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. Background 1. The applicant commenced employment with the respondent on 14 January 2014. His employment history has not been without incident. 2. The applicant received a disciplinary warning over concerns about his conduct in July 2014. These concerns related to parking infringement notices issued by the applicant which contained errors or which did not comply with the respondent's procedures. 3. On 24 August 2017, the applicant received a letter from Mr Tyrpenou containing a series of allegations against him, which were collectively described as: 1. allegations of bullying and harassment towards Mr Fabian Marcelletti (Parking Ranger); 2. allegations of undermining Ms Kathy Frangoff (Parking Ranger) during her tenure as Acting Coordinator and behaving dishonestly; and 3. allegations of bullying and dishonest conduct towards Mr James Furlong (Parking Ranger). 1. These allegations arose out of incidents which occurred in June and August 2017. 2. By letter dated 21 September 2017 signed by Mr Tyrpenou, the applicant was advised that five of the six allegations against him had been substantiated and that the respondent was considering terminating his employment due to misconduct and the damage his actions had caused to the employment relationship between himself and the respondent. The applicant was invited to provide any response as to why the respondent should not consider terminating his employment. 3. After consideration of the applicant's response, and noting from his Human Resources file that similar concerns had been raised with him in July 2014 which resulted in the applicant receiving a "stage 2 disciplinary warning" and that his conduct and behaviour subsequently improved, the respondent determined to not dismiss the applicant but to place him on a "stage 3 disciplinary – final warning for a period of twelve (12) months". The applicant was advised by letter from Mr Tyrpenou dated 6 October 2017 as follows: These type behaviours and conduct will not be tolerated in the workplace and Council requests an immediate and sustained improvement not just over the next twelve months but for the term of your employment. If a further incident of inappropriate behaviour or conduct occurs during the next twelve-month period and is substantiated, you may be moved to a higher stage of discipline, which may result in the termination of your employment. Incident on 6 February 2018 1. On 7 February 2018, one of the respondent's councillors received a written complaint from Malcolm Rogers, an Uber driver, concerning an incident involving the applicant which occurred the previous day in Richardson Street, Wollongong. 2. According to Mr Rogers, he drove his vehicle into Richardson Street, slowed down and picked up his passenger, Kye Mitchell, whom he had earlier dropped off at the same location. After getting into the car, Ms Mitchell told Mr Rogers that a Parking Ranger, who was later identified as the applicant, had spoken to her and told her that she could not get picked up at that spot because it was a "No Stopping" zone. There are conflicting versions of what then occurred. 3. According to Mr Rogers, he did a "U" turn and pulled up on the opposite side of the road from where the applicant was standing, wound down his window and politely asked the applicant if there was any problem. Mr Rogers' written complaint then continued as follows: At this point the Officer said in an extremely abrupt manner "You cannot stop here to pick up anyone" I then politely said to him "I didn't stop my vehicle nor did I park in a No Stopping Zone" Kye also said this to the officer. I replied to him that this young lady has just spent 2 days in hospital after being robbed and assaulted by a group of youths and I have to take her back to the hospital". The officer in a very rude manner then said "I have taken your photo and you can ague this with the magistrate in court". He showed absolutely no remorse for his actions and his aggressive tone of voice. 1. According to the applicant, Mr Rogers did stop his vehicle in the "No Stopping" zone when he picked up Ms Mitchell. The applicant also claimed that it was Mr Rogers who spoke aggressively to the applicant claiming that he had not stopped his vehicle in the "No Stopping" zone. Evidence of the applicant 1. The applicant was the only witness to give evidence in support of his unfair dismissal application. 2. In his witness statement, the applicant stated as follows: 2. On the 6th February 2018 I was rostered with my colleague Mr Kieren Fernie to patrol area 1 in the Wollongong CBD which includes Market and Richardson St, Wollongong, an area that we have frequently patrolled. At approximately 10a.m. my partner Mr Kieren Fernie and I commenced patrolling the corner of Market Street and Richardson Street. 3. Whilst Mr Kieren Fernie was in the process of issuing an infringement nearby on Market St out the front of the Sifters Collective business… I noticed a vehicle parked in a "No Stopping" area along Richardson Street. This prompted me to walk up the street to investigate and possibly issue a fine. When I approached I saw there was a driver in the car. I asked the driver if she could move as it was within a restricted parking area. 4. Once the vehicle moved I then noticed a lady, who I now know as Ms Mitchell, standing at the kerb waiting to be picked up. I advise her that she was not permitted to be picked up at this location due to it being a no stopping zone. I politely said words to the affect, "madam if you are intending to be picked up at this location it is not permissible as it is within a "No Stopping" zone". 5. Ms Mitchell turned her head and looked at me. I believe she heard what I had said, but chose to remain at this location. No response was provided. To ensure that Ms Mitchell understood what I had said, I again explained the requirements of a "No Stopping" area; that it is illegal and is unsafe to be picked up at this location; and it is a breach of the traffic restrictions and this will incur an infringement notice to the driver if it is breached. 6. Ms Mitchell remained in this location and I believe ignored the advice I gave her. During this conversation I was polite and courteous, there was no argument nor did I attempt to intimidate or harass her. Further no mention was made of Ms Mitchell or her partner's injuries as she has alleged in her statement provided to council... She continued to remain in this location to be picked up. 7. As a responsible Parking Ranger I have a clear duty of care to ensure that I maintain the traffic compliance on behalf of Wollongong Council and that pedestrians and drivers are safe. Stopping in a "No Stopping'' area is a serious offence; with a penalty is $257. A "No Stopping" sign is clearly identifiable as it is coloured red indicating danger As a Parking Ranger, I did advise Ms Mitchell of the traffic requirements on two occasions and I also advised her of the consequence if there was a breach of the "No Stopping" area. Members of the public are approached regularly where there is a potential for a traffic breach or safety concern in similar environments for example like monitoring no stopping area in school zones and if required drivers are issued with a fine if there is a breach. This practice is a standard procedure across Wollongong Council and it has never been bought to my attention that there is a concern with this action. In particular Richardson Street being a public street that is managed by Wollongong City Council and the "No Stopping" signs were installed by Council and my role is to ensure that there is compliance with the restrictions. This a high traffic flow area with a car park entrance at the end of the immediate street. Cars frequently pull over and do U-turns in this street and there are regularly pedestrians moving around... 