Donnelly v State of Queensland (Department of Transport and Main Roads)
[2015] QIRC 14
•21 January 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Donnelly v State of Queensland (Department of Transport and Main Roads) [2015] QIRC 014 |
PARTIES: | Donnelly, Donal v State of Queensland (Department of Transport and Main Roads) |
CASE NO: | TD/2014/16 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 21 January 2015 |
HEARING DATE: | 25, 26 September 2014 |
MEMBER: | Deputy President Swan |
ORDERS: | 1. The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - misconduct - respondent's evidence supported by CCTV footage and computer processes. |
| CASES: | Industrial Relations Act 1999, s 74, s 77, s 78 |
| APPEARANCES: | Mr W. Brown, Counsel, instructed by Swift Solicitors for the Applicant. |
Decision
This application is made by Mr Donal Donnelly against a decision made by his former employer, The State of Queensland (Department of Transport and Main Roads).
Mr Donnelly submits that his termination of employment was harsh, unjust or unfair pursuant to s 77 of the Industrial Relations Act 1999.
Witnesses
Witnesses for Mr Donnelly were:
· Donal Donnelly, Applicant;
· Melissa Donnelly, Applicant's wife.
Witnesses for the Respondent were:
· Nicholas Marsden, Regional Director, Customer Services, Central Region;
· Murray Shields, Manager Client Service Delivery, Central Region;
· Julie-Anne Ahrens, Principal Customer Service Officer, Mackay;
· Geoffrey Magoffin, General Manager, Customer Services;
· Juanita Ruffell, Customer Service Officer, Mackay.
On 27 November 2013, Mr Donnelly had been asked by the Department to "Show Cause" why disciplinary action should not be taken against him pursuant to s 187 of the Public Service Act 2008.
The allegations which had been put to Mr Donnelly were as follows:
(a)"Allegation 1: around June or July 2012, you used your position as an employee of the department to illegitimately access the written road rules test and answer sheets for the benefit of your wife;
(b)Allegation 2: on or around 2 July 2012, you attempted to use your position as an employee of the department with interfering with the processing of a Queensland Learner Driver Licence for your wife, by providing an illegitimately completed written road rule test to Ms Ahrens;
(c)Allegation 3: on or around 3 July 2012 you dishonestly told Ms Ruffell that the written road rules test had been legitimately completed by your wife, in order for Ms Ruffell to process your wife's Queensland Learner Driver Licence;
(d)Allegation 4: on or around 10 July 212, you used your position as an employee of the department in that you or your wife directly contacted driving examiner Mr Keith Jeppersen to arrange a practical driving test for your wife outside of working hours;
(e)Allegation 5: you failed to obey a written lawful direction by the Director General, Transport & Main Roads dated 13 March 2013 to attend and participate in an interview to take place in Mackay on either Wednesday 20 or Thursday 21 March 2013."
To these allegations, Mr Donnelly responded to the "Show Cause Notice".
On 23 December 2013, the decision maker, Mr Geoffrey Magoffin, General Manager (Customer Services) advised Mr Donnelly that each of the allegations had been substantiated and that a proposed penalty of termination of employment was being considered.
Mr Donnelly did not respond to the Show Cause correspondence on penalty and on 13 January 2014, Mr Donnelly was notified that his employment had been terminated.
Mr Donnelly's evidence
During 2012, Mr Donnelly was a driving examiner at the Mackay Customer Service Centre of the Department. He had commenced his employment with the Department in 1996 and was employed at Pubic Service Level AO3 Level 4.
In Mr Donnelly's response to the Department's "Show Cause" notice, Mr Donnelly stated:
· That in relation to his 'illegitimately accessing the written road rules test', he would have no need to do that as his position as a driving examiner meant that he would be required to know the rules of the road.
· Concerning Allegation 2, Mr Donnelly said he had no need to interfere with the processing of a Queensland Learner Driver Licence for his wife as she did not require a Queensland Learner Licence.
· Mr Donnelly denied the third allegation stating "As the allegation is flawed, there is no need for me to answer that allegation."
· Mr Donnelly denied the fourth allegation by responding that there was no specific allegation that either he or his wife contacted Mr Jeppersen and he was unable to answer for his wife in this situation.
