Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg and Roads and Traffic Authority of NSW [2009] NSWIRComm 14 (24 February 2009)

Last Updated: 27 February 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg and Roads and Traffic Authority of NSW [2009] NSWIRComm 14



FILE NUMBER(S):
IRC 872

HEARING DATE(S):
27 October 2008; 28 October 2008; 29 October 2008; 31 October 2008

DATE OF JUDGMENT:
24 February 2009

PARTIES:
APPLICANT
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg

RESPONDENT
Roads and Traffic Authority of New South Wales

CORAM:
Sams DP


CATCHWORDS: Termination of employment - unfair dismissal - RTA driver testing officer - applicant dismissed for misconduct - alleged breaches of RTA's Code of Conduct and Ethics and other policies - whether dismissal substantively and procedurally harsh, unreasonable or unjust - applicant seeks reinstatement - earlier disciplinary investigation in 2004/05 - allegations of threatening and intimidatory behaviour against other staff - neighbourhood disputes brought into workplace - transfer from Grafton to Armidale with final warning - final warning had 12 month life - whether 2004/05 incidents relevant to applicant's later dismissal - first disciplinary matter involving driver testing errors - surveillance of applicant - errors substantiated - no formal fact finding investigation - procedural unfairness - applicant too ill to attend disciplinary interview - reports of applicant's doctors and HealthQuest - postponement of disciplinary investigation - delay in finalising investigation - complaints of the Union - second disciplinary matter - two incidents - whether threatening and abusive conduct - use of profane language - email complaints from employees - acceptance of certain words used - apology and contrition - complaints by applicant and partner - second incident involving allegations of threatening conduct - whether other employees fearful - whether certain words used - contrary evidence - no statements from, or interviews with, relevant persons - independent investigation - allegations found to be proven - restrictions on investigator - investigator queries quality of evidence - recommendation of Disciplinary Panel to dismiss applicant - recommendation approved - harshness of dismissal - principles of summary dismissal for misconduct - principles of procedural fairness - practicality of reinstatement.

Held; issues narrowed to incidents in 2007 - plausible medical explanation for driver testing errors - first disciplinary matter dropped - applicant's belated apology - own admission constituted breach of Code of Conduct - test of genuine fear of threatening behaviour not what perpetrator might believe - applicant frustrated and angry - history of foul language - animosity towards supervisor - applicant's evidence not preferred over other witnesses - acceptance that applicant likely to have used profane language - applicant intended supervisor to hear threatening comment - earlier angry outburst over suggestions of counselling - applicant's timing of incidents rejected - supervisor entitled to feel fearful and threatened - would have been preferable to have interviewed other witness - other witness did not support applicant's version of events - interviewing other witness unlikely to have changed outcome - 2004/05 matters relevant - unrealistic to ignore past history - no medical basis to explain inappropriate conduct - allegations found to be proven - breach of RTA's Code of Conduct and Ethics - procedural defects identified - no formal fact finding investigation would not have changed outcome - delay in concluding disciplinary proceedings due primarily to applicant's medical issues - appropriate for RTA to be concerned with applicant's medical condition - thorough investigations - independent investigator - two Disciplinary Panel hearings - applicant and Union put submissions in mitigation - mitigating factors properly considered did not outweigh seriousness of allegations - potential risk for the health and safety of other employees - allegations found to be proven on balance of probabilities - applicant's conduct in breach of RTA's Code of Conduct and Ethics - seriousness of misconduct outweighed procedural defects - other employees would not work with applicant - mitigating factors considered - dismissal of applicant not harsh, unreasonable or unjust - unnecessary to consider practicality of reinstatement or other forms of relief.

LEGAL REPRESENTATIVES
APPLICANT
Mr M Gibian of Counsel
Solicitor: Ms A McRobert
W G McNally Jones Staff
RESPONDENT
Mr R Warren of Counsel
Solicitor: Ms J Patterson
Minter Ellison Lawyers

CASES CITED:
Abboud v the State of New South Wales (Department of School Education) (1992) 92 IR 32
Alexander v Commissioner of Police [2009] NSWIRComm 3
Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385
Austin v NF Importers Pty Ltd [2005] NSWIRComm 136; (2005) 146 IR 113
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Buckman v Burdekin Resources NL (1998) 85 IR 415
Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288
Burge v BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325
Burke v McGirr (1995) 87 IR 54
Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333
Busways v Johnson (1994) 55 IR 255
Byrne & Frew v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300
Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Coles Myer Ltd v Shop, Distributive & Allied Employees' Association (NSW) (1989) 27 IR 299
Concut Pty Ltd v Worrell (2000) 103 IR 160
D&R Commercial Pty Ltd v Flood (2002) 113 IR 344
Day v Lumley Life Limited (1999) 90 IR 70
Dismissal of Union Delegates at Homebush Abattoir, Re [1966] AR (NSW) 371
Franklins Ltd v Webb (1997) 72 IR 257
Gow v Cronulla Sutherland Leagues Club Ltd (2009) 119 IR 122
Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151 Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd (2002) 128 IR 37
Johnson v Catholic Education Office, Diocese of Parramatta (1995) 87 IR 57
Little v Commissioner of Police (No.2) (2002) 112 IR 212
Miller v Australian Industrial Relations Commission [2001] FCA 486; (2001) 104 IR 415
National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2004) 146 IR 441
New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440
New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service (2007) 164 IR 225
New South Wales Public Service and Professional Officers' Association v Forestry Commission (1990) 39 IR 46
North v Television Corporation Ltd (1976) 11 ALR 599
Oswald v NSW Police Service (1999) 90 IR 42
Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167
Owens v New South Wales Police Service (1998) 87 IR 1
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No3) (1990) 35 IR 70
Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Plummer v Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 301; (2005) 145 IR 111
Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396
Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
Wells v Commissioner of Police (2000) 100 IR 106
Wilson v Department of Education and Training [2000] NSWIRComm 20; (2000) 100 IR 1

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

- 8 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP


24 February, 2009

Matter No IRC 872 of 2008

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Graham Douglas Gregg and Roads and Traffic Authority of New South Wales

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of its member Graham Douglas Gregg) re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2009] NSWIRComm 14

1 On 19 May 2008, Mr Graham Douglas Gregg ('the applicant') was dismissed from his employment as a Registry Services Officer, Driver Testing, at the Armidale Motor Registry of the Roads and Traffic Authority of New South Wales ('RTA'). An application, pursuant to s 84 of the Industrial Relations Act 1996 ('the Act') was filed on 10 June 2008, by the applicant's Union, the Public Service and Professional Officers' Association Amalgamated Union of New South Wales ('PSA') in which the applicant's reinstatement was sought under Pt 6 Ch 2 of the Act. The application was listed for conciliation on 27 June 2008, and there were indications on that occasion, that settlement of the claim was likely. An adjournment was sought and granted. However, on 4 July 2008, the Commission was informed that no settlement could be reached. Accordingly, I made a finding of unsuccessful conciliation, pursuant to s 87 of the Act, issued directions in preparation for arbitration and listed the matter over five days in October 2008.

BACKGROUND SUMMARY

2 In preparing a background summary, I have relied on the extensive documentary material tendered by both parties. Where appropriate, I have referred to matters which are disputed and which are dealt with elsewhere in the evidence. The background is obviously very detailed, having regard for the long history of the matter and the significant amount of documentary material related thereto.

3 The applicant commenced employment with the RTA as a driver tester on 16 February 1987, at the Moree Registry. He worked there for about three years before being transferred in 1991 to the Registry at Grafton as an itinerant driver tester in northern New South Wales. This work involved driver testing in towns which have no RTA registry office.

4 Around 2000, the applicant became permanently based at Grafton and he moved house there around July 2001. In 2002, a number of neighbourhood disputes arose between the applicant and his neighbours, who were also employees of the Registry at Grafton. This led to considerable workplace tension and disharmony.

5 As a result of these difficulties at the Grafton Registry, the RTA sought a workplace assessment from an organisational psychologist, Ms Martha Knox Haly. The following observations were made about the applicant in her report to the RTA dated 20 August 2004:

Staff were all aware of intensified difficulties between Mr Gregg, Mr Mellefont, Ms Lawson, Ms Paul and Ms Hayman. This was the chief issue raised by the majority of staff. Ms Nixon was the only staff member who indicated that she was unaffected by Mr Gregg's behaviour and the workplace conflict.

The origins of the problem seemed to be that Mr Gregg previously worked as an itinerant Driver Tester for a number of different locations. This meant that Mr Gregg would previously receive travelling allowances, and spend a number of nights away from home each fortnight. Mr Gregg had previously received an award for best registry services officer in NSW in 1996. Mr Gregg was also very gregarious and pleasant officer, and had in fact functioned as the social co-ordinator for Grafton Registry.

When Mr Gregg lost his itinerancy, he had become increasingly angry and bitter. He began to withdraw from social events and became aggressive towards his co-workers. Mr Gregg has begun to selectively bypass other counter officers and not approach them for overrides. There was a period of seven months where he stopped talking to the RSCO Ms Lawson unless he absolutely had to. Ms Lawson confronted Mr Gregg and apologised for whatever it was that she had done, and asked Mr Gregg to express his concerns to her. Mr Gregg eventually explained that he had been angry at Ms Lawson asking him to take his turn in making the cups of tea and coffee for his co-workers.

Mr Gregg presented as being angry, irrational and having a number of beliefs that he was being excluded or persecuted by Ms Hayman, Mr Hayman, Ms Paul and Mr Mellefont. Mr Gregg alleged that Mr Hayman had been running a business from his home after hours. He also complained that Mr Hayman had been shining lights into his backyard at all hours of the night. Ms Hayman indicated that this was definitely not the case. Her perceptions were independently backed up by Ms Paul in another interview. The council investigation initiated by Mr Gregg did not result in any further action against Mr Hayman. Ms Paul, Mr Mellefont and Ms Hayman are very anxious for the personal well being at home; as they are all too aware that Mr Gregg has a number of firearms.

6 A number of options to address the problem were canvassed, including the applicant's transfer from Grafton and that he attend a local psychiatrist. As a result, Mr Peter Cossins, Operations Manager, North, recommended as follows:

In my view, the weight of evidence points to behaviour on the part of Mr Gregg which constitutes threatening and intimidatory behaviour against staff at Grafton motor registry. This is a breach of the RTA Code of Conduct and Ethics and disciplinary action should be commenced immediately. This may require further detailed investigation which should be given priority. In the meantime, Mr Gregg should be directed to take the maximum recreation leave afforded under the RTA leave policy and thereafter suspended from duty until disciplinary proceedings are finalised. If there is a case to answer, the recommendations of Ms Knox Haly can be given full weight in determining the final action in the matter.

Recommendations

The following action is therefore recommended:

1. Mr Gregg be directed to immediately commence maximum recreation leave allowable under existing recreation leave policies.

2. Mr Gregg be immediately referred to HealthQuest for psychiatric review and assessment for fitness for duty.

3. Disciplinary action for breaches of RTA Code of Conduct and Ethics be commenced.

4. Support and advice be provided to affected staff at Grafton motor registry who wish to pursue the option of apprehended violence orders.

Submitted for consideration and advice.

7 On 24 August 2004, Mr Tim Mellefont, the Manager at Grafton Registry provided a report on complaints about the applicant dating back to February 2002, in which he said:

You should be aware that there has been a major and dramatic change in Graham's personality over the past 5 or 6 years. Graham was a previous past winner of the RTA, RSO of the State Award. He was the director of the registry social functions, a motivated and active team member with a likeable personality who would follow recommendations and directions whenever asked.

Since then he has become a very bitter and angry man full of hate for the RTA, Management and his fellow staff, with a tendency towards a persecution complex and irrational behaviour that despite my best efforts, I have been unable to turn around.

I now believe that it is imperative for the safety, health and well being of the rest of the staff at Grafton Registry that Graham be removed from the office to another location as soon as possible so that the registry team can heal and move forward in a positive manner towards becoming a happy, stress free and safe work-place once again.

8 As a result, in September 2004, the RTA initiated a fact finding investigation into the allegations of harassment by the applicant. A report was provided by an independent consultant, Ms Joy Woodhouse, in November 2004 following interviews with numerous RTA employees. The recommendations were:

On the basis of careful review of all the available evidence, it is recommended that consideration is given to the following:

· Mr Gregg is the subject of disciplinary action on the grounds of misconduct.

As an alternative to disciplinary action and in light of Ms Knox Haly's report, it is recommended that consideration is given to the following:

§ Mr Gregg is formally counselled that his ignoring behaviour towards Ms Paul, Ms Hayman and Ms Lawson is a form of harassment and is unacceptable behaviour in the workplace.

§ Mr Gregg is counselled that his swearing and making offensive and derogatory comments about staff to other staff are forms of harassment and are unacceptable behaviour in the workplace.

§ All members of the Registry team are reminded of RTA's commitment to ensuring that all staff members enjoy good working relationships with each other, that they should feel comfortable in the workplace and that differences should be respected. In particular, staff should be reminded that ignoring and swearing behaviours are forms of harassment.

§ The report of the investigation is not released to any parties.

9 It is noted that elsewhere in this report there were numerous references to the applicant using foul language in the workplace.

10 On 11 March 2005, in a memorandum from Ms Mary Grace, the RTA's General Manager Human Resources, the current position was outlined as:

The RTA is now in receipt of reports from Mr Tim Mellefont, Ms Martha Knox-Haly and Ms Woodhouse's final report. The information from all three reports indicates that the allegations of inappropriate conduct (harassment) by Mr Gregg have been substantiated. The fact that Mr Gregg has now submitted a workers compensation claim form, and attended a psychiatrist for a medico-legal opinion has caused some confusion, as this is a departure from the agreed actions.

It is considered that sufficient material exists to require Mr Graham Gregg attend a disciplinary interview to formally respond to allegations relating to his inappropriate conduct in the workplace. The issue of appropriate medical/psychiatric intervention or assessment need not hinder the disciplinary process. Should the RTA receive a psychiatric assessment in the course of the disciplinary process, the information provided in this assessment will, necessarily, be taken into consideration prior to recommending any disciplinary action, if relevant.

It was recommended:

That Mr Graham Gregg be required to attend a disciplinary interview to respond to allegations that his behaviour and conduct in the workplace, despite repeated attempts at remedial action, continue to be in breach of the RTA's Code of Conduct and Ethics and the RTA's Harassment, Discrimination and Workplace Bullying Policy.

11 A disciplinary inquiry was conducted by IAB Services which included an interview with the applicant. It's report of May 2005 made the following recommendations and findings:

It is recommended that the RTA consider the findings arising from the disciplinary interview conducted with Mr Gregg and take disciplinary action against him in relation to following matters.

He failed to comply with requests from his Registry Services Manager at Grafton Motor Registry on 7 April 2004, and 26 July 2004 to cease inappropriate behaviour and attitudes towards other staff by:

(a) Deliberately ignoring other staff.

(b) Refusing to resolve perceived personal differences and work-related disputes.

(c) Making offensive and subversive remarks about other staff audible to other staff and customers.

In failing to comply with these requests, he breached that part of the Code of Conduct and Ethics that requires him "to co-operate with and obey lawful requests, directions or instructions given to [him] in the course of employment by any person having the authority to do so."

He engaged in appropriate conduct towards other staff despite being counselled for that inappropriate conduct on 16 October 2003 by:

(a) Deliberately ignoring other staff.

(b) By refusing to resolve perceived personal differences, including refusing to acknowledge on several occasions fellow staff member, Ms Barbara Paul, when greeted by Ms Paul.

(c) By making offensive and subversive remarks about other staff audible to other staff and customers.

By engaging in such conduct he breached those parts of the Code of Conduct and Ethics that require him:

· To conduct [him]self in a professional and ethical manner at all times whilst at work and not bring the RTA into disrepute.

· To treat other staff, customers or members of the public fairly and with courtesy and respect.

· To not discriminate against, harass, intimidate, bully or threaten other staff or members of the public.

· To commit to resolving personal or work-related disputes or differences in a constructive and co-operative manner.

· To work co-operatively and effectively within a team environment.

and that part of the Harassment, Discrimination and Workplace Bullying Policy prohibits "Any behaviour or series of behaviours, that unfairly or unreasonably, belittles, undermines, controls, scares, intimidates, excludes, offends or embarrasses anyone it is directed at, or anyone who sees or overhears it."

During August 2004, he engaged in inappropriate conduct towards other staff and/or audible to other staff and customers by:

(a) Referring to another staff member, Ms Deborah Lawson, as a "fucking cock-sucker" in the presence of a fellow staff member, Ms Kim Livet.

(b) During a telephone conversation with Registry Services Manager, Mr Tim Mellefont, Mr Gregg used the word "fucking" several times in a raised voice and audible to other staff and members of the public.

(c) That after finishing that conversation, Mr Gregg made the comment "Fucking cock-suckers!" in a raised voice and audible to other staff and members of the public.

By engaging in such conduct he breached those parts of the Code of Conduct and Ethics that require him:

· To conduct [him]self in a professional and ethical manner at all times whilst at work and not bring the RTA into disrepute.

· To treat other staff, customers or members of the public fairly and with courtesy and respect.

· To not discriminate against, harass, intimidate, bully or threaten other staff or members of the public.

· To work co-operatively and effectively within a team environment;

and that part of the Harassment, Discrimination and Workplace Bullying Policy prohibits "Any behaviour or series of behaviours, that unfairly or unreasonably, belittles, undermines, controls, scares, intimidates, excludes, offends or embarrasses anyone it is directed at, or anyone who sees or overhears it."

12 The matter was referred to a Disciplinary Panel. As an agreed matter, Dr Robert Delaforce, a forensic psychiatrist, provided the Disciplinary Panel with a comprehensive 35 page report about the applicant in which he concluded:

His prognosis will improve considerably if the current workplace problems are soon favourably resolved and he can be given a permanent and appropriate position away from Grafton. That he reportedly continues to perform very well in his current work at Armidale just means that Grafton for so many reasons became a problem place from mid 2001 and that he is not a problem person or worker when he can get out of that intolerable situation at Grafton.

Dr Delaforce's diagnosis was Adjustment Disorder with Depressed Mood, Chronic, arising initially from problems in his neighbourhood, which secondarily contaminated the Grafton Registry and which were exacerbated by the pursuit of the allegations of improper behaviour. Nevertheless, Dr Delaforce diagnosed him psychiatrically fit to continue with his full time RTA employment - but away from Grafton. The Disciplinary Panel recommended the applicant be permanently transferred to Armidale Motor Registry with a final warning after making the following findings:

In relation to the above allegations, the following findings have been made:

1. Your inappropriate conduct was the subject of meetings with Mr Tim Mellefont in October 2003 and April 2004;

2. You had on occasion in the period of 2002 - 2004 ignored, and in some instances, deliberately ignored staff to obtain overrides;

3. You had, on occasion, used inappropriate language in the Grafton Motor Registry. You also admitted that you had made an effort to curb your inappropriate language following meetings with your Registry Services Manager;

4. That interpersonal conflict did exist at Grafton Motor Registry but that this conflict was caused by issues external to the workplace and that you and other staff brought this conflict into the workplace;

5. You used inappropriate language during a telephone conversation with the Registry Services Manager although you denied that the comments were directed at any one staff member, or were audible by other staff or members of the public; and

6. That on 7 April 2004 and 26 July 2004, you failed to comply with requests to cease your inappropriate behaviour and attitudes towards other staff.

A number of other allegations were not substantiated. The applicant was advised of the outcome on 5 August 2005.

13 On 19 August 2005, the PSA responded on behalf of the applicant as follows:

1) Mr Gregg accepts the transfer to Armidale Motor Registry as outline and in accordance with the RTA's Transfer Policy.

2) Mr Gregg notes that a formal final warning in relation to the conduct matters will be placed on his personal file. The Association requests that the Authority review this issue in 12 months time subject to Mr Gregg's maintenance of good conduct with a view to remove this letter from his file. Mr Gregg's pervious 18 years of service and an unblemished record be taken into consideration.

3) Mr Gregg has advised the Association that he and his family are extremely alarmed and upset in relation to the process and conduct of this disciplinary enquiry, particularly in relation to the length of time to determine this matter. The Association refers you to its letter to the Authority on 20 July 2005 expressing its concerns in relation to the RTA's disciplinary processes generally. Mr Gregg's case will be one of those on which the Association relies in relation to this global issue.

4) The Association is concerned with the handling of Mr Gregg's access to ongoing counselling once he was temporarily relocated to Armidale Motor Registry. He had access to a psychological counsellor in Grafton who was managing his progress concerning his health issues. Once he took up his position in Armidale he was denied access to ongoing counselling and access to a medico legal psychiatrist. The PSA wishes to discuss this issue separately with the Authority.

14 The Disciplinary Panel reconvened and considered the PSA's submission. As a result, the applicant was informed on 22 September 2005, as follows:

1. Duration of disciplinary process

Due to the complexity and serious nature of the allegations against you, and the serious nature of those allegations later found to be substantiated, I do not consider the time taken to complete this disciplinary as unreasonable.