8. At no stage did Ms Mitchell offer any explanation of her circumstances as stated in her statement to council… or suggest any cause for distress that may have explained her actions. My intention was to not to issue an infringement but to offer assistance and I provide a detailed an explanation to the danger with being picked up in No Stopping zone and to provide an alternate location across the road which was a safer option and lawful. If Ms Mitchell had disclosed any health concerns I would have immediately helped her across the street to the driveway to a safer alternative and explain to the driver, the dangers of picking up passengers in a No Stopping 9. Immediately after my conversation with Ms Mitchell a car pulled up into the "No Stopping" Zone, which had a male driver behind the wheel who I now know as Mr Rodgers. I saw a white wagon stop in the "No Stopping" area, Ms Mitchell walked onto the road and got into the vehicle. As is Councils standard protocol I took photos of the parking breach which clearly shows the vehicle in the area with the brake lights on and the door opened where Ms Mitchell alighted the vehicle, the Stop sign and registration number are also clearly displayed... 10. It would have been obvious to the Mr Rodgers that I was a Wollongong City Council Ranger as I was clearly identifiable in my Council issued uniform and I was standing in an area that was clearly marked "No Stopping". Both the driver, Mr Rodgers and the passenger, Ms Mitchell continued to proceed with their stop and pick up and chose to completely disregard what had been advised to Ms Mitchell or what is expected from a driver under the roads and traffic act in accordance with his licence requirements. 11. After Ms Mitchell entered the vehicle, Mr Rodgers made a "U" turn and stopped on the opposite side of Richardson Street again in a "No Stopping" zone... 12. While stopped, in the No stopping area on the other side of Richardson Street Mr Rodgers, called out in an aggressive tone words to the affect of, "I was not stopped, I was not stopped," and he was looking for a response. I stayed on the opposite side of the road and did not approach his vehicle. I responded words to the affect "Sir you were stopped. You will receive the infringement in the post and this can be disputed with State Debt Recovery in a local court as outlined on the back of the infringement notice". This is standard process and procedure as outlined by Acting Co-ordinator Peter Feberwee in his email on the 17th of January 2017... 13. As I recall that was the end of the conversation and I did not wish to engage any further as he was still illegally parked at this point. He then drove off. At no stage was I rude, aggressive or abrupt with Ms Mitchell or Mr Rodgers. At all times I tried to diffuse the conflict to avoid any stress or to compromise my personal safety as I remained on the opposite side of the road. 14. I dispute Mr Rodger's claims that at this point he informed me about injuries that had been sustained by Ms Mitchell as seen in his statement provided to council prior to the current proceedings... While the interaction did occur I did not behave in the manner that has been described by Wollongong Council, Mr Rodgers or Ms Mitchell. 15. After this incident at approximately 10.02a.m, I walked back to my colleague Kieren on Market Street and recounted to him what took place between myself, Mr Rodgers and Ms Mitchell. 16. Later the same day, at approximately 10.30am, Mr Kieren Fernie and I were patrolling Young Street which is perpendicular to the end of Market Street. I was in the process of issuing an infringement on a vehicle when a male walked up and stood very close to me and asked for my name. He was aggressive and appeared to be attempting to intimidate me. I stopped what I was doing and I replied, in a in a courteous manner, "My name is Ray, and can I please ask why you want to know my name". The male said, "I am the driver you booked in Richardson Street". I now know as Mr Rodgers. Mr Rodgers then asked me for my last name. I said," I do not have to give you my last name Sir, I am the only Ray in our office and my supervisor knows who I am". Mr Rodgers did not ask me for my identification which I keep in my front pocket. I would have shown Mr Rodgers my identification if asked. 17. I then said to Mr Rodgers, in a calm voice, "You picked up a passenger in a No Stopping''. Mr Rodgers said, "I was not stopped, I pulled up behind a truck. The young lady getting into the car was going to the emergency ward and was assaulted". Mr Rodgers continued to aggressively rant at me insisting that he did not stop within the "No Stopping" zone and proceeded to advise me of the medical condition of his passenger who was allegedly assaulted previously. 18. I handed Mr Rodgers the infringement notice and advised Mr Rodgers that he should make representation to the local court for a review of the penalty and offered advice of the correct procedure, attaching relative documentation. I further advised him that I could show him the photos that I took of the event so that he was fully informed of the breach. Unfortunately he refused my offer and abruptly said, "No I don't have time for this", and left. 19. In Mr Rodgers's letter to council… he wrote the following. "In a very harsh and intimidating tone he told me his name was Ray". This is untrue and is a distortion of events. My colleague and partner on the day Mr Kieren Fernie, was present during this conversation and Mr Kieren Fernie's statement, reads as follows, "Ray spoke to the male in a calm and professional manner and even offered to show him the photo of his vehicle and explain the offence; however by this time the male appeared flustered and agitated."… 20. Mr Rodgers's appeared angry when he was made aware that he was caught picking up a passenger in a "No Stopping" area and will receive an infringement and I feel has attempted to pass blame onto me to avoid the penalty. It is very common for members of the public who have received an infringement to retaliate against the issuing Parking Ranger with accusations of inappropriate conduct once the infringement is received &/or proven. I felt that Mr Rodger's attempted to intimidate me after he received the fine as he was loud and aggressive in his demeanour in an attempt to not receive a fine. Evidence of the respondent 1. The respondent called nine witnesses in the proceedings. Malcolm Rogers 1. Mr Rogers' witness statement contained the following: 11. At 10.18 am I turned from Market Street into Richardson Street and I noticed Kye waiting for me on the footpath. I also noticed a Parking Officer standing against the wall of the building on the left hand side of Richardson Street. 12. I drove slowly at 5 kilometres per hour up the street toward the 15 minute parking spaces but the spaces were taken. At this time there was a van driving in front of me, proceeding slowly into the loading dock of Crown Central. 