· Mr Donnelly rejects the fifth allegation because he was unable to attend the scheduled interview because of the short notice which had been provided by the Department. He would have been unable to cancel the plans he had made for the time period nominated.
Under cross-examination by the Department, Mr Donnelly stated that his wife, who was from the Philippines, required a Queensland Driver Licence and to do this she was required to complete both a written test and also a practical assessment [T1-10].
Mr Donnelly states that his wife attended the Mackay CSC on 4 July 2012 where she was handed a written test. This test was completed by Ms Donnelly and handed back to Ms Ruffell, the Customer Service Officer. Mr Donnelly denied having completed the test for his wife and handing the test to Ms Ahrens or Ms Ruffell.
With regard to taking the test, the customer is given a copy of the Written Road Rules Test Questions together with a Road Rules Test Answer Sheet. On that test for a Class C Licence there were 30 multiple choice questions.
Mr Donnelly agreed that there were at least 9 or 10 different road rules question sheets. The purpose of having so many different question sheets was to ensure that if a customer failed a test on one day, they would not get the same test on the next day.
Mr Donnelly agreed that on each counter of the Mackay CSC there was a complete set of the road rules test.
Mr Donnelly said that it was imperative that customers undertaking the test completed it without any assistance from another.
When the test is completed, the customer returned to the counter and the CSO marks the test answer sheet.
Mr Donnelly stated that Ms Ahrens, who was working at the counter, called out to him asking what he was doing at work as it was his rostered day off. He responded that he was looking for his wife. He said Ms Ahrens said he and his wife could come to her counter as she would look after them.
Mr Donnelly denied the suggestion from the Department that Ms Ahrens told him to take a ticket and then come back to her counter.
Mr Donnelly asked Ms Ahrens to create a Customer Reference Number. Mr Donnelly then handed over all his wife's relevant documents and her driver's licence application form. Ms Ahrens then created a CRN for Ms Donnelly. The Department said that Ms Ahrens asked Ms Donnelly if she would be completing the written road rules test that day and she said wouldn't be doing that.
The Respondent claims that Mr Donnelly handed Ms Ahrens a road rules test answer sheet, which he denied.
The Respondent also put to Mr Donnelly that the handwriting on the test (specifically where the surname "Donnelly", the "applicant's" signature and the dates on the document was written) was his. This was denied by Mr Donnelly.
It was further put to Mr Donnelly that the test answer sheet returned to Ms Ahrens had not been given to Ms Donnelly on the same day. This was also denied by Mr Donnelly.
Mr Donnelly denied propositions put by the Respondent that prior to 2 July 2012 he had been noticed by Ms Timms taking a marking and answer sheet from Counter 9.
At this point in the proceedings, the Respondent played a CCTV video taken inside the CSC.
Mr Donnelly denied all assertions made by the Respondent with regard to the processing of his wife's application for a Drivers' Licence. He could not recall many of the circumstances put to him.
Respondent's claim
The Respondent detailed the processes to be undertaken when a customer wishes to obtain a Driver Licence.
This process was as follows:
(a) A customer who wishes to transfer to a Queensland Driver Licence is required to attend a CSC and complete a Driver Licence Application/Renewal form. Proof of identity must be given including evidence that they live in Queensland and evidence of their foreign driver licence.
(b) A customer first takes a ticket and waits to be called to a counter.
(c) When called to the counter, the customer provides a completed application form and evidence of identity to the CSO. When this information is recorded in the Department's system, the customer is provided with a Customer Reference Number.
(d) Docbase No. 1394 is used for a customer who is applying to transfer to a Queensland licence from a foreign driver licence. Further checking is done by the CSO to ensure that the foreign country in question is a prescribed country listed in accordance with the Transport Operations (Road use Management - Driver Licensing) Regulation 2010.
(e) If the foreign country licence is not a prescribed country, the customer is required to take the written Road Rules Test.
(f) If the customer wishes to do this, a photographic image must first be taken and stored of the customer and this is later used to issue the licence if and when a customer passes the written Road Rules Test.
(g) The CSO then receipts the fee prior to the written Road Rules Test being taken.
(h) After these two processes have occurred, the CSO provides the customer with a laminated copy of the written Road Rules Test Question Sheet and a green form entitled Road Rules Test Answer Sheet.
(i) This test has 30 multiple choice questions comprised of two sections.
