions carry considerable weight. However, to some extent at least, their opinions were affected by not according sufficient weight to the applicant's mental state following the first assault on him by Khaled and the impact of that assault on the applicant's poor judgement in not withdrawing from the scene sooner. 2. In the case of Ms Maklouf, her opinion as to the impracticability of reinstatement was also affected by her erroneous view that the applicant caused the second assault by punching Khaled first and that this was not a defensive action on the part of the applicant. 3. I believe that the applicant has learned a very important lesson from this experience and is unlikely to misconduct himself in a similar fashion in the future. He deserves another chance. 4. It Is my determination that the applicant is to be reinstated to the position he held at the time of his dismissal. Because the applicant was not without blame in relation to the matters which led to his dismissal, I do not propose to make any order for payment to the applicant for the period between his dismissal and his reinstatement. 5. I also propose to allow a short period of time of approximately two weeks for the Council to make the necessary arrangements for the reintegration of the applicant back into its workforce or to otherwise consider its position with respect to this decision. Orders 1. I make the following orders: 1. Bassam Alameddine is to be reinstated to the position he held with the City of Parramatta Council immediately before his dismissal on 11 January 2017 on the same terms and conditions as applied to his position at that time. 2. Order 1 is to take effect from Monday, 14 August 2017. 3. No order is made for payment to Mr Alameddine for the period between the time of his dismissal and 14 August 2017, which period is not to count as service for any purpose. 4. Despite order 3 Mr Alameddine's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders 1 and 2. John Murphy 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: 27 July 2017