13. I saw Kye look toward my vehicle and she walked onto the road as if she was approaching to get into the car. I know that on my left the area was sign posted "No stopping". I didn't stop in the no stopping zone, as the van was still in from of me and I had slowed down to approximately 1-2 kilometres per hour with the intention of turning around once the van had entered the loading dock. 14. Before Kye came across to my vehicle I saw the parking officer appear to speak to her. Kye then got into my vehicle which was still moving very slowly. I did not disrupt the traffic or the foot traffic in this area. 15. Once Kye was in the vehicle I said "What did the Parking Officer say" She said "He said I couldn't get into the vehicle from here". At this time I was turning around as the van had entered the loading dock. After I had turned around I opened my window and said to the Parking Officer "Is there any problem? He said in an extremely abrupt manner "You cannot stop here to pick up anyone". I said politely "I didn't stop my vehicle nor did I park in a no stopping zone". I heard Kye repeat to the officer words similar to what I had said. 16. I replied to him that this young lady has just spent 2 days in hospital after being robbed and assaulted by a group of youths and I have to take her back to the hospital". The officer in a very rude manner then said "I have taken your photo and you can ague this with the magistrate in court". He showed absolutely no remorse for his actions and his aggressive tone of voice. 17. I then drove away and took Kye back to the hospital. This situation made Kye very anxious and further added to the stressful situation which she was in. She said to me "I am sorry about about this, you were doing me a favour, I hope you don't get fined. No one deserves to be spoken to like that especially by a Wollongong Council employee." 18. I then was driving in Young Street after I dropped Kye back to the hospital and I noticed the parking officer, who I now know to be Ray Favorito. So I parked my car and I approached him. He looked like he was writing details for an infringement for a nearby car, and asked me of it was my vehicle. I said "No, I want to talk to you about the incident in Richardson Street". I couldn't see any identification. I explained who I was and what just had occurred and the situation with Kye. I said "Can I please have your name" In a very harsh and intimidating tone he said "My name is Ray, I do not have to give my surname. Why do you want to know my name?" 19. I said "It is in in relation to the incident in Richardson Street I was going to contact his supervisor. Ray said "Just say Ray as he knows who I am. He said "I will show you the photos." I said to him "I don't need to see them." He then handed me the Penalty Notice, infringement number : 3174686424. In doing so he moved his arm quickly and forcefully. 20. I then very calmly walked away and shortly after contacted Wollongong City Council. The customer service person took all my details and told me Stuart would call me back after his meetings. Stuart called me. He identified himself as a supervisor. He said he was understanding of situation and the circumstances that myself and Kye Mitchell faced. He also said "Any aggressive behaviour towards the public by my Parking Officers is not acceptable and I will be raising the matter with Ray." 21. I also said to Stewart "Do I have the right to ask the officer's surname?" He said "They don't give their surname but Ray does carry official ID on him and he should have showed you the ID." 1. Under cross-examination, Mr Rogers conceded that, when he picked up Ms Mitchell, his vehicle may have stopped "very, very briefly". Otherwise, Mr Rogers maintained that it was the applicant who had behaved in a very rude manner towards him. Stuart Boyle 1. Stuart Boyle has been employed by the respondent as the Ranger Services Coordinator since 13 November 2017. Mr Boyle gave evidence about the correct procedures which are to be followed by Parking Rangers. His witness statement contained the following: 8. Shortly after commencing in this role I was made aware of some of the practices around issuing penalty notices to drivers without even attempting to engage with the person or give the person a chance to explain why they may have been parked illegally. This process is called a "post out". 9. Through general discussions I was first made aware of this process from the parking rangers that I manage. When I first commenced with Wollongong Council I was trying to understand the procedures that were in place, as they were very different to the procedures I was used to in my previous employment, so I was continually asking questions and getting them to explain the current processes to me. 10. This process (of "post outs") was implemented prior to me commencing, and as I understand it was an attempt to minimise contact with members of the public in areas such as school zones. The process involves taking a number of photographs of the person committing the offence and rather than engaging with the person directly. The Ranger will then return to the office and post the infringement out in the mail. 11. I made it very clear to the entire team I want Parking Rangers to interact with members of the public and if possible speak with drivers who may have been parked illegally to find out why, even in locations such as school zones. 12. I appreciate that prior to me commencing, there was standing work instruction, "Issuing Penalty Notice through Australia Post" which instructs Rangers that it is acceptable to issue an infringement notice after the event in certain circumstances, including where it is unsafe to do so… However as part of a management team I made it very clear that unless these circumstances were present, Parking Rangers were to engage with members of the public as this is part of the provision of customer service. 13. Although I was not directly involved in the disciplinary action taken against Ray concerning the incident with Mr Rogers on 6 February 2018, having reviewed some of the circumstances I believe that Ray Favorito breached numerous procedures and work instructions and acted in a manner that is not acceptable in his position as a Wollongong City Council Parking Ranger. ………………………….. Response to the Statement of Ray Favorito 17. I refer to the statement of Ray Favorito made on 15 June 2018. 18. I refer to paragraph 3. I note Ray states, "I noticed a vehicle parked in the "No Stopping" area along Richardson Street. This prompted me to walk up the street to investigate and possible issue a fine. When I approached I saw that there was a driver in the car. I asked the driver if she could move as it was within a restricted area." 19. In doing this Ray has breached the Parking Enforcement Procedure SOP… and placed his partner (Kieren Fernie) at risk by leaving Kieren who was in the process of issuing a penalty notice to another vehicle and walking off losing audible contact and possibly visual contact. Ray failed to document any interaction with this driver or even record a registration in his notebook to confirm this driver was given a verbal warning. 20. I refer to paragraph 9. The photographs taken by Ray using the "Pinforce" application, and attached to his statement… appear to have been taken from the road. 21. Given the way the photographed vehicle is facing, it is likely Ray stepped onto the roadway with his back to the oncoming traffic. This is in breach of the Parking Enforcement Procedure SOP which requires that duties not be conducted from the roadway. 