(j) There are ten different versions of both sections of the Road Rules Test Question Sheets. Each counter at the Mackay CSC has a complete set of the Road Rules Test Question Sheets, which are stored in a safe overnight.
(k) The CSO randomly selects and then records which of the ten different Road Rules Test Question Sheets has been provided to the customer on the Road Rules Test Answer Sheet in the section entitled 'Test Codes'.
(l) The CSO provides the customer with instructions on how to complete the Road Rules Test Answer Sheet. The customer must sign the back of the answer sheet to confirm that the instructions provided are understood.
(m) In accordance with Docbase No. 1394 the written Road Rules Tests are required to be taken in closed book exam conditions which means that the customer must:
·have their mobile phone turned off;
·not use a dictionary or have any other books or notes with them;
·not enter into any discussion with another person once they have been issued with the test; and
·be advised by the CSO that if they are seen cheating or doing any of the above they will have their test removed and a fail will be recorded.
In the event that a customer is from a non-English speaking background, the CSC is able to provide for interpreters.
The customer is then directed to complete the Road Rules Test within the CSC. Once completed, the customer returns to the counter with the Road Rules Test Question Sheet and Road Rules Test Answer Sheet.
The CSO then marks the Test Answer Sheet in front of the customer. The CSO retains both the Road Rules Test Question Sheet and the Road Rules Test Answer Sheet.
To pass this test, the customer must correctly answer at least 9 of the 10 questions about giving way and 18 out of 20 questions about road rules and driver licence requirements.
Only one Road Rules Test can be taken on any day.
A customer seeking a transfer to a Queensland licence (and whose foreign licence was not obtained in a Prescribed Country) must pass the written Road Rules Test and a practical driving test before they are eligible to obtain a Queensland driver licence.
Against that background the following evidence was given by employees of the CSC.
Ms Ahrens evidence was that on 2 July 2012, she was working at the Mackay CSC.
At around 8.30 am Mr Donnelly approached her at Counter 10. He was having a day off work.
Mr Donnelly asked her if she knew where "Nita" was working. She understood that he was referring to Ms Ruffell, another CSO at the CSC.
Ms Ahrens thought Ms Ruffell may have been away on that day and Mr Donnelly told her that Nita was going to serve him because he was bringing his wife into the CSC.
Ms Ahrens offered to serve Mr Donnelly at her counter as the CSC was not busy at this stage.
Ms Ahrens followed the CSC process and created a CRN for Ms Donnelly and the appropriate forms were handed to her. Ms Ahrens asked Ms Donnelly if she would be completing the written Road Rules Test that day and she said 'no'.
Ms Ahrens then stated that Mr Donnelly handed her a document. Upon looking at the document, Ms Ahrens noticed that it was a Road Rules Test Answer Sheet that had already been completed. Ms Donnelly had signed the bottom of the answer sheet.
Ms Ahrens, advised both Mr and Ms Donnelly that "I could not accept the test" and she handed it back to Mr Donnelly.
Mr Donnelly took the completed Test back and said to her "don't worry about it".
Ms Ahrens evidence was that she was concerned that Mr Donnelly had attempted to submit a completed Road Rules Test Answer Sheet on behalf of his wife. She advised Mr Donnelly that she was not going to accede to his request and his wife would have to sit the test like everyone else.
Mr Donnelly asked her if he could pay the fee for the practical driving test against Ms Donnelly's CRN account.
Ms Ahrens receipted the amount for the fee and recorded the details of Ms Donnelly's overseas licence on the system as a non-Queensland Product.
Mr and Ms Donnelly then left the CSC.
As Ms Ahrens felt uneasy about the situation, she immediately reported what happened to her superiors.
Ms Ahrens gave evidence of having observed Mr Donnelly (one week before 2 July 2012) kneeling over the pigeon hole at the end of Counter 9 where the written Road Rules Tests are kept.
She had seen Mr Donnelly with a Road Rules Test Marking Sheet that he was using to complete a Road Rules Test Answer Sheet.
Ms Timms, CSO at Counter 9, asked Mr Donnelly what he was doing.
Mr Donnelly's response was that he needed the test for some testing he was doing.
Ms Ahrens also asked Mr Donnelly what he had been doing as it was unusual to see a driving examiner looking at the Road Rules Tests because they do not administer those Tests.
