Lyndon Thomas v The Commissioner for Public Employment

[2022] FWC 2427

[2022] FWC 2427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lyndon Thomas
v

The Commissioner for Public Employment

(U2022/4514)

COMMISSIONER RIORDAN SYDNEY, 3 NOVEMBER 2022

Application for an unfair dismissal remedy

1. On 19 April 2022, Mr Lyndon Thomas (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) by way of letter dated 29 March 2022, delivered to the Applicant on 1 April 2022, on the basis that he had committed breaches of discipline under the Public Sector Employment and Management Act 1993 (PSEM Act) and had breached the Respondent’s Code of Conduct.

1. The Applicant was employed by the Respondent from 6 August 2012 until his dismissal on 1 April 2022. At the time of his dismissal, the Applicant was employed by the Department as Manager Victoria River Research Station (VRRS), Technical Officer 4 (T4). VRRS is also known as ‘Kidman Springs’.

1. While the Applicant initially sought compensation, at the Hearing, the Applicant provided that he seeks reinstatement to his former role with the Respondent at VRRS.

Background

1. The evidence and submissions in this matter were excessively long. I have only included materials which I believe to be relevant, which provide assistance for those who may follow or read the decision, to understand the complexity and history of the issues.

1. The Applicant wrote to the Office of the Commissioner for Public Employment on or around 2 September 2019, raising a grievance as follows:

“Dear Sir,

I would like to lodge a Grievance in relation to recent events in relation to my role as Manager of Kidman Springs Station, Agriculture Division, Department of Primary Industry and Resources and the actions of my Line Manager, Mr Pieter Conradie.

My grievance relates to both bullying and intimidation threats to cancel my recreation leave by Mr Pieter Conradie, Director Research Farms and my ability to manage Kidman Springs.

These actions resulted from emails in relation between Pieter Conradie and me. I received an emailed dated 24 July from my Supervisor, Mr Jack Wheeler stating that until I had fulfilled the actions outlined in an earlier email dated 17 July Pieter Conradie had directed Mr Wheeler not to approve my leave. I had originally applied for recreation leave for 3 July to 18 July 2019. I had also given email indication of my leave in April of this year and applied for my leave on the HR system 5 weeks prior to my leave commencing. I was instructed to apply for TOIL leave. Pieter Conradie also stated that the submission of my TOIL forms were incomplete. I had consistently explained to him, due to being short staffed (since August 2018), I had not had time to complete the Toil forms in the format that he expected. (Please note that I personally have not claimed any Toil for a long time). I do not have a dedicated admin officer at the Farm to assist me with admin and I had sent the Toil information to the admin officer however Pieter Conradie deemed the form to be incomplete.

Since Pieter Conradie has commenced in his role I strongly believe that he questions my ability to manage Kidman Springs. I have extensive experience in managing cattle stations to a high skill level in both Queensland and the NT and am well respected for my knowledge and management skills in the industry. In his email to me, he quoted “Leave is an entitlement and the time when leave is taken must be negotiated with the employer, as it is subject to operational requirements. Please take this into consideration before new leave requests are submitted”. I am an employee of the Department, serving seven years to date and I am fully aware of the guidelines and policies in relation to Toils and Recreation leave and the obligations that go with applying for leave. Threatening to cancel my leave because my Toil form is incomplete is an act of bullying. (Especially as it was a week prior to my leave commencing and considering Management and staff were notified in April of my intention to take leave). On July 23rd, 2019, leave records in My HR record that I had accumulated 646 hours of Recreation leave. (This does not include any claimed Toil). These comments are derogatory and intimidating, leaving me to feeling extremely angry, anxious and questioning my ability to do my role, and indicates that I do not follow procedures.

I was further directed by email that an electronic version of a weekly work plan be submitted on a two-weekly basis. This was a new implementation for all research farms. To date I have always had in place a regular work plan for both my team and myself. We have a “big picture” plan, a year planner (where all tentative leave dates are recorded as soon as known), a monthly plan & then an immediate (weekly) plan. The plans are set out on our whiteboards in the office for all staff to access (visual) & I sent photos of these work plans to fullfill my obligations requested, however, our format was deemed “not good enough”. The information in the work plan (“big picture” items) is also written into the outlook calendar, which Pieter Conradie has access to. He also has access to data that I (& all staff) feed into an app (Nintex) on my mobile phone (or tablets) which records times and dates we perform certain aspects of roles. I have spoken with several other farm managers regarding our work plans and dates for submission; they are not under pressure to submit their work plans fortnightly. This information leads me to strongly suspect that I am being unfairly singled out in relation to submission of fortnightly work plans and my management of the farm is under question. Pieter Conradie also stated that I continue to contact the Regional Manager (Jack Wheeler) or himself at least three days per week to keep the communication channels open. I am in regular contact with Jack Wheeler during the working week via email, phone or messenger, yet this is also being questioned? The actions of Pieter Conradie are intimidating and threatening and should not be supported in the work place by senior management.

Hence, I do not feel supported in my work place and work space and my work/life balance is in affect compromised.

Spud Thomas
2 September 2019”

1. The Applicant further wrote to the Office of the Commissioner for Public Employment on or around 6 August 2020:

“Dear Madam

I refer to a Grievance that I lodged on 2nd September 2019 in relation to events in relation to my role as Manager of Kidman Springs Station, Agriculture Division, Department of Primary Industry and Resources and the actions of my Line Manager, Mr Pieter Conradie.

One meeting has been held between myself, my support person, Phil Hausler, Executive Director and Kendell Scott (HR) Representative on 14 January 2020. Kendell Scott forwarded the File Notes of their version of the discussion. I was asked to read through the notes and make amendments to the file notes. I did this with my support person as she had taken notes and forwarded the amendments to Kendall. There was no further contact from Kendell Scott. To date there has been no resolution to this grievance.

Since then, there has been meeting between my Executive Director, Phil Hausler and my direct line Manager, Jack Wheeler & myself. This took place on Friday 20th March. Once again, I had to defend all my management practices that have been implemented over the 4 years that I have been manager at Kidman Springs Research Station. I was sent notes from this meeting. I responded with “after thoughts, however I never received any response from my comments from either Manager. I then had a “facility inspection conducted by my Managers and verbal discussion about the findings on Friday 19th before they left. I then received a report of the inspection. I was given one day to respond to the report. This was an unreasonable expectation considering our workload at the time and they were both aware of this. I was given one extra day to respond. I responded to all parts of the report & added points that I felt are being overlooked.

To date I have not had a response and no further inspections were undertaken by Management. During this visit I also reiterated the serious problems that I am having with one staff member & made it clear that I was not being supported with the ongoing problems by management. I had previously raised these issues with senior management (especially Pieter Conradie) quite some time ago. These issues have not been addressed. After the visit by management in March, Don Duthie, Director of HR Services for the Agency became involved in the issues I am having. Don Duthie contacted me in June to organise a time to discuss the issues. We agreed on a time and date and we had a phone meeting and I had a support person with me throughout the phone call on 20 July 2020. Since this meeting I have had no further contact with Don Duthie and in fact received an out of office advising he would be on leave until 17 August,2020. Don Duthie did not advise that he would be on leave and once again nothing has been resolved.

As an employee I am angry, anxious, stressed and feel totally unsupported. I am appalled at the lack of care and support for my welfare. HR Services and Phil Hausler have failed in their duty of care towards my grievance. I am now on stress leave because of the failure to provide me with support and resolution of my original grievance.

Further to this grievance, I have been bullied by Phil Hausler, my senior Executive Director, Agriculture, Department of Primary Industry and Resources and have communications to support this harassment. He has failed to show support, compassion, and empathy for my grievance. HR Services have also failed me in their duty of care.

Kidman Springs has a staff ratio of 4.5. In the past two years we have managed the station with 2-3 staff. In all this time support for the mental well being of staff has not been a priority for management of this Department.

I now seek your urgent help in progressing my original grievance and the ongoing negligence of the Department in resolving the issues I have raised with my Senior Manager, Phil Hausler and Don Duthie, Director of HR Services.

Spud Thomas
6 August 2020”

1. On 31 May 2021, Mr Shaun Drabsch, Chief Executive Officer (CEO), wrote to the Applicant as follows:

“Dear Mr Thomas

RE: Grievance Investigation and Alleged Breaches of Discipline

I refer to your email dated 7 August 2020 to the Office of the Commissioner for Public Employment where you sought help to resolve issues you were having with your Senior Manager, Mr Phillip Hausler, and the Principal Human Resources Consultant, Mr Don Duthie.

This matter was referred to the then Chief Executive Officer, Department of Primary Industry and Resources (DPIR), Mr Alister Trier on 19 August 2020 for review and appropriate action. Mr Trier appointed Steve Kelk and Associates to investigate your grievance submitted 7 August 2020 and a range of other matters including the management and operation of Victoria River Research Station (VRRS), specifically, employee performance and conduct as set out in the Terms of Reference (ToR) dated 27 August 2020.

Mr Kelk has finalised the investigation and has completed a report providing findings of the investigation and reasons for those findings. The report is provided in two parts, the first being the investigation into matters raised in your grievance dated 7 August 2020, and the second (supplementary report) being the wider investigation into a range of other matters including the management and operation of VRRS. (Copies of both reports are attached)

Your grievance was actually two formal grievances submitted almost a year apart (2 September 2019 and 7 August 2020), with the first grievance lodged against former Director Research Farms, Mr Pieter Conradie alleging he threatened to cancel your leave if you did not complete certain tasks as directed - tasks that you had actively resisted for a variety of reasons. The threatened leave cancellation did not in fact occur (due to HR advice received), and the issue was closed as you advised that you did not want to take the matter any further, however still wanted to talk face to face with Executive Director Agriculture, Mr Philip Hausler about other administrative and staff issues you alleged existed.

