Alan Stanislav Ehl & Department of Education and Training [2001] NSWIRComm 1019 (23 May 2001)

Last Updated: 12 June 2001

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Industrial Relations Act 1996

ALAN STANISLAV EHL

(applicant)

-V-

DEPARTMENT OF EDUCATION AND TRAINING

(respondent)

COMMISSIONER CAMBRIDGE 23 May 2001

Matter No. IRC 2048 of 2000

Application by Alan Stanislav Ehl pursuant to section 84 of the Industrial Relations Act 1996 re alleged unfair dismissal.

D E C I S I O N

INTRODUCTION

1. The circumstances revealed in this case reflect an adage which recounts the story of a mother who, when watching her son marching in a parade exclaimed; "Look! My son is the only one who is marching in step!".

2. The events which have direct relevance in this case reveal a long and unfortunate history which includes, inter alia; numerous independent inquiries including references to the Independent Commission Against Corruption (ICAC); defamation proceedings taken in the District Court; Apprehended Violence Order proceedings taken in the Local Court; proceedings before the Government and Related Employees Appeal Tribunal (GREAT); and more than two hundred pages of letters of complaint and allegation sent to, amongst others; the Premier of New South Wales; the Minister of Education of New South Wales; the Attorney General of New South Wales, the New South Wales Ombudsman; the New South Wales Leader of the Opposition, the President and Secretary of the Australian Council of Trade Unions; the President of the Anti-Discrimination Board of New South Wales; the New South Wales Police Commissioner; the Speakers of the Legislative Assembly and Legislative Council of New South Wales; the Prime Minister; and former Governors of New South Wales.

3. The present proceedings commenced on 10 May 2000 when Alan Stanislav Ehl (the applicant) made a claim in respect to alleged unfair dismissal. The applicant's claim was made pursuant to section 84 of the Industrial Relations Act 1996 (the Act) and related to an alleged unfair dismissal from employment with the New South Wales Department of Education and Training (the employer).

4. Conciliation of the claim was attempted during proceedings held on 24 July 2000, at which time it quickly became apparent that conciliated settlement could not be achieved. Subsequently the Hearing of the Arbitration of the applicant's claim has involved proceedings on four separate days, 19 and 20 October 2000, 10 November 2000 and 5 February 2001.

BACKGROUND

5. The applicant is a man who was some 59 years of age at the time of his alleged unfair dismissal on 18 April 2000. The applicant worked as a teacher in the Department of Technical and Further Education (TAFE). The applicant commenced this employment in February of 1989. The applicant's work can be described as that of a general teacher of biology with some specialisation in microbiology and veterinary science.

6. The employment of the applicant as a TAFE teacher was apparently without incident until February 1993. In February 1993 the applicant and another TAFE teacher, were questioned about apparent anomalies regarding their respective teaching time tables as recorded in internal TAFE working hours documents which are referred to as form number EC1.

7. The EC1 form is provided as a means to set out a TAFE teacher's time table which verifies working hours including both direct teaching and non-contact time. The EC1 form is not dissimilar to documents used generally in occupational circumstances and which might ordinarily be described as a time sheet. For convenience the EC1 form shall be referred to as either an EC1 form or an EC1 time sheet.

8. The applicant's superiors inquired about certain entries made in the applicant's EC1 time sheet which recorded a one hour excursion on Saturday 13 February 1993, and a half hour excursion on the following day, Sunday 14 February. The short duration and timing of these excursions was considered inappropriate and the applicant was questioned about these particular entries in his EC1 form. This inquiry about the applicant's EC1 time sheet set in motion a series of events which culminated in the applicant's dismissal over 7 years later, on 18 April 2000.

9. The applicant considered that the inquiry regarding his entries in the EC1 form constituted an allegation of fraud against him and he strongly resented the inquiry made by his superiors.

10. For background purposes it is unnecessary to set out in detail all of the events which followed from and which bear some connection with, the applicant's reaction to the inquiry made of his EC1 form in February 1993. In broad terms the applicant's resentment and reaction to what he perceived to be an allegation of fraud regarding his EC1 time sheet, manifest into a most extraordinary and concerted campaign of allegation and complaint. This campaign was directed against firstly, the applicant's superiors who had made challenge regarding his EC1 time sheet, and secondly, against any other person that was perceived to have refused to accept and act upon the broadening array of allegations and complaints raised by the applicant.

11. The nature and extent of the applicant's campaign of allegation and complaint is difficult to describe. In addition to the direct attack upon the individuals that were involved in the challenge to his EC1 time sheet, the applicant raised more general complaints in areas such as occupational health and safety, the treatment of other TAFE teachers, the alleged victimisation of others including sexual harassment of students, and allegations of systemic corruption within the New South Wales Department of Education and Training. In some respects the applicant appeared to become a self-styled "whistle blower" who seemed prepared to raise any issue which he perceived might create a problem for the employer.

12. The very serious nature of the allegations and complaints raised by the applicant required the employer (and others), to deal with the various issues properly and thoroughly. At an early stage the employer engaged an independent barrister to investigate and report on allegations of victimisation and corruption that the applicant had made.

13. The report of Mr S J Day, barrister, was provided to the employer in March of 1995, and relevantly established that although there was some insensitivity and inappropriate conduct on the part of the employer, there was insufficient evidence to support the applicant's complaints particularly regarding the allegation that he had been accused of fraud regarding the EC1 time sheet matter. These and other findings of what was referred to as the "Day report", did not discourage the applicant from his campaign of allegation and complaint.

14. The applicant's allegations and complaints continued and expanded following the Day report. As a consequence, various instrumentalities and agencies including, the Workcover Authority, ICAC, and the Anti-Discrimination Board of New South Wales investigated and reported on allegations and complaints made by the applicant.

15. The applicant was also notably involved in proceedings before the Government and Related Employees Appeal Tribunal (GREAT), in respect to a matter involving an appeal by Tania Sheldon against a decision of the Managing Director of TAFE. The consequent Decision of GREAT in that matter was included in the extensive evidentiary material (Exhibit 4 - Tab 29) in this case. Although the matter before GREAT had no relevance to the determination of this case, the published Decision (Exhibit 4 - Tab 29), did provide some interesting observations of the conduct of the applicant during the proceedings before GREAT. These observations are mentioned later in this Decision when the character of witnesses is discussed. Interestingly, the GREAT Decision in the Sheldon case also established the unusual outcome whereby GREAT overturned the penalty of demotion and substituted a penalty of dismissal.

16. Events which are more directly linked to the applicant's dismissal commenced in May of 1997 when the Technical and Further Education Teachers Association (TAFETA) held an annual conference. TAFETA is apparently an occupationally based branch of the New South Wales Teachers Federation (the Teachers Federation). The applicant attended at the May 1997 TAFETA annual conference and distributed a ten page "submission".

17. The applicant's ten page "submission" contained various allegations of corruption and victimisation directed at the Teachers Federation and named individuals including a Teachers Federation organiser and various TAFE managerial staff. The first page of the applicant's ten page TAFETA "submission" is reproduced in full so as to provide an appreciation for the style and nature of the "submission" document.