22. I believe that when Mr Rogers asked Ray a question after turning around, rather than yelling at Mr Rogers from across the road Ray could have walked across the road and engaged Mr Rogers as he had been directed to do and just like he had previously done with the female driver a few minutes earlier. Mr Rogers could have explained his actions and the reasons for them, which I believe are quite justified and rather than issue a penalty notice, Ray may have chosen to issue a warning. 23. As an authorised officer Ray has the ability to use discretion and issue cautions, which in this case I believe was the correct course of action to take based on the information provided by Mr Rogers. 24. The two main points I have identified with Ray's behaviour on this occasion was the fact his decision making was very inconsistent and could be perceived that he had favoured the female driver, by allowing her to drive off without issuing a penalty notice or even documenting any interaction and he targeted the male driver by not accepting the exact same behaviour and issuing a penalty notice. The other main point is the numerous breaches of procedure and placing his partner and himself at risk by walking off and not working as a team. 25. I note that in his application Ray seeks reinstatement and that the Commission can order that remedy unless it is impracticable to do so. 26. If Ray was reinstated I would have significant concerns about his ability to work as a team with other Rangers, and to comply with Council's requirements concerning behaviour, including interactions with members of the public. I form this view based on my understanding of the disciplinary matters Ray has been involved in, and complaints from members of the public. 1. Mr Boyle was cross-examined but did not waiver from his evidence in chief. Kathleen Frangoff 1. Kathleen Frangoff is employed as a Parking Ranger by the respondent. She commenced her employment with the respondent in 2006 and has held a variety of positions since that time, including Acting Parking Coordinator. 2. Ms Frangoff's witness statement contained the following: 3. There was an occasion I was working with Ray Favorito, we parked at Stuart Park and there were a number of ethnic men and women near vehicles parked on the grass. Ray said "I am going over to speak with them" I said "Can you wait until I have used the amenities. 4. By the time I had come out Ray had disregarded my advice and had gone over to them and I saw Ray being pursued by about five or six men. 5. We had to run to the ranger vehicle where these men surrounded the car and would not let us leave. This placed not only Ray in an unsafe environment but also me. 6.When I worked with Ray Favorito in our allocated area South on one occasion we came to an area of no stopping signs near a building site where all the trucks and cars were parked in this area and I could see tradesmen in the area. 7. I was driving and Ray Favorito said "Drop me off and I will take photos." I said "No we will speak with them and ask them to move their vehicles", which I did and they moved them." 8. I have also seen him ignore some colleagues. 1. Ms Frangoff then dealt with a number of customer complaints which had been made against the applicant, including a number of instances where the applicant had refused to comply with an instruction issued by her in her capacity as Ranger Services Coordinator (Acting) to the effect that Parking Rangers were to speak to the drivers of illegally parked vehicles and ask them to move before taking photos of the vehicles for the purpose of issuing an infringement notice. Ms Frangoff referred to four separate complaints received by the respondent concerning incidents which occurred during May, June and July 2017. 2. Ms Frangoff claimed that the applicant had shown total disregard for her instruction on the issue of speaking with drivers. Roberta Costa 1. Roberta Costa is a Parking Ranger employed by the respondent and has been for approximately seven years. Ms Costa gave the following evidence: 2. I have worked alongside Romeo (Ray) Favorito on many occasions during the past four and a half years. 3. I have personal experience of Ray behaving in an in appropriate, and antagonistic, way toward the general public, but also towards work colleges including myself. 4. On more than one occasion, whilst working with Ray, I have witnessed him antagonise the public by deliberately going out of his way to take photos of a vehicle whilst the driver was in his vehicle. One of the methods for proving parking infringements is to take photos of an infringeing vehicle, including vehicle indentifiers such as a number plate. 5. We have been instructed by Council supervisors in the first instance to try and gain compliance by requesting that the vehicle be moved, where a vehicle appears to have infringed, and a driver is present. Ray did not do this. He would commence to take photos without discussing in the first instance. 6. I have also witnessed Ray on multiple occasions further antagonise the public by frantically pointing to road signs in the vacinity of parked vehicles with the driver in attendance and say in a rude condenscending manner words to the effect of "You see that sign; do you see it?" "Can't you read?" "You are disrespecting that red sign." 7. I have made written complaints to management about Ray's behaviour. Ms Costa then dealt with a particular complaint she made against the applicant in November 2017 about the applicant's behaviour when working with her. Ms Costa's witness statement continued as follows: 9. Following that complaint I met with Ray and Daniel Madigan and Daniel Kennedy in an attempt to resolve the issues I had complained about. I recall that Ray denied that he had treated me as alleged, but agreed to "let things go" and move on. After this meeting however similar behaviour continued. When Ray saw me at work he would look down, and if no one else was present he would not acknowledge or talk to me. 10. As a result of Ray's behavior I conveyed to management that I didn't wish to be rostered on with him. One of my concerns was a heightened safety risk because of the way he intereacted with the public. 11. It has been explained to me that the Commission has the power to reinstate Ray if his application is successful. If that happened I would be very anxious about being required to work with Ray given his past behavior, both in relation to parking infringements, and his treatment of me... James Furlong 1. James Furlong has been employed as a Parking Ranger by the respondent since January 2014. He gave the following evidence: 4. During my time working in parking I observed Ray to be unwilling to engage members of the public in a respectful and courteous manner concerning parking matters on numerous occasions. 5. Details of parking infringements are recorded by parking officers on devices called personal digital assistants. On occasions I observed Ray continuing to enter infringement detail on his personal digital assistant and look at the device, and take photos of vehicles, when members of the public were trying to discuss the parking matters with him. 6. I observed Ray running towards illegally parked vehicles, while the person who was obviously the owner or driver was present in the vehicle and taking photos of the occupied vehicles without engaging the driver on numerous occasions. 7. In June 2017, Ray and I returned to the office following a shift and was advised by acting Parking Coordinator Kathy Frangoff of a customer complaint. 