Your second grievance, submitted 7 August 2020 - was essentially threefold (as determined through interviews with you and Mr Kelk and review of other documentation submitted to the investigator by you):

1.   DPIR failed to resolve your first grievance;

2.   You alleged that you were bullied and demeaned by Mr Philip Hausler in a meeting on 14 January 2020, and that Mr Hausler failed to act, failed to show compassion and empath for your staffing issues and failed to have concern for your welfare;

3.   Senior HR Consultant Mr Don Duthie had failed to act in a timely manner in relation to your staffing complaints, having become involved in the matter, at Mr Hausler’s request.

The investigator developed specific ‘Heads of Complaint’ following negotiation with, and agreement by you, to ensure your complaints were understood and inquiries could be made within the scope of defined disciplinary ‘offences’ under the Public Sector Employment and Management Act 1993 (PSEMA).

Notwithstanding the investigators findings and opinions contained in the investigation report, I have made my decision regarding your allegations following careful consideration of all information gathered during the investigation, including individual transcript of interviews, photographic evidence and information from you. On review of all the evidence I have made the following decisions in regards to allegations you have made in your grievance against Mr Hausler and Mr Duthie.

Allegation 1: Respondent - Philip Hausler

That Mr Philip Hausler failed to promote a working environment where you were treated fairly and reasonably, failed to foster a culture of respect in the workplace, and failed to treat you in a respectful, professional, fair, equitable, courteous and considerate manner, in that the Mr Hausler did in a meeting on Tuesday 14 January 2020, inappropriately conduct himself by using aggressive body language and by raising his voice aggressively at you, and otherwise bullying and demeaning you with comments, in front of another NTG officer and your support person, leaving you feeling anxious, humiliated, hurt, angry and shaken.

Finding

The allegations are not proven.

There is evidence that Mr Hausler and you have both conducted yourselves unprofessionally in the meeting of 14 January 2020, however the behaviour of Mr Hausler would not constitute bullying as defined in Employment Instruction 13 - Appropriate Workplace Behaviours.

Mr Hausler’s discussion with you in the meeting of 14 August 2020 would be considered normal management action from an Executive Director with responsibility for VRRS attempting to resolve issues of good governance.

There is evidence that you were using inappropriate language in the meeting with Mr Hausler and initiated a confrontation with Mr Hausler. You were making demands for more staff and refused to comply with directions from Hausler in the meeting until your demands were met.

Mr Hausler’s tone and delivery during the 14 January 2020 meeting was unquestionably affected by your combative and highly challenging behaviour, Mr Hausler’s questioning of you as to the reasons why staff recruitment and retention issues at VRRS were problematic, was reasonable for an Executive Director to do in order to try and address those issues.

Mr Hausler’s comments in relation to your position in the agency hierarchy were reasonable in order to reinforce to you the organisational structure and your place in it, with respect to the high level of accountability the Senior Executive Officers of the Agency have to their Minister.

I have formed a view that Mr Hausler’s comments in relation to your FOI request were not made to attack you for making the request, dissuade you from making such requests in future, belittle you or attack your credibility and reputation in order to diminish you in the meeting.

Allegation 2: Respondent - Philip Hausler

That Mr Philip Hausler failed to take reasonable care for your occupational health and safety and failed to provide all necessary and appropriate assistance to you, who is another Public Sector Officer, in that Mr Hausler failed to show support, compassion and empathy for your concerns about the long-term low staffing levels at Kidman Springs, problems being caused by one staff member and your mental wellbeing, and failed to act to address those concerns as per your recommendations for an extra two FFE staff and dealing with the problematic staff member. Mr Hausler’s lack of support and failure to act has contributed to you becoming stressed and taking ‘stress leave’.

Finding

The allegations are not proven.

There is direct evidence that Mr Hausler provided support and acted on your claims. It was Mr Hausler who, after hearing your complaints against T3 Assistant Manager Mr Craig (Tad) Maxwell during a facilities inspection of Kidman Springs in June 2020, tasked Mr Don Duthie (Senior HR Consultant) to look into the matter.

Further, there has been an ongoing effort over time by the Agency to recruit staff to VRRS (supported by evidence), however it was, and remains difficult to recruit and retain suitable staff to such a remote posting within the constraints of the PSEMA, regulations and guidelines. You were advised as much in the meeting with Mr Hausler on 14 January 2020, but refused to accept anything other than an extra 2.5 FTE staff and you stated words to the effect that you would not deliver on required administrative tasks until your demands were met. The evidence further supports, when taking other matters into consideration (as per below), that it is conceivable your insubordination on this issue was driven more from not wanting to do the required administrative work, than it had to do with any claimed staffing issue.

Analysis of the VRRS staffing data over the time period you have complained about being understaffed (between August 2018 and August 2020) reveals that VRRS has had an average staffing level of 3 FFE (rounded from 2 decimal places) over that period and in several periods had 4 FTE, which Mr Hausler advises is the full staffing level for the facility (not 4.5 FTE as often stated by You). There were brief periods when there was only 1 staff member on site. During the same time period, you have taken a large amount of leave from the facility.

There is also evidence that the excessive TOIL that you have accrued over that time period partly resulted from your preference to work shorter hours during the working week rather than the required full work day and undertake field tasks on the weekend when you could do so in the company of your partner (and drink alcohol with her in the process). This fact contradicts your contention that ‘understaffing’ has prevented you from undertaking administrative work, or has impacted VRRS operations as adversely as you claim.

There is also evidence that you had ample administrative support from both the Katherine facility and from Berrimah Farm if you wanted it. There is evidence that you would delegate administrative tasks that you should have been doing to your Assistant Manager, therefore impacting on the station’s operational work. You eventually requested training in the use of certain computer applications after pressure had been asserted for you to comply with directions to produce reports and data in an acceptable format, but you never followed up on this. In any event, there is evidence from you yourself that you were resistant to changing your way of doing things (i. e. use technology for reporting etc. ) from what you had done over the last 20 years.

There is evidence to support that your poor treatment of staff, and reported behaviours of your partner, are two contributing factors that have driven some staff from the facility to seek employment elsewhere and has caused reputational damage on the facility in terms of suitable employment candidates wanting to work there under such conditions.

In relation to your issues with Assistant Manager Mr Maxwell, there is compelling documentary evidence, in the form of abusive social media messages, that you may harboured a bias against Mr Maxwell. There was a subsequent related physical dispute between you and Mr Maxwell, where you were assaulted by Mr Maxwell in your residence at VRRS following a heavy drinking session. As there is demonstrable bias against Mr Maxwell by both you and your partner, on balance I must treat your many and varied complaints against Mr Maxwell with caution.

Allegation 3: Respondent - Don Duthie

That Mr Don Duthie failed to take reasonable care for your occupational health and safety and failed to provide all necessary and appropriate assistance you, who is another Public Sector Officer, in that Mr Duthie failed to act in a timely manner to address your concerns about the long-term low staffing levels at Kidman Springs, problems being caused by one staff member and your mental well-being. Mr Duthie’s lack of support and failure to act in a timely manner has contributed to you becoming stressed and taking ‘stress leave’.

Finding

The allegations are not proven.

The evidence supports that Mr Duthie initially responded to your concerns in a timely manner. Mr Duthie held a long telephone discussion with you on 20 July 2020 and you did not indicate any urgency in relation to your concerns during this telephone call. Mr Duthie had indicated to you in that call that he would type up his notes of the conversation in due course and get them to you to review.

A series of events then occurred immediately following this call, in particular the ‘reported disappearance’ of Mr Maxwell from VRRS the following day. Mr Duthie had to urgently deal with this matter and had other unrelated HR matters to deal with at this time. Mr Duthie was then required to attend jury duty, after which he had leave which was pre-booked. Whilst Mr Duthie had every intention of following through with providing the notes of the conversation to you, this did not happen, however he sought to get the notes to you at the earliest opportunity upon his return to work.

While you might have been frustrated at this delay, the delay was reasonable under the circumstances and in any event largely beyond Mr Duthie’s control. You had given no indication to Mr Duthie that your health was suffering such that urgent attention to the matter was required, and you made no attempt to follow up with Mr Duthie until 17 August 2020, notwithstanding that you were on sick leave at that time.

Whilst Mr Duthie could have advised you of an unavoidable delay prior to going on leave, it was not intentional or a negligent omission on Mr Duthie’s part.

Further, there are serious questions as to the true motivations behind your call for action with respect to Mr Maxwell, and Mr Duthie was not aware that you had had a physical altercation in March 2018. Abusive social media messages sent by you to a former employee and friend of Mr Maxwell in June 2020, in which You use disgusting and homophobic language disparaging Mr Maxwell, is also very informative as to your bias against Mr Maxwell. The evidence supports firstly that the situation between you and Mr Maxwell was largely of your own making, you held extreme personal animosity and bias towards Mr Maxwell, and you were not forthright with Mr Duthie about the history between yourself and Mr Maxwell.

The evidence does not support your contention that Mr Duthie’s delay in providing notes of your meeting of 20 July 2020 contributed to you becoming stressed and taking stress leave.