After a meeting with the General Manager, Human Resources on 13 December 2004, you agreed to undertake a psychiatric assessment and gave permission for an RTA appointed industrial psychologist to brief your general practitioner and a nominated treating psychiatrist in the Armidale area. While this did occur, for reasons known to yourself, you chose to attend a psychiatrist in Coffs Harbour. This referral and appointment added to the delay.

This psychiatrist then referred you for a medico-legal assessment (appointment on 28 April 2005) and the report was received by the RTA on 25 July 2005. I have considered but, in light of the above, reject your assertions of delays by the RTA in finalising disciplinary proceedings against you.

2. Ongoing counselling at Armidale

I have considered but reject the assertion that you have been denied access to counselling. Counselling has always been available to you and can be accessed by you (and all RTA staff) through the RTA's Employee Assistance Program. I note that you had been undertaking regular counselling prior to the disciplinary proceedings, at your own expense. This continued counselling has always been your responsibility.

In relation to penalty, I have taken into consideration the submission from the PSA to me dated 19 August 2005 and advise you I have determined the following disciplinary action:

1. That you be permanently transferred from the Grafton Motor Registry to Armidale Motor Registry. The transfer would be in accordance with the RTA Transfer Policy, i.e. the RTA would meet associated relocation expenses.

2. That you receive formal final warning letter in relation to your inappropriate conduct, a copy of which is placed on your staff file, and that any further instance of that conduct within a period of twelve (12) months will result in immediate disciplinary proceedings and may result in termination of your employment. Subject to your maintenance of good conduct for a period of twelve (12) months, the warning letter will then be removed from your staff file.

First Disciplinary Matter

15 On 5 May 2006, the applicant conducted a driver test for a Mr Norman Page. Despite being told he had passed, Mr Page was later advised that he required a further advanced age driving test as it was discovered that the applicant had not recorded Mr Page's test on the RTA's computer DRIVES system. The applicant had also not conducted a kerbside stop manoeuvre, did not complete the additions on the score sheet and had not calculated the result of Mr Page's test.

16 On 26 May, while relieving at Kempsey, the applicant said he was contacted by Ms Peg Baynham, the Armidale Registry Manager and asked about the test. The applicant said that Ms Baynham had told him he had made a few mistakes. I note that there is a dispute about who first spoke to the applicant about the matter.

17 These errors prompted the RTA to conduct surveillance of the applicant's driver tests. The surveillance was conducted by Mr Bob Harris, Driver Testing Co-ordinator Northern, over three days, 24 to 26 July 2006, involving seven driving tests. In five of the seven tests a number of anomalies were identified by Mr Harris. Ms Cvetkovic, Manager of the RTA's Workplace Practice Unit, received a report from Mr Harris in which Mr Harris concluded:

Graham Gregg has demonstrated that he has a sound knowledge and understanding of the principles relating to the DART test procedure however the results of these surveillance activities suggest that he uses his personal assessment and not the DART criteria when conducting tests.

Serious doubts remain over the integrity of his overall delivery of driver testing and his ability to consistently conduct driving tests to the technical standard required.

18 Ms Cvetkovic believed, based on Mr Harris' report and the factual evidence (the test sheets), that this information constituted a fact finding report (according to the RTA's disciplinary procedures) and that the matter should proceed directly to a formal disciplinary interview. In the meantime, the applicant was rostered on counter duties from 28 July 2006.

19 On 7 September 2006, the applicant was directed by Mr Peter Cossins to attend a disciplinary interview in Sydney on 18 September 2006, in order to respond to allegations 'that you breached the RTA Code of Conduct and Ethics ("the Code") by failing to comply with RTA administrative requirements, failing to conduct yourself professionally and ethically and potentially bringing the RTA into disrepute, failing to act in accordance with approved RTA policies and procedures and acting fraudulently'.

The specific allegations were that the applicant did:

a. not complete scoring and calculation of driving test results as required under RTA Driving Ability Road Test (DART) criteria while administering a Class C advanced Age Driving Test for Mr Norman Page conducted on Friday, 5 May 2006 from Armidale motor registry;

b. not fully complete a Class C Advanced Age Driving Test for Mr Norman Page conducted on Friday 5 May 2006 from Armidale motor registry by failing to conduct a kerbside stop manoeuvre as required under set DART criteria;

c. not enter the driving test result, or cause the result to be entered, on DRIVES of the Class C Advanced Age driving test for Mr Norman Page conducted on Friday, 5 May 2006 from Armidale motor registry;

d. not comply with the set DART criteria for a Class C Driving Test conducted in vehicle RZS-984 carried out from Armidale motor registry on Monday, 24 July 2006, for Janine Gai Pearson, by incorrectly assessing a 'gap' performance check by marking the DART score sheet as 'yes' when 'gap' should have been recorded as 'no' and a fail item number 2 recorded (Failing to give way when necessary);

e. not comply with the set DART procedure for recording the Class C Advanced Age Driving Test for Doris Amelia Taylor conducted from Armidale motor registry on Tuesday 25 July 2006 in vehicle GT-833 in that you did not fully traverse the approved test course No 1 in the test vehicle as required;

f. not comply with the set DART procedure for recording the Class C Advanced Age Driving Test for Doris Amelia Taylor conducted from Armidale motor registry on Tuesday 25 July 2006 in vehicle GT-833 in that you marked the DART score sheet as 'yes' for seven performance checks applicable to a section of the approved test course No 1 that you did not traverse in the test vehicle;

g. not comply with the set DART procedure for recording the Class C Driving Test for Nawal Dafak S Alshammari conducted from Armidale motor registry on Tuesday, 25 July 2006, in vehicle UFR-542, in that during the kerbside stop manoeuvre, the vehicle stop position clearly fell into the 'no' criteria but position was marked as 'yes';

h. not comply with the set DART procedure for recording the Class C Driving Test for Stephanie Anne Moore conducted from Armidale motor registry on Wednesday, 26 July 2006, in vehicle WQS-842, you failed to record an error for the turning position left Performance Check when the vehicle approach position was incorrect;

i. not comply with the set DART procedure for recording the Class C Advanced Age Driving Test for Adolf Donk conducted from Armidale motor registry on Wednesday, 26 July 2006, in vehicle MMG-892, in that during the kerbside stop manoeuvre, the vehicle stop position clearly fell into the 'no' criteria but position was marked as 'yes'.

20 Various RTA policy documents and the driver test sheets were attached to the letter to the applicant. The applicant advised that he was too ill to attend the 18 September interview and it was rescheduled for 12 October. However, he provided no medical certification stating his unfitness to attend the interview. The applicant subsequently provided two medical certificates requesting the disciplinary interview be conducted in Armidale due to the stress that he was experiencing, both personally and in his relationship with his partner. The RTA agreed to hold the interview in Armidale and inquired of the applicant as to his fitness to attend on 12 October. On 9 October 2006, the applicant produced another doctor's certificate from Dr Nigel Pain seeking a postponement of the disciplinary interview until he was further assessed by his treating psychiatrist, Dr Delaforce.

21 On 9 October 2006, the applicant was advised that he was required to comply with the employer's lawful direction and he was asked why he was fit for work, but not fit to attend the disciplinary interview, despite it being rescheduled to Armidale at his request? The applicant was further advised that if he was not fit to attend the disciplinary interview, then he was not fit for work. He was thereupon directed to access his sick leave and not attend work until he was fit to attend the interview. Arrangements were also made for his attendance at the Government Medical Officer for an assessment of his fitness for work.

22 The applicant then provided a New South Wales WorkCover medical certificate advising that he was unfit for work from 11 October to 15 October 2006. Approval was then sought for a HealthQuest assessment of the applicant's fitness for duties, in particular, his fitness to attend a disciplinary interview. On 27 October 2006, HealthQuest was requested to undertake the assessment of the applicant and an appointment was made for him to do so 24 November 2006.

23 However, on 24 November, Dr Delaforce wrote to Dr Pain outlining why he believed the applicant should not attend a disciplinary interview, unless an informal fact finding interview had occurred. Dr Delaforce said in part:

I agree with your October 2006 medical certificates indicating that Mr Gregg was fit for employment but not at that stage to attend the disciplinary interview. The excessively forceful behaviour of some RTA workers related to that is very worrying, including the behaviour of the Acting General Manager of Human Resources, Robyn McKeown, when she on 10 October 2006 telephoned my office and Ms Baynham when she telephoned Mr Gregg at the time when she knew he was then attending you. Mr Gregg was directed to in spite of your medical certificates to commence sick leave and not be at work if he was not fit to attend the disciplinary interview. Intervention of the Public Service Association worker, Greg Shaw, failed to get the RTA to be more reasonable. You therefore issued the initial WorkCover certificate, which was subsequently denied although I am not sure who made that decision.

With Mr Gregg's improvement in the last 3 weeks he accepts that he not only wants to go back to work but is fit to work and attend a disciplinary interview. I know you are now of that opinion and I agree with one extremely important qualification. He should not be directed to attend a disciplinary interview when an informal fact-finding interview has not occurred. Justice here means an inquiry before someone is alleged to have deliberately acted corruptly and fraudulently and therefore is told to attend a disciplinary interview. Imputing intent by alleging that he acted corruptly and fraudulently and therefore facing a disciplinary interview is grossly inappropriate but sadly apparently a repeat of RTA's problem behaviour.

I anticipate he will be found fit for his usual RTA duties but we all need to wait for Dr Williams' report, which is part of a fact-finding investigation.

24 On 24 November 2006, the applicant attended a Health Quest assessment which concluded as follows:

Mr Gregg was referred for an assessment of his fitness to engage in a fact finding and a disciplinary interview.

Mr Gregg was seen at Armidale on the 24/11/06 and reported that he had been the victim of workplace harassment which had produced significant emotional problems for him. He provided a good deal of documentary evidence for his view of his situation, including two reports prepared by Dr R V Delaforce, Forensic Psychiatrist. HealthQuest also supplied with the formal letter of referral to Mr McCombie documentary evidence regarding the situation and the views of Drs Pain and Pridgeon regarding Mr Gregg's fitness for work and their view that he is not fit to attend the disciplinary interview/fact finding.

When see, Mr Gregg presented as a mildly depressed and anxious individual. He was very focussed on his situation and its causes but less so on its effect upon him. He appeared to be a robust character who dealt with his situation with a good deal of repression and denial, which seemed to be working for him. He reported that he was exhausted by the process and that he suffered from emotional problems as indicated above, in the Current Status section of this report, in response to this situation.

However, at the same time, he expressed the view that, now that the interview is to be held in Armidale he was prepared to undergo this process to come to some resolution of the problem.

Mr Gregg's responses to the MMPI, his history, his self-report and his presentation were consistent with each other and the mental disorders, using DSM IV TR criteria; Major Depressive Disorder - Chronic - Mild to Moderate severity; Panic Disorder without Agoraphobia; and Anxiety Disorder Not Otherwise Specified. Mr McCombie was not of the opinion that these conditions are especially debilitating for him, especially as his state scores are far less concerning than his trait scores, and as he can manage the day to day difficulties of his employment and life without undue distress.

Dr McCombie's view was that Mr Gregg is fit to undergo the disciplinary interview, as it will be in Armidale and as he has support both during the meeting and afterwards.

Prognosis

Dr McCombie agreed with Dr Delaforce that, overall, Mr Gregg has a good prognosis for recovery from his emotional problems, especially if his workplace situation can be resolved.

Recommendations

Dr McCombie gave the advice that Mr Gregg would benefit from having his union Representative with him during the meeting.

He also indicated that Mr Gregg's Psychologist should be "on standby" to be able to assist Mr Gregg after the work meeting so appropriate defusing interventions could be put into play should the need arise.

25 On 12 December 2006, HealthQuest advised that the applicant was fit to attend a disciplinary interview. The applicant received the report and requested further information. As a consequence of this report, the applicant was advised the disciplinary interview was to be rescheduled.

26 On 14 December 2006, the applicant wrote to Ms Karen Edwards, Acting Manager Human Resources, and expressed a number of his concerns as follows:

My initial concern is that so far as I am aware there has been no fact finding investigation which appears to be an indispensable step in the RTA Disciplinary Process. Where the misconduct involves fraud or corruption the fact finding investigation is required to be conducted by the Control Management Services Branch.

If there has been an initial fact finding investigation might I be informed as to when, where and by whom it was conducted?

If there has not been a fact finding investigation then obviously that would be the logical next step. I am in the process of obtaining and expect to have completed a process of expert assessments the findings of which could be of significance to the facts found to exist at the time of my alleged wrongdoing.

If your decision is to proceed with a disciplinary interview then I request your approval for a person of my choosing to speak on my behalf at the interview because I believe I lack the capacity to speak effectively about a number of issues which will or may arise.

The issues include: the effect upon my functioning of changes in the dosage of my prescription medication; the propriety of my surveillance; compliance with the disciplinary procedures and guidelines; the fairness of the interview and compliance with the requirements of natural justice.

I also request that whether you decide to proceed with a fact finding investigation or a disciplinary interview that the event be postponed until I have completed my assessment by Dr G. Williams of the Coffs Harbour Sleep Disorders Clinic. I am due to undergo further assessment by Dr. Williams on 16th January 2007.

27 By letter dated 20 December 2006, the applicant was directed to attend a disciplinary interview on 23 January 2007, after the applicant had requested a deferment from 16 January. The RTA rejected the applicant's request for a person to attend to speak on his behalf and rejected the applicant's claim of a breach of the RTA's disciplinary process. The applicant was directed to return to work on 8 January 2007. However, on 2 January 2007, the PSA advised that the applicant needed a medical clearance to return to work and he could not attend his doctor until 9 January 2007.

28 The applicant attended the disciplinary interview on 23 January 2007, with Mr Cossins. It was recorded and transcribed. Also in attendance were Mr Peter Bartimote, Acting Driver Testing Manager, and Mr Albie Cripps, the PSA representative. During the interview, the applicant asked that Mr Cossins' report not be finalised until a final report was provided by Dr Delaforce. Mr Cossins said that this would be a matter for the Disciplinary Panel. Mr Cossins provided a report of the disciplinary interview and concluded that the nine specific allegations in (1) and the general allegations (2) to (5), had all been substantiated (see par 19). He concluded:

I consider, based on all the material provided in the report of Mr Harris and the Disciplinary Interview, that Mr Gregg breached the RTA Code of Conduct and Ethics, in that he:

§ failed to comply with RTA administrative requirements

§ failed to conduct himself professionally and ethically

§ brought the RTA into disrepute

§ failed to act in accordance with approved RTA policies and procedures and acted fraudulently

29 On 21 March 2007, Ms Cvetkovic received Dr Delaforce's report dated 20 March 2007. Dr Delaforce said in part:

I will now comment on the RTA allegations of Mr Gregg's improper behaviour on 5 May 2006 and between 24 and 26 July 2006. Mr Gregg's work error on 5 May 2006 led to the covert surveillance between 24 and 26 July 2006 when he allegedly made errors. Incredibly the errors meant attending a disciplinary hearing for breaching of the RTA's Code of Conduct and Ethics, including because he had acted corruptly and fraudulently.

For a start, and as outlined in this report, the stressful problems Mr Gregg had in his employment at Grafton and then with his forced relocation to Armidale are relevant to his continuing functioning at Armidale in 2006.

His being told at the end of May 2006 about what was his forgetting to complete a form and enter details into the computer would be stressful for him and especially because of what had happened at Grafton.

...

In the meantime it is best he continues on 75mg of Efexor at night. I would advise avoiding increasing the dose because there are indications that a higher dose causes side effects and it would probably have a greater detrimental effect on the Breathing-Related Sleep Disorder. When this appallingly managed matter by the RTA is finally resolved favourably, as it should obviously be, and Mr Gregg has no significant depressive symptoms another trial of ceasing Efexor will be indicated. This time an even slower reduction in the dose would be needed and he should be monitored by Dr Pain weekly during the medication withdrawal.

30 The Disciplinary Panel was not able to be convened until 7 May 2007. In the meantime the second disciplinary matter occurred.

Second Disciplinary Matter

31 On 29 March 2007, the applicant was involved in an incident with Ms Jessica Toomey (now Simpson) and Ms Jennifer Nesbitt, fellow employees at the Armidale Registry. On 17 April 2007, the applicant was involved in an incident with Mr Barry Warner, a fellow employee and Ms Barice Lewis, Acting Registry Manager. These incidents constituted the second disciplinary matter. Shortly after 18 April 2007, the applicant went on sick leave and did not return to the Registry. The applicant was informed on 23 April 2007, that arising from these incidents he was to face allegations of threatening and abusive behaviour towards other staff. He was directed to attend a fact finding interview in Armidale on 10 May 2007. However, this interview did not take place.

32 On 30 March 2007, the applicant and his partner, Ms Kerry Fraser, made formal complaints to Ms Lewis about two other staff members, Ms Jessica Toomey and Ms Anne-Maree Bryant, after Ms Fraser overheard a conversation in the Registry on 29 March.

33 On 2 April 2007, the applicant sent an email to the Union in which he complained about Ms Lewis and the RTA's refusal to provide him with the Registry's alarm access code and said that this was part of continuing harassment and discrimination by the RTA.

34 Ms Cvetkovic said she first became aware of the second disciplinary matter on 30 April when she received a phone call from Mr Cossins about the two incidents involving the applicant on 29 March and 17 April 2007. The applicant was advised that the fact finding interview was to discuss the following issues:

a. On Thursday, 29 March 2007, you gained access to Armidale Motor Registry at approximately 8:40am prior to the 9:00am trading commencement. Upon the arrival of the staff member authorised to open the premises at approximately 8:45am, you were questioned by that staff member as to how you gained entry to the Registry. You allegedly said, in the presence of another staff member who had also arrived at that time, "The code I was given didn't bloody work". You then allegedly asked to be supplied with the correct code to enable access to the Registry and were refused this information. It is then alleged that you raised your voice to a higher level and became angry and repeatedly requested to be supplied with the access code. You then allegedly showed the staff member a piece of paper with 4 digits and asked her to confirm or deny if those digits were correct. You were told that they were not correct and that the information could not be supplied to you.

b. Further to the above example, when refused the access code information, it is alleged that you made a reference to the acting manager, Ms Barice Lewis, and said, "That fucking bitch! What the hell was she thinking?! Why did she give me this code?" Both staff members then retreated to the manager's office in an effort to diffuse the situation and it is reported that you used foul language in a threatening manner.

c. The last staff member to arrive at the Registry on the same date and approximate time alleges that she witnessed a heated exchange between yourself and the staff member authorised to access the Registry. It is alleged that you were loud and abusive with accusations directed at Ms Barice Lewis and you allegedly said, "She has given me the wrong access code. What did the fuckin' bitch think she was doing!?". It is alleged further that you then demanded that the access code be divulged to you. When this was refused, you allegedly became more agitated and left the Motor Registry after two female staff members retreated into the manager's office.

d. The acting manager, Ms Barice Lewis, reports that you often told her that your pin code would not work in the alarm and you had been advised that the code you were using was no longer current and had been changed. It is reported that you may have accessed the Armidale Motor Registry outside of trading hours without authority. You were seen with copies of the Attendance Register and possible other material that potentially could have been removed from the Registry without permission.

e. On 17 April 07 at Armidale Motor Registry you allegedly erupted with an angry outburst when offered the use of counselling services. It is alleged that you then said to another staff member, after a discussion of the recent murders of 33 people in America, "See, you were lucky I took my medication this morning or you could be dead just like them."

35 Ms Cvetkovic said that on 30 April she spoke by phone to Ms Lewis, Ms Toomey and Ms Bryant about these incidents. She made notes of the conversations. Ms Cvetkovic read onto transcript her notes of the conversations with Ms Lewis, Ms Toomey and Ms Bryant. These record as follows:

A. 16.45 phone call to Barice Lewis, Acting Registry Services Manager, Armidale, telephone No. 67388481.

Q. Can you take it reasonably slowly, it is being taken down?

A. 67388481. How has he been. Quite aggressive to BL, Barice Lewis. Had to call him into the office. Rants and raves to everyone. Singling him out. Graham Gregg lodged complaint against Anne Marie Bryant and Jessica Toomey. Pm in the afternoon, Graham Gregg went home sick. Put in a complaint. Counselling arranged re 29.3 incident, 29 March. Counselling offer to Graham Gregg. GG went ballistic re 29.3 incident. BL reminded him re confidentiality and offered counselling. If. Underscored. Thinks GG unstable. BL husband mental illness. Zanex depression. Brother committed suicide. Worries he is unstable. Worries that he is at work. Worries for her safety and staff. Has seen husband go through depression. Has worried about his instability since GG has been there. Graham Gregg. Has never physically. Feels very uncomfortable around him. Scares her. His instability scares BL. Graham Gregg off this week. And there is then a series of dates. 3.4 to 10.4 sick leave. 26.4 to 27.4 sick leave. 26.4 to 30.4 sick leave. And 30.4 to 7.5 sick leave.