8. The complaint involved a parking incident whereby Ray had taken photos of a vehicle occupied by a female illegally parked. Kathy said "The female was on a mobile phone to road service due to mechanical issues." 9. During my following shift with Ray, I said to Ray "Kathy advised me that she would be sending an email reminding the team to engage members of the public in attended vehicles before taking pictures." 10. Ray replied "I don't give a shit, I am going to continue to do it". I replied "Ray, be careful, this is a directive and it is not the way to behave". 11. Soon after this conversation I advised Kathy of this discussion and she told me that she would discuss this with Ray. 12. I then had a conversation with Kathy where she said to me "I spoke to Ray about what you said about engaging with members of the public and his response, and he denied saying it." 13. This made me feel uncomfortable and I advised Kathy I was no longer comfortable working with Ray. 1. Mr Furlong then referred to other incidents which had occurred between himself and the applicant in which the applicant behaved in an inappropriate manner towards Mr Furlong, which ultimately led to him to taking time off work due to "work related stress". Mr Furlong was cross-examined but was not challenged as to the truth of the matters set out in his witness statement. Josette McIlquham 1. Josette McIlquham has been employed by the respondent as a Parking Ranger since July 2016. Her witness statement contained the following: 3. Personally I did not have a problem working with Ray but professionally I found him difficult at times due to his behaviour towards the public and his inability to interact professionally with them. 4. I experienced a very traumatic and upsetting situation whilst working with Ray one Saturday morning. 5. On 17 December 2016 we witnessed a truck driver delivering furniture who was parked in a no stopping area. When we work in pairs normal procedure is to take it in turns to issue infringements. I said to Ray "I won't infringe, there is nowhere else to park, he is not causing a safety issue and it is a quiet street and quiet morning". 6. Ray said "I will do it." He didn't seem to take notice of what I had said. Ray proceeded to start taking photos of the offence. Whilst doing this the driver returned to the vehicle and started shouting things like "What the fuck are you doing! You can see what I'm doing, you're a fucking idiot mate." The driver went from zero to a 7 in the space of 5 minutes with his anger which to me was a clear indication that we should just leave. 7. The driver then then went back into the building giving us time to leave the area but Ray proceeded to complete the infringement instead. The driver returned again and by this time was at a level 10, yelling abuse and becoming very threatening. Again instead of trying to talk to the driver or disengaging as we had been taught, Ray continued to prepare the infringement by working off his personal digital assistant, the device used to record infringements. 8. The driver then tried to take his device out of Ray's hand and it was going to become physical until I stated that I was going to call the Police. During this situation Ray didn't speak to or engage at all with the driver. 9. We finally got to our car but by then another male person came out of the building also, who appeared to be with the other male. This second male spat all over the windscreen of our car and then got in the truck and reversed back beside us and blocked us totally in so we could not move. At this stage I was extremely upset and feared greatly for my safety. They finally drove off and we waited for the Police to arrive. About 10 minutes after the truck left the Police arrived. We were asked if we wanted to take the matter further. My view was that although the men with the truck were abusive and threatening, Ray's actions had contributed to the incident. 10. This whole incident made me question if I wanted to continue in my role as a Ranger. I went home in tears and extremely shaken up. I thought when I started the job that I could experience some bad experiences from the public but I never thought that a fellow colleague would be the cause of it. Ray had his photos and when the driver went back into the building we could have just left the area and posted the fine out in the mail but he continued and in doing so not only put his life in danger but mine as well. 11. This incident was reported to my Coordinator at the time, Mick Kelly… 12. I witnessed Ray on numerous occasions taking photos of offences and not engaging with the public and on occasion when the public tried to talk to him, ignoring them. 1. Ms McIlquham was not required for cross-examination. Daniel Madigan 1. Daniel Madigan commenced employment with the respondent as the Manager, Regulation and Enforcement, on 6 November 2017. Mr Madigan's witness statement detailed his involvement with disciplinary and performance issues arising from a complaint by Ms Costa against the applicant in November 2017. Mr Madigan was also involved in the investigation into the incident which occurred on 6 February 2018 between the applicant and Ms Mitchell and Mr Rogers. 2. In his witness statement, Mr Madigan stated as follows: 38. Should Ray's application be successful and the Industrial Relations Commission determine to reinstate Mr Favorito it would have a negative impact on the immediate workforce (ie rangers in Regulation and Enforcement) and will be detrimental to workplace culture given the number of staff that have raised difficulties with his behavior and attitude. 39. Also, Ray has not demonstrated any interest or capacity to change his behavior and attitude towards the public which have been the subject of complaints made about him, and re-occurrences of the same nature are likely. 1. Mr Madigan was not required for cross-examination. 2. Evidence was given by Mr Tyrpenou about the disciplinary process which led to the applicant's dismissal. 3. Evidence was also given by Heather Kennedy, the respondent's Right to Information Officer, about dealings she had with the applicant following his dismissal. Evidence of the applicant in reply 1. In a reply witness statement, the applicant refuted the evidence given by Mr Rogers concerning the incident on 6 February 2018 and maintained that, while speaking to Ms Mitchell and Mr Rogers, he was not rude, aggressive or abrupt. 2. The applicant also took issue with aspects of the evidence given by Mr Boyle and Mr Tyrpenou but did not otherwise respond to the evidence given by the respondent's other witnesses. Who's telling the truth? 1. There is a fundamental difference between the accounts given by the applicant and by Mr Rogers of the incident in Richardson Street on 6 February 2018. Unfortunately, the only other person present during this incident, Ms Mitchell, did not give evidence in the proceedings, despite efforts by the respondent to have her attend pursuant to a subpoena to attend and give evidence. 2. If the evidence of Mr Rogers is to be believed, then allegation 2, set out at [1] above is substantiated. If the evidence of the applicant is preferred, then allegation 2 is not substantiated. I prefer the evidence of Mr Rogers over that of the applicant for the reasons set out below. 3. To my observation, Mr Rogers gave his evidence in a frank and forthright manner. He had no motive for making things up or exaggerating his account of what occurred. His account remained consistent as to the manner in which the applicant conducted himself, from 7 February 2018, when he first made a written complaint, up until the time of giving his evidence before the Commission. 