Notwithstanding any opinion of the investigators, I have made an independent decision having considered all the available evidence before me and I have determined that the allegations raised in your grievance dated 7 August 2020 cannot be substantiated and accordingly I do not intend to commence any proceedings against Mr Hausler or Mr Duthie in relation to their conduct.

Following this decision, I consider the grievance matter closed. As an employee of the Northern Territory Public Sector (NTPS), section 59(1)(b) of the PSEMA affords you the right, if aggrieved by my decision, to request the Commissioner to review that decision. Any such grievance must be lodged with the Public Sector Appeals Board within three months of my decision. Any such grievance should be lodged with:

[redacted]

As you are aware, the investigation ToR also required the investigator to enquire into a range of other matters including the management and operation of Victoria River Research Station (VRRS), specifically, employee performance and conduct.

Following the conclusion of the investigation and the review of all evidence before me, as the Chief Executive Officer of the Department of Industry, Tourism and Trade (the department), for the purposes of section 49A(2) of the PSEMA, I am considering whether there are reasonable grounds for me to be satisfied that you have committed one or more suspected breaches of discipline under section 49 of the Act, as set out below.

Alleged Breach 1 - section 49(a) of the Act

s49(a) An employee who fails to uphold the performance and conduct principle or otherwise contravenes this Act commits o breach of discipline

Particulars of Alleged Breach 1:

(a)   You are an ongoing employee of the department and hold the nominal position of Manager, Victoria River Research Station, Technical4 (T4). You commenced employment with the department on 6 August 2012.

(b) Section 5F of the PSEMA sets out the Performance and Conduct Principle which relevantly provides that a public sector officer must carry Section 5F of the Act (the Performance and Conduct Principle) provides public sector officers must carry out their duties according to the code of conduct, treat colleagues with courtesy, use public resources properly and ensure the officer’s conduct does not adversely affect their performance.

Employment Instruction Number 12 “Code of Conduct” requires public sector officers exhibit the highest ethical standards, maintain the trust and confidence of the employer, have regard to official guidelines, take reasonable care for the health and safety of others and use official resources according to any standards, including in this case the Acceptable Use of Computers, E-mail and the Internet Standard.

Employment Instruction Number 13 “Appropriate Workplace Behaviour” provides that public sector officers must not threaten or intimidate in or related to the workplace The Work Health and Safety (National Uniform Legislation) Act 2011 (WHS Act) provides that a person conducting a business or undertaking must ensure the safety of all persons at a workplace and all workers must be careful not to adversely affect the health and safety of others.

The legislation referred to in this paragraph is detailed in attachments.

(c)   As a public sector employee, you are expected to exemplify the essential competencies of your designation, as set out in the Northern Territory Public Sector Capability and Leadership Framework (CLF). The competencies expected of a T4 relevantly include adopting a principled approach to public sector values and the Code of Conduct (CLF 4.1). This means you are required to act professionally at all times and operate within the boundaries of organisational processes and legal and public policy constraints. You are also expected to reflect on your own behaviour and recognise the impact of your behaviour on others (CLF 4.5).

(d)   You conducted yourself in an inappropriate manner during a meeting with Phillip Hausler, Executive Director, Agriculture on 14 January 2020. You refused to follow a direction from Mr Hausler at this meeting to complete appropriate administrative tasks required as the manager of VRRS.

(e)   Further, you engaged in conduct that included shouting at Mr Hausler, use of inappropriate language (swearing) and aggressive behaviour towards Mr Hausler at this meeting.

(f)    On multiple occasions you were witnessed to be consuming alcohol whilst on duty and operating Northern Territory Government (NTG) assets, namely motor vehicles while intoxicated.

(g)   You made insulting and derogatory remarks to Mr Cody Glendinning on your return from leave in July 2020. It is alleged you said “I see You’re sucking Tad’s (Craig Maxwell) dick now” to Mr Glendinning in a verbal conversation and Mr Glendinning advised Mr Maxwell of this remark on 31 July 2020.

(h)   You sent Facebook Messenger messages to former employee Mr Tom Luck that were insulting and derogatory to Mr Maxwell. The message said “Tad only got milly to town because he wants to suck your c**k & f**k you in the arse so go f**k yourselves”. Mr Luck took a screen shot of the message and sent it to Mr Maxwell on 14 June 2020.

(i)     You created a Facebook Messenger group titled “Sh*t hot CUintheNT’s” and has added Mr Maxwell and Mr Matthew Horne to the group chat. The group appears to have been created to discuss planning for work the following day at VRRS. There is evidence that Mr Maxwell found the message abusive and Mr Horne took offence to the messages sent by you and video called Mr Maxwell to discuss the matter and about having a HR meeting regarding it.

(j)     As the manager in charge of VRRS you are responsible for the security of the NTG firearms safe within the office at VRRS. It is alleged that you either knowingly or unknowingly provided access to the NTG firearms safe to your daughter and your daughter was observed to be shooting wallabies unsupervised at the VRRS airstrip from an NTG vehicle (buggy). Your daughter was not licensed to drive a vehicle or trained to operate the vehicle. It is not clear if your daughter had a firearm’s licence.

(k)   You were involved in a physical dispute with Assistant Manager Mr Craig Maxwell at your residence on 27 March 2020. Following the excessive consumption of alcohol during what could be described as a late night social event, you are alleged to have engaged in a verbal disagreement with Mr Maxwell that led to you physically attacking Mr Maxwell by attempting to punch him. Mr Maxwell has defended himself by blocking your punch and retaliated by punching you up to 20 times in the head, causing significant facial injuries. It is alleged that you stated “I’ll have your job for this” to Mr Maxwell as he left the property. This dispute caused a significant relationship breakdown between Mr Maxwell and yourself. Further, the relationship breakdown between you and Mr Maxwell created a challenging and at times segregated working environment for other employees at VRRS.

(l) Based on the matters particularised at paragraphs 1(a)-(k) above, I suspect that you have conducted yourself inappropriately on multiple occasions, causing offence to other employees and putting the health and safety of you and other employees at risk. In doing so you have failed to up hold the performance and conduct principle in section 5F of the Act, in breach of section 49(a) of the Act, by:

i.Failing to treat other public sector officers fairly, equitably and with proper courtesy and consideration as stipulated by section 5F(1)(b) of the Act;

ii.Failing to ensure effective, efficient and appropriate use of public resources as stipulated by section 5F(1)(c) of the Act;

iii.Failing to ensure your personal conduct does not adversely affect the performance of your duties as a public sector officer as stipulated by section 5F(1)(e) of the Act;

iv.Failing to have regard to official guidelines concerning the performance of your assigned duties, as stipulated by clause 9.1(e) of the Code of Conduct (section 5F(1)(a)(iii) of the Act);

v.Failing to take reasonable care for your own, and others, occupational health and safety as stipulated by clause 9.1(h) of the Code of Conduct (section 5F(1)(a)(iii) of the Act);

vi.Failing to uphold the standards, as stipulated in clause 7.1 of the Code of Conduct (section 5F(1)(a)(iii) of the Act); and

vii.Failing to retain the trust and confidence of your employer, as stipulated in clause 8.1 of the Code of Conduct (section 5F(1)(a)(iii) of the Act).

Alleged Breach 2 - section 49(f) of the Act

s49(f) An employee who, in the course of employment or in circumstances having a relevant connection to his or her employment, conducts himself or herself in an improper manner commits a breach of discipline

(a)   You made a threatening remark to Mr Luke Farr at the VRRS social club in a discussion between yourself, Ms Sharon Cramp-Oliver, Mr Farr and Ms Lina Beetson (Mr Farr’s partner). You are alleged to have said “I’m leaving before I knock some c**t out” during the conversation with Mr Farr. Mr Farr took that to mean that you were threatening to knock him out.

(b)   You were involved in a physical dispute with Mr Cody Glendinning on the night of 26 July 2020 at VRRS. It is alleged that you and Mr Glendinning were intoxicated and Mr Glendinning instigated the dispute by attempting to punch to. However, due to his level of intoxication, he did not hit you. You have then responded by punching Mr Glendinning in the mouth allegedly causing his lip to split open and chipping his tooth.

(c)   I also refer to and rely upon the matters particularised in respect to Alleged Breach 1 above.

(d) Based on the matters particularised at paragraphs 1(a)-(k) above and at paragraphs 2(a) - (c), I suspect that you have had a fight with Mr Maxwell, threatened Mr Farr and had a fight with Mr Glendinning all whilst intoxicated at VRRS. In doing so you have conducted yourself in an improper manner in the course of your employment, or in circumstances having a relevant connection with your employment, in breach of section 49(f) of the Act.

Alleged Breach 3 - section 49(c) of the Act

s49(c) An employee who disregards or disobeys a lawful order or direction given by a person having authority to give such an order or direction

a)   I refer to and rely upon the matters particularised in respect to Alleged Breach 1 above.

b) Based on the matters particularised at paragraphs 1(a)-(d) above, I suspect that you have refused to follow a direction from Mr Hausler at the meeting on 14 January 2020 to complete appropriate administrative tasks required as the manager of VRRS. In doing so you have disregarded or disobeyed a lawful order or direction given by a person having authority to give such an order or direction, in breach of section 49(c) of the Act.