The CCTV footage of the Mackay CSC on 2 July 2012
Mr Shields is the Manager of Client Service Delivery, Central Region with the Transport Services Division of the Department.
Mr Shields viewed the CCTV footage of 2 July 2012.
He noticed:
· Mr Donnelly briefly speaking to the CSO;
· "the female" then opens her bag and hands a document to the Applicant;
· Mr Donnelly passes a document and then what appears to be a licence to the CSO;
· Mr Donnelly then passes over a second document to the CSO which is green in colour;
· the CSO has a brief conversation with Mr Donnelly;
· Mr Donnelly takes back a document;
· the CSO reviews a document she still has in her possession, and speaks with the female and writes on the document;
· the CSO is on her computer for a short period of time; and
· the footage ends.
Mr Shields reviewed the CRN account for Ms Donnelly and notes that a transaction payment of $20.10 had been recorded on 3 July 2012. This amount was the fee for taking the written Road Rules Test in July 2012.
The CRN statement showed that on 3 July 2012, at 2.53pm, the amount of $20.10 had been receipted to Ms Donnelly by Ms Ruffell. However, the CCTV footage between 2.50 pm and 2.53 pm showed that Ms Ruffell had not served any customer at that time. The Respondent says that "This confirms that Mr Donnelly spoke with Ms Russell about his wife's test on 3 July 2012."
The CCTV also showed footage dated 4 July 2012 commencing at 3.34 pm. This footage showed:
(a) At 3.47 pm, Ms Donnelly is seen entering the Mackay CSC accompanied by another female.
(b) These two people take a seat in the waiting room.
(c) At approximately 3.51 pm, Mr Donnelly is seen walking up behind the CSO on Counter 7 (Ms Ruffell).
(d) Mr Donnelly bends down and then turns and walks out.
(e) Ms Ruffell is seen finishing serving a customer and then she gets up and appears to say something.
(f) Ms Donnelly gets out of her seat and walks towards Counter 7.
(g) Ms Donnelly takes a ticket and returns to Counter 7 at 3.35 pm.
(h) Ms Donnelly is seen handing something over to Ms Ruffell.
(i) At around 3.53 pm Ms Donnelly takes a ticket and then returns to Counter 7.
(j) Ms Donnelly's photo is taken.
(k) Ms Donnelly then hands something over to Ms Ruffell.
(l) Ms Ruffell goes to a printer and returns with a document which she then proceeds to stamp.
(m) Mr Donnelly walks in to stand behind Ms Ruffell and have a brief discussion.
(n) Mr Donnelly appears to hold something up.
The Respondent submits that "there is no evidence of Mrs Donnelly receiving, completing or handing the written Road Rules Test to Ms Ruffell on 4 July 2012. Mrs Donnelly accepted this was the footage of her attendance and could not explain why there was no test undertaken" [Respondent's submissions - page 11].
Ms Ruffell's evidence was that Mr Donnelly had spoken to her and handed her a completed driver licence application form and the completed road rules test answer sheet. These were stamped by her on receipt.
Mr Donnelly had wanted her to process the forms.
Ms Ruffell had asked Mr Donnelly when his wife had completed the test and he said that the test had been done before. She also asked Mr Donnelly whether his wife had done the test and who had helped her. Mr Donnelly responded that his wife had completed the test.
Ms Ruffell had continued to ask Mr Donnelly whether his wife had completed the Test on her own and he said she had. She also asked Mr Donnelly whether Ms Donnelly had completed the Test unaided. He confirmed that she had.
Ms Ruffell's evidence was that felt uneasy about the situation. This conversation between Ms Ruffell and Mr Donnelly had taken place behind the counter. Ms Donnelly was not there at the time. Mr Donnelly had continued to stress to Ms Ruffell that it was appropriate for her to process the test in those circumstances.
Ms Ruffell at no stage had issued the written test to Ms Donnelly.
Ms Ruffell was aware that she had made a mistake in processing Ms Donnelly's claim. She had reasons to be suspicious of Mr Donnelly's actions on that day, however, upon Mr Donnelly's persistence that everything was fine with the application, she proceeded to process the application.