4. On the other hand, I formed the view that, in giving his evidence, the applicant was evasive and unwilling to concede that there were clear inconsistencies in his story. I set out one example below. 5. In his written reply to the complaint made against him by Mr Rogers, the applicant stated as follows: Patrolling Area 1, I was partnered with Kieren who commenced infringing a vehicle parked on Market Street opposite Richardson Street when I saw a vehicle stopped in a No Stopping on Richardson Street. I went to the vehicle and saw a lady sitting in the driver's seat. I said to her, "Madam you are in a No Stopping, if you do not move I will have to book you". The lady thanked me and drove off. 1. The applicant made a similar statement at paragraph 3 of his first witness statement filed in these proceedings (see [16] above). 2. However, in his reply witness statement, the applicant took issue with paragraph 11 of Mr Boyle's witness statement (see [20] above) and stated as follows: 11. I disagree with the statement in paragraph 11 I was never spoken to by Stuart Boyle about more interaction with members of the public. The existing practice was to avoid contact to minimize the risk of conflict and his desire to engage with people could put rangers at risk. He may have mentioned it other parking rangers but not to me. I also try and interact with all members of the public. This is a feature of the parking ranger and I trained all new members (12 parking and foreshore rangers) to interact with the public. As My Boyle stated, "to interact with members of the public and if possible speak with the driver who may have been parked illegally. It was not possible for me to engage with the driver, Mr Rogers because, after Ms Mitchell entered the vehicle, Mr Rodgers made a "U" turn and stopped on the opposite side of Richardson Street again in a "No Stopping" zone. I will not speak to customers who are illegally parked, as this will only prolong the safety concerns. Also while stopped, in the No stopping area on the other side of Richardson Street Mr Rodgers, called out in an aggressive tone words to the affect of, "I was not stopped, I was not stopped," and he was looking for a response. I stayed on the opposite side of the road and did not approach his vehicle. I responded words to the affect sir you were stopped. You will receive the infringement in the post and this can be disputed with State Debt Recovery in a local court as outlined on the back of the infringement notice". This is standard process and procedure as outlined by Acting Co-ordinator Peter Feberwee in his email on the 17th of January 2017… (emphasis added) 1. During cross-examination, the applicant was taken to this obvious inconsistency in his evidence. The following exchange occurred: Q. And in relation to that matter, you say that you exercised discretion that is open to you to ask that driver to move rather than issue an infringement, correct? A. Correct. Q. In circumstances where in your mind it was pretty clear that the offence had been committed because the vehicle was stopped, yeah? A. Well the person was there, heard what I had to say, and moved. …………………………. Q. You exercised your discretion not to issue an infringement to the driver of this first vehicle that you saw, correct? A. Correct. Q. And you did that, that is, you exercised your discretion knowing that the vehicle had in fact infringed? A. The vehicle was stopped there, spoke to the driver, the driver obliged to move and drove away. Q. Right but I just take you back, before you spoke to the driver, in your mind that vehicle was doing the wrong thing because it was stopped in a no stopping zone, correct? A. Correct. Q. You would not have approached the driver to say anything to them I would suggest to you unless you thought that that vehicle was doing something wrong, correct? A. Correct. Q. Or the driver was doing something wrong, correct? A. Correct. Q. And you didn't have any discussions with the driver about the circumstances, why she was stopped, correct? A. I simply pointed out the person is in a no stopping and they moved. If there was no one in that vehicle, I would have infringed the vehicle. Q. Right, so just so I'm clear, your answer then was if there was no one in the vehicle you would have infringed the vehicle? A. I have to do my job. Q. And just on that point, you have on other occasions have you not, prior to this incident on 6 February, done things like take photos of vehicles with drivers in them for the purposes of issuing infringement notices? A. We do it at schools, constant. Q. So that's yes, is that your answer? A. Yes we, yes it is part of your job. Q. Right on occasion, thank you? A. Yeah. Q. Can you have a look at paragraph 11 of your second statement filed on 27 July, which is exhibit 3. Do you have paragraph 11 there? A. Yes. Q. Can you have a look about midway through, shortly after midway through that paragraph, there's a sentence that commences, "I will not speak to customers who are illegally parked", so you see that? COMMISSIONER: Sorry Mr McElroy, where are you now? MCELROY: I'm on paragraph 11 of exhibit 3 and it's a lengthy paragraph but I'm about midway through it and there is a-- COMMISSIONER: Yes, I see that. MCELROY Q. So Mr Favorito, do you see the words there, "I will not speak to customers who are illegally parked as this will only prolong the safety concerns"? A. I'm sorry, I don't know where we are. Is it the first statement. Q. No the second statement? A. Okay, second statement. Q. And it is paragraph 11? A. Right. Q. And you will see shortly after midway down through that paragraph there is a sentence at the end, "I will not speak to customers who are illegally parked as this will only prolong safety concerns", do you see that? A. Yes. Q. And that's entirely inconsistent with what you did when you approached the vehicle that I asked you questions about earlier on 6 February, isn't it? A. Say it again? Q. It is entirely inconsistent? A. No. Q. It's not, how is it not? A. Well I asked her to move, to remove her vehicle that was in a no stopping. Q. Right, illegally parked, correct? A. Yeah, I asked her to move. Q. How is that on any level consistent with the words in paragraph 11, "I will not speak to customers who are illegally parked"? A. I saw the lady there, I asked her to move. Q. She's illegally parked, she's in a vehicle, illegally parked, correct? A. Correct. Q. You approached her and asked her to move, correct? A. Yes. Q. And you say at paragraph 11, "I will not speak to customers who are illegally parked", those two things are inconsistent, are they not? A. Not under those circumstances, no. Q. You say it depends on the circumstances? A. Absolutely. 1. I found this and other parts of the applicant's evidence utterly unconvincing. 2. I am supported in my preference for Mr Rogers' evidence over that of the applicant in that the applicant's conduct in Richardson Street on 6 February 2018, as described by Mr Rogers, was consistent with the conduct described by the applicant's work colleagues who gave evidence in these proceedings (Costa paragraphs 3-6 at [26] above; Furlong paragraphs 4-6 at [27] above; McIlquham paragraphs 3-12 at [29] above). 3. It is my finding that allegation 2 is substantiated to the requisite standard of proof based on the evidence before the Commission. Was the dismissal of the applicant harsh, unreasonable or unjust? 