Alleged Breach 4 - section 49(d) of the Act

s49(d) An employee who uses a substance (including liquor or a drug) in a manner that results in inadequate performance of the employee’s duties or improper conduct at the place of employment

(a)   I refer to and rely upon the matters particularised in respect to Alleged Breach 1 above.

(b) Based on the matters particularised at paragraphs 1(a)-(c) and 1(f) above, I suspect that you have on multiple occasions consumed alcohol whilst on duty and operated NTG assets, namely motor vehicles while intoxicated. In doing so you have used a substance (including liquor or a drug) in a manner that results in inadequate performance of your duties or improper conduct at the place of employment, in breach of section 49(d) of the Act.

You are invited to respond in writing to these alleged breaches of discipline and provide reasons as to why a disciplinary finding should not be made against you. Your response should provide any information or explanation that you believe could be relevant.

You are required to provide your written response to me within 14 calendar days of the date of this letter. If no response is received within this time, I will make a final decision based on the material I currently have available.

While this discipline process is ongoing I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter.

Possible disciplinary action

If I find that you have committed a breach of discipline, you may be subject to disciplinary action.

Section 49C of the PSEMA sets out the range of possible disciplinary actions that may be taken against you if you have committed a breach of discipline. Among other things, this includes: taking no further action; formal caution; order to undertake training, counselling or other remedial activities; reduction in salary; transfer to other duties or to another agency; suspension without remuneration; or termination of employment.

Confidentiality

Please be aware that, in order to safeguard the integrity of this process, any matters which are the subject of the process are to remain confidential. Consequently, you are directed to not discuss this matter with your work colleagues or any person likely to have information relevant to the allegations against you, other than your union or support person.

If, however, you wish to approach particular colleagues to assist you in your response, you should approach your contact officer, Mr Callum Green, Manager Conduct on [redacted] beforehand to determine appropriate arrangements. You are further reminded that your obligations under the Code of Conduct continue to apply throughout and following the conclusion of the discipline process.

Further Information and Available Support

I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union. You may choose an EAP from the list below:

[redacted]

I enclose, for your information, a copy of the following:

I. Investigation Report
2. Supplementary Investigation Report
3. Section 5F and Part 8 of the Public Sector Employment and Management Act 1993
4. NTPS Discipline Handbook
5. Employment Instruction No. 3 - Natural Justice
6. Employment Instruction No. 12 - Code of Conduct
7. Employment Instruction No. 13 - Appropriate Workplace Behaviours
8. Section 19 and 28 of the Work Health and Safety (National Uniform Legislation) Act 2011
9. Capability and Leadership Framework 5

If you have any questions about the contents of this letter please do not hesitate to contact Mr Callum Green, Manager Conduct on [redacted].

Yours sincerely

Shaun Drabsch
Chief Executive Officer”

(My emphasis)

1. The Applicant provided a response to the investigation report as follows:

“G’day Luke,

Please find attached my responses to the investigation report. I have gone through the 75 page document and the 305 page document extensively. I have highlighted points made in the report and have made comments next to each statement. I strongly urge you to spend the time to read all pages thoroughly as I have done so in responding to this document and the accusations contained in the documents.

I have also attached folders of:

1. Statements for Spud July 2021- this is a folder of statements from people that know me and have dealings with me both professionally and socially (and my partner Sharon Cramp-Oliver- Shaz)
2. Additional documents- this is a folder of “extra information” related to some factors highlighted in the report. I felt there was not enough room in the document to write this information where it was relevant, but I needed to “expand” and provide more information on relevant topics.
3. Emails for the report- this is a folder of emails that I have quoted as relevant to certain parts of my response.
4. Other emails- this is a folder of emails that are relevant to my “defense.”
5. Photos/ Screenshots- relevant photos and screenshots that I have gathered as part of my response.

6. Shaz’s statements – includes statements & references of character for Sharon.
7. Attachments from report – this is responses to the 75 page report & the 305 page report.

As I have stated, it is a rather lengthy and complicated document, so I expect you to go through all the documentation I have provided thoroughly (as I have done), to ensure procedural fairness.

As you are well-aware, Kidman Springs is a unique and complex Government facility. It has a totally different context to all other Research Stations/ Farms (and any other Govt facility) run by the NTG. This being the case means that a lot of the NTG policies that have been referred to extensively by Mr Kelk during the report of myself being in breach of are impossible to abide by in the circumstances of residing & working at Kidman Springs. It also means that IF I am in breach, then EVERY OTHER NTG employee that worked/ visited Kidman Springs is also in breach of.

I would like to address the 10 page “Grievance Investigation & alleged breaches of discipline”.

1. Regarding Alleged breach 1 – section 49(a) of the act: point (a) to (k) – I deny all allegations of breaches of discipline. The reasons are as per facts that I have responded to throughout the investigation report.
2. Regarding Alleged breach 2 – section 49(f) of the act: point (a) to (d) – I deny all allegations of breaches of discipline. The reasons are as per facts that I have responded to throughout the investigation report.
3. Regarding Alleged breach 3 – section 49(c) of the act: point (a) & (b) – I deny all allegations of breaches of discipline. The reasons are as per facts that I have responded to throughout the investigation report.
4. Regarding Alleged breach 4 – section 49(d) of the act: point (a) & (b) – I deny all allegations of breaches of discipline. The reasons are as per facts that I have responded to throughout the investigation report.

I would also like to make additional comments regarding the contents in the 10 page document even though everything has been covered extensively throughout the response to the investigation report.:

● Allege Breach 1 (F)- “On multiple occasions…….. intoxicated”- if you choose to reprimand me over this issue, then every Departmental person that ever visited Kidman Springs needs to be reprimanded as well- including my executive director Phil Hausler and my regional director Jack Wheeler (etc). What is the definition of “intoxicated”? Is it having a few beers (or other beverages) & driving down to make a phone call at the office or, going to the spring for a swim & having beers, running my dogs etc etc or WHAT??
● Allege Breach 1 (J)- “It is alleged that you knowingly or unknowingly provided access to the NTG firearms safe to your daughter and your daughter was observed shooting wallabies unsupervised at the VRRS airstrip from an NTG vehicle (buggy).” – THIS A COMPLETE LIE and never occurred and it puts complete doubt over the integrity of the person who made this accusation, putting his whole statement into disrepute.

This investigation quote: “appointed Steve Kelk and Associates to investigate your grievance submitted 7 August 2020 and a range of other matters including the management and operation of Victoria River Research Station( VRRS), specifically, employee performance and conduct as set out in the terms of reference (ToR) dated 27 August 2020.” I have found throughout the investigation that the information was extremely biased and extremely defamatory to myself and my partner Sharon Cramp-Oliver. I am sure the evidence in my responses to the investigation report will reflect if procedural fairness is evident. On many occasions, I have been accused by the investigator of being “intoxicated, aggressive, resistant to change ( including technology), defensive, actively resisting, abused procurement, etc, etc…” These accusations are comprehensive throughout the document to depict me in an unfavorable light. IF he was to investigate “a range of matters” then why is there NO mention of the misdemeanors (including assaults & police investigations) involving any other departmental person/s.

Also the witness statements that have been used extensively to support his findings have all been coerced into backing each other up. This is especially evident with Cody Glendinning, Luke Farr, Jack Wheeler, Tom Luck (who didn’t want his interview included) & Matt Horne (who are all “friends” that have collaborated their stories together)). There is evidence in the document that Jack Wheeler & Phil Hausler also collaborated on evidence (by them both saying that I said “he wont be here much longer”). I NEVER said these words to them!!

I would also like to bring to your attention my OH&S record at both DDRF & VRRS. This is a “positive” testament about my management skills & practices that hasn’t even been given light of day in the investigation. I have an exemplary record in this aspect of management at both DDRF & VRRS under my management. Records will show that prior & after my management at both properties there has been a significant number of serious OH&S incidents!

This report has been very damning and defamatory of my management skills while with the Department both at Douglas Daly Research Farm and Kidman Springs research Station. Please note that I was NEVER on performance and I was NEVER under investigation that I was aware of.

I would like to mention that my partner, Sharon Cramp-Oliver, will be seeking legal advise regarding the many defamatory comments and statements made in the investigation report.

I have an extensive portfolio of other evidence that I have in my portfolio which I am more than willing to provide if required.

Thx,

Lyndon “Spud” Thomas

NB Please note these points:

● the “original Hand delivered document” that were sent to Kidman Springs have NEVER been redirected from Kidman Springs! Where is this document?
● It was also sent to my NTG email address that Mr Shaun Drabsh had advised that my ePASS account would be revoked. WHY was it sent there?
● Melanie Woodersoon has spoken publicly about an “open” investigation at Beef WEEK 2021 & it has been documented & provided to you about her comments that “they have enough evidence to sack me”. This is a breach of NTG policy in itself BUT WHO has provided her with this information.”

1. On 22 November 2021, the CEO wrote to the Applicant as follows:

“Dear Mr Thomas

Re: FINDINGS AND FORESHADOWED ACTION

I refer to my previous correspondence of 31 May 2021, in which I notified you that I was considering whether there are reasonable grounds for me to be satisfied that you have committed a breach or breaches of discipline under section 49 of the Public Sector Employment and Management Act 1993 (the Act).

In the correspondence I detailed the particulars of the allegations against you and the suspected breaches of discipline under the Act. I invited you to make submissions on the matters alleged to constitute the suspected breaches of discipline. I confirm that I have received your submission, dated 2 September 2021.