18. The first page of the applicant's TAFETA "submission" is set out on the following page:

"TAFETA ANNUAL CONFERENCE 1997: OTHER BUSINESS

Do you think it is possible that...

The Teachers Federation has been hijacked by a Network of corrupt TAFE managers.

and

The Corrupt TAFE managers' Network uses the Teachers Federation to set up and victimise teachers.

Here are a few examples:

(If you require written evidence, write to Dr Alan Ehl, C/O PO Box 498 Newtown 2042)"

19. The ten page "submission" document then continued to outline various instances of alleged corruption and victimisation and named various individuals as participants in acts of corruption and/or victimisation. The language used in the applicant's TAFETA "submission" is direct and strong and represents a broad and somewhat blunt attack upon the Teachers Federation, TAFE, and various named individuals who worked within those organisations.

20. The organisations and individuals named in the applicant's TAFETA "submission" were understandably aggrieved by the contents of that document. The employer responded to the applicant's TAFETA "submission" by writing to the applicant on 19 June 1997, advising the applicant that the TAFETA "submission" represented the basis for the commencement of a fact finding procedure concerning the applicant's possible breach of discipline.

21. The applicant was advised that the distribution of the TAFETA "submission" was contrary to a direction of the Director of the TAFE Sydney Institute of Technology (R J Puffett), issued in writing by way of correspondence dated 12 February 1996. Consequently the employer commenced what became a protracted procedure involving investigation of alleged breaches of discipline by the applicant. This investigation subsequently progressed to the applicant being charged with having committed breaches of discipline. In due course and after some considerable time, most of the charges were found proven, and the subsequent penalty imposed for the breaches of discipline was the dismissal of the applicant.

THE EVIDENCE

22. There was a significant amount of evidence provided in this case. Much of the evidence came by way of the extensive documentation that was created during the protracted processes which involved both the investigation of the applicant's allegations and complaints, and the more recent documentation surrounding the disciplinary procedure that was followed and which culminated in the dismissal of the applicant. The extensive documentary material established a broadly uncontested chronology of events.

23. The disciplinary processes followed by the employer were well documented and essentially confined to charges of breach of discipline in respect to the applicant's TAFETA "submission". Although there were a significant number of other actions of the applicant which might have also been relevant to any disciplinary proceeding, the processes that the employer followed confined consideration to the specified charges relating to the applicant's TAFETA "submission".

24. Despite the approach taken by the employer to confine the disciplinary processes to the applicant's TAFETA "submission", the Commission has had the benefit of the more extensive evidence covering the broad range of activities of the applicant from approximately 1993 up until his dismissal in April 2000.

25. The evidence has not established any significant questions of contested facts which required resolution as a prerequisite to determination of this case. In broad terms the applicant has admitted his actions which, in most instances, would be undeniable because they related to documentary allegations and complaints.

26. On the first day of Hearing, during the course of his cross-examination, the applicant sought to make what he described as an admission. The applicant's admission, and his comments at other times during the proceedings, has established that the conduct that the employer complained of involved actions performed consciously and deliberately by the applicant. The evidence established unequivocally that the applicant's actions, which were the subject of disciplinary charges, could in no way be considered as inadvertent.

27. Further, the applicant directly and by implication, revealed the extent of his knowledge regarding the nature of these actions and he also provided important insight into the motivation for this conduct. The relevant part of the applicant's admission during cross-examination provides an insightful summary of this unfortunate aspect of the matter:

"Q. You were aware of that. It was being referred to an independent - you agree that WorkCover is an independent adviser?

A. Well, I think this will require a little bit more detail because as of 6 August 1996 I am aware that Mr Stan Benson advised Sydney Institute of Technology to initiate disciplinary proceedings with the view to dismiss me. After I have published similar information in 1996 to Teachers Federation, where I have alleged - it's over in the box - that because of the internal conflict of interests, Teachers Federation had supported TAFE managers instead of those teachers who may have been poisoned, and there's been a newspaper article and those teachers have been recently paid off, commensurate to their individual extent of poisoning. That was just in March this year under Dr Boston. Now, the second thing is - - -

Q. Sorry, I asked you a question about the independence of WorkCover.

A. I am - - -

Q. I'm sorry, I didn't - - -

A. I am making an admission and you are stopping me.

Q. Is your admission that they are independent?

A. No, I am making an admission about myself and because - - -

Q. I'm sorry, I'm asking the question. I've asked a very simple one.

A. I don't know. Am I entitled to make, at any stage of the proceeding, any admission which might assist this court to speedily - instead of going through these three files of weight of evidence, making just one outcome? The upshot of it is that I have been a pain in the neck. I have been badmouthing the managers for years but - yes, I will speak very slowly - that I have been badmouthing the managers and that the managers had at all times in their power to tell me, "One more letter from you like this and you will be dismissed." It all boils down to this: that there may have been lots of reasons why I acted like what I have done over the seven years, and the most important reason is - I'm waiting for Mr McKay to catch up with it. The most important reason is that I have never ever been vindicated, despite extensive investigations, that I falsified my working records. I have - that has been eating me alive - seven years." [1]

28. Although the issue of credibility does not arise in respect to the settlement of questions of contested fact, the nature of the protracted history giving rise to these proceedings, and certain findings made regarding the applicant's motivation for particular conduct, requires the Commission to record observations and related findings made in respect to the various witnesses.

The Witnesses

29. The applicant first called Mr David Ball, a TAFE teacher who had worked with the applicant. Mr Ball provided brief but believable evidence about his professional association with the applicant.

30. The applicant was called as the primary witness in support of his claim. Notwithstanding an accommodation for, and cognisance of, the effect of certain medications that the applicant was apparently taking, the applicant appeared as an unusually agitated and uncomfortable witness.

31. Although attendance in the witness box is not usually a pleasant experience, the applicant initially displayed an uncommonly severe level of discomfort. However the applicant's disposition varied significantly during the period of his testimony. At certain times the applicant appeared to have gained great confidence such that he sought to exercise a level of control over the proceedings. As an example, the applicant's admission which I have cited above, represented one of many occasions when the applicant sought to have proceedings represent a forum for expounding his own beliefs and allegations. The comments made in the Decision of GREAT in the Tania Sheldon case at which the applicant appeared, are apposite the applicant's conduct in the present proceedings and specifically I refer to the comments made in that GREAT Decision at page 4 (Exhibit 4 - Tab 29).

32. It is however necessary to look beyond what might be generously described as the applicant's over enthusiasm for expounding matters which are aimed at promoting self interest. Unfortunately for the applicant, a detailed examination of the substance of his evidence does not reflect upon him beneficially.

33. In particular the applicant's answers to questions during cross examination were often evasive and on many occasions not responsive. On many occasions the applicant's answers introduced issues or other matters which camouflaged or attempted to avoid the obviously adverse aspect of the particular issue and which, despite the applicant's attempts, could not be concealed. There were many instances were the applicant's answers to questions during cross examination provided him great discredit. The following extract from transcript is but one of many examples:

"Q. On or about 21 June did you, accompanied by another person, go to Mr Albani's home and serve that letter on him?