I then spoke with Anne Marie Bryant. So it starts off Anne Marie. Complaint MOP, which means member of the public. His wife. Doesn't like being at work at the moment. Finds it difficult. GG not happy to be here. Particularly since the complaints. Graham Gregg very tense. Keeps to himself a lot. Feels threatened and intimidated because he doesn't get involved. Only DT, that is driver testing now. Does 7 to 8 driving tests every day. Atmosphere tense. Can't totally relax. Feels she has to be very careful about. Tries not to be alone with him. Feels under a lot of pressure when Graham Gregg there. Feels relieved because he is not at work today. Doesn't know if Graham Gregg will verbally attack her.

I then spoke with Jessica. She said he hates coming to work. Puts up with crap. Jessica came here two and a half years ago. Don't know what sort of mood he is going to be in. Received a letter, he received letter. Slammed letter on the bench. Hates being around him. Feels intimidated. If something goes wrong swears, angry look, mumbles. Some days will walk in Hi Jess, other days says nothing. Today didn't speak to anyone. 29.3 Jess involved. Quite often uses foul language if not in a very good mood. Stays out of his way. Tries not to have morning tea breaks at the same time. Quite astounded by 29.3 incident. Felt scared by how he was speaking. Advice from occupational psychologist. That's the end of my notes.

36 Ms Cvetkovic wrote a memorandum to the Disciplinary Panel for its meeting on 7 May 2007, attaching various documents and a chronology of events.

37 In around April / May, Ms Cvetkovic was provided with emails from Ms Lewis, Ms Toomey and Ms Nesbitt which give each person's version of the incidents. They record as follows:

Tuesday, 3 April 2007 4:17pm

Peter

As discussed 03-04-2007 Graham Gregg was requesting alarm codes to gain access to the Registry.

I Believe that Graham had arrived early on the 29/03/2007 he was trying to gain access but the alarm code that he had was no longer current. He had set the alarm off I believe, when a Vehicle Regs officer must have turned the Alarm off because there was no one else at the registry at the time, Jess was coming in the gate at 08:30 Graham had signed on the attendance register at 08:20. He has also signed on early on the 02/04/2007 at 08:30 this is before I have signed on at 08:40.

He has often told me that the pin code he had wouldn't work in the alarm, I informed Graham that I knew that because the code he was quoting me was no longer current and had been changed.

Regards

Barice Lewis

Wednesday, 18 April 2007 11:32am

Hi Peter

FYI

I asked G Gregg yesterday if he would like to see a counsellor as per phone conversation yesterday.

Well!!!!!!! he nearly bit my head off, went off about all the stuff he has been put through over the last 4 years how he was sick of being singled out etc.

I told him that he wasn't being singled out for anything, it just just (sic) a simple question and if he didn't want it then that was OK.

He demanded to know who had said that he needed counselling I again told him that know (sic) one had told me that he had to see anyone it was just simple question and that I could arrange him to see someone if he wanted. (re the staff complaints)

He also said that the RTA was trying to get rid of him and that the fight had just begun.

He then demanded to know if anyone else at the registry was going to see a counsellor and I informed him that if anyone had asked that it was confidential between the RSM and the RSO as was his conversation with me as RSM.

He sent me an email this morning from home which I have faxed to your office.

I am very concerned about Mr Gregg's outbursts of anger at work.

Thanking You

Barice

Wednesday, 18 April 2007 4:06pm

Hi Peter

As per our phone call this arvo I would like to document the following.

There was G Gregg, B Warner and myself left at the registry last night 17-04-2007 we were balancing for the day.

This was after I had spoken to G Gregg about the counselling and he had got very angry.

He walked over to where he was working which was counter 1, Barry was in counter 3 and I was in counter 4.

G Gregg made the comment after hearing the news report about the Gunman in USA at the UNE he said to Barry "see your lucky I took my medications this morning or you could be dead just like them" or words to that effect.

I made no comment and I believe nor did Barry.

I find that kind of remark very offence (sic) and uncalled for.

Thanks

Barice

Tuesday, 3 April 2007 10:00am

Peter and Ian

As discussed yesterday pls find report from Jessica Toomey re 29-03-2007.

Thanks

Barice

On Thursday 29th March, Barice had authorised me to open the registry as she was called to Tenterfield and Jenny from Tamworth would be here to manage our registry for the day. I arrived at about 8:40am and when I got into the registry Mr Gregg was already here. I said hello and asked him how he got into the registry as I was under the impression no one else could turn the alarm off. He said to me "the code I was given didn't bloody work", at this stage Jenny was in the registry. He then asked me "do you have a code for the alarm?", I said yes. He said to me "well give it to me" I said no. He then asked me again and at this point the tone of his voice was angry and raised to a higher level. He asked me if he showed me a piece of paper with the code and asked me could I say yes or no to the 4 digits. When he showed me the paper and I saw the numbers I said no. He then asked me for the code again and I said no, I raised my hands above my shoulders and said no Graham I can not give you the code, I have been given it for use today and told under no circumstances to give it to anyone else. He replied with "That fucking bitch! What the hell was she thinking. Why did she give me this code?" At this stage I fealt (sic) uneasy around Graham as I just couldn't believe the way he had spoken to me. I walked into the managers office with Jenny and Graham left the registry. I kept going over it in my head and saying to Jenny, how dare he speak like that to me, I can't give it to him. The phone rang and it was Barice, Jenny spoke first then I talked to her. I informed her of what had just happened and she said that if he had a problem he should have spoken to her about it and not taken it out on me. When he came back he was very quiet towards me but eventually he spoke.

Tuesday, 3 April 2007 9:21am

Peter and Ian

As discussed with Ian yesterday pls find report from Jenny Nesbitt re Thursday 29/03/07.

Jessica's is still to come.

Regards

Barice

This is an account of what happened on 29th March 2007 as witnessed by Jennifer Nesbitt.

On this day I arrived at Armidale Registry to relieve as manager. Jessica Toomey arrived just before me. On entry into the registry there was a heated exchanged going on between Jessica and Graham Gregg. Graham was being very loud and abusive with accusations directed at Barice Lewis. he used foul language in a threatening manner. "She has given me the wrong access code. What did the Fuckin Bitch think she was doing." Graham then demanded Jessica divulge the code to him. When she refused he became more agitated. In the end he just had to accept the decisions. I ushered Jessica into the office away from Graham and the situation diffused.

Obviously he thought it his right to use other people's codes.

Jennifer Nesbitt

38 Following the Disciplinary Panel's discussion on 7 May, Ms Cvetkovic emailed the applicant and advised him that the disciplinary proceedings were being postponed and the meeting scheduled for 10 May would be used to discuss his health issues and his recent behaviour.

39 There were numerous exchanges between the PSA, the RTA and the applicant between May 2007 and January 2008. As a result of the HealthQuest request, the PSA had lodged a dispute notification in the Industrial Relations Commission on 20 July 2007 (Matter Number IRC1205 of 2007). Arising from the dispute proceedings before Cambridge C, the RTA prepared a new letter to HealthQuest and re-credited the applicant's sick leave. Before making a decision on the disciplinary matters, the RTA requested HealthQuest make an assessment of the applicant. Dr Delaforce also provided a nine page report about this time. In it he said:

I have no problems with HealthQuest's independent medical and psychiatric assessment of Mr Gregg. However, I must emphasise that this is probably the most incredible and appalling employer created and managed workplace situation I have experienced in my 31 years as a psychiatrist and past 10 years almost totally in forensic psychiatry. Such forensic and industrial relations matters will be dealt with at another time and place. Nevertheless, I need here to refer to some of the RTA actions because that is part of the ongoing stress Mr Gregg has experienced in his workplace since about 2001.

...

In my opinion Mr Gregg is fit to perform his normal RTA duties at the Armidale workplace, both in the motor registry and driver testing. My opinion is supported by others involved in his management.

However, I am very, very concerned about the potential for further workplace stressors if he was to now return to work. He will work with the females who were alleged by Ms Fraser to have acted inappropriately. Their complaints, likely outer-complaints, about Mr Gregg's offensive behaviour resulted in Mr Gregg having to (still) face a formal fact-finding interview. This is complicated by an incredible situation of there still being no RTA outcome of the 2006 allegations against him. Also before he returns to driver testing work he needs training in new driver testing procedures. That would be undertaken by RTA's Bob Harris who undertook the covert surveillance on Mr Gregg in 2006 and provided a related report. At this stage that report is no more than Mr Harris' word against Mr Gregg's in spite of the automatic allegation from the RTA that Mr Gregg acted fraudulently and corruptly. Also at this stage the RTA continues its ban on Mr Gregg entering, and not just working at, the Armidale workplace.

You can surely understand my continued concern about Mr Gregg's overall employment and health situation.

The RTA needs to undertake a speedy but now fair and just resolution of the formal allegations and ensure that he has a safe workplace to return to such as with arranging for independent workplace mediation. However, I am very concerned about their capacity to do that fairly and appropriately.

40 Two further HealthQuest reports were received on 30 January and 7 February 2008. The final recommendations were:

1. This person is FIT for the full range of duties of the substantive position of Registry Services Officer - Driver Tester in the present location.

2. Mr Gregg is fit to hold a conditional drivers licence with the main conditions being as follows:

a. He should avoid driving extensive long distance trips involving commercial vehicles.

b. He should be reviewed on an annual basis in terms of status of his Sleep Apnoea and fitness to drive commercial vehicles.

3. If further health-related concerns arise, the employer is welcome to refer back for review.

41 As a result of HealthQuest's report, the disciplinary proceedings against the applicant were reinstituted. Ms Cvetkovic regarded the applicant's conduct in March and April 2007 as similar to the Grafton disciplinary matter in 2004/05 and that the emails from the complainants was sufficient evidence to proceed directly to a disciplinary interview.

42 On 8 February 2008, Ms Cvetkovic recommended that an external consultant conduct the disciplinary interview and that the applicant be suspended with pay until the disciplinary proceedings were finalised. These recommendations were approved by RTA Director, Mr David Stuart-Watt.

43 On 18 February 2008, Mr Geoffrey Hopkins of Aequ'us Partners was engaged to undertake the disciplinary interview and the applicant was directed to attend the interview on 28 February 2008, in Sydney. It is noted that Mr Hopkins was engaged to do no more than interview the applicant and provide a report. The applicant attended the interview in the company of two PSA representatives, Ms Gina Johnson and Mr Evan Cole.

44 On 22 February 2008, Ms Juliet Bourke of Aequ'us Partners wrote to Ms Cvetkovic expressing the following concerns:

We seek your instructions concerning some reservations we have about the quality of the evidence and therefore the quality of the particulars. We appreciate that you did not gather the evidence yourself but relied on others to forward the evidentiary material.

...

It would be preferable to settle our concerns about he evidence first, however in the interests of expediency, a date may have to be set for the interview in advance of the respondent, Mr Gregg, receiving the particulars.

In relation to the evidence, we note the following issues:

1. The conversations with Mr Gregg are part first person and part third person. Accordingly it is difficult to be sure of the alleged conversations with any precision.

2. There is no evidence from Barry Warner concerning the alleged incident on 17 April 2007.

...

45 Mr Hopkins' report was provided to the RTA on 7 March 2008. He concluded as follows:

...

1.2 the alleged facts supporting the allegation of misconduct are that on 29 March 2007 at about 8:40am in the Armidale Motor Registry the respondent demanded that another RTA employee Ms Toomey give him the security code to Armidale Motor Registry. When she refused, he attempted to gain that code by means of a raised voice, and aggressive and threatening speech and manner towards Ms Toomey. The behaviour was alleged to have cause Ms Toomey (and Ms Nesbitt who entered the Registry during this incident) to fear for their safety and caused them to retreat from the respondent's presence. These allegations are proven in fact.

1.3 At the same date, time and place the respondent was alleged to have referred to another RTA employee Ms Lewis in a profane, disrespectful, intimidating and threatening manner. This allegation is proven in fact.

1.4 It is alleged that on 17 April 2008 at Armidale Motor Registry (at the end of that working day), the respondent was in an angry mood, spoke about a multiple shooting in the United States and said to RTA employee Mr Warner (within the hearing of Ms Lewis): "See you're lucky I took my medications this morning or you could be dead just like them." This behaviour is alleged to be unlawful, unprofessional, intimidatory and a risk to the health and safety of the other employees. The allegations are proven in fact.

1.5 Without giving legal advice, the consultant suggests that the conduct proven against the respondent constitutes a breach of the Code and therefore misconduct.

1.6 The consultant finds that the gravity of the conduct is exacerbated by the fact the respondent demanded the security code from Ms Toomey when he knew that RTA staff were not to supply a code to another RTA staff member.

1.7 Two allegations were not proven, namely (i) in relation to alleged unauthorised access of the Armidale Registry by the respondent on 29 March 2007 and (ii) failing to respond to a reasonable inquiry made of the respondent. Accordingly the question as whether the Code has been breached does not arise.

46 Ms Cvetkovic concluded that this conduct amounted to a breach of the RTA's Code of Conduct and Ethics and the Harassment, Discrimination and Workplace Bullying Policy and she referred the matter to a Disciplinary Panel on 10 March 2008. Ms Cvetkovic attended the Panel meeting with Mr Michael Najem, Deputy General Counsel, Mr Richard Boggan, Acting Director Corporate Services and Reform, Mr Michael Veysey, Regional Manager and Ms Kasey Preece. During the meeting, Ms Cvetkovic gave a history and overview of the disciplinary matters and the applicant's other disciplinary history, particularly his aggressive behaviour in Grafton in 2004 and 2005 which had led to his transfer to Armidale. She said the Panel was concerned that the subject of the second disciplinary matter was similar in nature to the aggressive behaviour and the fear and concern of staff in Grafton. Ms Cvetkovic said she relayed her phone conversations with Ms Lewis, Ms Toomey and Ms Bryant to the Panel.

47 A report of the Disciplinary Panel was prepared and the following comment and recommendation was approved on 20 March 2008:

The Disciplinary Panel was of the view that any claims made by Mr Gregg that his ill-health had adversely impacted his work performance could now be discounted as a reason for his ongoing misconduct. The HealthQuest report dated 30 January 2008 clearly indicated Mr Gregg's fitness to undertake the full range of duties for his RSO-DT position.

The Panel further noted that Mr Gregg has been warned, counselled and trained on several occasions as a result of his ongoing misconduct, yet has continually failed to modify his behaviour in the workplace.

The Panel formed the overall view that Mr Gregg lacks the capacity ro treat his co-workers with courtesy and respect, and that based on his history of misconduct he now poses an unacceptable risk to the health and safety of other RTA employees who are required to work alongside him.

Recommendation

Overall, the Disciplinary Panel was of the view that, given all of the above circumstances, it was appropriate for the Director, Licensing Registration and Freight to consider the following penalty:

· Termination of Mr Gregg's employment with the RTA.

48 On 31 March 2008, the applicant received a letter advising him that the allegations arising from the first disciplinary matter had been substantiated. He was advised that in the second disciplinary matter it was found that:

1. "It is alleged that on 29 March 2007 at about 8:40am in the Armidale Motor Registry, you demanded and then became aggressive and threatening towards RTA employees Ms Jessica Toomey (now Simpson) when attempting to obtain from her the security code to the Armidale Motor Registry, information that you were not entitled to receive. It is alleged that your behaviour caused Ms Toomey and Ms Jennifer Nesbit (who was on relief from Tamworth and who entered into the Registry during the incident) to fear for their safety and caused them to retreat from your presence.

2. At the same date, time and place you were alleged to have referred to another RTA staff member, Ms Barice Lewis (Acting Registry Services Manager), in a profane, disrespectful, intimidating and threatening manner.

3. It is alleged that on 17 April 2007 at Armidale Motor Registry (at the end of that working day) you behaved in an unlawful, unprofessional and intimidatory manner. It is alleged that you were in an angry mood and while speaking about a recent multiple shooting in the United States, you stated to RTA staff member Mr Barry Warner (within hearing of Ms Barice Lewis, Acting Registry Services Manager): "See you're lucky I took my medications this morning or you could be dead just like them." It is also alleged that this behaviour posed a risk to the health and safety of the other staff in the Registry.

49 Mr Stuart-Watt advised the applicant that the RTA was considering terminating his employment and invited him to make submissions as to why he should not be dismissed. Both the PSA and the applicant responded in writing. Mr Gregory Shaw, for the PSA, said in part:

The PSA remains of the view that the RTA took an unacceptably long period of time to conduct and conclude both disciplinary investigations which has negatively impacted upon Mr Gregg's ill health and contributed to his conduct.

The extraordinary delay has placed Mr Gregg and his family under incredible duress for a considerable matter of time. Having regard to Mr Gregg's known medical condition and history the RTA should have considered alternative strategies by way of reasonable adjustment in the work place to assist Mr Gregg when workplace issues were identified, not immediately embark on investigations into alleged issues of misconduct.

The PSA considers that Mr Gregg's written submission establishes the mitigating circumstances in relation to his well documented and reported personal Health circumstances which the RTA must take into consideration when considering if in fact Mr Gregg is guilty of wilful misconduct in relation to these allegations and that there has been an absolute failure by the RTA to give due consideration to Mr Gregg's medical and psychological mitigating factors.

...

The PSA is also concerned that the RTA constantly refers to the previous issues which were in dispute at Grafton motor registry. The PSA considers that the RTA has failed to maintain its confidentiality responsibilities following the finalisation of that matter and that Mr Gregg's privacy has been compromised. The issues at Grafton were common knowledge to staff at Armidale when they should not have been. This has only contributed to a precarious situation between Mr Gregg and his co-workers.

In essence through the RTA's mishandling of this affair it has effectively set Mr Gregg up to fail, a most disturbing and dishonourable situation for an employer.

The RTA has failed to take into account Mr Gregg's long employment history; the history of the what the (sic) PSA views is a mishandling of earlier disciplinary allegations against him as referred to in Dr Delaforce's reports which according to Dr Delaforce was the cause of his current medical condition. This medical condition, and the medication Mr Gregg was taking for it explains to a large extent Mr Gregg's alleged conduct.

50 In his submission, the applicant cited his medical history in mitigation and denied he had acted unlawfully in respect to the second disciplinary matter. He agreed he was disrespectful towards Ms Lewis, admitted calling her a 'bitch' and acknowledged that his comment was 'disrespectful, hurtful and unprofessional.' He sincerely apologised. The applicant denied the words attributed to him in the conversation with Mr Warner. He concluded:

I request that the RTA give careful consideration to my medical conditions as documented by my medical specialists, prior to making the decision to terminate me. I have been living with these disciplinary allegations for nearly two years the delay in finalizing these matters, and my repeated attendances at HealthQuest has caused me a great deal of additional distress and anxiety. I request that the RTA takes into account that their delay in resolving the issues with Mr Page's driving test (almost two years) has impacted severely on my home life and I believe has aggravated and prolonged my ill health.

The RTA has no grounds for rejecting the medical opinions of my treating doctors and specialists.

I note that Dr Delaforce is of the opinion that this is probably the most incredible and appalling employer created and managed workplace situation he has experienced in his 31 years as a psychiatrist and past 10 years almost totally in forensic psychiatry.

I wish to submit the following reports of Dr Delaforce for consideration: 24 Nov 2006, 20 March 2007 and 12 Oct 2007.

51 The Disciplinary Panel considered these submissions and determined as follows:

The disciplinary panel convened on Monday 10 March 2008 to consider both this matter and the disciplinary procedures relating to Mr Gregg's failure to adhere to RTA driver testing procedures in 2006. The panel formed the view that the circumstances surrounding both matters were serious enough to recommend termination of Mr Gregg's contract of employment with the RTA. On 31 March 2008 the Director Registration Licensing and Freight wrote to Mr Gregg stating he was considering termination of Mr Gregg's employment and sought Mr Gregg's submissions in relation to penalty. Mr Gregg's request for an extension was agreed to and the RTA received Mr Gregg's and the PSA's submissions on 21 April 2008.

The Panel convened on 28 April 2008. In considering its recommendations on appropriate penalty, the Disciplinary Panel deliberated each of the disciplinary matters separately.

The Panel first addressed Mr Gregg's non-compliance issues of May and July 2006. Investigations into Mr Gregg's performance as a driver tester determined that by entering incorrect information on test score sheets and entering incorrect test score results into DRIVES he had acted corruptly. However, taking into consideration all the information which included the investigation report, Mr Gregg's responses at the disciplinary interview and medical information, the Panel was of the view that it was more probable that Mr Gregg has been careless in the performance of his duties, rather than deliberately acting in a dishonest manner or disusing his position.

Additionally, the Panel noted Dr Delaforce's statement that concurrent with Mr Gregg's coming to notice for failing to conduct during tests in accordance with RTA driver testing procedures, his prescribed dosage of the drug Effexor was being reduced. The Panel formed the view that a correlation between Mr Gregg's reduced medication and his conduct could not be discounted as a plausible reason for the careless performance of his duties in 2006.