After consideration of all relevant materials, including your submission, my findings on the evidence presented to me in relation to the allegations against you are as follows:

Breach 1

Section 49(a) of the Act – An employee who fails to uphold the performance and conduct principle or otherwise contravenes this Act commits a breach of discipline

I am satisfied that you have acted contrary to the following part of section 5F of the Act in that you:

(i)Failed to treat other public sector officers fairly, equitably and with proper courtesy and consideration as stipulated by section 5F(1)(b) of the Act;

(ii)Failed to ensure effective, efficient and appropriate use of public resources as stipulated by section 5F(1)(c) of the Act;

(iii)Failed to ensure your personal conduct did not adversely affect the performance of your duties as a public sector officer as stipulated by section 5F(1)(e) of the Act;

(iv)Failed to have regard to official guidelines concerning the performance of your assigned duties, as stipulated by clause 9.1(e) of the Code of Conduct (section 5F(1)(a)(iii) of the Act);

(v)Failed to take reasonable care of your own, and others, occupational health and safety as stipulated by clause 9.1(h) of the Code of Conduct (section 5F(1)(a)(iii) of the Act);

(vi)Failed to uphold the standards, as stipulated in clause 7.1 of the Code of Conduct (section 5F(1)(a)(iii) of the Act); and

(vii)Failed to retain the trust and confidence of your employer, as stipulated in clause 8.1 of the Code of Conduct (section 5F(1)(a)(iii) of the Act).

I have determined that the breach of discipline pursuant to section 49(a) of the Act is substantiated on the basis that:

1.   You conducted yourself in an inappropriate manner during the meeting with Philip Hausler, Executive Director, Agriculture on 14 January 2020. You refused to follow a direction from Mr Hausler at this meeting to complete appropriate administrative tasks required as the manager of VRRS.

I note in your response to these findings that you stated that you did not refuse the direction given to you by Mr Hausler, however, statements from Ms Kendell Scott, Senior Human Resource Consultant are relied on as an independent witness to the behaviour, and confirm you were thus directed.

2.   Further, you engaged in conduct that included shouting at Mr Hausler, use of inappropriate language (swearing) and aggressive behaviour towards Mr Hausler at this meeting.

I note in your response that you did not refute this finding and statements from Ms Kendell Scott, Senior Human Resource Consultant are relied on as an independent witness to the behaviour and confirm your use of inappropriate language and aggressive behaviour towards Mr Haulser.

3.   On multiple occasions you were witnessed to be consuming alcohol whilst on duty and operating Northern Territory Government (NTG) assets, namely motor vehicles while intoxicated.        

I note your response to this finding:

“On multiple occasions……intoxicated” – if you choose to reprimand me over this issue, then every Departmental person that ever visited Kidman Springs needs to be reprimanded as well – including my executive director Phil Hausler and my regional director Jack Wheeler (etc). What is the definition of ‘intoxicated’? Is it having a few beers (or other beverages) & driving down to make a phone call at the office or, going to the spring for a swim & having beers, running my dogs etc etc or WHAT??

I make this finding based on the multiple witness statements that corroborate evidence that you were consuming alcohol whilst on duty and operating NTG assets.

4.   You made insulting and derogatory remarks to Mr Cody Glendinning on your return from leave in July 2020. It is found that you said “I see you’re sucking Tad’s (Craig Maxwell) dick now” to Mr Glendinning in a verbal conversation and Mr Glendinning advised Mr Maxwell of this remark on 31 July 2020.

I note in your response that you did not refute this finding. However you did make this statement:

From Cody on Messenger to me Week of August 2^nd 2021. I think this explains a lot of things.

I make this finding based on the corroborated evidence of Mr Maxwell and Mr Glendinning.

5.   You sent Facebook Messenger messages to former employee Mr Tom Luck that were insulting and derogatory to Mr Maxwell. The messages said “Tad only got milly to town because he wants to suck your c**k & f**k you in the arse so go f**k yourselves”.

I note your response to this finding:

It was a private message to a friend!

Notwithstanding that you considered this a private message to a friend, I make this finding as this message was provided to Mr Maxwell and it caused offence, which impacted working relationships at VRRS, hence establishing a relevant connection to the workplace.

6.   You created a Facebook Messenger group titled “Sh*t hot CUintheNT’s” and added Mr Maxwell and Mr Matthew Horne to the group chat. The group was created to discuss planning for work the following day at VRRS, hence establishing a relevant connection to the workplace. Mr Maxwell found the message abusive and Mr Horne took offence to the messages sent by you.

I note your response to this finding:

I did not consider it to be an official form of communication.

The group ‘Sh*t Hot CUintheNTs’ It actually stands for Caring and Understanding in the NT.

It was a private group and on Messenger

I make this finding based on the corroborated evidence of Mr Maxwell and Mr Horne. Further your response claims that it was a private group on messenger, however the relevant connection to your employment is clear in that VRRS is an NTG workplace and your message directly references planning for work the following day.

With regard to the allegation that you either knowingly or unknowingly provided your daughter access to NTG firearms and your daughter was observed to be shooting wallabies unsupervised at the VRRS airstrip from an NTG vehicle (buggy), I note your response to this allegation:

Allege Breach 1 (J) – “It is alleged that you knowingly or unknowingly provided access to the NTG firearms safe to your daughter and your daughter was observed shooting wallabies unsupervised at the VRRS airstrip from an NTG vehicle (buggy).” – THIS A COMPLETE LIE and never occurred and it puts complete doubt over the integrity of the person who made this accusation, putting this whole statement into disrepute.

This is a lie! Nelly had no access to the office gun safe or my own personal gun safe!! She didn’t know where the keys were!!! Sharon did not even know where the gun safe key was either!!

Yes she went shooting on the airstrip WITH ME – SUPERVISED!!! Nelly NEVER went shooting by herself or accessed the gun safe!!!

This is a lie!! Nelly NEVER went shooting by herself!!!

In this circumstance, I make no finding on the allegation that you either knowingly or unknowingly provided your daughter access to NTG firearms and your daughter was observed to be shooting wallabies unsupervised at the VRRS airstrip from an NTG vehicle (buggy).

Breach 2

Section 49(f) of the Act – An employee who in the course of employment or in circumstances having a relevant connection to his or her employment, conducts himself or herself in an improper manner commits a breach of discipline.

I have determined that the breach of discipline pursuant to section 49(f) of the Act is substantiated on the basis that:

7.   You made a threatening remark to Mr Luke Farr at the VRRS social club in a discussion between yourself, Ms Sharon Cramp-Oliver, Mr Farr and Ms Linda Beetson (Mr Farr’s partner). You are alleged to have said “I’m leaving before I know some c**t out” during the conversation with Mr Farr. Mr Farr took that to mean that you were threatening to knock him out.

I note in your response that you did not refute this finding.

I make this finding based on the incidents relevant connection to your employment. Although this incident occurred outside of normal work hours, the relevant connection to the workplace is clear in that VRRS is an NTG workplace and this incident occurred at your workplace.

8.   You were involved in a physical dispute with Assistant Manager Mr Craig Maxwell at your residence on 27 March 2018. Following the excessive consumption of alcohol during what could be described as a late night social event, you have engaged in a verbal disagreement with Mr Maxwell that led to you physically attacking Mr Maxwell by attempting to punch him. Mr Maxwell defended himself by blocking your punch and retaliated by punching you multiple times in the head, causing you facial injuries. This dispute caused a significant relationship breakdown between Mr Maxwell and yourself. Further, the relationship breakdown between you and Mr Maxwell created a challenging and at times segregated working environment for other employees at VRRS.

I note in your response that you did not refute this finding. However you did make the following statements:

Yes, one with Tad under my house after hours; and this was to do with a personal issue. The other with Cody- where I was assaulted on more than one occasion, and no one from the department cared to check up on me.

After hours????? We were always told what happened after hours had nothing to do with work. The circumstances at Kidman are very different to every other research farm.

And this all happened in my own yard after work hours. Tad could have left any time he wanted.

Because I was protecting everyone involved. I felt it was no one else’s business because it happened in my house yard and after work hours.

I make this finding based on the incidents relevant connection to your employment. Although this incident occurred outside of normal work hours, the relevant connection to the workplace is clear in that VRRS is an NTG workplace and this incident occurred at your workplace.

9.   You were involved in a physical dispute with Mr Cody Glendinning on the night of 26 July 2020 at VRRS. You and Mr Glendinning were consuming alcohol and Mr Glendinning instigated the dispute by attempting to punch you. You have then responded by punching Mr Glendinning in the mouth.

I note in your response that you did not refute this finding. However you did make the following statements:

The other with Cody- where I was assaulted on more than one occasion, and no one from the department cared to check up on me.

I had drank a couple of beers only.

I was assaulted by Cody at the social club, where I put him in a bear hug to contain his aggression. I also followed him down with Clarrie to the dogs as he was very drunk and driving a Govt ut e. He put me in a head lock a few times. After that I defended myself- as he had hurt my neck (which I have a metal rod in) and tried to calm him down.

I make this finding based on the incidents relevant connection to your employment. Although this incident occurred outside of normal work hours, the relevant connection to the workplace is clear in that VRRS is an NTG workplace and this incident occurred at your workplace.

10.  I also refer to and rely upon the matters particularised in respect to Alleged Breach 1 above, at paragraphs 1 - 6.

Breach 3

Section 49(c) of the Act -An employee who disregards or disobeys a lawful order or direction given by a person having authority to give such an order or direction commits a breach of discipline.