Mr Marsden, Regional Director, Central Region of the Customer Service Branch of the Department confirmed that on 6 July 2012, a practical driving test which had been scheduled for another client had been cancelled and that a booking was made for Ms Donnelly in the cancelled spot for 10 July 2012.
Mr Magoffin, General Manager (Customer Services) of the department was the decision maker in respect of Mr Donnelly's case.
Mr Magoffin was provided with an investigation report prepared by the Department's Ethical Standards Unit [GM 1].
That Report was finalized after that Unit had considered file notes, transcripts of interviews, a briefing note prepared by Mr Shields, a copy of the Road Rules Test Answer Sheet in respect of Ms Donnelly (2 July 2012 and 3 July 2012) and copies of other documentation provided by Ms Donnelly.
Concerning Allegation 1
Mr Magoffin submitted that he had regard to the following information when considering this allegation.
The Applicant's role as a Driving Examiner and the fact that he did not have access to written Road Rules Test and answer sheets.
Ms Ahrens stated that she had observed Mr Donnelly in the Customer Service Centre looking through Road Rules Test Answer Sheets. Mr Donnelly did not provide any response or reasonable explanation for this.
The only legitimate access to the Road Rules Test is when a Customer Service Officer issues a test to a customer at a Customer Service Centre.
Neither Ms Ahrens nor Ms Ruffell issued Mr Donnelly's wife with a written Road Rules Test.
The Applicant provided no information or argument that he had a legitimate reason for accessing the written Road Rules Test and Answer Sheets.
In terms of this allegation, I have accepted the conclusion that which has been reached by the Respondent. I have not been able to accept Mr Donnelly's evidence as correctly reflecting what happened at the workplace concerning his wife's application for a driver licence.
Concerning Allegation 2
Mr Magoffin stated that he had regard to the following factors when making his decision.
The particulars of the allegation do not relate to whether Mr Donnelly's wife required a Queensland Learner Licence.
The Driver Licence Application form signed by Ms Donnelly shows that what is being applied for is an "Open Licence". However, had the application process been correctly completed as per Docbase procedure Issue learner Licence (3312) and passed, Ms Donnelly would have been issued with a Queensland Learner Licence prior to her undertaking a practical assessment.
The Applicant elected not to respond to this allegation and provided no information why Mr Magoffin should consider that Mr Donnelly did not use his position as an employee of the department to interfere with the process.
Mr Magoffin had accepted the evidence before him and that of the witnesses.
Likewise, with regard to this allegation, Mr Donnelly has failed to provide any credible reason for the comments he has made. I have found this allegation to be substantiated.
Concerning Allegation 3
Mr Donnelly elected not to respond to this matter.
On this point Mr Magoffin has accepted the evidence before him and that of all witnesses. I have found that the allegation is substantiated as the evidence of Ms Ruffell, together with all of the evidence around this point, confirms Mr Donnelly's duplicitousness in the circumstances.
Concerning Allegation 4
Mr Magoffin stated that his findings with regard to this Allegation were as follows:
In this matter Mr Donnelly failed to respond to the allegation. This matter related to an approach made to Mr Jepperson to book a driving test for Ms Donnelly. The process to be utilized in these circumstances is that driving examinations should be booked using the Department's Service Booking System and utilizing the available times. This does not allow for selection of individual Driving Examiners or after work hours examinations.
Mr Donnelly had submitted that Mr Jeppersen said his working hours were extremely flexible and consequently stated that the allegation should fail. Mr Magoffin did not accept this explanation.
In rejecting that proposition, Mr Magoffin said that there was a roster which applied to Mr Donnelly's work - likewise for Mr Jeppersen. Any departure from that process required approval by the principal Advisor (Driving Assessment) and this had not occurred.
I am unable to see how Mr Donnelly's part failure to respond to this allegation assists him. Also his reasoning around how the processes adopted by the Department actually worked, as opposed to how they should work leaves his defence to this allegation lacking.
I have accepted that Mr Magoffin had acted appropriately in finding this allegation substantiated.
Concerning Allegation 5
On 15 March 2013, Mr Donnelly collected a letter directing him to contact Mr Lincoln by close of business on Monday 18 March 2013 to arrange an appropriate time for an interview. The Applicant failed to do this.