In respect of disciplinary proceedings relating to Mr Gregg's behaviour in March and April 2007, the Panel considered all the information available in relation to Mr Gregg's behaviour, including his and the PSA's submission. In addition, the Panel had particular regard to Mr Gregg's earlier disciplinary proceedings in 2004-2005. Those proceedings related to Mr Gregg's threatening behaviour and use of foul language towards staff and clients of Grafton Motor Registry (where he was then employed) and causing those staff to fear for their health and safety. These behaviours had continued over a period of two years, despite having being counselled by his management on numerous occasions.

During the course of these disciplinary proceedings, staff from the Grafton Motor Registry became concerned about possible reprisals from Mr Gregg due to their complaints against him. Some of the staff at the registry also resided in Mr Gregg's immediate vicinity and were aware that he possessed firearms. Mr Gregg agreed to surrender his firearms pending completion of processes against him.

The allegations against Mr Gregg were substantiated and Mr Gregg was permanently transferred to Armidale Motor Registry and issued a Warning Letter (22 September 2005).

While the Panel was prepared to acknowledge Mr Gregg's medical treatment as a contributing factor for the series of mistakes he made when scoring and recording driving tests in May and July 2006, the Panel did not consider that there was any correlation between Mr Gregg's medical condition and the threatening and abusive behaviour he demonstrated towards his work colleagues on 29 March 2007 and 17 April 2007. The Panel did not accept Mr Gregg's submission that his comments were taken out of context, and were merely said in a light hearted and flippant manner. The Panel upheld their view that Mr Gregg's comments and behaviour on 29 March 2007 and 17 April 2007 would have been distressing for staff members at Armidale Motor Registry, and could reasonably have caused them to fear for their safety in the workplace.

The RTA's occupational health and safety obligations to provide a safe and healthy workplace for all its staff have been seriously compromised by Mr Gregg's behaviour. The RTA has attempted to deal with Mr Gregg's ongoing inappropriate conduct in the workplace over a number of years: Mr Gregg has been warned and counselled on several occasions for harassing and intimidating staff and clients in the RTA workplace. He has been provided with requisite training by the RTA to address those behaviours. Nevertheless, Mr Gregg's complete disregard for the standards expected of RTA staff confirms the Panel's view that Mr Gregg lacks the capacity to treat his co-workers with courtesy and respect and that he poses an unacceptable risk to the health and safety of other RTA employees who are required to work alongside him.

Recommendation

On the basis of this, the Disciplinary Panel was of the view that it was appropriate that the Director should consider maintaining the proposed termination penalty.

Given the nature of this matter, the Panel also determined a requirement for consideration of additional interventions, including:

1. Workplace counselling being made available for all staff members located at Armidale and Grafton Motor Registries.

2. Increased security measures being implemented at Armidale and Grafton Motor Registries for a period of one month following Mr Gregg's termination.

3. Local Police Area Command at Armidale being formally advised that Mr Gregg is considered to be a risk to health and safety of RTA staff members located in the area.

4. The Chief Executive Officer being advised of this matter.

Should the Director concur, then a suitable draft letter for Mr Gregg and a briefing note for the CEO are appended for signature.

52 In respect to the first disciplinary matter, it will be seen that the RTA accepted that the applicant had been careless, rather than corrupt or dishonest and that it was plausible that the driver testing errors could have been attributed to a change in his prescribed medication.

53 As for the second disciplinary matter, the Panel did not accept that the applicant's comments to Mr Warner were taken out of context, that the applicant had been previously warned about inappropriate conduct and there was concern for the safety of staff at the Armidale Registry.

54 In the RTA's letter to the applicant of 19 May 2008, dismissing him from employment, Mr David Stuart-Watt said in part:

It is the RTA's view that you lack the capacity to treat your co-workers with courtesy and respect and that you pose an unacceptable risk to the health and safety of other RTA employees who are required to operate in the same workplace as you.

Finally, it is acknowledged that it has taken a substantial period of time to draw this matter to a close. However, the RTA maintains that it would have been remiss not to fully investigate the health concerns you highlighted during the course of disciplinary proceedings against you.

On the basis of your repeated intimidatory and threatening behaviour, and the impact that this has had on your co-workers, it has been determined that the most appropriate disciplinary action is that your services be terminated immediately upon receipt of this letter.

THE EVIDENCE

For the applicant

55 It was the applicant's evidence that he was a diligent, dedicated employee and this was demonstrated by the fact that, in 1996, he had received a State Wide Customer Service Officer of the Year Award.

56 The applicant said that when he moved to Grafton he became involved in a number of personal neighbourhood disputes with persons who worked at the RTA Registry. This caused interpersonal conflicts at the Registry. The applicant said that in 2004 he was referred to a psychologist as a result of these work and neighbourhood issues.

57 In 2005 he was diagnosed with adjustment disorder and depression. In 2006 he suffered a major depressive disorder and attended a psychiatrist, Dr Delaforce, who had provided reports on work related matters from 2005. Since arriving in Armidale he has had regular counselling from a Mr Charles Lucas, then Dr Kym Kilpatrick.

58 In respect to the allegations of 2006, the applicant denied that he had acted fraudulently or negligently and as he was conducting an average of five tests a day, he had no particular recollection of the incidents in question. He did admit to a mistake in not recording Mr Page's driving test on the computer. He believed an alteration to his medication may have led to this omission.

Allegation of 29 March 2007

59 The applicant said that when he first went to Armidale he often went to work early because he did not sleep well as he was on his own. The Registry Manager, Ms Peg Baynham, had given him the security access code so he could deactivate the Registry alarm. However, after his partner moved to Armidale, he no longer went to work early and by 2007 he had not used the access code for some time; although he assumed everyone had access to the code. He also had a key to the front doors which would automatically open during office hours. There is a separate door to the non public areas which must be accessed with a swipe card which all staff were given. There is then the alarm with a keypad which must be deactivated by the code.

60 The applicant said that a week prior to 29 March 2007, he decided to see if his access code worked. As it did not, he asked the Acting Registry Manager, Ms Lewis, on 23 March for the code as he was expecting a work related phone call from a PSA official, Mr Greg Shaw, early on the following Monday morning. Ms Lewis provided him with a four digit code. However, on Monday, 26 March 2007, when he arrived around 8:30am and let himself in with the key, the code did not work and the alarm was activated. One of the Inspector Vehicle Registration (IVR) officers, Mr Tony Sozou, who was upstairs in the IVR area, came down and let him in.

61 The applicant said that on 29 March, he was dropped off at the Registry at around 8:20am and knowing his code did not work, he attracted the attention of an IVR officer upstairs who came down and let him in. Later, when Ms Toomey arrived and questioned him, the applicant agreed he was frustrated in being given the incorrect code and raised his voice. However, he strongly denied that he was aggressive or threatening towards Ms Toomey and denied referring to Ms Lewis as a 'fucking bitch'. He said that when Ms Toomey asked how he got in he replied 'The boys upstairs let me in. This code that I was given didn't bloody work. If I show you the code could you tell me whether that's the correct code?'.

Ms Toomey said no, and he said, 'Why did she give me this code? Why did she give me a code that didn't work? That bitch, what the hell was she thinking?'

62 The applicant claimed he had always got on well with Ms Toomey and had even been invited to her wedding. The applicant now acknowledged that his comment about Ms Lewis was disrespectful, hurtful and unprofessional and he sincerely, and unreservedly, apologised to her.

63 On 2 April 2007, when the applicant questioned Ms Lewis about the code, she told him that she had been instructed (by Ms Baynham) not to let him have the access code and she did not know the reason why.

64 In oral evidence, the applicant denied that Ms Lewis was already at the Registry at 8:30am on Monday, 26 March 2006. He queried why she would have given him the code on Friday if she had told him she would be there anyway. The applicant was shown the access Event History Report, which shows that Ms Lewis was the first person to enter the Registry on that day and had disabled the alarm. This was about four minutes before the applicant arrived. (Whilst the Event History Record was two hours ahead - probably due to a mistake over daylight saving - the record shows Ms Lewis' entry at 10:26:25 and the applicant's entry at 10:30:32.)

65 The applicant agreed that although he had asked Ms Toomey to verify if the code he had was the correct one, he had not needed it. He insisted that he did not demand the code and was not angry. He agreed he was frustrated. Ms Lewis had said she had given the applicant the correct code on 23 March, but changed it on 26 March because someone had accessed the building over the weekend. It was obviously the wrong code that the applicant had when he had the conversation with Ms Toomey on 29 March. The applicant reiterated that he did arrive early on 29 March, but merely tapped on the door and one of the inspectors had let him in. He denied the alarm had gone off on 29 March or that he had gone outside to cover his tracks in that he had the wrong code.

66 The applicant again denied he was angry with Ms Toomey and could not recall if she had put her hand out in front of her. He denied saying to her 'give me the code'. However, he agreed he described Ms Lewis as 'that bitch', but said he did not say 'that bloody fucking bitch' in an angry voice. While he may have raised his voice, he did not yell at Ms Toomey. The applicant was asked if this was the same type of language he had angrily used at the Grafton Registry and for which he had been disciplined. He agreed he may have used this language, indirectly. He agreed he was aware of the RTA's Code of Conduct and Ethics, as it had been brought to his attention in the disciplinary proceedings involving the Grafton Registry. The Code referred to employees behaving with courtesy and respect towards other staff and customers. However, he did not believe he had been threatening, bullying or intimidatory towards Ms Toomey. He later conceded it was a 'highly heated conversation'.

67 The applicant was shown documents relating to the Grafton incident in 2005, in which he had agreed to curb his inappropriate language. In correspondence at the time from the PSA, acting on his behalf, the applicant accepted and noted a formal final warning was placed on his file. His conduct was to be reviewed and the warning removed after 12 months of good conduct. The applicant agreed that his behaviour on 29 March was hardly maintaining good conduct.

68 The applicant denied that he frequently swore at work. He may have used the 'F', word but not in the presence of the public. He had never used the 'C' word. He said Ms Toomey had used the 'F' word towards him. The applicant said that despite Ms Toomey's denial, he and his partner had both said hello to her and smiled when they had met at Coles Supermarket, some time after April 2007.

69 Mr Barry Warner gave evidence that a few days after 29 March 2007, Ms Toomey had complained to him about what the applicant had said to her. The applicant had said to her 'why did that fucking bitch give me the wrong code. I wasn't happy about the way he spoke to me'. Mr Warner did not believe Ms Toomey was particularly upset; more annoyed. She did not tell him she felt frightened or threatened. Mr Warner did not notice any problem or tension between them after that time, although he accepted they could have worked anywhere in the Registry. Mr Warner denied saying to Ms Lewis on another occasion 'what set him off this time'. He had not observed the applicant 'going off' or having outbursts in the office. The applicant had told him he was upset by his treatment by the RTA, but he had never mentioned Ms Lewis, Ms Toomey or Ms Nesbitt.

70 In oral evidence, Mr Warner accepted that the applicant had made an outburst to Ms Toomey on 17 April. Mr Warner said if he thought the applicant had threatened anyone, he would have spoken to him. He agreed that yelling or threatening to do something to someone could be seen as threatening.

71 Mr Warner agreed that when Ms Toomey complained to him about what the applicant had said to her, she was upset and that she did not usually complain about what someone else had said to her. Mr Warner agreed that he did not speak to the applicant about it because the incident may have gone to court and the applicant was not at work anyway.

Allegation of 17 April 2007

72 The applicant's evidence was that this incident occurred at around 8:55am and not at the end of the day. He describes it as follows: He and Mr Warner were chatting and had discussed the news item of that morning or the night before about a multiple shooting in the United States. He said Mr Warner was at Counter 2, he was at Counter 1 and Ms Lewis was at Counter 4. During the conversation the applicant said 'see you're lucky I took my medication this morning Baz'. Mr Warner had briefly chuckled or smiled. The applicant said the comment was a 'flippant, off the cuff' remark. He denied saying 'you could be dead just like them'.

73 The applicant said that Ms Lewis had offered him counselling later in the afternoon when she called him into the Manager's Office. He was surprised by this, as he had been attending counselling since 2004. He had said to Ms Lewis 'where did this come from?' and she replied that it arose from complaints made by him and his partner, about staff on 29 March 2007. In oral evidence, the applicant denied that he reacted angrily when Ms Lewis had offered him counselling. The applicant said he had already been offered counselling by the RTA and had seen a psychiatrist. The applicant conceded that, on this occasion, counselling had also been offered to the two other staff members named in the applicant's complaint. He denied that he had said to Ms Lewis, in a threatening and angry manner, 'these bastards are trying to get rid of me. The fight is just beginning'. He conceded he had raised his voice to Ms Lewis, but he was just surprised by her offer of counselling 'coming out of the blue'. The applicant agreed that he had asked who else was having counselling. However, he denied it was a demand made in anger.

74 In oral evidence, the applicant reiterated that he had made the comment about the United States shooting to Mr Warner while he was working at Counter 2 and he (the applicant) was at Counter 1. The applicant recalled that Ms Lewis was at Counter 4. The comment was not made near the photo licence machine as Mr Warner walked past. He insisted the comment was only made once in the morning, before starting work. He denied making a similar comment later in the day after 5:00pm. The applicant denied that he looked at Ms Lewis, pointed his finger and said 'you're damn lucky I took my medication or you could be dead just like them'. The applicant insisted the conversation was directed to Mr Warner, that he had not mentioned killing and that it had been in the morning. He denied that he intended Ms Lewis to hear it after their 'blow up' a few hours earlier. The applicant accepted that he had had heated words with Ms Toomey on 29 March and with Ms Lewis on 17 April. However, he denied ever shaking his fist at anyone.

75 In further oral evidence, the applicant denied that he had surrendered his firearms to police. His firearms had never been confiscated and he had voluntarily surrendered them in December 2004 to a registered arms dealer in Armidale on the PSA's advice. He disagreed that this was done in response to his behaviour at the Grafton Motor Registry. He had received advice from the PSA that it would probably be in his best interests to oblige the RTA by surrendering his firearms.

76 Mr Barry Warner provided a statement and oral evidence in support of the applicant. Mr Warner has worked as an RTA Customer Service Officer at Armidale since 1976 and had worked with the applicant since 2005. He had known him since the 1980's and regarded him as a good friend. Mr Warner said he had never had any concerns for his safety or that of other employees while working with the applicant. Moreover, he found him to be extremely courteous and polite to customers and fellow workers. He did not believe the applicant regularly used foul language.

77 Mr Warner gave evidence concerning the incident on 17 April 2007. He said that at around 3:00pm, he had heard Ms Lewis from the Manager's Office, say to the applicant 'would you like counselling'. The applicant asked her to repeat it, and she did so. Mr Warner believed that all the time Ms Lewis was either on the phone or had just put it down and was relaying a message from someone else. Mr Warner believed the applicant said words to the effect of 'what, just me' and could not remember if the door was open or closed. However, he said he did not hear any raised voices. Mr Warner denied going into Ms Lewis' office and asking if she was alright.

78 Later that afternoon, Mr Warner was standing near the photo licence machine when the applicant walked past and said words to the effect of 'you're lucky that I've had my medication today or I might have to kill you'. Mr Warner said the applicant was smiling and the words were said in a 'joking' or 'light hearted' tone. He could not remember if it was before or after the conversation between Ms Lewis and the applicant over counselling; nor could he remember where Ms Lewis was at the time. Mr Warner said that the applicant was not serious, angry or threatening when he said these words and, in no way, did he feel threatened or intimidated by him.

79 Mr Warner claimed that there had been an earlier conversation in the morning in which he and the applicant had discussed the mass shooting in the United States. At that time he was at Counter 2 and the applicant was at Counter 1.

80 Mr Warner was questioned about the conversation on 10 May 2007, with Mr Peter Cossins, in which Mr Cossins had asked about the 17 April incident. He had told Mr Cossins the applicant's comment was in jest and he had thought nothing of it at the time. He was invited to write his version of events, but did not do so because he said Mr Cossins did not follow it up. He was not offered counselling in respect to the incident.

81 Mr Warner also responded to Ms Lewis' statement. He said that he had never heard the applicant use foul language such as 'fuck'. He had heard him use mild swear words, but not in an offensive manner; everyone else did at the Armidale Registry. Mr Warner said he did not notice the applicant behaving differently towards Ms Lewis and he was not aware of any issues between them.

82 Mr Warner insisted that he had not discussed the news item in the afternoon with the applicant or Ms Lewis. The discussion had been in the morning. Mr Warner could not recall where Ms Lewis was working at around 5:00pm. However, he was at Counter 2 and the applicant was at Counter 1. He denied seeing the applicant pointing at Ms Lewis and saying the words she had attributed to him. He said that if he had been at Counter 3 and Ms Lewis had been at Counter 4, the applicant would have had to have said the words over him and pointed at both of them as there is a partition between Counters 1 and 2 which is not transparent. For Ms Lewis to have seen the applicant's arm he would have had to have lifted it high above his shoulder. Mr Warner deposed that he did not see the applicant threaten Ms Lewis - there did not appear to be any issues between them and Ms Lewis never mentioned anything to him about the incident.

83 Mr Warner gave evidence that he would have no difficulty working with the applicant again. He did not believe the applicant constituted a risk to the health or safety of staff. He had never witnessed anything that would lead him to believe that the applicant represented a risk to the health and safety of any other employee in the Armidale Registry.

84 In oral evidence, Mr Warner said that he had first written down his recollection of the events of 17 April 2007, a couple of months later (on 28 October 2007). Mr Warner could not recall why he was standing near the photo licence machine when the applicant had passed and made the comment about his medication. He agreed that he would not be surprised if someone else had heard it. He could not recall if it was before, or after the conversation between Ms Lewis and the applicant about counselling. Mr Warner now believed that there may have been two conversations; there was the discussion in the morning with the applicant about the news item from the United States and the conversation about his medication in the afternoon.

85 Mr Warner said that after 5:00pm on that day, the staff were balancing the tills. He could not recall where Ms Lewis was. He knew he was at Counter 2 and the applicant was at Counter 1. He said he was concentrating on what he was doing and the radio was on. He did not hear the applicant say anything about the news item after 5:00pm that day and, if he had, he would have heard it.

Effect of dismissal

86 The applicant said he was absolutely devastated and shocked by his dismissal. He denied acting in an aggressive or threatening way towards his fellow workers, with whom he had been working for two and a half years. Living in Armidale had made it very difficult for him to find alternative work, despite numerous attempts at doing so. Being unable to find work has placed added stress on himself and his family, particularly as he has not been able to access benefit payments from Centrelink.

87 He said that as a result of a divorce settlement a few years ago, much of his superannuation went to his ex-wife and as a result of his precarious financial position, he had intended to work until aged 68 to 70 in order to recoup enough superannuation for retirement.

88 The applicant said that since his dismissal and the long delay in finalising the disciplinary matters, his health had suffered and he was forced to restrict spending and social activities. If he is not reinstated, he may need to sell his house and move to a new location with the added stress of not being able to find work there as well.

89 In oral evidence, the applicant said he had made employment enquiries at two liquor outlets and applied for positions at Australia Post and at a local service station. The applicant said that if he was to be reinstated he was prepared to work at Glen Innes, Tenterfield or Tamworth. He acknowledged that Ms Lewis occasionally relieves at these locations.

90 The applicant provided references from a police officer, Mr Neville Middleton and the Registrar of the Bellingen Local Court, Mr Mark Holdom. Neither persons were required for cross-examination, and both said that they were aware of the allegations of misconduct against the applicant. Mr Middleton said in part:

Graham was the consummate professional and from my viewpoint always carried out his duties with honesty, integrity and in a friendly manner. He regularly made himself available in his own time to accommodate the needs of a small community.

The Dorrigo Police and the Community in general were certainly disappointed when the RTA had a change of policy back in 2002 and Graham was no longer servicing our small township.

Graham is a knowledgeable and dedicated servant to the RTA and with his experience, a valuable asset to the organisation.

Mr Holdom said:

During this period I personally observed Graham conduct both theory and practical test for various licenses. He related and communicated well with persons of all ages and backgrounds demonstrating patience, sensitivity, empathy and excellent communication skills. On many occasions clients were nervous and agitated and Graham showed a professional and caring attitude. His integrity and work ethics were of the highest quality. Graham attended both Bellingen and Dorrigo Courts from 1990 until 2001 when his duties were transferred to the Coffs Harbour Motor Registry. I constantly received feedback from members of the local community and all were impressed with his professional attitude, fairness and knowledge.

In a demanding and difficult work environment Graham's work ethic, skill and professional approach brought credit to the Roads and Traffic Authority and was recognised and appreciated by the local community.

91 Mr Gregory Shaw is the PSA's Principal Industrial Officer who represented the applicant in the disciplinary investigations leading to his dismissal on 19 May 2008. Mr Shaw was not required for cross-examination and much of his evidence dealt with the uncontested history of the matter I've already outlined. Mr Shaw said that during the course of the investigations, the PSA had expressed concerns with a number of the procedural fairness issues affecting the applicant. These included:

· requests for more detailed medical reports on the applicant's ability to perform his work;

· various extensions of time for medical reports and the adjournment of disciplinary interviews pending such reports;

· complaints as to the delays in completing disciplinary investigations before attending HealthQuest assessments;

· re-crediting of the applicant's sick leave and a request that he be placed on paid special leave during suspension;

· the postponement of disciplinary investigations until HealthQuest assessments were complete;

· requests for extension of time to respond to allegations;

· the RTA's failure to conduct a fact finding investigation before a formal disciplinary investigation;

· the first disciplinary matter being finalised before commencing the second;

· the extraordinary delay in completing the first disciplinary investigation which affected the applicant's health and well being and conduct;

· the RTA's failure to take remedial action to address the applicant's health issues; and

· the earlier incidents at Grafton should have remained confidential.