I have determined that the breach of discipline pursuant to section 49(f) of the Act is substantiated on the basis that:

11.  You conducted yourself in an inappropriate manner during a meeting with Philip Hausler, Executive Director, Agriculture on 14 January 2020. You refused to follow a direction from Mr Hausler at this meeting to complete appropriate administrative tasks required as the manager of VRRS.

I note in your response to these findings that you stated that you did not refuse the direction given to you by Mr Hausler, however, statements from Ms Kendell Scott, Senior Human Resource Consultant are relied on as an independent witness to the behaviour and confirm you were thus directed.

Breach 4

Section 49(d) of the Act -An employee who uses a substance (including liquor or a drug) in a manner that results in inadequate performance of the employee’s duties or improper conduct at the place of employment commits a breach of discipline.

I have determined that the breach of discipline pursuant to section 49(f) of the Act is substantiated on the basis that:

12.  On multiple occasions you were witnessed to be consuming alcohol whilst on duty and operating Northern Territory Government (NTG) assets, namely motor vehicles while intoxicated.

I note your response to this finding:

“On multiple occasions........ intoxicated” - if you choose to reprimand me over this issue, then every Departmental person that ever visited Kidman Springs needs to be reprimanded as well­ including my executive director Phil Hausler and my regional director Jack Wheeler (etc). What is the definition of “intoxicated”? Is it having a few beers (or other beverages) & driving down to make a phone call at the office or, going to the spring for a swim & having beers, running my dogs etc etc or WHAT??

I make this finding based on the multiple witness statements that corroborate evidence that you were consuming alcohol whilst on duty and operating NTG assets.

Foreshadowed Disciplinary Action

Having determined that breaches of discipline have occurred, I must now consider what is reasonable and appropriate disciplinary action to take in the circumstances and in light of the actions available to me under section 49C(1) of the Act (attached).

In considering what is reasonable and the appropriate action to take in the circumstances, I have had careful and serious regard to the following matters:

•          Your written submissions to me in relation to the allegations;
•          Your lack of remorse for your behaviour;
•          Your length of service with the department; and
•          The zero tolerance approach the department takes to such conduct.

Having given serious consideration to all of the above matters and the disciplinary actions available to me under 49C(1) of the Act, I hereby foreshadow my intention to terminate your employment pursuant to section 49C(1)(c) of the Act.

Foreshadowed Suspension without Remuneration

Section 49E of the PSEMA provides that an employee may be suspended from duty if the CEO is of the opinion that the alleged breach of discipline is of such a serious nature that the employee should not continue performing the duties they are assigned to perform pending the making of this decision.

Due to the serious nature of the alleged breaches of discipline, I am considering suspending you without remuneration for a period of three (3) months, or until I have made a final decision in this matter, whichever is the sooner.

I invite you to respond in writing why you should not be suspended from duty without remuneration and provide any information or explanation that you believe is relevant. Your response, if any, must reach me within seven (7) days after the date of this letter. If no response is received within this time, I will make a decision about your suspension based on the material currently available.

Opportunity to Respond

Before I take any disciplinary action for this matter, I invite you to provide me with a written submissions, within fourteen (14) days of the date you receive this letter, outlining any reasons as to why I should not take the actions foreshadowed above.

If I do not receive a response within that timeframe, I will assume you do not intend to respond and will proceed with the action I have proposed above.

Available Support

I appreciate that receiving this notice and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union.

You may choose an EAP provider from the list below:

[redacted]

If you have any questions about the contents of this letter, please contact Mr Innocent Ndhlovu, Workforce Relations Senior Manager on [redacted].

Yours sincerely

Shaun Drabsch
Chief Executive Officer
22/11/2021”

1. On 10 December 2021, the Applicant wrote to Mr Drabsch and Mr Ndhlovu as follows:

“Attn: Mr Shaun Drabsh/ Mr Innoc Ndhlovu

G’day,

Firstly thank you for providing extension approval to give the response as to why I should/shouldn’t be suspended from duty without renumeration.

I received documentation from the department including:

1. 10 page document of alleged breaches of conduct
2. 75 page document of findings from the independent investigation by Mr S. Kelk
3. 305 page document of more findings from Mr Kelk.
I was requested to provide evidence & responses to these findings to show why disciplinary action should/should not be taken against myself.
I then provided a USB to the Dept. on the 2nd September 2021. This had responses & included the following:
1. Folder- Emails for report
2. Folder- Other emails
3. Folder- Photos- Screenshots
4. Folder- Shaz’s statements
5. Folder- Statements for Spud July 2021
6. Acknowledgement of hand delivered electronic files
7. Cover letter to Luke Bowen
8. Spud Attachment 1- Investigation Report
9. Spud Pages 1-105 from Attachment 2
10. Spud Pages 106-130 from Attachment 2
11. Spud Pages 131-150 from Attachment 2
12. Spud Pages 151-301 from Attachment 2

This evidence provided shows extensively why I SHOULD NOT be suspended from duty. I have gone through the whole investigation & findings & provided detailed information that shows definitive lies & mistruths through collaboration of witness statements all manipulated by one individual who wanted to bring me down & show myself (& my partner Sharon) in negative light. There is an extensive amount of defamation in these reports provided by Mr Kelk.
I have also provided character statements from many respected & varied individuals who had extensive association & knowledge of myself, my management, my behaviour & my character. All these statements clearly show that I have acted professionally & with integrity to ALL during my tenure as manager at both Kidman Springs & DDRF. This clearly shows the way that I (& Sharon) have been depicted in the report is totally untrue.

I am currently on leave without pay & I am not in the workplace, namely Kidman Springs Station so there is no prejudice to the Dept. to allow this.

I will respond to the alleged breaches by the agreed date of the 17th December as approved

Thx
Spud Thomas”

1. The Applicant was suspended from duty without remuneration by way of formal letter dated 28 January 2022:

“Dear Mr Thomas

RE: SUSPENSION OF EMPLOYMENT - SECTION 49E PUBLIC SECTOR EMPLOYMENT AND MANAGEMENT ACT

I refer to my letter, dated 22 November 2021, which advised about my findings on the evidence presented to me and foreshadowed my intention to terminate your employment pursuant to section 49C(1)(c). This letter was issued to you on 23 November 2021 via an email from Workforce Relations. Further, you were advised that I was considering whether the suspected breaches of discipline were of such a serious nature that you should be suspended from duty without remuneration. In that regard, you were invited to make submissions to me as to whether you considered it appropriate that you be suspended from duty.

In your email correspondence to Mr lnnoc Ndhlovu titled ‘RE: Findings and Foreshadowed Action Letter’, which was received on 10 December 2021, you submitted that based on the evidence that you previously submitted when requested to show why disciplinary action should/ should not be taken against you, you should not be suspended from duty. You also submitted that you were currently on leave without pay and not in the workplace, namely Kidman Springs Station.

Accordingly, after consideration of your submission mentioned above, I remain of the view that the alleged breaches of discipline are of such a serious nature that you should not continue performing your duties pending the conclusion of this disciplinary process.

On this basis, pursuant to section 49E of the Act, you will be suspended from duty without remuneration, from the date of this letter, pending the conclusion of this disciplinary process or for a period of three (3) months, whichever is the so oner.

You are reminded that the provisions of the Code of Conduct continue to apply to you throughout these disciplinary proceedings. If it comes to my attention that you have been inappropriately discussing this matter with others (other than for the purposes of seeking appropriate advice, support or assistance with your submissions), then additional disciplinary proceedings may be initiated.

I appreciate that receiving this notice and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union.

You may choose an EAP provider from the list below:

[redacted]

If you have any questions about the contents of this letter, please contact Workforce Relations Senior Manager, Mr lnnoc Ndhlovu on [redacted].

Yours sincerely

Shaun Drabsch
Chief Executive Officer
28 January 2022”

1. The Applicant’s representative, Mr Lucio Matarazzo, Industrial Relations Consultant, wrote to the Respondent on the Applicant’s behalf on 21 February 2022:

“Dear Mr Shaun Drabsch,

Our client Mr Lyndon Thomas.

Our industrial relations consultancy writes to you further to Mr Lyndon Thomas authorisation to you via email on 16 February 2022 and in relation to the 7 pages proposed foreshadow action correspondence that the Department has provided to Mr Lyndon Thomas.

Our consultancy advocates that proposed decision to dismiss the employment of Mr Lyndon Thomas is not a valid decision pursuant to the Fair Work Act (Cth) and would also be deemed by the Fair Work Commission to be a harsh, unjust and an unfair decision and in addition would contravene the principles of reasonable management action as defined in the workers compensation legislation (Return to Work Act (NT)) as stated in the Northern Territory Court of Appeal decision [1999] NTCA 28 Faye Rivard v Northern Territory of Australia (25 March 1999) which deals with what constitutes unreasonable management action.

In relation to the points 1 and the 6 and further and particulars on pages 2 and 3 of the Department’s correspondence 22 November 2021 our consultancy on behalf of Mr Lyndon Thomas wishes to provide the following responses.