A. That is incorrect. I did not.

Q. Did you go to his home?

A. I did not go to his home.

Q. Did you go outside his home?

A. I was not outside his home. I was sitting in a car in the street.

Q. How close were you parked?

A. There's the whole front. I don't know - five, six metres." [2]

34. Any witness who provides evidence in other than an open and genuine manner risks suffering adverse observations and other criticisms. Attempts by a witness to provide unnecessarily pedantic answers to reasonably simple questions will usually be considered as disingenuous and suggestive of conduct aimed at concealment of the truth. Unfortunately the applicant's evidence was littered with many such incidents. In fairness and on balance, criticism as to performance as a witness could not be confined to the applicant.

35. There were seven witnesses called to provide evidence on behalf of the employer. The first witness called for the employer was Gary Alexander Pollock. Mr Pollock was the senior officer of the employer appointed to deal with the charges of alleged breaches of discipline against the applicant. Mr Pollock provided an affidavit that had been sworn for these proceedings and to which was annexed a significant amount of documentary material. This documentary material had been assembled as part of Mr Pollock's investigation and determination of the charges of alleged breaches of discipline made against the applicant.

36. Mr Pollock was an impressive witness. His testimony was unshaken during cross examination and he provided evidence in an open and considered fashion. Mr Pollock did not seek to unnecessarily embellish answers to questions nor did he avoid answers which would clearly provide some assistance to the applicant's case. As a witness Mr Pollock displayed an objective, intelligent and open personality. These admirable characteristics are reflected by the comprehensive, detailed, and objective approach that he applied to the difficult task of investigation and determination of the charges of alleged breaches of discipline made against the applicant. The carefully considered, objective and fair approach taken by Mr Pollock is well exampled by the transcript of interview with the applicant held on 4 December 1998 (Exhibit 4 - Tab 99). The lengthy transcript of interview, (Exhibit 4 - Tab 99), is an instructive text which, upon analysis, provides many examples of the distinction that can be made between the applicant and Mr Pollock on the question of credit.

37. The next witness called for the employer was Robert James Puffett. Mr Puffett was the retired Assistant Director General of TAFE. Mr Puffett was one of a number of individuals named in the applicant's TAFETA "submission". Mr Puffett was understandably aggrieved by the applicant's TAFETA "submission". When asked about his reaction to the applicant's conduct generally and the TAFETA "submission" specifically, Mr Puffett became evasive and somewhat unresponsive.

38. Mr Puffett did not present as an open witness who wished to assist the Commission in all respects. Mr Puffett was very reluctant to answer questions which he perceived may have assisted the applicant's case. Mr Puffett was an unimpressive witness.

39. The next witness called by the employer was Anthony John Brady. Mr Brady is the Executive Director of TAFE and he has had direct involvement in many of the matters surrounding the history of the applicant's allegations and complaints. Mr Brady unfortunately exhibited a similar degree of reluctance in answer to some questions as displayed by Mr Puffett. The answers provided by Mr Brady when questioned about an alteration to his affidavit, were evasive and unconvincing. Mr Brady was an unimpressive witness.

40. Although it does not represent any justification or substantiation of the allegations that were made by the applicant both in the TAFETA "submission" and in various other documents, the evasiveness that was displayed by Messrs Puffett and Brady during their attendance in the witness box, provided for some understanding of the applicant's perceptions giving rise to his conspiracy theories.

41. In contrast, the next witness called by the employer, Brian Jones, presented as an open and straight forward individual. Mr Jones did not seek to avoid answer to questions which would obviously provide potential assistance to the applicant's case, nor did he unnecessarily embellish answers which involved direct attack on the applicant. Mr Jones presented as a witness of truth and a person who had been adversely affected by the applicant's campaign emanating from the challenge to the EC1 time sheet of 13 and 14 February 1993.

42. Harold Charles Albani was the fifth witness called for the employer. Mr Albani was employed as a Senior Head Teacher with TAFE. It was Mr Albani and Mr Jones who had first made inquiries regarding the applicant's EC1 time sheets in 1993. Mr Albani presented as an intelligent and articulate witness. Like Mr Jones, Mr Albani had been adversely affected by the applicant's campaign of sustained attack which followed as reaction to the challenge to the EC1 time sheet.

43. The applicant pursued defamation proceedings against both Mr Jones and Mr Albani and the outcome of those proceedings is contained in the Judgement of Judge Christie of the District Court of New South Wales Civil Jurisdiction made on 7 December 1999 (Exhibit 10 - Annexure C). The judgement of Christie J (Exhibit 10 - Annexure C), is an important and instructive text which established important findings regarding the EC1 time sheet issue. The findings contained in the Judgement are also relevant to the observations and findings that are made in respect to various witnesses in these proceedings, specifically in respect to the applicant and Messrs Albani and Jones.

44. The employer next called John Patrick Longfield, another Senior Head Teacher. Mr Longfield was another individual named in the applicant's TAFETA "submission". Mr Longfield provided his evidence in an open and straight forward manner. Mr Longfield did not attempt to conceal an obvious distaste for the applicant. Mr Longfield clearly resented the applicant's campaign of allegation and complaint particularly as it included himself. The strong personal feelings exhibited by Mr Longfield required caution in the assessment of his evidence. However, upon careful review Mr Longfield presented as a witness of truth.

45. The final witness called for the employer was Graham Paul Devlin who was employed as Deputy Director Corporate Services. Mr Devlin was involved in various issues relating to the applicant's allegations and complaints raised from about May 1995. Mr Devlin provided his evidence in a calm, careful and somewhat measured fashion. Mr Devlin answered questions in an open and forthright manner and he presented coherent and believable evidence.

46. As mentioned earlier in this Decision, there were no significant questions of contested fact which required resolution. However given the nature of the proceedings and the extensive history which has preceded the dismissal of the applicant, it has been necessary to set out certain observations and conclusions regarding the various witnesses that were called.

47. There was one particularly interesting contest which emerged from the evidence. A clear contradiction arose between the evidence of Mr Jones and that of Mr Albani concerning the way in which the EC1 time sheets could be completed so as to involve a process referred to as "averaging". The process of averaging was suggested as explanation for the applicant's EC1 entries of the two short excursions of 13 and 14 February 1993. There emerged a significant difference in the understanding that Mr Jones had about how the EC1 time sheet would be completed involving averaging, as opposed to that expressed by Mr Albani. Although this is not a matter which was vital to the primary determination required in this case, upon review of the evidence I believe that Mr Albani's evidence provides the version which is more likely to be correct.

48. Further, it should be noted that the averaging process, as could be comprehended on any of a number of different interpretations, did not provide satisfactory explanation for the applicant's EC1 entries for 13 and 14 February 1993. However, the determination of this case has not required any concluded explanation for the applicant's EC1 entries. As mentioned later in this Decision, it is regrettable that the inquiry which was the catalyst for the extraordinary history of events which are traced by the evidence in this matter, remains absent of clear or even discernible explanation.

THE CASE FOR THE APPLICANT

49. Mr M Sahade, barrister, appeared for the applicant. Mr Sahade made submissions which firstly concentrated upon the alleged substantive basis for the dismissal of the applicant.