For the RTA

92 Ms Emilia Cvetkovic is the Manager of the RTA's Workplace Practice Unit. Part of her duties is to provide high level support and advice to all managers regarding staff misconduct and underperformance matters. This includes the RTA's disciplinary procedures and ensuring that allegations of misconduct are appropriately investigated and resolved. Ms Cvetkovic attached the following documents to her statement:

The current Code of Conduct and Ethics, published in April 2008.

The Code of Conduct and Ethics dated September 2003.

The Discipline Policy dated 29 March 2004.

The Discipline Guidelines dated 29 March 2004.

It is noted that the Discipline Policy, Discipline Guidelines and Discipline Process are read in conjunction with each other.

The following extracts from these documents are relevant to this matter. The current Code of Conduct of Ethics requires employees to:

Treat other staff, customers or members of the public fairly, with courtesy, respect and not give any preferential treatment. Ensure you do not discriminate against, harass, intimidate, bully or threaten staff, customers or members of the public. Ensure you do not victimise staff, customers, or members of the public for any reason; particularly if they may be involved in the investigation of misconduct or corrupt conduct.

The 2003 Code of Conduct and Ethics relevantly required employees to:

...

Conduct yourself in a professional and ethical manner at all times while at work and not bring the RTA into disrepute.

...

Co-operate with and obey lawful requests, directions or instructions given to you in the course of your employment by any person having the authority to do so.

...

Treat other staff, customers or members of the public fairly and with courtesy and respect.

Not discriminate against, harass, intimidate, bully or threaten other staff or members of the public.

...

Take reasonable care for the health and safety of people at an RTA place of work who may be affected by your conduct.

The RTA's Disciplinary Process is outlined in a flow chart which is annexed to this decision.

93 In cross-examination, Ms Cvetkovic was closely questioned about the fact finding investigation in the RTA's disciplinary procedures. She agreed it was important to ensure that, in this first stage, allegations against employees are adequately investigated. However, staff may, or may not, be interviewed. She acknowledged that allegations not based on a proper factual basis would likely cause unnecessary stress and anxiety for the employee concerned. After the investigation, a report is then prepared for an RTA Director. Notwithstanding the procedure, Ms Cvetkovic said that in certain circumstances, where there is sufficient information available, a fact finding investigation may not be necessary. Each case is treated on its merits. She said another example would be if the same conduct was repeated after an earlier warning. She said the next step is to write to the employee setting out the allegations. Other staff are not named. In this case, the driver testing records were provided to the applicant. Ms Cvetkovic said that if further information was required, other staff may be interviewed before the disciplinary interview and after it.

94 Ms Cvetkovic said that her role was to act as Secretary to the Disciplinary Panel. She did not participate in the decision making. She produces a summary of the Panel's deliberations and recommendations.

95 Ms Cvetkovic was cross examined on the applicant's first disciplinary matter. She agreed that after Mr Cossins had prepared two reports, he had requested a fact finding investigation. However, Ms Cvetkovic considered that the reports and the driver test sheets constituted a fact finding investigation which disclosed clear errors in RTA procedures. Ms Cvetkovic conceded that the errors did not suggest any fraud or corruption by the applicant. Had they done so, the investigation would have been referred to Control Management Services. Ms Cvetkovic agreed that the disciplinary procedures did not expressly refer to the investigation being able to seek further information arising from the disciplinary interview. However, she said it was a matter of procedural fairness, if matters arise, which required further inquiry, that additional information is sought or interviews conducted.

96 Ms Cvetkovic was questioned on the second disciplinary matter. She deposed that she could not recall when she received the emails from Ms Lewis, Ms Toomey and Ms Nesbitt, but she assumed it was after Mr Cossins' telephone call first informing her of the matter on 30 April 2007. She was not sure if Mr Cossins had told her he had spoken to Mr Warner. Ms Cvetkovic agreed that when she had received Ms Lewis' email which had mentioned Mr Warner, she had taken no steps to contact him about the matter. Shortly after, the Disciplinary Panel decided to suspend the disciplinary process and focus on the applicant's health issues. The applicant had asked the RTA to take Dr Delaforce's report into account, although the doctor had not said the applicant was unfit for work. Ms Cvetkovic agreed and the applicant was directed not to attend for work in May 2007.

97 Ms Cvetkovic said that when HealthQuest had reported in January and February 2008 that the applicant was fit for work, the disciplinary interview was reconvened. She agreed that, at that point, there had been no fact finding investigation, no interviews with staff and no information from Mr Warner.

98 Ms Cvetkovic explained that she believed a fact finding investigation was unnecessary because she was aware of the Grafton disciplinary matter, she had possession of the emails and had spoken directly to Ms Lewis, Ms Toomey and Ms Bryant. She believed it was appropriate to proceed without any information at all from Mr Warner.

99 Ms Cvetkovic was shown a letter from Ms Juliet Bourke of Aequ'us Partners which had initially expressed concern with the quality of the evidence and the particulars it (the consultant) had been provided with by the RTA. The consultant's concerns were about the emails and the lack of information from Mr Warner. Ms Cvetkovic said that while she recalled seeing the letter, she could not recall the specifics. She now conceded that she would be concerned if those reservations had been expressed by the consultant. She further agreed that those concerns would best be settled before any interview with the applicant. Ms Cvetkovic accepted that no further statements were obtained from Ms Lewis, Ms Toomey or Ms Nesbitt, or any at all from Mr Warner. Ms Cvetkovic agreed that it was open to the RTA to direct Mr Warner to attend interviews, even if he didn't wish to. She further agreed that even though the applicant had disputed the words he was alleged to have said to Mr Warner, the RTA had not sought further information from him. However, she added that she had seen no reason to do so. Ms Cvetkovic accepted, in hindsight, that the process was not an appropriate way for the RTA to conduct a disciplinary process of an employee with 20 years service.

100 Ms Cvetkovic agreed that Aequ'us Partners had only been asked to conduct an interview with the applicant and prepare a report as to whether the allegations had been substantiated. In the report, Mr Hopkins had mentioned Mr Warner's version of events. Ms Cvetkovic conceded that, in hindsight, having read the report, further information should have been sought from Mr Warner. However, she was satisfied that it was unnecessary to interview Ms Lewis.

101 Ms Cvetkovic did not believe, in hindsight, that it was necessary to seek further information from, or interview, Ms Lewis or Ms Toomey. Ms Cvetkovic was asked that if Ms Lewis now said something different to what she had put in her email, would that be of concern? Ms Cvetkovic said that she was not aware that was the case. Ms Cvetkovic was taken to Ms Lewis' statement in these proceedings in which she had said her email was not accurate in that the words said by the applicant were said to her, and not to Mr Warner. Ms Cvetkovic believed that if this was correct, then the words directed to Ms Lewis were even more serious. When pressed as to whether she would be concerned that the allegations were now said to be inaccurate, Ms Cvetkovic said that whether the words were said to Mr Warner or Ms Lewis, the matter was serious and would have resulted in disciplinary proceedings in any event.

102 Ms Cvetkovic was asked about the summary of the Disciplinary Panel, which did not mention that she had relayed to the Panel her conversations with Ms Lewis, Ms Toomey and Ms Bryant. She insisted that they were raised, but mention of them had not been included in the summary. In questions from the Bench, Ms Cvetkovic was asked as to what factors are considered by the RTA as to whether a disciplinary interview is conducted by an external source. She said sometimes it is due to resources, or location or concerns with Management bias. Ms Cvetkovic said that the consultant's instructions were limited to interviewing the applicant, because of the pressure from the PSA and her own senior management to deal with the matter expeditiously, in light of the time already taken. However, she believed that had the consultant thought it imperative to conduct further interviews, they would have happened.

103 Ms Barice Lewis commenced work for the RTA at Inverell in 2000 and in 2004 was appointed a full time driver tester at Armidale. Whenever the Registry Manager, Ms Peg Baynham was away, Ms Lewis acted as Registry Manager. Ms Lewis said that she was aware the applicant was transferred to Armidale in 2006 following a disciplinary matter in Grafton.

104 Ms Lewis was Acting Manager at the time of the incident leading to the first disciplinary matter. She had retrieved the drivers' test sheet for Mr Page, which had not been completed. When she discussed the matter with the applicant, he had asked her to pass the test and put it on DRIVES. She had said she could not do so as the elderly driver had not undertaken a mandatory curb side test. The applicant denied ever discussing this matter with Ms Lewis. Ms Lewis believed that after this incident, she and the applicant had not got on well and she felt he blamed her for the subsequent disciplinary investigation. However, the applicant denied blaming Ms Lewis for the disciplinary investigation as it had nothing to do with her. Ms Lewis said she did not like the applicant's continual swearing and use of foul language at work. She said she had complained on one occasion to Ms Baynham about it. However, the applicant said that neither Ms Lewis, nor Ms Baynham ever raised the issue of swearing with him.

105 During March / April 2007, Ms Lewis was Acting Registry Manager and she was also managing Glen Innes and Tenterfield Registries. She said she was concerned about the applicant creating issues for her during this time.

106 Ms Lewis described the means of accessing the Registry. Only she and Ms Baynham had the alarm code, although it would be given to other staff if she, or Ms Baynham, were not able to open the Registry. All staff had a swipe card and keys to access the front door. The IVR staff also had the alarm code for the Registry building. Ms Lewis said that on, or about 23 March 2007, the applicant asked if he could have the alarm code for the Registry, as he would be in early on Monday morning (26 March) to take an important phone call. Ms Lewis sought and received clearance to give the applicant the alarm code and she gave it to him on a piece of paper. In doing so, she told the applicant she would also be at the Registry at around 8:30am that day. However, the applicant said that there was no arrangement to meet; otherwise why would he need the code? Ms Lewis said that as the applicant did not meet her as arranged on Monday morning, she became suspicious and formed the view that he may have accessed the Registry over the weekend. She checked with the security company and he had not. However, she immediately changed the code as she did not believe the applicant needed it any longer. She acknowledged that she had no conversation with him about the matter, nor did she tell him she had changed the code. Ms Lewis said that the applicant had often complained that the code he had did not work. (Annexed to her statement, was the alarm event history for this day. It shows that Ms Lewis entered the building around four minutes before the applicant.)

107 Later that week, while Ms Lewis was relieving at Tenterfield, she gave Ms Toomey the alarm code to disable the alarm on 29 March 2007. She told her not to give it to anyone else. Ms Lewis said that when she phoned the Armidale Registry on that day, Ms Toomey told her that the applicant had abused her and called her (Ms Lewis) a 'fucking bitch'. He had wanted to know why the code didn't work and showed her the code he had and asked if it was correct. Ms Lewis told Ms Toomey that if he had had a problem, he should have spoken to her. Ms Lewis made a note of the conversation with Ms Toomey as follows:

Pin Code Thursday 29-03-07 jess reported that graham was at the mr @ 8.20 and couldn't get access to the mr cause the pin code I gave him last week was no longer valid, I changed the pin code after I gave it to him last week he gave jess a mouthful of abuse about not having a pin coder I have told jess if he has any problem to speak to me himself. He demanded that jess give him the new one and she refused.

108 Ms Lewis deposed that this was a difficult time for her at the Registry. The applicant would not raise customer difficulties with her, and he preferred dealing with Mr Warner. She said she felt stressed by the applicant's manner towards her. She said he was unpredictable. Sometimes he would say hello; other times he would ignore her. The applicant denied that any issues of this kind were raised with him.

109 On 30 March 2007, (the applicant said it was 2 April, although he told Mr Hopkins 30 March) the applicant gave her two written complaints about staff members (Ms Toomey and Ms Bryant) and told her he wanted her to act on the complaints immediately. The complaints from the applicant and his wife concerned a conversation she overheard between Registry staff in front of customers, which she took as being a 'put down' of her partner and Mr Warner. Ms Lewis referred the complaint to the Business Performance Officer. In examination in chief, Ms Lewis said that she believed the applicant arrived at the Registry out of uniform on 30 March and handed her the envelope containing his and Ms Fraser's complaint. Ms Lewis said that after these events, there was a lot of tension in the Registry. She was concerned that Ms Toomey and Ms Bryant were upset about the complaints against them. She decided to offer counselling to them and after contacting Mr Cossins she was advised to offer counselling to the applicant. When she did so on the afternoon of 17 April, he became angry and shook his fist in her face, in a threatening way. He had said 'These bastards are trying to get rid of me, the fight is just beginning'. Ms Lewis said that she assured him that counselling was not compulsory and that she was offering counselling to everyone. He stormed out of the office and was very angry. She said that she felt intimidated and unnerved by his outburst. Ms Lewis said that a short time later, Mr Warner came into the office and said 'are you alright, what set him off this time?' She replied 'Me? I'm not really sure'. Ms Lewis emailed Mr Cossins (see details at par 37).

110 Ms Lewis described events later that day and insisted that the incident occurred in the afternoon after 5:00pm - not the morning. After the Registry had closed, she was at Counter 4 balancing the till. Mr Warner was at Counter 3 and the applicant at Counter 1. The radio was on and a news item came on about a mass shooting at a university in the United States.

111 Ms Lewis said the applicant extended his arm, pointed his finger at her and said 'You're damn lucky I took my medications this morning or you could be dead just like them'. Ms Lewis said she knew the applicant had access to firearms. She said she knew what it felt like to be threatened as she had been threatened some years ago when her husband had worked as a prison officer. She took the applicant's threat seriously. She said she was dumbfounded, but continued to balance the till. She reported the incident the next day to Mr Mark Wilkinson, Sector Officer, who told her to email Mr Cossins about the matter (see details at par 37).

112 Ms Lewis explained that she had not described the incident accurately in the email as she had said that the words were said to Mr Warner. However, she wanted to record Mr Warner as being present and she was unnerved and upset at the time. She insisted the applicant was looking directly at her when he made the comment.

113 Ms Lewis denied the applicant had referred to 'Baz'. She said that the comment was not said as a joke, or throw away line, and that the applicant was looking directly at her. She believed he had acted in a threatening manner. Ms Lewis stated that she will not work with the applicant again and that if he was reinstated, she would leave.

114 In his reply statement, the applicant said that the words Ms Lewis attributed to him about the United States massacre was a completely new allegation which had never been put to him and had never been put to him in the disciplinary interview. The applicant claimed that he was very distressed by this new allegation.

115 The applicant denied that his firearms had ever been confiscated. The letter Ms Lewis had signed for him concerned exemption from attending target shoots. He said he had been a member of the Sporting Shooters' Association for approximately 30 years and has owned firearms since his late teens.

116 In oral evidence, Ms Lewis explained the access history records for 26 March 2007. The records disclose that Mr Sozou gained access to the front door of the IVR office and went upstairs. Ms Lewis entered at 10:26:05 (actually 8:26:05) and entered the code, then there was the access of user 5159 (the applicant) at 10:30:32 (actually 8:30:05). On 29 March, Mr Sozou is shown as entering at 9:47 (actually 7:47) then at 10:07:05 a wrong code is entered, at 10:08:12 the alarm is turned off. Ms Lewis did not access the code that day.

117 In cross-examination, Ms Lewis said that the only role she had in the applicant's first disciplinary investigation was to obtain the test score sheet for Mr Page. Ms Lewis conceded that she did not make a formal complaint to Ms Baynham that the applicant had asked her to record Mr Page as passing the test. However, she did speak to Ms Baynham about the matter. Ms Lewis insisted that the applicant did ask her to pass the test and she refused. Ms Lewis said she had dealt with Mr Page on the day when she was Acting Manager, but the matter was then handled by Ms Baynham. Ms Lewis agreed that she had made an assumption that the applicant had 'held it against her' for not passing Mr Page. She agreed the applicant had never told her so. She accepted that she had never tried to sort it out with the applicant.

118 As to swearing in the office by staff, Ms Lewis accepted that staff swearing was not directed towards individuals, but was just general swearing. However, the swearing was not usually in front of customers. Ms Lewis agreed that while she had been acting manager, no one had ever complained about swearing in the office.

119 Ms Lewis again described accessing the Registry building. She said all staff have a key to the front door which opens a second door to the counter area. Behind the counter door is the alarm pad. Not everybody has the code for the alarm. From opening the front door, to disarming the alarm, there is time lag of perhaps 30 to 60 seconds before the alarm will sound. Ms Lewis reiterated her version of the conversation with the applicant on 23 March 2007, when he had asked her for the alarm code. He had told her he would be in at 8:30am and she had agreed to meet him. She was asked why she would need to give him the code, if she was to be there anyway? Ms Lewis said that if she happened to be late, she did not want him to be waiting.

120 Ms Lewis said she became suspicious when the applicant did not meet her on the Monday morning, because he may have wanted access over the weekend. She agreed that there was nothing suspicious in the applicant wanting to take a phone call on Monday morning. Ms Lewis said that, knowing the applicant, she was suspicious that he arrived four minutes after her. However, she acknowledged that she did not ask him why he was late, or if he had accessed the office over the weekend. She agreed that the first thing she did was call the security company and change the code. The locks were changed after the incident.

121 As to the conversation offering counselling to the applicant on 17 April 2007, Ms Lewis agreed that she did not mention, in her email to Mr Cossins, that the applicant had lent over her desk and shook his fist in her face in a threatening manner. She accepted that this was a matter of some note which she had not recorded until her statement of 8 October 2008, was prepared. Ms Lewis said that the applicant had demanded to know which Sector Officer had suggested counselling. However, she had not recorded this matter in her email either.

122 Ms Lewis believed that in the exchange later that day the applicant had threatened to kill her. While she did not report the incident at the time, she was very concerned with the words which had been directed towards her. The following day, she spoke to Mr Wilkinson and sent two emails; the first dealt with the counselling conversation and the second the alleged threat. She did not agree that by sending the counselling email first, that she regarded the threat to her of lesser importance. While she believed the applicant was angry with her after the first incident, she considered them as separate incidents. She insisted that she had felt threatened, despite not saying so in the email. She claimed she may have said so in the phone call to Mr Wilkinson.

123 Ms Lewis insisted that in the afternoon incident, Mr Warner was at Counter 3, the applicant was at Counter 1 and she was at Counter 4. There is a glass opaque partition about chest high between Counters 1 and 2 and the distance between Counters 1 and 4 is about seven or eight metres. Ms Lewis denied that the applicant had said to Mr Warner 'See you are lucky I took my medication this morning Baz'.

124 Ms Lewis agreed that she did not say anything either, to the applicant, or Mr Warner at the time, or at any time, about what the applicant had said to her. She denied the comment was made to Mr Warner despite putting exactly that in her email to Mr Cossins. She believed it was important to put in the email that Mr Warner had been present. Ms Lewis reiterated that the applicant had pointed at her, extended his arm and had a serious look on his face.

125 Ms Lewis conceded that she had continued to work with the applicant after the incident until he went on sick leave, despite having felt threatened by him.

126 Ms Jessica Lee Toomey has worked at the Armidale Registry as a Registry Services Officer since October 2004. She knew the applicant when he commenced work there after being transferred from Grafton. Ms Toomey said she was aware that the applicant owned firearms. Ms Toomey's evidence dealt primarily with the incident on 29 March 2007. She recorded it as follows.

127 On the day before, the Acting Registry Manager had asked her to open the Registry, as she would be relieving in Tenterfield. Ms Lewis gave her the alarm code and told her that, under no circumstances, was she to give the code to anyone else. When she arrived around 8:40am and unlocked the front door, she observed the alarm had already been disarmed and the applicant was standing behind Counter 1. She asked him how he had got in and he replied that he 'had the wrong bloody code to get in'. When he asked for the code, she said he was looking directly at her, with an angry expression on his face, his voice was slightly raised and his tone was angry. When she told him that she was directed not to give it to anyone, she put her hands up in front of her body with her palms facing outwards in a gesture as if to say 'stop' or 'back off'. She said she was scared that he had become angry, so quickly. She said the applicant then wrote the code down and she had said it was the wrong code. The applicant screwed up the paper and demanded the code again. When she refused, the applicant said 'That bloody fucking bitch. She gave me the wrong code. Why the hell did she give me this code?' She said the applicant was angry and she felt frightened at the intensity of his anger at her. She said she felt threatened. Ms Toomey said that Ms Nesbitt was standing behind her and may have heard some of the conversation. They both went into the manager's office and the applicant may have gone outside. The phone rang and it was Ms Lewis. Ms Toomey told her what had happened and what had been said.