1. If it were the case that the applicant's conduct towards Mr Rogers in Richardson Street on 6 February 2018 was the only blemish on the applicant's work record, I would most likely have formed the opinion that dismissal was too harsh a punishment for that misconduct. However, that is not the case here. 2. During the applicant's relatively short period of employment with the respondent, he has received two formal written warnings. The most recent was a "Step 3: Final Warning (Written)" issued to him in October last year. 3. Clause 34 – Disciplinary Procedures, of the Wollongong City Council Enterprise Agreement 2015-2018 is in the following terms: 34 DISCIPLINARY PROCEDURES PURPOSE 34.1 The purpose of this Clause is to correct inappropriate behaviour/conduct and poor performance. 34.2 The Disciplinary procedure is designed to give management and employees a guide for dealing with situations where inappropriate behaviour/conduct and poor performance has been identified and changes need to be agreed to and evaluated. 34.3 The disciplinary procedure is to be used in instances of recurring inappropriate behaviour/conduct or performance issues, as initial occurrences of poor performance or inappropriate behaviour/conduct may be related to an employee's personal circumstances. 34.4 Each aspect of performance is monitored separately. It is not the intent of the policy that aspects of performance that are distinctly unrelated be used to progress along the disciplinary procedure. 34.5 To maintain basic and reasonable standards of behaviour/conduct and performance in the service of Wollongong City Council and to set fair and equitable standards of discipline for unsatisfactory conduct and performance. 34.6 Guarantee the rights of all. 34.7 Ensure a safe and healthy work environment. 34.8 Prevent employees from generating a poor attendance record or poor work habits. 34.9 Reinforce and document improved overall performance. 34.10 Refer employees to Council's Employee Assistance Program where relevant. POLICY 34.11 Wollongong City Council believes that the majority of its employees are loyal and hardworking, however, a large organisation requires policies and standards to assist all managers, supervisors and employees with guidelines and procedures to events that may result in disciplinary or corrective action. 34.12 An effective Disciplinary Procedure must be fair, reasonable, logical and easily understood by all. 34.13 Supervisors should be aware that these disciplinary procedures should not be used as a sole basis for corrective action of conduct on the job. All supervisors, in the course of their duties, should interact with employees, and, where they have concerns in relation to their performance, raise these concerns as they arise. In most circumstances, unless an employee's misconduct is of such a serious nature, these disciplinary procedures should not be used for a "first offence" (e.g. lateness to work, poor timekeeping, etc.). 34.14 Where problems arise on the job and these problems have been discussed between the supervisor and the employee and this employee still shows no signs of improvement, then it may be appropriate to turn to Step 1 of the disciplinary procedures. Caution should be exercised here however, as a sudden deterioration of work performance could indicate underlying personal problems being experienced by an employee. In view of this, all supervisory employees should be fully cognisant of Council's Employee Assistance Program and make all attempts to offer assistance to the employee. If the offer of assistance is refused, and the misconduct persists, then it is appropriate to continue to Step 1 of the disciplinary procedures. Where EAP assistance is sought and provided and no improvement in performance results, these cases will be assessed on their merits to determine appropriate action. 34.15 An employee who is on a stage of the disciplinary procedure and is involved in a new incident where the behaviour of the employee falls within the Disciplinary Procedure, the current disciplinary action may form part of the new disciplinary discussions having considered the nature of each disciplinary action. 34.16 No disciplinary actions or suspensions will be undertaken unless the following Disciplinary Steps have been completed, except in the case of serious and wilful misconduct- refer to section 30.22. 34.17 Review periods will be established for employees who are placed on stages 1, 2, 3 of the disciplinary procedures. If there are periods of absence from the workplace, all such absences will be added onto the review period which has been established, unless otherwise agreed by the parties PROCEDURE 34.18 Step 1: First Warning (Verbal) - Guidance and Counselling Whilst this step emphasises guidance and counselling, it must be recognised that guidance and counselling is an integral feature of a supervisory role even in the absence of a formal disciplinary procedure. Problem: Employee is demonstrating a performance or behavioural problem. Procedure: Counselling discussion involving – • The employee concerned; • The employee's immediate supervisor; • The next level supervisor (at the choice of either party); and • At the option of the employee: a) representation by their job delegate; or b) by another employee to act as an observer Note: The employee will be made aware of this option prior to the interview commencing. Purpose of Discussion: • Identify causes of the problem. • Gain the employee's commitment to solving the problem. • If appropriate, inform the employee of the services that Council's Employee Assistance Program offers. • Verbally notify the employee that this action constitutes stage 1 of the disciplinary procedure. • Set a specific date for review of the matter. Record: The supervisor will note a record of the discussion in a diary to support the verbal warning. A photocopy of the supervisors file note signed by employee and supervisor shall be given to the employee to serve as a record of the verbal warning. This record will include: • Date and time of discussion. • Purpose of discussion. • Follow up date. If improvement is then made by the agreed date, the supervisor should acknowledge and give recognition to the employee for the improvement and encourage continued improvement. The Supervisor in their diary will note details of such improvement. However, if insufficient improvement by the agreed date, then Step 2 will apply. 34.19 Step 2: Second Warning (Written) - Utilising effective follow up action Procedure: Conduct a follow up discussion involving: • The employee concerned; • The employee's immediate supervisor; • The next level supervisor; and • At the option of the employee: a representation by their job delegate; or b by another employee to act as an observer Note: The employee will be made aware of this option prior to the interview commencing. Purpose of Discussion: • Review previous discussion. • Discuss possible solutions. • If appropriate, refer the employee to the Council's Employee Assistance Program. • Indicate the consequences of further lack of improvement. • Set a specific date for review of a matter. Record: A written record of a Second Warning is to be forwarded to the Manager Human Resources for placement on the respective staff file and to the employee concerned, together with a copy of Council's Disciplinary Procedures. This record will include the: • Date and time of discussion • Purpose of discussion • Follow up date • Name and signature of supervisors who took the action If improvement is then made by the agreed date, the supervisor will acknowledge this and give written recognition to the employee for the improvement the supervisor will monitor and encourage continued improvement. A copy of such letter will be placed on the employee's Personnel file however, if insufficient improvement by the agreed date, then Step 3 will apply. Note: The union will be notified in writing of what action has been taken in accordance with Step 2. 