50. Mr Sahade mentioned that the dismissal of the applicant was based upon the TAFETA "submission" made by the applicant in about May of 1997. Mr Sahade submitted that the employer had gone to great lengths to have a proper and ostensibly fair investigation of the applicant based on the TAFETA "submission". Mr Sahade acknowledged that it was appropriate that the employer had appointed Mr Pollock to undertake the investigation and determination of charges arising from the applicant's TAFETA "submission". However, it was, according to the submissions of Mr Sahade, unusual that the employer would confine the charges to the TAFETA "submission".

51. Mr Sahade submitted that the employer deliberately confined the charges to the TAFETA "submission" as a means to overcome certain provisions of the Protected Disclosures Act 1994. Therefore according to the submissions of Mr Sahade, there was some absence of genuineness about the approach taken by the employer which sought to rely upon only that matter which was perceived to have been action on the part of the applicant which was not protected by the Protected Disclosures Act 1994.

52. Mr Sahade made extensive submissions about the operation of the Protected Disclosures Act 1994. In summary Mr Sahade submitted that the various allegations and complaints made by the applicant were, in general, protected by operation of the Protected Disclosures Act 1994. However the applicant's actions in respect to the TAFETA "submission" was not protected because that represented a disclosure made to the Teachers Federation, or a subdivision thereof. Therefore according to Mr Sahade to dismiss the applicant on grounds which were confined to the TAFETA "submission" was harsh, unjust and unreasonable as it was not genuine.

53. Mr Sahade further submitted that there was evidence to establish that the actions of the applicant had been condoned by the employer. Mr Sahade referred to various texts on the concept of condonation and submitted that the delay that had occurred between the applicant's TAFETA "submission" in May of 1997, and his subsequent dismissal for those actions in April 2000, was an unreasonable delay during which the concept of condonation arose.

54. Mr Sahade submitted that the employer could not rely upon the applicant's conduct in May 1997 as the basis for dismissal in April 2000. Mr Sahade said that it was relevant that throughout the period, particularly after May 1997, the applicant had continued in his campaign of allegation and complaint and that the employer simply failed to act with reasonable speed and therefore the applicant was entitled to rely upon the implicit condonation of his continuing actions.

55. Mr Sahade made further submissions about the employer's alleged failure to provide the applicant with proper counselling regarding the issues which gave rise to the extensive amount of documentary complaint and allegation produced by the applicant. Mr Sahade submitted that it was unreasonable of the employer not to have taken the applicant "to one side and speak to him".

56. Mr Sahade made a further submission about the applicant's performance of his duties. Mr Sahade stated that the applicant's performance as a TAFE teacher was never in question. Mr Sahade said that the employer had not properly considered the applicant's good record as a teacher as opposed to issues arising from his campaign of complaint and allegations. Mr Sahade submitted that this represented a further element of unfairness in the applicant's dismissal.

THE CASE FOR THE EMPLOYER

57. Mr S Benson, barrister, appeared for the employer. Mr Benson submitted that the disciplinary processes that the employer had followed and which were consistent with the requirements of Public Sector institutions, established that the applicant had been provided with both procedural and substantive fairness. Mr Benson submitted that the applicant's rights had been protected at all material times and that the decision to dismiss the applicant was not harsh, unreasonable or unjust.

58. Mr Benson submitted that the charges that had been made against the applicant regarding his TAFETA "submission" had been the subject of meticulous investigation conducted on behalf of the employer by Mr Pollock. According to the submissions of Mr Benson, the findings that were made by Mr Pollock and which found most of the charges to have been proven, established that the applicant had been provided with procedural fairness and that there was proper substantive basis for the dismissal of the applicant.

59. The submissions of Mr Benson retraced the major events throughout the lengthy history that had culminated in the dismissal of the applicant. Mr Benson mentioned that the relevant events commenced with the challenge by Messrs Albani and Jones to the applicant's EC1 time sheet of February 1993. According to Mr Benson, the applicant's reaction to that challenge was inconsistent with the inquiry and amounted to a campaign involving a series of malicious allegations that were made without any reasonable basis for their belief.

60. According to Mr Benson, the Judgement of the District Court which rejected the applicant's claim for defamation against Messrs Albani and Jones, represented an important and unequivocal rebuttal of the basis of the applicant's discontent which had manifest into an extraordinary campaign conducted over many years.

61. Mr Benson submitted that the employer had not condoned the actions of the applicant, and despite issuing various clear and unmistakable warnings requiring the applicant to desist from raising unsubstantiated allegations, the applicant continued and even elevated the nature of further allegations and complaints. According to Mr Benson, the applicant's elevation of the complaints and allegations meant that, because the employer was a Public Sector instrumentality it could not act with the same speed that would ordinarily apply to another employer in the Private Sector.

62. Mr Benson submitted that the delays could not be considered as condonation because the applicant had been put on notice within two and a half weeks of the issuing of the TAFETA "submission". Therefore according to the submissions of Mr Benson, the employer had put the applicant on notice about his conduct within a reasonable period of time and the subsequent delays were caused by the applicant's continued agitation of serious allegations and complaints which had to be dealt with in accordance with the statutory and other responsibilities which apply specifically to a Public Sector instrumentality.

63. Mr Benson further submitted that the suggestion that the applicant could have been counselled as an appropriate means to ensure that he desisted from his campaign of complaint and allegation, was not supported by the evidence of the applicant's actions. In this regard Mr Benson submitted that despite verbal and written requests and instructions to the applicant, he continued and expanded the nature of his campaign. In particular Mr Benson submitted that the applicant had breached the terms of settlement of Apprehended Violence Order (AVO) proceedings taken before the Local Court in September 1999. According to Mr Benson, this demonstrated that the applicant was so determined to continue his campaign against Messrs Albani and Jones, and others in senior managerial positions of the employer, that the suggestion that he might be counselled to change his conduct was simply not supportable.

64. Mr Benson said that the applicant had demonstrated that he was prepared to continue his campaign of groundless and scurrilous accusations against a range of staff in breach of both direct instructions from his employer, and even in breach of undertakings given before a Court. According to Mr Benson this demonstrated that the applicant was a person of bad character. Mr Benson submitted that the prospect that the applicant would have learnt from these proceedings such that he would alter his conduct was therefore unlikely. Mr Benson submitted that the dismissal of the applicant was not harsh, unreasonable or unjust. Mr Benson urged the Commission to dismiss the application.

CONSIDERATION

65. The consideration of this matter has involved the examination of a substantial quantity of documentary evidence. The volume of the documentary material is reflective of the extraordinary and persistent campaign of allegation and complaint conducted by the applicant from 1993 until 2000. This campaign of complaint and allegation has involved, inter alia, numerous formal investigations and determinations including, Local and District Court proceedings, investigations and reports conducted via the employer's internal structures, and also investigations and reports made by external agencies such as ICAC. When all of this material and the further evidence presented in this case, is analysed and reviewed, it represents a matter of most serious concern.