When Mr Donnelly was suspended with remuneration, there were conditions outlined to him by Dr Judith Lloyd on 10 July 2012 and again on 1 March 2013 (by Mr Magoffin) stating that Mr Donnelly was to make himself available for contact by departmental officers during normal business hours.
Mr Donnelly said he was not afforded natural justice. Mr Magoffin rejected this proposition stating that Mr Donnelly was afforded a number of opportunities to meet with the investigator and Mr Donnelly elected not to do so. Mr Magoffin was comfortable that Mr Donnelly was afforded appropriate natural justice.
Mr Donnelly provided no evidence to support his claims that he was concerned about bullying and aggression during the investigation.
Mr Donnelly had been given lawful directions but failed to respond appropriately to those directions.
[Applicant's submissions - page16 - point 54]
Findings made by the Respondent concerning the Allegations
Concerning the substantiated findings in allegations 1, 2 and 3, Mr Magoffin found Mr Donnelly to be guilty of misconduct within the meaning of s 187 (1)(a) of the Act in that he had engaged in inappropriate or improper conduct in an official capacity.
Concerning Allegation 4, Mr Magoffin had decided that Mr Donnelly was liable to disciplinary action pursuant to s 187(1)(f) of the Act in that he had breached the Code of Conduct by failing to ensure appropriate use and disclosure of official information.
Concerning allegation 5, Mr Magoffin decided that Mr Donnelly was liable for disciplinary action under s 187(1)(d) of the Act in that he contravened without reasonable excuse a direction given to him as a public service employee by a responsible person.
Of interest in this matter, is that Mr Donnelly did not provide a response to the second Show Cause Notice. In that Show Cause Notice, Mr Donnelly was provided the right to show cause as to why the penalty of termination of employment should not be imposed.
The Respondent's submissions set out why the penalty of termination was appropriate in the circumstances of Mr Donnelly's case:
· This was influenced by the serious nature of Mr Donnelly's actions.
· That Mr Donnelly had used his position to gain a personal benefit (i.e. for the purpose of his wife obtaining a driver licence).
· That Mr Donnelly's actions did not reflect the qualities of integrity, accountability and commitment to his position within the department.
Mr Magoffin was not prepared to consider reinstatement for Mr Donnelly. In making this decision, he had taken into account the role performed by Driving Examiners relating to driver licence assessments and road safety.
As well, Driving Examiners perform their role in a vehicle, independently and without any supervision. Mr Magoffin said he needed to have trust and confidence in each Driving Examiner to ensure the integrity of the system.
Mr Magoffin was also concerned that Mr Donnelly had failed to appreciate the enormity of his behaviour and how this impacted upon the Department and the interest of road safety and the public generally [Respondent's submissions - page 18].
Whether the termination of Mr Donnelly's employment was harsh, unjust or unreasonable
In relation to procedural fairness matters, Mr Donnelly was given the opportunity to respond to the allegations made against him.
[104] That he chose not to respond to some of the allegations is a matter for him.
[105]The Respondent, in my view was entitled to draw the conclusion which it did - i.e. that the conduct of Mr Donnelly constituted misconduct. That termination of employment followed is not surprising.
[106]The evidence against Mr Donnelly was strong. The evidence of Ms Ahrens and Ms Ruffell was to the effect that Mr Donnelly had behaved inappropriately and that evidence was compelling. Ms Ahrens took appropriate action and refused to action Ms Donnelly's application for a driver licence.
[107]Ms Ruffell owned up to her part in the inappropriate processing of Ms Donnelly's driver licence after the event and when questioned by the investigator. It should be added that it was clear to anyone investigating this matter that proper processes had not been followed. That could be seen from a review of the CCTV footage and also from the documents which had to be completed to permit a CSO to process a valid licence.
[108]I did not accept that Ms Ruffell's role in the inappropriate behavior of Mr Donnelly was done unwittingly. Her evidence shows that she had more than a suspicion that what was occurring was improper, but nonetheless continued to do as requested by Mr Donnelly.
[109] Certainly Mr Donnelly had not told her the truth, but her knowledge of the system was such that she knew she should not continue the processing of Ms Donnelly's licence without all the pre-requisite checks and balances required of a CSO in the performance of her important duties.
[110]Having considered all of the evidence in this matter, I have found that the Respondent's actions were not harsh, unjust or unreasonable in the circumstances.
[111]The application is dismissed.
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