128 Ms Toomey claimed that she was shocked by what the applicant had said to her, as they had previously got on well. He had never spoken to her like that before and she was frightened by it. For the rest of the day she worked from Counter 3 and the applicant worked from Counter 1. She said she tried to avoid him for the rest of the day and she deliberately did not go to morning tea that day so as to avoid contact.

129 Ms Toomey said in her experience IVR employees did not deactivate the Registry alarm, as they enter through a different door. The Registry had a separate alarm. Ms Toomey believed the applicant had used the wrong code that morning.

130 Ms Toomey claimed that following this incident she felt uneasy being around the applicant and she was scared of him. She was, and still is, upset that he spoke to her in that way. Ms Toomey said that, at no time, then, or at any time, had the applicant apologised to her or acknowledged his inappropriate behaviour.

131 In the weeks following this incident, Ms Lewis offered counselling to Ms Toomey and Ms Bryant about the complaints by the applicant and his wife about something said in the Registry in the afternoon of 29 March 2007. The counsellor had told her to say 'hello' to the applicant and be polite to him and go along with her own business. The applicant was frequently away from work after this incident. Ms Toomey said that before this incident, she had no particular difficulties with the applicant, although she did not like his frequent swearing at work. He frequently used the 'F' word and less often the 'C' word in the Registry.

132 After Ms Baynham had returned to work, Ms Toomey said she was unhappy at work and did not enjoy coming to work. She had told Ms Lewis that she did not want to be around the applicant and had told Ms Baynham that if the applicant came back to work, she would leave. Even though she had three small children, had bought a house in Armidale and needed her job, she still felt the same way and could not work with him if he was reinstated.

133 In recalling the incident at Coles Supermarket, Ms Toomey said she had seen the applicant and his partner and had tried to avoid him seeing her, as she did not want to talk to him or go past him.

134 In cross-examination, Ms Toomey was questioned about accessing the Registry Office. She said she had not known that Ms Lewis had given the applicant the alarm code earlier in the week on 23 March. On 29 March 2007, when she found the applicant already in the office, she did not know how he had got in. She could not recall him telling her 'the boys upstairs let me in'. Ms Toomey agreed that she was aware the inspectors were in the building, and one of them may have deactivated the alarm. Ms Toomey agreed that the applicant already had a code written down on a piece of paper.

135 Ms Toomey conceded that in her later email she had not included the word 'bloody' in the alleged comment by the applicant. She explained that she simply missed out the word.

136 Ms Toomey agreed that there was no reason for the applicant to be angry at her. However, he had yelled directly at her and she put up her hands as if to say 'back off'. Ms Toomey did not initiate any complaint, but was asked by Ms Lewis, on 3 April, to provide an email record of what had happened. Although she had not said in the email that she had felt threatened by the applicant, she had felt intimidated, uncomfortable and uneasy by what had happened.

137 Ms Toomey agreed that she and the applicant had some brief conversations later that day, although the applicant left work after lunch. She agreed she raised no concerns with working near the applicant that day. Ms Toomey acknowledged that she had never made any complaint about the applicant's swearing and she may have occasionally sworn herself - but only in the lunch room, not in front of customers.

138 Ms Toomey agreed that her sole concern with the applicant arose from this incident. She acknowledged that the applicant had made no threat to her at the time and she understood the cause of his frustration was with Ms Lewis, and not her.

139 In his reply statement, the applicant denied that he was angry with Ms Toomey or had been threatening towards her. He admitted raising his voice in frustration about the wrong code. While the applicant was unaware, until he received the allegations, that Ms Toomey had felt as she did, he would have apologised to her had he known. The applicant denied frequently using the 'F' word and denied ever using the 'C' word. He believed he would have no difficulty working with Ms Toomey in the future.

140 Mr Richard Boggan is the RTA's General Manager, Human Resource Strategy. From 25 March 2008 to 23 June 2008, he acted in the position of Acting Director, Corporate Services and Reform. In that role, he was responsible for convening the Disciplinary Panel on 10 March 2008. A standing meeting of the Disciplinary Panel was held every Monday at 3:00pm.

141 Mr Boggan's statement dealt primarily with his role on the Disciplinary Panel. He annexed to his statement various documents which are otherwise referred to in this decision. For that reason, I shall not refer to them again.

142 Mr Boggan described the proceedings of the Disciplinary Panel of 10 March 2008. He said the discussion was lengthy and considerable time was spent discussing the history of the matter, including the earlier disciplinary investigation at Grafton in 2004 and 2005. The Panel discussed the medical reports provided by Dr Delaforce and considered that it was plausible that the reason for the applicant's errors in driver testing was a reduction in his prescribed medication. However, Mr Boggan said that no medical evidence was offered in explanation for his behaviour in the second disciplinary matter. In fact, HealthQuest had considered him fit for duty.

143 Mr Boggan believed that the second disciplinary matter was serious because it involved similar behaviour to that for which the applicant was given a formal warning in 2005. Mr Boggan noted that in 2007 the applicant had made comments inferring that he would shoot a member of staff and this raised serious concerns for the safety of staff at Armidale. The Panel regarded the applicant as a 'serial offender', despite a period when his behaviour had improved. The Panel believed that if the applicant was allowed to continue his employment and something major happened, the RTA would be in breach of its duty of care to its employees. The Panel recommended the applicant's dismissal to Mr Stuart-Watt.

144 As a result of further submissions from the PSA and the applicant, the Disciplinary Panel was reconvened on 28 April 2008. Mr Boggan said the Panel was astounded the applicant regarded his comment of 17 April 2007 as 'flippant' in circumstances where the applicant had been counselled and warned about his behaviour towards other staff as early as 2002 and his final warning for similar behaviour in 2005. Mr Boggan noted that the applicant had been relocated once already and he was known to have access to weapons.

145 Mr Boggan said that the Panel had not discussed the 12 month period of the warning letter of 2005, after which the warning was taken off his file. However, he said it would have made no difference to the RTA's duty of care and having staff at Armidale at risk if the applicant was to return. The Disciplinary Panel recommended the applicant's termination of employment and was concerned that he might act violently as a result. The Police were advised and increased security was provided at the Armidale Registry. Mr Boggan said he was very comfortable with the recommendation of dismissal, as the Disciplinary Panel could not risk staff safety.

146 In cross-examination, Mr Boggan twice agreed that the Disciplinary Panel meeting of 10 March 2008, did not have any documentation before it concerning the Grafton matter. Mr Boggan was shown the Disciplinary Panel's report which disclosed no discussion was had as to the driver testing allegations. However, Mr Boggan said the issue must have been considered because the recommendation was that it was plausible that the applicant's medication reduction could have influenced the driver testing errors. Mr Boggan agreed that the focus of discussion was primarily on the March and April behavioural issues.

147 Mr Boggan said he believed the Panel was satisfied that the process to validate the alleged events was 'robust'. He was asked if it was appropriate to dismiss the applicant in circumstances where Mr Warner had not even been interviewed? Mr Boggan said the Panel was satisfied that other staff had heard and felt threatened by the comment and that it was consistent with the applicant's previous behaviour. The Panel was aware that the applicant had been relocated for similar threatening behaviour which itself had been the culmination of four years of problems.

148 In re-examination, Mr Boggan said the Panel relied on a briefing of the 2004 matter. Mr Boggan was queried about the 12 month life of the letter of warning. He said that removing the letter from the personal file, did not mean it would be thrown out. It would remain in the disciplinary file and the reasons for it could not be ignored. Mr Boggan added that the Panel aims for a unanimous decision and, if further information is required, the meeting is adjourned for that purpose.

149 Mr David Stuart-Watt has held various Director positions with the RTA since 1995. He is currently Director, Licensing Registration and Freight, which includes ultimate responsibility for the RTA's Motor Registry network. He has ultimate responsibility for all staff disciplinary matters. As Mr Stuart-Watt attached various documents referred to elsewhere in this decision, I shall not repeat them.

150 Mr Stuart-Watt said he first became aware of the disciplinary matters involving the applicant around November 2006. He had been informed of the various steps taken in the disciplinary process, including the suspension of the process, from May 2007 to February 2008 due to the applicant's absence from work.

151 Mr Stuart-Watt approved recommendations on 18 February 2008, to engage an outside consultant to conduct a disciplinary interview with the applicant and to suspend him with pay until the disciplinary process was finalised. He said the reasons for his decision were the seriousness of the allegations against the applicant concerning threatening and abusive behaviour and his likely return to work after HealthQuest's advice that he was fit for duty. Mr Stuart-Watt said he considered various health reports and recommendations and the applicant's disciplinary file, which included the 2004/05 Grafton matter, and decided to accept the recommendation that the applicant's employment be terminated.

152 After agreeing to an extension of time and considering the PSA's and the applicant's submissions, Mr Stuart-Watt referred the matter back to the Disciplinary Panel, which again recommended dismissal. As it was Mr Stuart-Watt's final decision, he said he took this responsibility very seriously. Indeed, he did not always agree with the Disciplinary Panel's recommendations. However, he did so on this occasion. Mr Stuart-Watt said the following factors led to his decision:

(a) Mr Gregg's comments and behaviour on 29 March 2007 and 17 April 2007 in Armidale Motor Registry caused serious distress for other RTA staff members and caused them to fear for their safety in the workplace;

(b) in 2004 Mr Gregg had engaged in very similar behaviour in the Grafton Motor Registry. Mr Gregg's conduct in 2004 caused staff members at the Grafton Motor Registry to feel intimidated and fearful of working alongside Mr Gregg;

(c) Mr Gregg's behaviour in 2004 and 2007 amounted to a pattern of abusive and threatening behaviour;

(d) the RTA had attempted to deal with Mr Gregg's ongoing inappropriate conduct in the workplace over a number of years through counselling, training and warnings yet Mr Gregg continued to disregard the standards expected of him and had failed to modify his behaviour. it was of particular concern to me that Mr Gregg had engaged in the harassing behaviour in the Armidale Motor Registry in 2007 even after being disciplined for similar behaviour in 2004;

(e) in relation to Mr Gregg's threatening and abusive behaviour in Armidale Motor Registry in 2007 Mr Gregg denied acting unlawfully or in an intimidatory manner and failed to recognise the seriousness of his actions or show any remorse for his actions. Instead Mr Gregg maintained that his comments were "light-hearted" and "flippant". This was despite the effect that Mr Gregg's comments in the Armidale Motor Registry had on staff;

(f) I considered that Mr Gregg posed a potential risk to the future safety of RTA staff and I was not prepared to expose RTA staff to such a risk by continuing to employ Mr Gregg in the RTA. The risks were particularly apparent because Mr Gregg had no understanding that what he had done was wrong. This meant it was very possible he would do the same thing again; and

(g) the RTA has occupational health and safety obligations to provide a safe and healthy workplace for all its staff and takes these obligations very seriously.

153 Mr Stuart-Watt strongly believed his decision was correct and that the applicant's reinstatement would pose a risk of a repeated offence and a strong reaction from other staff.

154 In cross-examination, Mr Stuart-Watt was asked if he took any particular action when he was advised of the allegations against the applicant that he engaged in abusive and threatening behaviour. He said that he had relied on advice from his line management, as it was not appropriate for him to make decisions without adequate advice and information. However, by February 2008, he believed it was appropriate to suspend the applicant; which was a very serious step to take. At the time of the applicant's suspension, he said he had sufficient information and advice to do so. Mr Stuart-Watt said he was not involved in any decisions when the applicant was absent from work from May 2007 to February 2008.

155 In making the decision to dismiss the applicant, Mr Stuart-Watt said he relied on various documents and advice. He was aware that the applicant had been the only person interviewed. He acknowledged that he knew Mr Warner had been involved, and that he had no direct information from him.

156 Mr Stuart-Watt was unable to say that if there had been only one incident, whether it would have had the same result. The incidents were looked at together, as was his past behaviour in 2004/05. While Mr Stuart-Watt was not involved in the 2004/05 disciplinary matter, he had reviewed the file on the matter and concluded the 2007 matters indicated a pattern of behaviour. Mr Stuart-Watt said that while the applicant had expressed regret in April 2008, he did not do so in the interview process or make any admissions. His remorse only arose when he was advised that the RTA was considering his dismissal.

157 As to whether the comment was made to Ms Lewis rather than Mr Warner, Mr Stuart-Watt understood that the allegation was that the words were said to Mr Warner and Ms Lewis was present. He accepted that there was a dispute about what was said, and in what manner. However, he insisted that it was not just a matter of seeking information from a third person, but his decision was based on all the evidence and the applicant's history. He noted that in this case, the investigator had concluded that two other allegations could not be proven. Mr Stuart-Watt had relied on the whole of the evidence and he did not believe it was necessary to speak to Mr Warner.

158 Mr Stuart-Watt was asked about the increased security at the Armidale Registry 12 months after the incidents. He agreed there were no allegations of physical violence, but verbal abuse was not acceptable in the workplace. The office staff had felt intimidated. He did not believe it was an overreaction to increase security after the conclusion of the investigation and the applicant's ultimate dismissal.

SUBMISSIONS

For the applicant

159 Mr M Gibian, of Counsel, outlined the principles the Commission is required to apply in a case of summary dismissal for misconduct. He said that firstly, the allegations against an employee must be made out on the evidence: See Public Service Association and Professional Officers' Association v Forestry Commission (1990) 39 IR 46 at 51 and 52. Secondly, the dismissal of an employee for misconduct may be 'harsh, unreasonable or unjust' on at least two grounds; whether the Commission can be satisfied that the allegations had, in fact, occurred or because the penalty of dismissal was too harsh: See Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 and Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183.

160 Thirdly, Mr Gibian submitted that the onus rests with the employer to prove the misconduct: See Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No3) (1990) 35 IR 70 at 83 and 84; Coles Myer Ltd v Shop, Distributive & Allied Employees' Association (NSW) (1989) 27 IR 299 at 303-304; Franklins v Webb (1997) 72 IR 257 at 261; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464; North v Television Coproration Ltd (1976) 11 ALR 599 at 602-603 and Miller v Australian Industrial Relations Commission [2001] FCA 486; (2001) 104 IR 415 at 424. Fourthly, the standard of proof is the civil standard i.e. on the balance of probabilities: See Wang v Crestell and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

161 Fifthly, if a dismissal is found to be unfair, the relief granted by the Commission will depend on a number of discretionary considerations: See Pastrycooks Employees, Biscuit Makers Employees' & Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No3) at 98-99 and Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at 36.

162 Sixthly, the misconduct, if proven, must be such as to constitute a repudiation of the contract of employment by the employee: See New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 at 225.

163 Turning to the issues in this case, Mr Gibian submitted that while the 2006 driver testing errors were ultimately abandoned by the RTA (and can be disregarded for the purposes of this decision) the fact that they were described as fraudulent or corrupt conduct, without any evidence, resulted in a disciplinary process against the applicant which was unreasonable and harsh.

164 In respect to the 29 March 2007 incident, Mr Gibian noted that the applicant had described Ms Lewis as 'that bitch' but he had apologised and expressed remorse. Even so, Mr Gibian said that it was not conduct warranting summary dismissal because:

a) there was no evidence that Ms Toomey retreated from the applicant's presence. She agreed that the applicant had been frustrated with Ms Lewis, and not her;

b) Ms Toomey's evidence was that she was uneasy or uncomfortable, but not fearful;

c) Ms Toomey kept working that day and had only written a complaint after Ms Lewis had asked her to;

d) The applicant had not demanded the alarm code and Ms Toomey merely assumed that he wanted her to give him the code;

e) Ms Toomey gave no evidence about retreating from the applicant's presence; and

f) the applicant had genuinely believed that he was entitled to have the alarm code, as he had had it previously.

165 As to the second allegation, Mr Gibian put that there was again no evidence to support the allegation. The applicant denied it, Mr Warner had denied it occurred as alleged and Ms Lewis now describes an email she wrote about it as being incorrect.

166 Both the applicant and Mr Warner deposed that it was a 'joking', 'light hearted', 'off the cuff' remark. Mr Warner had said that he neither felt threatened nor intimidated by it. Mr Gibian said that where there was some variation to timing between the applicant and Mr Warner, this was understandable given the passage of time.

167 Mr Gibian particularly emphasised that Ms Lewis now gave a quite different account than what she recorded in her email. Given that her new account was made 18 months after the incident, it cannot be accepted that the applicant was now said to have made the comment directly at her, in a serious voice and pointing his finger at her. If this had happened, Mr Warner, who was directly between them, would have seen everything. He denied it had occurred as Ms Lewis now alleges.

168 Mr Gibian added that Ms Lewis' conduct immediately after the incident further demonstrates her lack of credibility. She did not leave the Registry, she continued working and waited until the next day to send two emails. The first email made no mention of the threat at all. Even the second email did not indicate that she had felt threatened, nor did she express any fear for her safety or request any action be taken. She only said she found the comment 'offence' (sic) and uncalled for. In her phone call to Ms Cvetkovic on 30 April 2007, she didn't even mention the incident.

169 Mr Gibian said that Ms Lewis' reactions over the alarm code incident causes one to be gravely concerned with her capacity to objectively, or rationally, assess the applicant's actions. She was suspicious of the applicant, without any reason. Mr Gibian further submitted that the applicant's medical complaints, as Dr Delaforce reported, could well account for his behaviour during the 2007 incidents.

170 Mr Gibian rejected the RTA's reliance on the 2004 allegations as a basis for the applicant's dismissal. He said that having regard for the expiry of the 12 month limit on the warning letter, it was not open for the RTA to rely on those matters in 2008. While Mr Gibian noted that the Disciplinary Panel in 2005 had found that the applicant had made 'offensive and threatening remarks about other staff audible to staff and customers', this was not the same as an allegation of 'a pattern of abusive and threatening behaviour'. Mr Gibian examined the behaviour in 2004 and said it went no further than occasionally ignoring staff, using inappropriate language and that he and other staff (Mr Gibian's emphasis) had brought interpersonal conflicts into the workplace.

171 Mr Gibian put that as both Mr Boggon and Mr Stuart-Watt had not been directly involved in the earlier matters, they were misled or misapprehended the nature of them. In fact, he added that no findings had been made of threatening behaviour.

172 Mr Gibian submitted that the applicant's dismissal was particularly harsh having regard for:

· his age (59 years old);

· his 21 years of devoted and unblemished service;

· his precarious financial circumstances;

· the difficulty of finding work in a country location;

· his specific skills not being easily transferable; and

· his health problems, including serious bouts of depression.

173 Mr Gibian emphasised two main areas of procedural unfairness which made the dismissal 'unreasonable' and 'unjust'. Firstly, he said that the investigation of the 2007 incidents was utterly unsatisfactory because:

a) the RTA had failed to interview a crucially relevant employee, Mr Warner and had no statement from him. In this regard, Mr Gibian relied on Byrne & Frew v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300 at 330;

b) the RTA and the independent investigator had relied entirely on three short emails from persons it did not even interview;

c) the independent investigator and the PSA had expressed concern with the quality of the evidence, particularly in that there was no statement from Mr Warner;

d) Ms Cvetkovic acknowledged in her evidence that the procedure adopted was not appropriate where it involved an employee of over 20 years standing;

e) Ms Lewis' evidence is now materially different to what she said in her email;

f) Mr Stuart-Watt and Mr Boggon had formed their opinions without ever knowing Mr Warner's view of the incident;

g) the independent investigator had led the applicant to believe that he had an account from Mr Warner. This was untrue; and

h) the RTA had breached its own Discipline Procedures by failing to conduct a fact finding investigation.

174 Secondly, Mr Gibian submitted that the extreme delay in concluding the disciplinary matter rendered the applicant's dismissal 'harsh' and 'unreasonable': See Owens v New South Wales Police Service (1998) 87 IR 1 at 9 and Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at 163 to 173. Mr Gibian said that the PSA had raised the delays in resolving the maters, as had Dr Delaforce. The first disciplinary matter took almost two years to be decided and then it was dropped. Disciplinary proceedings were suspended in May 2007 and did not recommence until February 2008.

175 Mr Gibian sought the applicant's reinstatement without loss of earnings and continuity of employment as the primary remedy for his unfair dismissal: See Burge at 34; Little v Commissioner of Police (No. 2) (2002) 112 IR 212 at 88; Plummer v Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 301; (2005) 145 IR 111 at 14; Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 at 42 and Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396 at 94. Mr Gibian submitted that reinstatement was not impractical and he relied on a number of authorities: See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151 at 213 to 214 and Burge at 35. Mr Gibian said the size of the employer was a significant consideration in determining the practicality of reinstatement. The RTA employs around 7000 people across the State.

176 Mr Gibian submitted that despite Ms Lewis' and Ms Toomey's reservations, it cannot be accepted that the applicant posed any real serious threat to them, or anyone else. Ms Toomey had said she had worked well with the applicant for two and a half years. In any event, in the alternative, the applicant could be reinstated to another RTA registry. As a further alternative, the applicant would seek a compensatory order at the upper end of the jurisdictional limit, having regard for the harshness of his dismissal.