66. Notwithstanding some generous remarks made in an early independent report conducted by Mr Day, the allegations that have been strenuously and repeatedly advanced by the applicant have not been found to have any basis in fact. Although the findings of Mr Day suggested that the applicant was genuine in his belief about the allegations that he made, the allegations nonetheless could not be substantiated. Surely there must be a point at which any reasonable person must acknowledge that, in the absence of any substantiated fact, to continue to advance allegations, whether they be genuinely held or not, must establish conduct which becomes malevolent.

67. This sorry matter commenced with a simple and reasonable inquiry regarding the applicant's EC1 time sheet entries. It is of interest to note that there was no record of any complaint or allegation activities by the applicant prior to the indignation that he displayed in reaction to being asked to explain a fairly simple and legitimate inquiry. It seems therefore that the applicant's motivation in pursuing the broad range of issues that he has championed since 1993, arose not from any long standing commitment to advance causes on behalf of the disadvantaged, downtrodden or exploited, but instead was spurred by retribution. Motivation of this nature is likely to conceal rather than expose the truth, and at the same time cause great harm to innocent individuals.

68. The findings made by Judge Christie in the Judgement of 7 December 1999 (Exhibit 10 - Annexure C) are consistent with findings and conclusions which emerge from the evidence presented in this case. The reaction of the applicant to Exhibit 9 was totally unreasonable and out of all proportion with the nature of the inquiry. Why such a matter should have caused the applicant to react with great indignation and prolonged hostility almost defies belief. It is however somewhat disconcerting that the nature of the consequential events arising from the applicant's campaign of retribution seems to have distracted from the original inquiry.

69. As mentioned earlier in this Decision, the Commission has not been provided with sufficient evidence to satisfactorily resolve the original inquiry about why, at the start of the teaching year, the applicant would have listed the excursions for such short periods on the Saturday and Sunday. The evidence about averaging of EC1 time sheets has not been capable of providing a satisfactory explanation to resolve this legitimate concern. Instead the matter has taken on absurd proportions and greatly damaged the lives of a number of individuals including the applicant himself.

70. Notwithstanding the regrettable circumstances which surround the history of this matter, the potential for the applicant to have advanced legitimate issues requiring rectification and proper resolution is an important consideration. This consideration has two important aspects.

71. Firstly, notwithstanding the applicant's motivation some of his complaints may have had legitimate foundation and required rectification. This is particularly relevant to various occupational health and safety issues that the applicant sought to advance at different times.

72. Secondly there is the further consideration that, particularly having regard to the very serious nature of some of the allegations made by the applicant, matters of such gravity should not be quickly dismissed as issues which require no detailed consideration because of what one might generously describe as the eccentricity of the complainant. This Commission and other Tribunals and Courts must guard against any hasty predetermination of matters based upon an apparent record of ill-conceived and unfounded allegations and complaints.

73. Therefore consideration of this matter has extended to a more detailed revision of the evidence than might ordinarily be the case, so as to ensure that the primary determination has not been unduly influenced by the extensive history of unusual complaint. It is obviously important to ensure that justice is established in all cases. However when significant adverse findings may be made against a party and where such findings may establish acts of malevolence, it becomes necessary to examine and analyse evidence which might, on its face, appear to have been nothing more then misguided, but perhaps bona fide, attempts to advance legitimate concerns for the welfare of others and the community generally.

74. Therefore, in essence, the Commission has examined the extensive documentary material and other evidence so as to determine if the applicant's pursuit of the variety of issues about which he has complained and made allegations, were actions taken bona fide, albeit misguided, or whether the applicant's actions were undertaken mala fide.

The Pollock Interview of 4 December 1998

75. The employer's senior officer who was appointed to investigate and report on the charges of alleged breaches of discipline made against the applicant, undertook his task with diligence, attention to detail, and a balanced and unbiased approach. Mr Pollock carried out his assignment in a comprehensive and fair manner, and when one examines Exhibit 4 and the two volumes of source materials which supported the findings that were made, the only criticism that can be made involves the length of time that Mr Pollock took to complete his assignment. Further it should be noted that Mr Pollock found all but two of the charges made against the applicant to have been proven.

76. Particular mention must be made of the transcript of an interview that Mr Pollock conducted with the applicant on 4 December 1998.

77. The transcript of this interview is found at Tab 99 of Exhibit 4 and records almost six and a half hours of interview that Mr Pollock conducted with the applicant. The transcript of the interview of 4 December 1998, provides a number of important examples of issues which go to the question of the applicant's bona fides in the pursuit of his various complaints and allegations.

78. The transcript of the interview of 4 December 1998 establishes that the applicant was aware that Mr Pollock was conducting the interview as an opportunity for the applicant to provide evidence to support the allegations that were made in his TAFETA "submission". During the early part of the interview the applicant challenged the validity of the charges and in doing so avoided any direct response to the requirement to provide some supporting detail of the allegations contained in his TAFETA "submission". The patient pursuit by Mr Pollock of request for the applicant to provide some particulars which would substantiate any of the allegations made in his TAFETA "submission" led to the following statements that are attributed to the applicant:

"Dr Ehl

Did I, do you accept that it is relevant to the charges that I do know how to substantiate it? I can substantiate the char, the allegations which I made, by placing er responsible or relevant officers under oath and asking them the questions, by going through their files and putting under your nose their documents which they were supposed to attached to the..."

and

"Dr Ehl

Brave enough to read those documents, go into it and consider, consider what is alleged and what the facts are. So, I have shown to you that I did know on thirty-fait, 31^st May 1997, at the precise moment when I have been submitting these documents, that if I am in the position to place those officers under oath and ask them questions, and if I am in the position, I knew that on 31^st May 1997. As I was submitting this document, contrary to TAFE Commission's er charge, that if I am in the position to subpoena those documents, they will show that there is substance, and that they will support what I am saying." [3]

79. The transcript of the interview of 4 December 1998 records that the applicant repeated the proposition that the means by which he could substantiate the allegations made in the TAFETA "submission" would involve summonsing certain individuals to provide evidence under oath and the subpoena of relevant documentation.

80. To some extent the applicant's response must have left Mr Pollock with some difficulties. Mr Pollock did not have the power to require individuals to attend and give sworn testimony nor did he have the power to subpoena documents or make other discoveries which the applicant said would be vital for him to substantiate the allegations made in the TAFETA "submission".

81. Putting aside the immediate issue which would suggest that the applicant, by implication, had admitted that he was not in possession of a means by which he could substantiate the allegations of the TAFETA "submission", there is a further interesting consideration arising from this aspect of the applicant's response to Mr Pollock during the interview of 4 December 1998.

82. The proceedings held before this Commission represented an opportunity for the applicant to summons witnesses, subpoena documentation, or make any other discoveries which might have substantiated matters as he had suggested to Mr Pollock during the interview of 4 December 1998. Consequently these proceedings represented a forum conferred with the necessary powers to provide the applicant the opportunity to present the material which could not be produced to Mr Pollock. Further, the applicant was assisted in these proceedings by the capable and professional representation of Counsel. Having carefully examined the evidence presented, there was no material upon which the Commission could be even remotely persuaded that the findings made by Mr Pollock should in any way be disturbed.