A. In relation to any investigations conducted officers of the Department in relation to our client Mr Lyndon Thomas conduct, must conduct its investigations in a professional and balanced manner, not in a subjective and arbitrary and cherry picking manner and investigators are required to comply with section 5F (1) of the Public Sector Employment and Management Act (NT) where it states “5F(1) a public sector officer must do the following: (a) carry out the officer’s duties as follows (i) objectively, impartially, professionally and with integrity”

B. In addition Employment Instruction Number 12 Code of Conduct issued pursuant to section 16 of the Public Sector Employment and Management Act (NT) and dated 14 December 2011 states as follows in relation to investigations conducted by Department officers –

“21.2 Basis for decisions A Public Sector Officer must take all reasonable steps to ensure that the information upon which his or her decisions or actions are based is factually correct and relevant to the decisions or actions. A Public Sector Officer must avoid acting in a way which could be seen as unreasonable or discriminatory.

………………………………..
21.4 Improper Exercise of Discretionary Powers A Public Sector Officer must not exercise discretionary powers for impro er purposes or on irrelevant grounds. Improper exercise includes failing to take all relevant facts into consideration, taking irrelevant facts into consideration and not having regard to the merits of each particular case.”

C.     In the Fair Work Commission, [2012] FWA 1360, Eleanora Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link (5 March 2012), which was upheld by appeal to the Full Bench of the Fair Work Commission in the decision [2012] FWAFB 7267 (11 September 2012), Commissioner Bissett states in her decision that the following principles must always be applied by employers whereby they –

• must not apply two sets of rules, and or
• must not have substantially different tolerances in the workplace.

D. The Full Court of the Federal Court of Australia in the decision [1999] FCA 1836 Edwards v Giudice (23 December 1999) confirms that employers must determine professionally whether such alleged conduct did occur not simply accept hearsay claims of persons who may be stating claims for ulterior motives and or for seeking ulterior unjust outcomes.

E.     In Australia investigations in relation to workplace matters, where dishonest and or defective investigations occur by investigator/s and biased collusion with the complainants, and or inconsistencies and or double standards, can compromise the integrity and the impartiality of an investigation, and may lead to a harsh, unjust and unfair findings in a tribunal such as the Fair Work Commission.

F.   In the Fair Work Commission decision [2018] FWC 6666 Mr Aaron Whitfield v Master Tree Ninja trading as Tree Ninja Adelaide Palm Tree Removal (29 October 2018) Deputy President Peter Anderson states the following in this decision –

“[15] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable.”

G.    In the Fair Work Commission decision [2017] FWC 2999 Mr Chuan Wei Ji v Ferngrove Pharmaceuticals Pty Ltd (8 June 2017) Deputy President Peter Sams states as follows –

“[28] In King v Freshmore (Vic) Pty Ltd, 17 March 2000, Print S4213 a Full Bench of the Australian Industrial Relations Commission (AIRC) states -
‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Fair Work Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed that the employee was guilty of the conduct which resulted in termination.”

In relation to points 1 and 2 there is a reference to a meeting on 14 January 2020 whereby subjective and arbitrary assertions are made about a meeting our client attended with Mr Philip Hausler some sixteen (16) months after your first correspondence of 31 May 2021.

Points 1 and 2 and 3 and 4 and 5 and 6.

1.   It is contended that to raise something some sixteen (16) months later shows that an employer is desperately building up a file against an individual employee based on unwarranted assertions and significant exaggerations and possible hurt feelings of Mr Philip Hausler from some sixteen (16) months earlier.

2. The facts are that the Department did nothing about those events at the time and at law condoned those events, and now seeks to rely on the same events at some significant time later in the future to seek to dismiss the employment our client is flawed at law and contravenes the Fair Work Act (Cth).

3. In short this offends the Fair Work Act (Cth) principles of tardiness and principles of natural justice as explained in the Fair Work Commission [2015] FWC 3226 Antony Mundy v MSS Security T/A MSS Security (18 May 2015) where Senior Deputy President Matthew O’Callaghan in this decision states as follows –

“[40] Whilst summary dismissal is referred to in the Standing Orders as a likely consequence of sleeping on duty, I consider that this summary dismissal was inconsistent with what I have concluded was a tardy investigation of this matter. That tardiness related to delays in identifying the basis of the concerns held by Alinta Energy prior to 16 January 2015 and then, delays in actioning those concerns. There is a fundamental inconsistency between permitting a long delay of this nature to occur such that Mr Mundy continued to work as a security officer at the Alinta Energy site even after MSS was aware of the allegations made against him. Simply put, if his behaviour in falling asleep whilst on duty was so significant then it was a matter that should have been actioned much earlier. The Full Bench decision in McNair v ABB Australia Pty Ltd addressed this issue in the following terms:
“[17] This was said to be a fundamental error. While the Commissioner found that the termination was contrary to the Act he then, for the purpose of denying the Act’s primary remedy, reached back some six months and relied on the email of the 13 January 2003 incident. It was said the respondent could no longer rely on that because, through its inactivity it had condoned the action of the applicant in sending the email. Mr Ginters made reference, to support his submission on waiver, to the decision of Cook J in the Industrial Commission of New South Wales in Clarke v. Metropolitan Meat Industry Board [(1967) AR(NSW) 16] in which Cook J said [at p.25]:
“. . . where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having `condoned’ that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action.”
[41] Consequently, I consider that the summary dismissal incorporated a significant measure of harshness given that it occurred some six weeks after 17 December 2014.
…………………………………………
[55] An Order (PR567262) requiring that Mr Mundy be reinstated to his previous position within 14 days, on terms and conditions not less favourable than those which applied before the termination of his employment, will be issued. This Order will provide for continuity of service and lost income in the terms expressed. To the extent that the parties cannot reach agreement about the quantum of this amount, leave to refer the matter back to me is reserved.”

4.   It is noted that in the decision [2015] FWC 3226 Antony Mundy v MSS Security T/A MSS Security (18 May 2015) Senior Deputy President Matthew O’Callaghan determined that it was a tardy investigation because the dismissal occurred six weeks after the events occurred and Senior Deputy President Matthew O’Callaghan reinstated the employment of the employee in this decision.

5.   In relation to points 1 and 2 in your correspondence in addition our consultancy and our client Mr Lyndon Thomas rely on the Full Bench Fair Work Commission decision [2016] FWCFB 7667 Luis Perez v Northern Territory Commissioner for Public Employment and others (25 October 2016) where the Northern Territory Office of the Commissioner for Public Employment advocated in this case in the Fair Work Commission that a NT Public Servant supervisor, Ms Thomas, calling Mr Perez a pig was not unreasonable conduct, albeit Mr Perez’s feelings were hurt because he was called a pig.

6.   This was supported by the Full Bench of the Fair Work Commission in this decision [2016] FWCFB 7667 Luis Perez v Northern Territory Commissioner for Public Employment and others (25 October 2016) where the Full Bench determined –

“[22] Mr Perez further submitted the Commissioner erred in failing to find that Ms Thomas calling Mr Perez a “pig” constituted unreasonable bullying behaviour.
……………………………
[30] In respect of the “pig” incident, the Commissioner said:
“[91] On 29 December 2014, Mr Perez was in the cleaners’ room. It is common ground that Mr Perez, without warning, gave a loud burp. Upon exiting the room, and in the presence of other cleaners, Ms Thomas called Mr Perez a ‘pig’.
[92] Mr Perez accepts that he burped but contends that in the Asian culture (where he previously lived), it was common practice and indeed a compliment to burp and that it was not necessary to excuse oneself. He further contends that the region of his original country is dominated by people of the ‘Muslim religion’ and thus for him it is very offensive to call someone a ‘pig’.
[93] On or around 30 December 2014, a meeting was conducted by Ms Sauvana. At the meeting Ms Sauvana requested both Mr Perez and Ms Thomas to shake hands and forget everything in the past. I note that there was little, if any, discussion about the events and this meant that Mr Perez did not describe the significance of being called a ‘pig’ and there was no real discussion about Ms Thomas’ perspective on the events. Whilst an informal meeting may have been appropriate, this was an inadequate process for dealing with the circumstances. I will return to this aspect later in this decision.
[94] It is clear to me that the incident took place largely in the manner advanced by both parties. That is, Mr Perez burped loudly and did not consider that such would cause offence or that an apology was necessary. Ms Thomas considered that this action was rude and called Mr Perez a ‘pig’, which was communicated in a manner that was not intended to be offensive. In many circumstances, nothing would flow from such an exchange. The absence of a mutual understanding about the competing cultural norms has meant that this incident has become more significant, at least for Mr Perez.” [Endnotes omitted].

Breach 4:

Section 49(d) of the Act - An employee who uses a substance (including liquor or a drug) in a manner that results in inadequate performance of the employee’s duties or improper conduct at the place of employment commits a breach of discipline.

Lastly, I determined that you breached section 49(d) of the Act because of using a substance (including liquor or a drug) in a manner that results in inadequate performance of the employee’s duties or improper conduct at the place of employment.”

Application of section 387 of the Fair Work Act

1. The Respondent submitted that the Applicant’s dismissal was fair, for the following reasons.

Valid Reason

1. The Respondent submitted that the CEO had a valid reason for dismissing the Applicant. The Respondent relied here on the CEO’s witness statement.