For the RTA

177 Mr R Warren, of Counsel, submitted that the applicant's conduct in 2007 was not an isolated incident. He said that in 2004 and 2005 the applicant had been the subject of a disciplinary investigation in which a Disciplinary Panel had found that the applicant had made inappropriate, offensive and subversive remarks about other staff members, audible to staff and customers, including 'she's a fucking bitch'.

178 As a result, the applicant was transferred to Armidale and had been given a formal final warning. After representations from the PSA, which included acceptance of the transfer, the applicant's warning letter was to be removed from his personal file after 12 months of good conduct. Mr Boggon had said that even though he was unaware of the 12 month expiry on the warning letter, it would not have resulted in any different outcome, as the RTA had a duty of care to its employees. In any event, Mr Boggan drew a distinction between an employee's staff file and a disciplinary file. Documents could not simply be removed from a disciplinary file in order to give the employee a blemish free record. This was totally unrealistic.

179 Mr Warren outlined the history of the disciplinary proceedings and, in respect to the incident of 29 March 2007, he said it had demonstrated the applicant's appalling behaviour. He was abusing a third party with profane language to an innocent party. While he had belatedly apologised to Ms Lewis, he did not apologise to Ms Toomey. Ms Toomey gave evidence that she had raised her hands in a 'back off' stance and had been seriously effected by the words which had been angrily directed at her. Mr Warren said it could be no answer that Ms Toomey continued to work that day. Her evidence was that she avoided the applicant until he went home at lunch time and that she continued to feel fearful and upset. Mr Warren referred to the inconsistency in the evidence as to what occurred on 26 March and 29 March 2007 with persons accessing the Registry. The applicant's evidence was simply not supported by the Event History Report of access to the Registry on those days. He said that the inconsistencies raised a serious issue as the overall credit of the applicant as a witness.

180 Mr Warren submitted that there was no delay in initiating the investigation of these matters as it commenced within a week of the 17 April 2007 incident. He noted that the mental status of the women witnesses was recorded by Ms Cvetkovic on 30 April in her phone call to them. Mr Warren said that the applicant then became unwell and the process was suspended. This delay could not be seen as criticism of the RTA. It wasn't until February 2008 that the applicant was given clearance to commence duties that the disciplinary process resumed. Throughout the intervening period the RTA had been giving the applicant due consideration for his medical condition and during this time he was under the 'protective cloak of the Union'. Mr Warren noted that, at no stage, had the Union said 'by the way you can't use Grafton'. The Union knew the RTA would rely on the Grafton issues in any final determination of the matter. He said the Union knows you can't rewrite history.

181 Mr Warren referred to the evidence of Ms Lewis. He said it was clear that the applicant's attitude towards her changed after the driving test errors matter. This was further demonstrated by his behaviour when she offered him counselling on 17 April over his complaints about staff. He had raised his voice, shook his fist and challenged his need for counselling. Later that day, knowing he had been extremely angry with her, the applicant directly threatened her by his comment 'you're damn lucky I took my medication or you could be dead just like them'.

182 Mr Warren said that despite having been strongly pressed as to the error in her email (in that she had said that the comment was directed to Mr Warner) she remained clear and steadfast in her belief that the comment was directed at her. Ms Cvetkovic's evidence was that this would have been worse than simply saying it within her hearing. Mr Warren noted that the evidence of the applicant and Mr Warner is inconsistent on the timing of the conversation and where it occurred. He said it was likely that there were a number of conversations that day about the matter, but what was clear from the evidence of Mr Warner and Ms Lewis was the reference to 'or you could be dead just like them.' A comprehensive independent investigation found, on the balance of probabilities, that the words said were as Ms Lewis had described.

183 Mr Warren submitted that the Commission would be comfortably satisfied, on the balance of probabilities, that the applicant had shouted abuse at Ms Toomey on 29 March 2007, using profanities and significant expressions of anger - sufficient to frighten and seriously concern her. Further, the Commission will be satisfied that the events described by Ms Lewis of 17 April 2007, occurred and caused her serious fright and alarm. Either incident would justify the termination of the applicant's employment, given the history of his past conduct: See National Union of Workers, New South Wales Branch (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at 46 and 47.

184 As to the practicality of reinstatement, Mr Warren submitted that Perkins was also authority for the proposition that each case will be treated on its own merits. Perkins is further distinguished in that, unusually in this case, there are fellow workers who say they will not work with the applicant if he is reinstated. The applicant had demonstrated that he cannot work in small work locations, such as RTA registries. He was given one chance and failed. While his situation is unfortunate, the RTA cannot risk the health and safety of its other employees.

185 As to procedural unfairness, Mr Warren submitted that there is abundant authority for the proposition that, even if there are faults in the disciplinary procedures, the dismissal may not be found to be unfair: See Austin v NF Importers Pty Ltd [2005] NSWIRComm 136; (2005) 146 IR 113 and Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122. He said the question is - did the RTA have sufficient material to justify its decision to dismiss the applicant? The answer must be yes, having regard for the exhaustive disciplinary investigation and an independent investigation.

In reply

186 Mr Gibian said that Mr Warren had only referred to the allegations against the applicant in 2004, not the actual findings, which were very different, and limited to only one phone call where the applicant was alleged to have used the 'F' word. He put that these findings had been elevated by the RTA to matters demonstrating a pattern of threatening and abusive conduct, which they were not. In any event, the allegation stemmed from an isolated event, namely a neighbourhood dispute. It could not possibly ground a basis for a pattern of behaviour.

187 Mr Gibian said that the excessive delays in dealing with the matter didn't relate to when they commenced, but how long they took to conclude. The applicant had been directed not to attend work and he was not certified unfit for work, at any time, after May 2007 by HealthQuest or his own doctors. The PSA had continuously asked for the disciplinary matters to be dealt with.

188 Mr Gibian said that the applicant hadn't expressed any apology to Ms Toomey until these proceedings, because he hadn't known how she felt until he had read her statement for this case. He said that had he known, he would have apologised. Mr Gibian added that even though Ms Nesbitt was unavailable to give evidence, her email made no reference to them both retreating into the Manager's office.

189 Mr Gibian said that Mr Warren's admission that the evidence as to the 17 April incident 'was far from convincing on either side' clearly demonstrates that the RTA had been unable to discharge the onus it bears of proving the allegations against the applicant. In any event, Ms Lewis' evidence in the proceedings was unreliable, in that it differed substantially from what she had claimed at the time.

190 Mr Gibian did not disagree with the proposition that issues of procedural unfairness will not always be sufficient to justify an employee's dismissal. However, in this case, the failures in the process were fundamental. The applicant was required to answer allegations which were different to those he was dismissed for, and in circumstances where a crucial witness had not been required to give his version of events. Mr Gibian said it was not now open for the RTA to argue that dismissal was justified on the basis of either of the incidents, when the original decision makers had dismissed him for both incidents.

191 As to the alarm Event History Record, Mr Gibian submitted that this matter took the case nowhere, because the issue was only what was said in the conversation between Ms Toomey and the applicant on the day.

CONSIDERATION

Relevant Principles

192 As this is a case involving the summary dismissal of the applicant for misconduct, the onus of proof rests with the employer to satisfy the Commission, on the balance of probabilities, that the alleged misconduct has occurred.

193 The frequently cited authority for this proposition is that found in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No3) at page 83:

It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abottoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v J C Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stavedring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644:

"Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved."

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; this, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submissions on onus, Mr Walton referred to the judgment of Dey J in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355 in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. As was the case in Wentworthville Leagues Club, the position here is that the company has made an allegation of misconduct in summarily dismissing Mr Parsonage which could well, if left unproven, nevertheless be a stigma on Mr Parsonage which may well have implications for his future employment prospects. If misconduct indeed not be made out, then, on the approach I take, a very serious allegation against Mr Parsonage has been found to have no substance; if that be the result, then, in my view, that finding should be clearly made and published. So too, it will represent a very compelling consideration for restoring the employment relationship otherwise unlawfully severed.

See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1, Coles Myer Ltd v Shop, Distributive & Allied Employees' Association (NSW), Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288, Humphries v Cootamundra Ex-Services and Citizens' Memorial Club (2002) 128 IR 37, National Union of Workers, New South Wales Branch (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441, Austin v NF Importers Pty Ltd and New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service (2007) 164 IR 225.

194 The second question which arises in this case is whether the penalty of dismissal was too harsh, having regard for any number of mitigating factors, including, inter alia, length of service, the age and record of employment and the personal and economic circumstances of the applicant? This question arises from the terms of the statute (was the dismissal harsh, unjust or unreasonable?) and from the following authorities: In Byrne & Frew v Australian Airlines [1995] HCA 24; (1995) 185 CLR 410, the High Court said a termination of employment 'may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted'. See also Little v Commissioner of Police (No.2), Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106.

195 More recently Boland J, President said in Alexander v Commissioner of Police [2009] NSWIRComm 3 at [39]:

39 Reference should also be made to what Watson J said in Metropolitan Meat Industry Board v Australasian Meat Industry Employees’ Union, New South Wales Branch [1973] AR 231 at 233. His Honour articulated what has become a fundamental guiding principle that even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence:

I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty’s Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances – even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer’s representative was faced with a situation which had developed to a stage where he had no other alternative.

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

196 It hardly needs stating that the summary dismissal of an employee for misconduct can have serious and sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261:

We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

197 Another important factor in cases of summary dismissal for misconduct is to consider whether the conduct constituted a deliberate or wilful act which struck at the essential heart of the contract of employment. Cook J in Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 374, said:

"...the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike out an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline."

198 Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides:

The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith.

199 In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law:

The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

"[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises."

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.

It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.

See also Blyth Chemicals Limited v Bushnell [1933] HCA 8; (1933) 49 CLR 66.

Issues to be determined

200 Despite the extensive documentary history of this matter, the essence of the Commission's determination of this case has ultimately turned on the incidents of 29 March and 17 April 2007, and whether, firstly, the incidents occurred as alleged and secondly, if so, did the applicant's conduct constitute a reasonable basis for his dismissal? In the words of the statute, was the applicant's dismissal 'harsh, unreasonable or unjust', either substantively, procedurally, or both? While the issues have been narrowed, the history of the matter, as disclosed by the voluminous amount of tendered material is said, by both sides, to be relevant to their respective arguments; albeit viewed at from completely opposite perspectives. Two examples serve to demonstrate this point. The applicant alleged a denial of procedural fairness because of the delay in having the 2006 disciplinary proceedings against him resolved; whereas the RTA insists that the applicant's conduct in 2004 and 2005 must be a relevant factor when determining the penalty for an alleged display of similar conduct in March / April 2007. I shall return to both these matters later.

201 As just mentioned, the issues to be determined by the Commission have narrowed significantly. While the letter giving the applicant notice of dismissal (31 March 2008) and the letter of dismissal (18 May 2008), makes reference to the 2006 allegations concerning the driver testing errors, it is clearly apparent from the body of the dismissal letter that these allegations did not form part of the basis for the applicant's dismissal. Dropping of these allegations arose from the conclusion of the Disciplinary Panel's reconsideration in May 2008 of these allegations, in which it was said that it was 'more probable that Mr Gregg had been careless in the performance of his duties, rather than deliberately acting in a dishonest manner or misusing his position'. As a result of a report by Dr Delaforce, the Panel also concluded that it was plausible that the applicant's reduced medication could have been responsible for his errors in 2006.

202 Mr Warren properly conceded that the RTA did not rely on these allegations to ground its decision that the applicant should be dismissed. In the result, I do not intend to make any determination on these matters, except to the extent that they form part of the history of the matter and may be necessarily referred to in that context. However, I would observe that it was perhaps unfortunate that these allegations were finally dropped after being first raised over two years earlier. This delay was one of the claims of procedural unfairness raised in the applicant's case to which I shall later return. This leaves the allegations of 29 March and 17 April 2007.

Incident with Ms Toomey and Ms Nesbitt

203 The applicant admitted for the first time in his submission against dismissal dated 20 April 2008, that 'I candidly admit that I referred to Ms Lewis as "that bitch" and acknowledge that the comment was disrespectful, hurtful and unprofessional'. Even on his own admissions, the applicant was in breach of the RTA's Code of Conduct and Ethics. However, the applicant denied referring to her as a 'fucking bitch'. He admitted he was frustrated and had raised his voice. The applicant could not recall if Ms Toomey had raised her hands in front of her and he denied demanding the alarm code. He acknowledged he was aware of the RTA's Code of Conduct and Ethics. He did not believe he was threatening, bullying or intimidatory towards Ms Toomey.

204 A number of observations may be made about the applicant's evidence concerning this incident. Firstly, the applicant was hardly 'candid' in admitting he referred to Ms Lewis as 'that bitch'. He made no mention of this candidness in his disciplinary interview on 28 February 2008, in which he claimed that he only said 'what the hell was she (Ms Lewis) thinking?' There is no evidence that the applicant, at any time subsequent to the conversation and when he was pleading mitigation in light of the likely decision to dismiss him, that the applicant sought to apologise to Ms Lewis or indeed, to Ms Toomey. Such a belated concession and apology, was not, as Mr Gibian attempted to portray it, a real and genuine example of remorse or contrition. Faced with the likely prospect of dismissal, it was an entirely predictable, but belated response. It deserves little credit.

205 Secondly, there was absolutely no reason for the applicant to raise his voice, at all, with Ms Toomey, if it was Ms Lewis he was frustrated with. He had never done so before and he claimed Ms Toomey was a friend. Ms Toomey agreed that he had never spoken like that to her before. Friends don't usually raise their voices to one another if their frustration or anger is directed towards someone else. In any event, I find that the tone and manner of the conversation was somewhat more than just a raised voice.

206 Thirdly, the relevant test in any workplace incident of harassment, bullying or intimidation is not whether the perpetrator believes he/she was acting in such a way, but whether the recipient of the conduct held a genuine fear or concern arising from the behaviour. Bullies don't usually admit they are bullies. That the applicant did not believe he was acting in a threatening or intimidatory manner is not the point.

207 Having observed Ms Toomey in the witness box, I have no doubt that she felt threatened and frightened by the applicant's behaviour. I accept her evidence that she raised her hands in a 'back off' stance. It is unclear whether she and Ms Nesbitt retreated to the Manager's Office or simply went there. Mr Gibian's contrary argument was that as both Ms Toomey and Ms Nesbitt continued to work with the applicant that day, had made no immediate complaint and did not seek to have the applicant removed from the Registry Office, then they did not genuinely believe they were faced with a serious threat from the applicant. I disagree. It might be said that Ms Toomey did not believe that she faced a real physical threat from the applicant. Ms Toomey's evidence was that she deliberately sought to avoid making contact with the applicant. In any event, the applicant went home at lunch time. However, there was sufficient evidence, even from the applicant's own admissions, to draw a reasonable conclusion that Ms Toomey felt frightened and fearful by the applicant's outburst. The result was that the applicant had deliberately created an unpleasant and unacceptable work environment which was completely inappropriate and contrary to the RTA's Code of Conduct and Ethics.

208 In considering whether the applicant used the words 'fucking bitch' to describe Ms Lewis, I have had regard for the applicant's conceded state of frustration, his history of using foul language, his raised voice and my general preference for Ms Toomey's evidence where it differs to that of the applicant's. Further, in this regard, I accept that the applicant had a level of animosity towards Ms Lewis arising from the first disciplinary inquiry and which was further demonstrated by the outburst he had on 17 April 2007, over Ms Lewis' offer of counselling (which I will come to shortly). I also accept the evidence that the applicant frequently swore in the office and used the 'F' word intermittently. In his state of frustration, the likelihood of him using the expression 'fucking bitch' is therefore very high. Moreover, the applicant admitted that soon after the conversation, he went outside for around seven to eight minutes to 'clear his head'. One would hardly need to clear one's head if there had been a rational and calm conversation with Ms Toomey. In addition, Mr Warner's evidence was that Ms Toomey told him a few days later that the applicant had said to her 'why did that fucking bitch give me the wrong code. I wasn't happy about the way he spoke to me'. It would be unlikely someone who thought they had a good relationship with the applicant would make up the words 'fucking bitch' and repeat them a few days later to another friend of the applicant's; particularly as Mr Warner also said that Ms Toomey was not someone who usually complained. For these reasons, I am comfortably satisfied that the applicant did refer to Ms Lewis as 'that fucking bitch'. This was in clear breach of the RTA's Code of Conduct and Ethics. It was deliberate and wilful misconduct.

209 One further aspect of the evidence about this incident requires comment. The next day after this incident, the applicant and his partner, Ms Fraser, made written complaints about comments Ms Fraser had overheard in the Registry the day before and which she took to be denigrating of her husband. Apart from the fact that the conversation she alleges makes no reference at all to her husband (or anyone else for that matter), in my opinion, these complaints were nothing more than a trivial attempt at 'getting square' for the incident involving Ms Toomey and Ms Nesbitt. It was designed to counter balance their complaints against the applicant. However, in my view, this was just a silly and unnecessary complaint which no doubt exacerbated an already poisonous and stressful work environment.

17 April 2007 Incidents

210 This incident was really two incidents - the first was the comment allegedly made to Mr Warner about the shooting in the United States and the second was the counselling incident on the same day. There is a dispute about the sequence of these events.

211 Firstly, I would wish to say something about the failure to interview Mr Warner. I accept, as did Ms Cvetkovic, that, in hindsight, the RTA and/or the independent investigator should have interviewed Mr Warner. After all, he was central to the conversations that day. Indeed, the RTA should have been alerted to the difficulties with the evidence when Ms Burke from Aequ'us Partners said on 22 February 'There is no evidence from Barry Warner concerning the alleged incident on 17 April 2007'.

212 However, it is not entirely true that the RTA did not make any attempt to obtain Mr Warner's version of events. Mr Warner's evidence was that on 10 May 2007 he was called into Mr Cossins' office. Mr Cossins asked him about the 17 April incident. Initially unsure as to what Mr Cossins was referring to, he recalled the conversation and said it was a comment made in jest and he thought nothing of it at the time. Mr Cossins asked him to put his version of events in writing. Mr Warner later asked Mr Cossins to advise him what exactly he was inquiring about and Mr Cossins said he would put it in an email. Mr Warner said he did not hear from Mr Cossins again and so didn't provide a written statement. While it is curious and regrettable that Mr Cossins appears not to have followed up the discussion (for which I was provided with no explanation) it is equally curious that Mr Warner did not volunteer a statement which would have been obviously helpful to his friend's defence of the allegation.

213 That said, however, the question arises whether firstly, the applicant was denied procedural fairness in that the investigation was flawed by the failure to obtain Mr Warner's account, and secondly, had he given his version of events, would it have made any difference to the outcome? Ms Cvetkovic deposed that, in her view, it would not have. Moreover, she said that had the applicant directed his comment, either directly or purposely, within Ms Lewis' hearing, the allegation was even more serious than that which the applicant was found guilty of; namely, making the comment to Mr Warner. I would agree. I find that the applicant either directed the comment to Ms Lewis and pointed his finger or he intended Ms Lewis to hear the comment and it was in the words as she described it. I consider the applicant's intention was to frighten and intimidate Ms Lewis. She knew he owned weapons. She was aware that he had a history of unpredictable and threatening behaviour. It was perfectly understandable that she would be fearful of a person who made such a comment either specifically to her, or generally within her earshot.

214 As to the evidence of Mr Warner, he claimed that he had never felt fearful of the applicant and the comments of the applicant were directed to him in a flippant and 'off the cuff' manner. With respect, this is really not the point. It is clear that Mr Warner was a friend of the applicant's. He would hardly have been fearful of him. It was not that Mr Warner mightn't be fearful or frightened, but whether someone else may have been. Even if Mr Warner did not take the comments seriously, it doesn't necessarily follow that another person with an entirely different relationship with the applicant, might take the comment the same way; particularly as he had a short time earlier had an angry conversation with Ms Lewis about counselling.

215 Further, in my view, I find the applicant's evidence about the timing of the incident is unreliable. Seen in that context, I do not accept that the applicant had only said 'you're lucky I've taken my medications this morning Baz'.

216 Mr Warner first deposed to one conversation about the subject matter of the mass shooting in the United States, then said there were two; one occurred in the morning and the other, in the afternoon. Ms Lewis did not hear the first conversation, but places the relevant conversation at just after 5:00pm when the staff were balancing the tills. The applicant emphatically denied the second conversation and said he only said the words described above in the morning. Mr Warner's placement of persons when the comment was made in the afternoon was different to that of the applicant. Mr Warner said that he was near the photo licence machine and the applicant had made the comment as he walked past and put something in the mail tray. The applicant said that they were working in adjacent Counters 1 and 2 when the conversation was had. Perhaps there were two conversations which would account for the different placements of the persons involved at different times.

217 In any event, the applicant's denial of a second conversation is particularly interesting. In my opinion, the applicant saw his case as being perhaps fatally flawed if a second threatening conversation had occurred shortly after his heated exchange with Ms Lewis about counselling. It is entirely probable, and I find on the balance of probabilities, that the applicant's denial of the second conversation was deliberately intended to paint his case in a more favourable light. It is particularly illuminating that even Mr Warner said that the words 'I might have to kill you' were used. These words bear a compelling similarity with the words attributed to the applicant by Ms Lewis. I find that it was entirely probable that the applicant used the words attributed to him by Ms Lewis. Whether directed towards her, or said sufficiently loudly for her to hear them, makes no difference to the intention. This behaviour was in clear breach of the RTA's Code of Conduct. It was an act of deliberate and wilful misconduct.