83. There is a further disturbing aspect which emanates from a reading of the transcript of the interview of 4 December 1998. The applicant was quite properly, provided with a support person during the interview. The support person who was named as Ungungun Glovu (apparently a tribal name), is recorded as making various unnecessary interruptions during the interview. Some of these interruptions appear to have been made in a deliberate attempt to disrupt or distract Mr Pollock from his methodical and patient approach to interviewing the applicant. On some occasions the applicant joined with Ungungun Glovu in questioning of Mr Pollock in a way that might ordinarily be considered as attempted intimidation. The following example is provided:

"Ungungun Glovu

Just before you go on, can you summarise...

Dr Ehl

Yeah.

Ungungun Glovu

Um, are you, in fact, giving Mr Pollock information, right, that alleges that ah officers of the NSW TAFE Commission may have committed a crime?

Dr Ehl

That is correct, and that is my ground...

Ungungun Glovu

OK.

Dr Ehl

For er stating that I have no case to answer regarding the letter of charge dated twen, er 30^th of May 199ah8, as signed by the Managing Director of TAFE Commission, Dr Ken Boston.

Ungungun Glovu

OK.

Gary Pollock

Uh-huh

Ungungun Glovu

Mr Pollock, ah Mr Ehl has actually stated that it is his belief that ah Dr Ken Boston has allegedly committed a crime...

Gary Pollock

Uh-huh.

Ungungun Glovu

With regard to these charges.

Gary Pollock

Hmm.

Ungungun Glovu

Are you, under the ICAC Act, section 10 part 3(11), going to refer those...

Gary Pollock

I...

Ungungun Glovu

To ICAC?

Gary Pollock

I will , I will take note of the, of the comments that have been, that have been made, and will be part of the consideration that I will make in, in terms of once I have all the detail.

Ungungun Glovu

You know, I understand that you have an obligation under the Act to refer it to ICAC..." [4]

84. A reading of the transcript of the interview of 4 December 1998 leads to an overall impression that the applicant, and his support person, did not conduct themselves in a manner which would be reflective of persons who had genuine and sincere convictions about the charges and the subject matter of those charges.

85. It must be acknowledged that the applicant could legitimately question the impartiality and independence of Mr Pollock. Mr Pollock was an employee who was answerable to the employer's Director General, Dr Boston, and it was Dr Boston who had laid the charges against the applicant. Consequently, if the conduct of the applicant as evidenced from the transcript of interview of 4 December 1998, was an isolated transgression it may be conduct considered justifiable and therefore not representing some mala fide. Instead it would represent an understandable but regrettable reaction to perceptions about an absence of impartiality in the processes of investigation of the charges of breach of discipline. Unfortunately however, the evidence revealed that the applicant exhibited a pattern of conduct consistent with the disingenuousness and other undesirable characteristics which remain as the overall impression obtained from a reading of the transcript of interview of 4 December 1998.

86. Further analysis of the numerous letters and other correspondence that the applicant wrote to a wide variety of individuals and organisations during his protracted campaign of complaint and allegation, provides further support of conduct undertaken mala fide. There are numerous examples of such conduct which can be extracted from the applicant's correspondence. However, two particular examples are provided as they relate to proceedings taken before Courts as distinct from any of the employer's internal processes.

The AVO Undertakings

87. As a result of the applicant's participation, either directly or indirectly, in the serving of certain legal documents at the home of Mr Albani, there were proceedings commenced in respect of an application for Apprehended Violence Orders against the applicant. Evidence was provided of undertakings which were apparently made to settle the application for Apprehended Violence Orders, the case being numbered 76283 of 1999. A copy of the hand written undertakings are found as Annexure B to Exhibit 10.

88. It was uncontested that the applicant and Mr Albani made undertakings in settlement of the AVO proceedings before the Local Court on 30 September 1999. One of the specific undertakings made by the applicant concerned an undertaking not to write any further letters specifically relating to Harry Albani arising from the 1993 work related issues. The 1993 work related issues described the inquiry made about the applicant's EC1 time sheets for 13 and 14 February 1993.

89. Seventeen days after the undertakings were given before the Local Court the applicant directly breached the undertakings by again writing about, inter alia, Mr Albani. The applicant wrote; "...Mr Harold Albani deliberately and knowingly wilfully inflicted a psychiatric injury on a TAFE teacher Dr Ehl at his workplace in February 1993 (Building E, SITU)". [5]

The Defamation Judgement

90. Earlier in this Decision I have referred to the Judgement of his Honour Judge Christie in the matters that the applicant took regarding defamation. The Judgement of his Honour was made on 7 December 1999 and the applicant's statement of claim in both matters were struck out with costs.

91. Despite the clear Determination of the District Court in the matters involving the 1993 EC1 time sheet inquiries made by Messrs Jones and Albani, the applicant wrote on 18 March 2000 to the employer's Director General, Dr Ken Boston, and inter alia, repeated his ascertains about Jones and Albani (Exhibit 4 - Annexure M).

92. Although it is conceivable that procedures in the Public Sector for dealing with complaint and serious allegations linked to corruption, might permit significant latitude and protection for any aggrieved complainant, this would not extend to permitting the repeat of allegations contrary to undertakings given to a Local Court and in direct contradiction to Judgement of the District Court. When one considers these actions by the applicant in the context of the totality of the campaign of complaint and allegation, any consideration for providing a finding that the applicant was genuine but perhaps overly enthusiastic and slightly misguided, cannot be entertained.

93. Regrettably there is abundant evidence upon which the malevolent intentions of the applicant would be established despite providing extensive latitude and potential justification, particularly so as to ensure that the public interest considerations relevant to employment in the Public Sector are satisfied.

94. Consideration of this matter must now turn to a number of specific issues advanced on behalf of the applicant which potentially could render the dismissal of the applicant to have been harsh, unreasonable or unjust.

Protected Disclosures

95. It was submitted that the applicant's actions had protection as a consequence of the Protected Disclosures Act 1994. The Protected Disclosures Act 1994, operates in large part, in conjunction with the Independent Commission Against Corruption Act 1988. There appeared to be some logical contradiction emerging from the prospect that the employer's Director General, Dr Boston, would have the power to remove any protection by declaring that the applicant's disclosures were made frivolously or vexatiously. Notwithstanding this apparent contradiction, the power of the employer's Director General to take such a step was supported by correspondence from ICAC.

96. However, given my earlier consideration regarding the mala fide of the applicant's actions during his campaign of complaint and allegation, the finding made by the employer's Director General, Dr Boston, that the applicant's disclosures were vexatious in accordance with the Protected Disclosures Act 1994, is a finding that would be endorsed and indeed compelling when one has regard for the totality of the evidence presented in this case.

97. It would also seem that the protection provided by the Protected Disclosures Act 1994 could not extend to protection to repeat and publish allegations which had been the subject of Judgement of the District Court. Even if that not be the case, when one has regard for the nature, extent and duration of the disclosures that the applicant had made, and which had not been substantiated nor had they been considered as requiring investigation by ICAC, there would seem to be no relevant application of the provisions of the Protected Disclosures Act 1994.

98. There was one further interesting aspect of the operation of the Protected Disclosures Act 1994 which had relevance in this instance and this concerned the issue of condonation.