34.20 Step 3: Final Warning (Written) Procedure: FINAL WARNING involving: • The employee concerned; • The Divisional Manager; • At the option of the employee: a) union representation; or b) by another employee to act as an observer Note: The employee will be made aware of this option prior to the interview commencing and they will be provided with adequate time and resources to organise representation. The seriousness of this step will be emphasised to the employee. The Human Resources Division will provide advice and support at this step, as requested. The union will be notified in writing that a meeting has been arranged to provide an employee with their final warning. This notification will include details of the meeting time and venue. Purpose of discussion: • Review previous discussions. • Discuss reasons for the situation. • Refer the employee to Council's Employee Assistance Program. • Agree on specific action and follow up date. • If appropriate, inform the employee of the deferral and/or withholding of their increment and indicate the further consequences that will result if the employee does not take immediate corrective action. The further Consequences (Disciplinary Actions) include: • A suspension with a view to termination. • A dismissal with due notice. Record: A record of the Final Warning is to be retained on the employee's staff file and will include: • Date and time of discussion. • Purpose of discussion. • Follow up date. • Name and signature of supervisors who took the action. Copies of all correspondence arising out of this step shall be sent to the employee. Note: The union will be notified in writing of what action has been taken in accordance with Step 3. Should the employee fail to take the required corrective action within the agreed period, then Step 4 will apply. 34.21 Step 4: Disciplinary Action Procedure: A meeting will be held involving: • The employee concerned. • The Divisional Manager. • The Manager Human Resources, if requested. • At the option of the employee: a union representation; or b by another employee to act as an observer Purpose of meeting: The Divisional Manager or Manager Human Resources will inform the employee of one of the following- • A suspension with a view to termination; • A dismissal with due notice. No action for termination of employment will occur until such time as the Manager Human Resources or representative has been consulted concerning the process to be followed. 48 hours written notice (by letter or e-mail) will generally be provided to the appropriate union secretary or their representative to enable sufficient arrangements to be made on behalf of the employee. Employee's Rights The employee, however, retains the right to take action: • Through the Industrial Relations Commission. 34.22 Summary Dismissal 34.22.1 Nothing contained within this procedure will affect the right of management to summarily dismiss an employee without notice. 34.22.2 The grounds for summary dismissal include, but are not limited to: • Refusing a reasonable and lawful instruction • Acts of serious and wilful misconduct •.Abandonment of employment • Drunkenness or affected by the use of illegal drugs whilst at work • Neglect of duty • Breach of duty of fidelity/confidentiality • Criminal offences committed by an employee related to their work 34.22.3 Each case of summary dismissal MUST be considered on its merits. 34.22.4 Action for summary dismissal may only be initiated by a Divisional Manager following consultation with the Human Resources Division concerning the process to be followed. 34.22.5 Prior to any interview an employee will be made aware of their rights to representation. In addition, the employee will be provided with appropriate means to organise that representation prior to any interview 34.22.6 Where it is intended to summarily dismiss an employee, the employee will be interviewed and: • Given the full reasons for the proposed termination; • Provided with an opportunity to respond to the reasons for the proposed termination; • Given the opportunity of union representation during the interview. 34.22.7 Management will consider any responses made by an employee prior to proceeding with action to terminate that employee's services. 34.23 Review of Employee Performance: 34.23.1 The outcomes of any disciplinary procedure, whether they are to progress to the next step or improvement has been made, should have clear documentation on what the next step will be. For example "no improvement "may be a progression on the disciplinary procedure, or "improvement has met the expectations" may mean the reduction or removal of the disciplinary procedure. 34.23.2 A copy of the notation will also be provided to the employee. 34.23.3 These notations regarding improvement in performance MUST be taken into account when contemplating any future disciplinary action against the employee. 34.23.4 Employees are able to access, copy and place documentation on their personnel file stating their version of events. 34.23.5 Employees have rights under the Government Information (Public Access) Act. 1. As will be seen from the above, a "Step 3: Final Warning (Written)" is the most serious step in the disciplinary process short of suspension with a view to termination or dismissal with due notice. There can be no doubt that, as of 6 October 2017, having reached such a critical stage in the disciplinary process, the applicant was well aware that any further acts of misconduct by him, which occurred within the next twelve months, would almost certainly result in the termination of his employment. Acting in an aggressive, abrupt and rude manner towards Mr Rogers on 6 February 2018 constituted such an act of misconduct. 2. Throughout the disciplinary process which led to his dismissal, the applicant was afforded procedural fairness. He was represented by his union and given every opportunity to respond to the allegations, both directly and through the union. 3. I accept that the loss of his employment will have come as a severe blow to the applicant but, balanced against that consideration, is his history of poor performance and misconduct. 4. Balancing these considerations, it is my determination that the dismissal by the respondent of the applicant was neither harsh, unreasonable nor unjust. 5. This is not a case where the issue of practicability of reinstatement or re-employment arises for consideration but, were it otherwise, it is my opinion that there would be little, if any, likelihood that a viable working relationship could be re-established between the applicant and the respondent. I base this opinion on the evidence given in the proceedings by the applicant's work colleagues (Boyle paragraph 26 at [20] above; Costa paragraphs 10-11 at [26] above; Furlong paragraph 13 at [27] above; McIlquham paragraphs 9-10 at [29] above; and Madigan paragraphs 38-39 at [32] above). Order 1. The unfair dismissal application of Romeo "Ray" Favorito is dismissed. 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: 15 November 2018