Favorito v Wollongong City Council [2018] NSWIRComm 1070

Industrial Relations Commission New South Wales Medium Neutral Citation: Favorito v Wollongong City Council [2018] NSWIRComm 1070 Hearing dates: 2, 23 and 24 August, 17 October 2018 Decision date: 15 November 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application of Romeo "Ray" Favorito is dismissed Catchwords: UNFAIR DISMISSAL – Parking Ranger – previous Step: 3 Final Warning (Written) – acted in an aggressive, abrupt and rude manner towards a member of the public – misconduct – dismissal not harsh, unreasonable or unjust – application dismissed Category: Principal judgment Parties: Romeo "Ray" Favorito (Applicant)

Wollongong City Council (Respondent) Representation: Mr S Geddes, United Services Union, (Applicant)

Mr C McElroy, Local Government NSW, (Respondent) File Number(s): 2018/00113431

DECISION 1. The applicant, Romeo "Ray" Favorito, was employed by the respondent, Wollongong City Council, as a Parking Ranger on a full-time basis up until the date of his dismissal, 6 April 2018. Prior to his dismissal, the applicant received a letter on 22 March 2018 signed by Tom Tyrpenou, the respondent's Manager, Human Resources. That letter referred to a recent complaint from two members of the public regarding allegations of inappropriate behaviour by the applicant. The letter stated: Specifically, the following allegations were made: 1. On 6 February 2018, at approximately 10;12am, in patrolling the Market Street/Richardson Street, Wollongong area you approached Ms Kye Mitchell who was waiting to be picked up by Mr Malcolm Rodgers, an Uber Driver, and said in an aggressive, abrupt and rude manner, words to the effect, 'you cannot be picked up in this street and the cars cannot stop here', you then proceeded to record an infringement notice for Mr Rodgers vehicle. 2. Mr Rodgers after hearing Ms Mitchell account of her interaction with you on the footpath has then attempted to explain the situation to you and in a similarly aggressive, abrupt and rude manner you responded to Mr Rodgers by saying "You cannot stop here to pick up anyone" and continued by saying "I have taken your photo and you can argue with the Magistrate in Court". 1. The letter went on to advise the applicant that the respondent had undertaken a fact finding investigation into the allegations and had determined, on the balance of probabilities, that they had been substantiated and that the applicant had breached the Council's Code of Conduct. The applicant was called upon to show cause, in writing, why his employment should not be terminated on the grounds of misconduct, taking into account that he was "currently on a Step 3 Final Disciplinary Warning". 2. Written representations were made by the United Services Union on behalf of the applicant and by the applicant himself in which he refuted the allegations. 3. Following consideration by the respondent of the applicant's response, as well as his employment history, it was determined that the applicant's employment would be terminated with effect from 6 April 2018. It is as a consequence of that determination that the applicant has brought these proceedings seeking reinstatement to his former position or, in the alternative, re-employment to another position or, in the further alternative, monetary compensation.