Condonation

99. The concept of condonation of the applicant's conduct was advanced as a basis to establish unfairness of the dismissal. The applicant argued that the conduct that was the subject of the charges occurred in May 1997, and that by April 2000 the charges were "stale". Therefore in accordance with the concept of condonation, as it is applied in the employment context, the delay by the employer had acted so as to provide waiver of any right for the employer to rely upon the conduct of May 1997 as the basis for dismissal in April 2000.

100. There appeared to be some considerable force to the argument that the employer had acted so slowly in dealing with the misconduct of the applicant by way of his TAFETA "submission", that it had simply lost any capacity to rely upon that misconduct almost three years later. In a general sense there is strong Case Law which underpins the condonation concept in the employment context, and this would seem to provide some prospect for the applicant to succeed in this instance in this regard.

101. Although there were a variety of Cases referred to which support the prospect that condonation could have provided the necessary waiver in this case, it is relevant to summarise the concept by reference to the case of McCasker v Darling Downs Co-operative Bacon Association Ltd wherein Ryan J stated:

"Nevertheless I consider that the fact that Mr Krimmer continued the plaintiff in his employment after his act of disobedience had the effect that he was unable subsequently to dismiss him solely on the ground of this act of disobedience. It remained however as something which together with other subsequent matters might constitute a good ground for summary dismissal." [6]

102. In the present matter any application of the condonation concept needs to be considered having regard for some important distinguishing factual aspects.

103. Firstly, the employer did act reasonably quickly after the May 1997 TAFETA "submission" was made by the applicant. Within approximately two and a half weeks of that event the applicant was advised of the commencement of proceedings concerning a possible breach of discipline (refer Exhibit 4 - Tab 32).

104. Secondly, the nature of the allegations arising from the applicant's TAFETA "submission" were the type of matters contemplated as disclosures under the Protected Disclosures Act 1994. In accordance with the requirements of that Act and consistent with the provisions of the Independent Commission Against Corruption Act 1988, it was incumbent upon the employer to provide the applicant certain protection. This protection involved a requirement on the employer to ensure that the applicant was offered continued employment, not disadvantaged in that employment, and permitted full and thorough investigation of the allegations made. This created the unusual occurrence whereby statutory obligations required the employer, as a Public Sector instrumentality, to act very cautiously and slowly in response to the applicant's actions. It was therefore the nature of the applicant's actions which related to allegations of serious corruption within the Public Sector instrumentality, which contributed significantly to the delays that were asserted to have established condonation of the conduct upon which the dismissal was based.

105. It would seem therefore, that the operation of legislation such as the Protected Disclosures Act 1994, and the related broad public interest requirements to ensure that the matters raised by the applicant were dealt with fully and properly, provided at least, a substantial reason for the delay.

106. The waiver that can be established by condonation of misconduct does not automatically arise because of a delay between the occurrence of misconduct and a subsequent dismissal for that misconduct. Obviously, if it be found that the employer had no knowledge of the misconduct, the delay of itself, could not establish any condonation. Further, it would seem that the reason or reasons for delay must represent an important factor in any contemplation as to whether or not condonation, and the attendant waiver, be established. For instance, even though an employer had knowledge of misconduct but was prevented or constrained from acting upon that knowledge by some means beyond the control of the employer, how could the employer be held to have condoned the misconduct?

107. It would seem that if condonation could be applied to a Public Sector instrumentality in circumstances such as revealed in this case, a gross injustice would be perpetrated upon that instrumentality. That is to say that statutory and other obligations which delayed the instrumentality's actions would subsequently be relied upon as waiver in the context of condonation of the misconduct. However the delay did not represent condonation of the conduct but instead occurred because of the statutory and public interest obligations upon the employer.

108. Expressed differently; when a Public Sector employer was faced with perceived misconduct arising in respect to allegations of corruption, it would be "dammed" if it did act against the individual making the allegations (disclosures), and "dammed" if it did not act and such delay was construed to be condonation of the misconduct.

109. It must also be noted that not all of the delay could be attributed to the statutory and other public interest obligations upon the employer. Mr Pollock's own evidence established that, had he been able to devote his full time attention to his assignment regarding the applicant's charges for breach of discipline, the matter would have been completed much sooner. On balance, however, these delays which arose from the ordinary operational contingencies of the employer were not unreasonable given the applicant's conduct vis a vis Mr Pollock's investigation. There was ample evidence to demonstrate that at various times delays associated with the progress of Mr Pollock's investigation could be directly attributed to unnecessarily disruptive and uncooperative actions on the part of the applicant.

110. Thirdly, the applicant continued to exhibit the conduct which was the subject of the employer's complaint. The applicant repeatedly published allegations of a very serious nature throughout the entire period and particularly after certain of the subject matters of the allegations had been dealt with by both the Local and District Courts.

111. Therefore it would seem that although the employer may have confined the basis for dismissal to the charges relating to the 1997 TAEFTA "submission", the Commission would not be similarly constrained and could therefore reject the prospect of condonation having application in circumstances where the applicant might appropriately be described as a repeat offender. There is ample Authority including the High Court Decision in Byrne and Frew v Australian Airlines Limited to permit this Tribunal to consider the totality of the applicant's conduct and have regard for other matters which were not specifically the subject of the employer's decision to dismiss the applicant.

The Applicant vs Citizen Ehl

112. Some brief mention should be made of one aspect of a defence that was offered by the applicant as justification for his campaign of allegation. Although not pursued with any vigour in final submissions, at various stages during proceedings the applicant sought to distinguish between the responsibilities and obligations that he had as an employee compared with his rights as a citizen. In many respects this defence appeared to be a somewhat desperate attempt to avoid the charges relating to breach of discipline. However, human rights principles and other important public policy issues were touched upon and therefore consideration of these matters has been necessary.

113. The right to free speech as it is described, is a fundamental component of a just, decent and humanitarian society. However the right to free expression is not an unfettered privilege that can be invoked as a shield to protect any abuse or malevolent exercise of the privilege. As with all rights, there are accompanying responsibilities which must be observed or the rights are placed at risk.

114. Similarly there exist rights to freedom of association and related activities. These privileges protect individuals from dismissal or other harm caused because of involvement in the activities of registered organisations such as Trade Unions. Once again these rights have some fragility and are to be exercised with cognisance of the concomitant responsibilities.

115. In this instance it is important to note that the actions of the applicant, although taken in the context of the Teachers Federation Conference, were not actions which might ordinarily be envisaged as activities associated with participation in the affairs of a registered organisation. It is to some extent ironic that, at least in part, the Director General's decision to dismiss the applicant was based upon the allegations of corruption and impropriety within the Teachers Federation.

116. Although the circumstances of the applicant's activities regarding the TAFETA "submission" were unusual, it must be reinforced that the circumstances did not involve the employer taking actions against the applicant for activities which might be considered as the legitimate right of a citizen to free speech or to participate in the activities of a Trade Union.

117. A further, related issue emerged which questioned the extent to which the actions of the applicant could be said to be sufficiently separate from his employment as to avoid any proper basis for dismissal. This issue was supported by the absence of complaint about the applicant's performance as a teacher.