218 The applicant said he was astounded by what he claimed was a new allegation; namely, that Ms Lewis said the comment was made to her, not to Mr Warner as she had originally said in her email. In light of my earlier findings, I do not see how it is credible for the applicant to be astounded by the allegation. He knew the gist of the words he was alleged to have said and he knew that they were intended to be heard by Ms Lewis.

219 One further aspect of the evidence requires some comment. I was troubled and dismayed by the language used by Dr Delaforce to defend the applicant, particularly in his 2005 report. His later reports are somewhat more measured, but still contain very subjective opinions. The doctor's commentary on the causes for the applicant's behaviour were based on gratuitous and highly prejudicial remarks and hypotheses, mingled with personal attacks on RTA employees he had never met, let alone interviewed (including officers of the Union). The 2005 report was based almost entirely on what the applicant and Ms Fraser had told him. In my opinion, the report was more of someone who was an advocate in the cause, rather than a calm and objective medical assessment of the applicant's mental state. Two examples serve to highlight the point: Dr Delaforce said 'The RTA and consultants' investigation of Mr Gregg represents a model for study to identifying what to avoid doing in response to complaints about a worker in the workplace. I keep trying to recall a workplace case that has been managed worse but I cannot even though I have been a medical practitioner for almost 35 years, a psychiatrist for almost 30 years, and have had extensive experience assessing workplace problems'. In his 2006 report, Dr Delaforce said 'He should not be directed to attend a disciplinary interview when an informal fact-finding interview has not occurred. Justice here means an inquiry before someone is alleged to have deliberately acted corruptly and fraudulently and therefore is told to attend a disciplinary interview. Imputing intent by alleging that he acted corruptly and fraudulently and therefore facing a disciplinary interview is grossly inappropriate but sadly apparently a repeat of RTA's problem behaviour'. For these reasons, I find that Dr Delaforce's various reports and assessments, have a very limited forensic value in this case. In any event, his actual medical assessment was really directed to an explanation of the applicant's driver testing errors, which was ultimately accepted by the RTA as being a plausible explanation for the errors.

220 It is also pertinent to note that throughout 2007, save for two short periods in April and May 2007, the applicant was, at no time, considered unfit for work, despite the ongoing consultations with his own doctors and HealthQuest. I note further, that the applicant does not cite any medical basis for his behaviour on 29 March and 17 April in his letter of mitigation dated 21 April 2008. In other words, I am unable to conclude that the applicant's medical condition could have been a contributory factor for his behaviour in March and April 2007.

Procedural Fairness

221 One of the essential elements of the applicant's case was his claims of procedural unfairness surrounding his dismissal, in particular the investigation leading to it.

222 Mr Gibian identified two main areas of procedural unfairness which he submitted would attract a finding that the applicant's dismissal was procedurally unfair and therefore, unreasonable and unjust. Firstly, it was said that the investigation of the incidents of 29 March and 17 April was utterly unsatisfactory and secondly, that there was an unacceptable delay in the respondent's handling of the disciplinary matters, particularly the first disciplinary matter.

223 Before turning to these questions, I intend to refer to both the legislative basis and some relevant authorities dealing with the issue of procedural unfairness in unfair dismissal cases. Section 88 of the Act is relevant in this context:

88 Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate, take into account:

(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal, and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant.

224 In Buckman v Burdekin Resources NL (1998) 85 IR 415, the Full Bench said at p 418:

Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.

In Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd, the Full Bench stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. At par [118] the Full Bench said:

118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.

225 In this case, I think it unarguable that the requirements in s 88(a),(b),(c),(d) and (e) were complied with. In other words, there can be no doubt that the applicant:

(a) was given a reason for his dismissal;

(b) was given an opportunity to make out a defence or explanation for his behaviour and did so;

(c) was given warnings about his conduct; and

(d) sought reinstatement or re-employment.

226 Presumably, the applicant's complaint under s 88 was that the reason for his dismissal had no basis in fact. As I have already ruled on that question, another important general procedural issue arises: does the acknowledged procedural defects in the investigation process invalidate the RTA's decision to dismiss him? Put another way, did the seriousness of the applicant's conduct outweigh any procedural defects in the process leading to dismissal?

227 Authorities for these propositions are to be found well summarised in Austin v NF Importers Pty Ltd, where the Industrial Court said at paras [12] to [17]:

12 However, Mr Austin's fourth allegation - that he was not given an opportunity to respond to the general manager's belief that he had improperly turned a blind eye to the copying of illegal software - goes to the heart of the misconduct relied upon by the respondent, NF Importers Pty Ltd, and we gave anxious consideration whether to grant leave to appeal in relation to the relevant grounds in the application for leave to appeal and appeal. On balance, having regard to the reasons given by Staff J in this respect and the submissions made on behalf of the respondents, we also decided to decline leave in this respect.

13 At paragraphs [152] - [153] of the judgment at first instance, Staff J held:

[152] I reach this conclusion [that the summary dismissal was not unfair] notwithstanding an allegation that the respondent failed to follow appropriate processes during the investigative and determinative aspects of the respondent's process. Viewed objectively, the termination of the applicant's employment by reason of his conduct did not, in all the circumstances, constitute relevant unfairness. The alleged failure to follow these provisions, even if established, could have no effect on this conclusion.

[153] As Hill J said in Mason v Electricity Commission of New South Wales t/a Pacific Power (1995) 62 IR 436 at 442 (which was endorsed by Walton J, Vice-President, in Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 at 204):

Clearly the employer must be a judge in its own cause, may be biased and indeed may have prejudged the matter. But these considerations will not affect a dismissal which is otherwise justified on the merits.

14 If paragraph [152] were read in isolation, it may appear that Staff J concluded that the first respondent's actions did not constitute unfairness prior to considering and evaluating Mr Austin's allegations that he had not been afforded procedural fairness. Such an approach would underrate the potential significance of the failure to observe procedural fairness.

15 As the Full Bench stated in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50, unfair dismissal cases provide guidance when dealing with a claim under s 106 that the contract has become unfair primarily as a result of the actions of the respondent in terminating it. The correct approach in relation to procedural fairness in unfair dismissal cases has been stated by the Court in a number of cases, including Abboud, Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211; (2003) 128 IR 37; Starr v Commissioner of Police [2001] NSWIRComm 226; and Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122. Failure to follow an appropriate procedure may result in a dismissal being harsh, unreasonable or unjust; but not every failure of a procedural kind will warrant the intervention of this Court.

16 There are many cases where findings relating to procedural fairness will be critical to the essential elements of the case, particularly in the context of allegations of serious misconduct. In those cases, the employer bears the evidentiary burden of establishing a proper basis for summary dismissal for misconduct: see (Pastry Cooks Union v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1996) 72 IR 257 at 260). Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd provides the following graphic illustration of the manner in which a denial of procedural fairness can cast real doubt upon or taint the finding of serious misconduct and can indicate the need for real caution in evaluating a respondent employer's case:

[114] Thirdly, the dismissal was harsh, unreasonable and unjust due to the procedures adopted by the club in terminating the appellant. Notwithstanding that at all relevant times the appellant knew the general nature of the allegations against her, there was, in reality, a deprivation of any proper "opportunity" (to use the language of s 88(b) of the Act) to make out a defence in relation to the allegations made against her, or to give an explanation of the conduct which was said to warrant dismissal. Whilst the respondent appropriately interviewed the appellant and invited her to provide an explanation, she was deprived of the actual records to which the allegations related. This failure so fundamentally affected the appellant's opportunity to give an explanation or provide a defence as to effectively, if not formally, deny that right absolutely.

[115] This denial of access to the club records amounted to a substantive failure to provide such an opportunity and thereby was a substantially unfair procedure. To the extent that illustration of this is necessary, this was demonstrated by the fact that, in a sense, the whole process in this case miscarried in consequence of it -- leading not only to the appellant's summary dismissal, but also to the lack of assistance afforded to the Deputy President in hearing the matter, in that his Honour received only limited submissions or analysis because of the lateness of the receipt of the records in question.

[116] By virtue of the respondent's unfair investigation procedure, from the outset the appellant was placed in a false position in relation to the allegations. She was, in effect, invited to incriminate herself by providing information to explain conduct which purported to have been her own, but in circumstances in which it was not effectively possible for her to confirm that the anomalies for which she was deemed responsible were even within her command.

17 In some cases, a denial of procedural fairness may give rise to a conclusion that the contract was unfair simpliciter. In Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 389, the Full Bench stated:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

See also Wilson v Department of Education and Training [2000] NSWIRComm 20; (2000) 100 IR 1; Byrne & Frew v Australian Airlines; Burke v McGirr [1995] HCA 24; (1995) 185 CLR 410; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1995) 87 IR 57; Abboud v the State of New South Wales (Department of School Education) (1992) 92 IR 32; Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and D&R Commercial Pty Ltd v Flood (2002) 113 IR 344.

228 Mr Gibian was critical of the respondent and the investigator's exclusive reliance on the email statements of Ms Toomey, Ms Nesbitt and Ms Lewis and failed to interview any of them, and failed to interview Mr Warner. I have already mentioned the matter of the failure to interview Mr Warner.

229 As to the failure to interview Ms Toomey, Ms Nesbitt and Ms Lewis, both Ms Toomey and Ms Lewis gave evidence in these proceedings. From my observations of them in the witness box and having regard for the totality of the applicant's evidence, I am satisfied that where their evidence differs from that of the applicant, that it is their evidence I prefer. While, in hindsight, interviews with them all would have been preferable, I do not consider, either that the outcome would have been any different for the applicant or that a failure to do so renders the applicant's dismissal as unfair.

230 In addition, it should not be lost sight of that Ms Cvetkovic made contemporaneous notes of her conversations with Ms Toomey, Ms Nesbitt and Ms Lewis (see par 35). Comments from them include: (Lewis) 'quite aggressive, GG went ballistic, worries for her safety and staff, feels very very uncomfortable around him', (Bryant) 'atmosphere tense, feels she has to be very careful about, tries not to be alone with him, doesn't know if Graham Gregg will verbally attack her', (Toomey) 'hates coming to work, hates being around him, feels intimidated, if something goes wrong swears, angry look, mumbles, quite often uses foul language if not in a very good mood, felt scared by how he was speaking'. That three registry employees would tell a senior RTA officer, Ms Cvetkovic, of a consistent pattern of unacceptable behaviour of a fellow worker was an extremely serious matter. There is no reason why the three women would be simply making up these concerns and no reason to doubt a very experienced Human Resources Officer would not have accurately recorded contemporaneously the gist of the conversations. It all has a familiar ring of truth about it which, in my view, is entirely consistent with other evidence in these proceedings. I do not consider that this evidence should be discounted as either, hearsay or irrelevant.

231 Mr Gibian submitted that the failure to conduct a fact finding investigation in respect to 29 March and 17 April 2007, was contrary to the RTA's own discipline guidelines and was therefore, itself, procedurally unfair. I do not accept that Mr Gibian's conclusion necessarily follows from the failure to conduct a fact finding investigation.

232 Ms Cvetkovic considered there was sufficient evidence, in light of the applicant's history, to dispense with the formal fact finding investigation. The applicant and the PSA were aware of this view and indeed, protested about it. Nevertheless, I accept there was a sufficient degree of similarity between the incidents in 2004 and 2007, coupled with a desire not to unnecessarily delay the process, which did not justify a more formal and time consuming fact finding investigation. Given complaints about delays in the overall disciplinary process, it is somewhat ironic that there would be a complaint about another step in the process which would have most assuredly created further delays. It would be apt to describe the RTA's position as it was 'damned if it did, and damned if it didn't'. The real question is whether the applicant suffered any prejudice in not having a fact finding investigation? In my judgement, the answer must be an unequivocal, no.

233 That said, I would wish to make some general observations about the RTA's Disciplinary Process. The first thing that can be observed about it, is that it is highly prescriptive and comprehensively set out. Secondly, I don't think one could find a disciplinary process that is more fair for employees. That said, it would seem self evident that the more prescriptive a disciplinary process, the more likely will it be a lengthy one and more likely will it be subject to criticism if a particular step is, or is not, taken along the way. While it may be open to criticise some aspects of the process adopted here, it seems to me that the conduct of the applicant, as found by the Commission to be proven, far outweighs any procedural defects.

234 In any event, it cannot be ignored that the applicant already had a formal final warning in 2006 for behaviour entirely consistent with what he displayed in 2007. Thus, the 2007 incidents could not be held to be a 'one off' incident or as being 'out of character' for the applicant; despite Mr Gibian seeking to erase the earlier history from the Commission's consideration of the matter.

235 Mr Gibian is undoubtedly correct when he submitted that an unreasonable delay in resolving allegations of misconduct may result in a dismissal being found to be harsh and unreasonable. But, in my view, what must be clearly demonstrated to ground such a conclusion, is that the employer's conduct or failure to act was the primary reason for such a delay. In addition, the authorities cited by Mr Gibian: Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 and Owens v New South Wales Police Service, are distinguishable, in that the applicant here did not continue to work as normal or in a commendable manner during the period of delay (see 168 and 169 supra above).

236 In any event, there can be little basis in criticism of the RTA for the delay in resolving these matters. In truth, the delays were almost invariably caused by the applicant's requests for adjournments for health reasons or his desire to rely on obtaining further doctor's reports. Examples of the applicant's own contributions to the delay include:

· his request to reschedule the first disciplinary inquiry;

· his further request to reschedule the first disciplinary inquiry until he was further assessed by Dr Delaforce;

· further request for postponement until Dr William's assessment;

· his complaints as to no formal fact finding investigation; and

· during the disciplinary interview he requested a report not be finalised until Dr Delaforce's final report.

237 In my opinion, it was entirely appropriate for the RTA to seek HealthQuest assessments of the applicant in circumstances where he claimed to be too ill to present for a disciplinary interview, yet was able to attend for work at the Registry. On the contrary, the RTA would be open to criticism for failing to treat the applicant's claims with due care and diligence.

238 That said, I accept that there may be legitimate criticism about the delays in concluding the first disciplinary matter which was ultimately dismissed after almost two years. However, it must be remembered that there were the intervening incidents on 29 March and 17 April 2007, concern by the RTA as to the applicant's fitness and dispute proceedings lodged by the PSA. Significantly, the medical report citing a correlation between the applicant's reduced medication and the driver testing errors was not made known to the RTA until 20 March 2007 (almost one year after the allegations).

239 These comments lead me to discuss the applicant's various disciplinary interviews, which I have closely examined. In my assessment, the applicant displayed a confident, forthright and inquisitorial demeanour during his interviews, which were frank and wide ranging. He had PSA representation at the interviews. He sought and was granted adjournments as required, he queried management decisions, he tabled documents and he refused to answer questions if he believed he had already answered them. Notwithstanding that he claimed to be upset and distressed by having to attend disciplinary interviews, the transcript of the interviews appear to me to disclose the very opposite of emotions.

240 Other aspects of the disciplinary process also require mention. At all times the applicant was aware of the second disciplinary allegations and responded to them, both personally and through his Union. The applicant was subject to an independent disciplinary interview. Two meetings of the Disciplinary Panel reviewed all of the circumstances; the applicant's history and the issues he and the Union put in mitigation. At Disciplinary interviews, the applicant was permitted to ask questions, put submissions and explanations for his behaviour. He was accompanied by PSA representatives at all times.

241 As earlier noted, Mr Gibian unsuccessfully sought to exclude from the evidence any documentary material related to the Grafton disciplinary matter in 2004. He claimed it was irrelevant to the reasons for the applicant's dismissal in 2008. He submitted that the warning letter received for that matter was also irrelevant, as it only had a 12 month life and had been removed from the applicant's personal file after 12 months of demonstrated good behaviour. It is perhaps illustrative to note that similar conduct to the 2004/05 incidents occurred a few months after the expiry of the 12 month period. In any event, it was totally unrealistic to suggest that taking the warning letter off the staff file, could totally expunge the applicant's disciplinary history, such as to give him a 22 year history of good behaviour.

242 To my mind, it is conceptually dishonest to argue, on the one hand, that an employee's long period of service should mitigate against dismissal, but on the other hand, any non performance or poor conduct issues during that period of service, could be expunged, ignored, or treated as irrelevant. In essence, that is what the Commission is being asked to do here; the applicant is an employee of over 20 years standing and the Grafton disciplinary matter is irrelevant to the reasons for the applicant's dismissal. Not only was that contextually impossible, but in my view, the fact that the applicant's own conceded conduct in 2007 was disrespectful, hurtful and unprofessional, is entirely consistent with his earlier behavioural problems in 2004 and 2005. It cannot be ignored or swept away. In this regard, I rely on the comments of the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd at [46] and [47]:

46 Earlier incidents of misconduct by an employee in the course of his or her employment with an employer may be relevant to the question of whether the employee has demonstrated such a disregard for the contract of employment, or one of its essential conditions, that the employment relationship is no longer tenable or that the parties to it are no longer compatible given their respective rights and obligations under the contract. That is, by his or her conduct the employee has demonstrated an intention that he or she no longer intends or wishes to be bound by the contract.

47 Whether an employer is entitled to rely upon earlier misconduct may involve such questions as the nature of the misconduct and whether, for example, it was trivial or serious; whether it demonstrated a persistent course of conduct that evinced an intention not to be any longer bound by the employment contract; whether it was too far removed in time to be relevant; or, whether the employee's otherwise good employment record outweighed the earlier misconduct making it irrelevant or only marginally relevant.

and what Schmidt J said in Owens v New South Wales Police Service at p 12 and 13:

I particularly reject the submission that it is not appropriate that Mr Owens' earlier problems in relation to forgery be taken into consideration, because to do so would be to "punish" him twice for the same offence. It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v Federated Ironworkers Association of Australia; Re York [1972] AILR 517 per Sheppard J). It would be in my view as inappropriate to ignore Mr Owens' earlier difficulties as it would be to ignore the commendable way in which his everyday work was performed. That was another practical demonstration of the personal attributes which are so important to the proper carrying out of a police officer's responsibilities. A balanced view of the matter needs to be taken into account.

243 It was further put that the disciplinary matters in 2004/05 had never really produced any final conclusive findings adverse to the applicant. That the applicant and the PSA accepted his transfer to Armidale and the warning letter makes plain that he had accepted his wrongdoings. I ask rhetorically, why would he accept these outcomes if he was totally innocent of the allegations?

244 Mr Gibian submitted that the decision makers in 2008 (Mr Boggon and Mr Stuart-Watt) could not rely on the issues in 2004/05 because they had not been involved at the time, and had relied on these matters as demonstrating patterns of inappropriate behaviour. Such a submission takes the applicant's case nowhere. How else were the 2008 decision makers able to consider earlier conduct, other than by reference to earlier files and reports? It demonstrates the very purpose of having complete and detailed records of an employee's service.

245 In my view, applying a balanced approach to all of the circumstances, the RTA was entitled to regard the applicant's continuing employment as an unacceptable risk to the health and safety of its other employees. Having so found, it had little option but to dismiss him.

246 After carefully weighing up the factors mitigating against the applicant's dismissal, including his age, economic and personal circumstances and the difficulty in finding employment in country locations, I have unfortunately concluded that these factors do not sufficiently outweigh the seriousness of the allegations and the concern as to the health and safety of other RTA employees. I consider that the risk of repeated incidents of the kind discussed in this decision is simply too great under present circumstances. I have also taken account of the two character references provided by the applicant, but note that they relate to the applicant's work performance well before the Grafton and Armidale incidents.

247 For all the forgoing reasons, I am unable to conclude that the applicant's dismissal was 'harsh, unreasonable or unjust' within the meaning of Pt 6 Ch 2 of the Act. In view of my conclusions in this matter, it is unnecessary for the Commission to consider the parties' submissions as to reinstatement, re-employment or monetary compensation.

Findings

1. The Commission finds that, on the balance of probabilities, the allegations against the applicant concerning the incidents of 29 March and 17 April 2007 have been proven.

2. By the conduct being established as above, the Commission finds that the applicant breached the RTA's Code of Conduct and Ethics in that he failed to:

· behave in a lawful manner;

· conduct himself in a professional and ethical manner;

· treat other staff fairly, with courtesy and respect;

· ensure he did not harass, intimidate, bully or threaten other staff; and

· take reasonable care of the health and safety of people at the RTA place of work.

3. The applicant's conduct during both incidents constituted misconduct.

4. Any procedural irregularities in the disciplinary process were not such as to outweigh the gravity of the misconduct.

5. The decision to dismiss the applicant for misconduct was neither 'harsh, unreasonable or unjust', within the meaning of Pt 6 Ch 2 of the Act.

6. These proceedings are thereby concluded.

Peter J Sams, AM
Deputy President

Annexure 1

LAST UPDATED:
24 February 2009