118. One only need read the applicant's TAFETA "submission" to establish the direct connection with that material and the applicant's employment, particularly the various contested employment issues commencing with the 1993 EC1 time sheet inquiry matter. These activities were not so separate from the applicant's employment as to establish that the dismissal was based on actions or activities "out of hours" or not sufficiently connected to the employment. Therefore the prospect that the employer was unable to properly rely upon these activities as the substantive basis for dismissal could not be supported.

119. The following extract from a Decision of the Australian Industrial Relations Commission summarises circumstances which provide sufficient connection to the employment so as to enable proper foundation for dismissal:

"It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,;

* the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

* the conduct damages the employer's interests; or

* the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee."[7]

1. The dismissal of the applicant could therefore not be considered as having been based on conduct which was outside of the employment relationship. In addition, the employer did not act in a way which interfered with the applicant's rights as a citizen generally, his rights to free speech, or his right to participate in the affairs of organisations such as Trade Unions.

Ignorance As A Defence

2. The applicant suggested that he was not clearly aware of the employer's requirements for him to desist from making his unsubstantiated allegations. This proposition was based on the employer's alleged failure to communicate the gravity with which it was considering the applicant's actions. Further, the applicant suggested that the employer's actions were heavy handed such that had there been some appropriate counselling the applicant could have been persuaded to cease his campaign of allegations and complaints.

3. During cross examination the applicant emphasised the alleged lack of precision with the instructions of the employer requiring him to desist from the activities which attracted complaint. The following extract from transcript is relevant:

"Q. Then the final paragraph says it's his understanding that you've also written to the director of the Sydney Institute on those matters and that he advised you that he'd directed management not to respond, and he doesn't propose to respond in the future. So you're quite clearly told by him that there's a line in the sand and he had formed a view that there was no substance in you allegations.

A. I would point out I would disagree with this assertion because what the managing director did not say is, "One more letter and you'll be sacked," and that I think is of utmost importance. What he says: "Just don't - I don't want you to write." But he doesn't say, "If you are going to write one more letter I won't see your ugly face here any more. You'll be sacked." He never said that, and that is I think of enormous substance". [8]

4. In many cases the failure of an employer to unequivocally state the nature of complaint and the consequences of any absence of rectification of the relevant conduct, can establish that a subsequent dismissal for that conduct was unreasonable. In this instance, however, the totality of the evidence suggested that the applicant raised the allegation of a lack of precision regarding any instruction given to him as a belated and desperate measure which was similar to the attempted reliance upon some distinction between himself as a citizen and a different entity as an employee.

5. It is clear when one examines the direct and strong words used in various letters to the applicant including that by the (then) Director of TAFE, R J Puffett, in correspondence of 12 February 1996 (Exhibit 4 - Tab 19), that any reasonable person would have understood what was required and what could be expected as a consequence of non-compliance. Although relating only to conduct after the TAFETA conference, similar strong and direct language was used by the employer's Director General, Dr Boston, in his letter to the applicant of 12 March 1998 (Exhibit 4 - Tab 58).

6. Further it is relevant to note that the applicant continued to write and repeat allegations after he was advised that the charges of breach of discipline had been found to be proven and he was invited to make submissions regarding penalty. It is simply inconceivable that as of 18 March 2000, after having been found to have breached discipline by raising the unsubstantiated allegations in the TAFETA "submission" of May 1997, that the applicant would not comprehend that his employer was not prepared to tolerate any further repeat of the unsubstantiated allegations included in the TAFETA "submission".

7. The applicant's further repeat of the allegations which underpinned the charges which had been found proven against him demonstrates, if nothing else, an obstinate refusal to contemplate for one moment, that he might be wrong, or alternatively, that his employer has a legitimate right to require him to desist from making serious unsubstantiated allegations directed at other of the employer's staff.

8. Having regard for the totality of the evidence regarding the applicant's conduct, and the applicant's level of education, the attempt to advance the prospect that the employer had not particularised with sufficient clarity, the nature of the direction that he was to comply with, is a matter of some sad regret. I am confident that the applicant fully appreciated the nature and gravity of the employer's instruction which required him to desist from raising unsubstantiated allegations by way of written or any other communication or publication. It is a sad reflection of the significant wide spread damage that has occurred as a consequence of the sorry history revealed in this matter, that a person of obvious education and intelligence might endeavour to rely upon ignorance as a means to justify his actions.

CONCLUSIONS

9. The conclusions reached in this matter may have appeared to have been available without the comprehensive analysis of the evidence that has been undertaken. However given the serious nature of the underlying allegations and the extensive history that preceded the applicant's dismissal, it has been necessary to ensure that the applicant was provided with every prospect to justify his actions by substantiating the very serious allegations that he has repeatedly and publicly made.

10. Unfortunately for the applicant a comprehensive analysis of all of the evidence does not provide one scintilla of justification for the extraordinary campaign of allegation and complaint that he has undertaken since 1993. Indeed the evidence when fully comprehended, leads the Commission to conclude that the applicant has been motivated by retribution and that that retribution is without proper foundation.

11. Despite the extensive evidence involved in the Hearing of this matter, the Commission has not been provided with a satisfactory explanation for the original subject of inquiry by Messrs Jones and Albani in February of 1993. Specifically, the Commission has not been able to conclude that the suggestion of the averaging process provides satisfactory explanation for the applicant including the two short excursions on his EC1 time sheet at the start of the 1993 teaching year. Although the Commission would not necessarily have to appreciate what might have been the legitimate basis for the inclusion of the two short excursions on Saturday 13 and Sunday 14 February 1993, it is regrettable that the catalyst for this entire matter remains unresolved.

12. Certain delays associated with the employer's procedure for dealing with investigation and determination of the misconduct which established the applicant's dismissal, provided significant prospect for the concept of condonation to have created some unfairness in the dismissal. However, the particular circumstances of Public Sector employment and the nature of the allegations raised by the applicant, have provided, inter alia, proper explanation and reason for the significant delays experienced in this case.

13. The employer's investigation and determination of the charges of breach of discipline against the applicant were without significant fault. Upon the further Hearing of this matter the Commission must confirm the findings made by Mr Pollock where, in all but two instances, the charges against the applicant were proven.

14. In addition the applicant's ongoing conduct, although not a consideration of the employer, represents additional sufficient substantive basis upon which the Commission concludes that the dismissal of the applicant was neither harsh, nor unreasonable, nor unjust.

15. Accordingly the applicant's claim does not satisfy the statutory criteria. Therefore the claim is dismissed.

oooOOOooo

[1] Transcript of proceedings (19/10/00) @ pages 48-49.

[2] Transcript of proceedings (20/10/00) @ page 24.

[3] Exhibit 4 Tab 99 @ pages 63 and 64.

[4] Exhibit 4 Tab 99 @ pages 78-79.

[5] Exhibit 4 - Annexure G @ paragraph 22.

[6] McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan J], 25IR 107 @ page 114.

[7] B. Rose and Telstra Corporation Limited, Australian Industrial Relations Commission, [Ross VP], Print Q9292, 4 December 1998.

[8] Transcript of proceedings (19/10/00) @ page 79.