1. The Respondent submitted that the CEO based his decision to dismiss the Applicant on facts that had been derived through an investigation into the workplace culture and behaviours at the VRRS. It submitted that the investigation reports were voluminous and detailed,[2] based on witness evidence and containing photographic copies of FaceBook Messenger pages, text messages and emails. The Respondent submitted that, notwithstanding the Applicant’s submissions that the investigation was a biased, cherry-picking exercise, there is evidence from the reports that the investigator focussed on the facts and identified evidentiary gaps. The Respondent highlighted an extract about the fight between the Applicant and Mr Maxwell, as illustrating this point:

“One issue in relation to the fight was the animus Tad Maxwell was receiving from Sharon Cramp-Oliver; another issue involved Tad Maxwell’s son whilst he was on the property. While we only have Tad Maxwell’s version of events, the fact of the fight and that the Complainant was severely beaten by Tad Maxwell and sustained obvious and significant facial injuries is corroborated by at least three Departmental witnesses who saw the Complainant the following morning at a meeting at Kidman Springs (attended by external researchers). These witnesses described the Complainant’s injuries. Tad Maxwell confirmed to two witnesses directly that the fight had occurred and that he had caused the injuries to the Complainant. One witness recalls Tad Maxwell’s swollen knuckles. Of interest is that the Complainant lied about the fight to people at the meeting, stating that he had ‘tripped over a dog’”.

(Respondent’s emphasis)

1. The Respondent also cited another extract from the investigation report, as follows

(the initials SK refer to the investigator and LF, the interviewee):

“SK Yeah. Okay. And just to digress. You talked before about the alcohol issues out there and Spud drinking a lot of alcohol and Sharon drinking a lot of alcohol. How did

that affect the actual operations of the property?

LF I think Spud’s a very capable stockman, handling stock and what-not. But yeah he
just would prefer to drink beer than work I think. Yeah.

SK Okay. Did you see that actually impacting on the work that was being done out
there?

LF Oh for sure.

SK How would it impact it?

LF Oh there was stuff to do and he’d just want to knock off and go and sit up on top of the hill and drink beer or go and sit under his house and drink beer and invite everyone, tell everyone to bloody knock off, beer time. Yeah, instead of getting in and doing work.

SK And would he often do that and perform work on the weekends when he didn’t really have to or wasn’t supposed to as a result of having not done that work during the week?

LF Yeah. But in saying, like that didn’t even need to be done on weekends and stuff either. I don’t know why he’d do that. I don’t know, he’s try and think that he was making up, oh, to be honest I couldn’t tell you.”[3]

(Original emphasis)

1. The Respondent submitted that, as contained in the investigation report, the Applicant wrote a Facebook message to Mr Luck on or around 14 June 2020, which stated:

“Ps Tad only got milly [a pony] to town because he wants to suck your [Tom Luck] c**k & f**k u in the arse so go f**k yourselves”.[4]

1. The Respondent acknowledged that the response from Mr Luck was equally offensive. However, the Respondent noted that the Applicant was the Manager at VRRS, therefore, his workplace behaviour set the tone of the establishment. The Respondent submitted that the Applicant’s behaviour and the workplace culture that it encouraged was inconsistent with the performance and conduct principle of the PSEM Act at section 5F:

“5F Performance and conduct principle

(1)   The performance and conduct principle is that a public sector officer must do the following:

(a)   carry out the officer’s duties as follows:

(i) objectively, impartially, professionally and with integrity;
(ii) to the best of the officer’s ability;
(iii) in accordance with the Act and any code of conduct applicable to the officer under section 16(2)(c);

(b)   treat other public sector officers, other persons in the workplace and members of the public fairly, equitably and with proper courtesy and consideration;

(c)   ensure effective, efficient and appropriate use of public resources;

(d)   avoid actual or apparent conflicts of interest between personal or other interests and duties as a public sector officer;

(e)   ensure the officer’s personal conduct does not:

(i) adversely affect the performance of the officer’s duties as a public sector officer; or
(ii) bring the Public Sector into disrepute.

(2)   In this section:

public sector officer means the Commissioner, a Chief Executive Officer or
an employee.”

(Respondent’s emphasis)

1. The Respondent submitted that these extracts demonstrate that the CEO had a valid reason for the Applicant’s dismissal. The Respondent submitted that the reasons related to the Applicant’s conduct and were sound, defensible and well founded.[5]

1. The Respondent submitted that because the VRRS was a Northern Territory Government operation, it is reasonable to argue that its operational requirements required its workforce to adhere to the requirements of the PSEM Act and its subordinate legislation, including the Code of Conduct.[6]

Whether the Applicant was notified of the reasons for the dismissal

1. The Respondent submitted that the CEO notified the Applicant of his reasons in a series of letters, including:

a. in a letter (undated, but sent on 31 May 2021);
b. in a letter setting out the findings of the CEO’s investigation and foreshadowing dismissal on 22 November 2021; and
c. in the termination letter of 29 March 2022.

Whether the Applicant was given an opportunity to respond

1. The Respondent submitted that the CEO gave the Applicant opportunities to respond, and the Applicant availed himself of these opportunities.

1. However, the Respondent submitted that the Applicant’s responses were argumentative, combative, and replete with legalese and obfuscation. The Respondent submitted that the Applicant’s correspondence did not succinctly and clearly address the CEO’s concerns. By way of example, the Respondent noted the below extract:

“● Allege Breach 1 (F)- “On multiple occasions…….. intoxicated”- if you choose to reprimand me over this issue, then every Departmental person that ever visited Kidman Springs needs to be reprimanded as well- including my executive director Phil Hausler and my regional director Jack Wheeler (etc). What is the definition of “intoxicated”? Is it having a few beers (or other beverages) & driving down to make a phone call at the office or, going to the spring for a swim & having beers, running my dogs etc etc or WHAT??”[7]

(Original emphasis)

1. The Respondent submitted that in light of the tone and wording of the Applicant’s responses to the CEO, the Applicant appeared to be engaging a strategy to intimidate the CEO into backing away from his statutory obligation to investigate and deal with potential breaches of discipline under the PSEM Act. The Respondent submitted that this strategy avoided:

·   addressing the issue of a culture of drinking and fighting at the VRRS;

·   the fact that the Applicant participated in that culture; and

· addressing the absence of evidence that, as the manager at VRRS, the Applicant attempted to rein in this inappropriate behaviour and establish clear ground rules that were consistent with the performance and conduct principle of the PSEM Act.

Whether there was an unreasonable refusal to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal

1. The Respondent submitted that there were no discussions with the Applicant relating to his dismissal, therefore this factor is not enlivened.

Sections 387 (e) 387(f), 387(g) of the Fair Work Act 2009

1. The Respondent submitted that sections 387(e)—387(g) of the Act are also not enlivened in this matter. The CEO dismissed the Applicant due to his conduct not his work performance before the dismissal. The Respondent submitted that section 387(f) does not apply because the Northern Territory Public Sector has more than 20,000 full-time equivalent employees, and section 387(g) does not apply because the Northern Territory Public Sector has dedicated human resource management specialists or expertise.

Any other matters

1. The Respondent submitted that throughout the disciplinary investigation and the prosecution of this matter, the Applicant has had limited insight into the significance of his workplace behaviour and the ensuing workplace culture at VRRS. The Respondent submitted that this lack of insight has contributed to the Applicant’s lack of remorse for these behaviours and for his conduct.

Addressing the Applicant’s Contentions

1. The Respondent submitted that “although the Applicant’s outline of submissions was difficult to follow, as far as the Respondent can decipher it, the Applicant’s main contentions can be summarised as follows”:

a. the CEO had no valid reason to dismiss the Applicant;
b. the investigation and the disciplinary process denied the Applicant procedural fairness;
c. the investigation and the disciplinary process was a case of victimisation and cherry-picking17 and potentially mischievous;
d. the penalty of dismissal was disproportionate to any offending, which was denied by the Applicant anyway; and
e. the CEO had acquiesced with the inappropriate workplace because there was a delay in dealing with it, in other words, a reference to the principle of laches or a neglect in terms of bringing the action.

1. The Respondent contested these submissions and reiterated that throughout the process, the Applicant has adopted a bellicose, combative and argumentative approach that is characterised by large amounts of legalese and obfuscation, rather than the simple answering of the CEO’s questions regarding his suspicions about the possible breaches of discipline in plain, clear, and straightforward words.

Remedy

1. In relation to the final remedy sought by the Applicant, the Respondent opposed reinstating the Applicant. At the Hearing, Mr Hathaway read his instructions from the CEO on the record:

   “Can you confirm via return message that you are happy with me advising the Commission that these are my instructions –

   - which is an instruction that we don't settle - sorry, that we don't agree to reinstatement.  Settlement's long gone as an option.  And then I received the following at 9.45 am this morning from Mr Drabsch:

   Mark, a point I could have raised yesterday in responding to the Commissioner's question was that Thomas' refusal to take direction from senior management gave me no confidence that the dysfunction of the VRRS Station could be rectified with him retaining the position of manager.

   Despite the claims of provocation, the aggression of Thomas was evidenced continuously through his social media communications and his relationship with senior management.  I have a duty of care to other employees and visitors working at the station and this - his pattern of behaviour would preclude his continuance in that role or any other role in my agency.  Shaun.

   I then responded:

   Thank you, Shaun.  I'm taking that as instructions not to accept reinstatement.  Is that correct?

   And he said:

   Correct.”[8]

Consideration

1. I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.

1. As a mark of decency, swear words used throughout this decision have been appropriately abbreviated.

1. It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.

1. When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[9] is of significance:   

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and 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.”   

1. In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[10] held:   

“The above extract is authority for the proposition that a termination of employment may be:   

·            unjust, because the employee was not guilty of the misconduct on which the employer acted;   

·            unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or   

·            harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”. 

1. Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[11] said:   

“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.   

  . 

1. I now turn to the criteria for considering harshness as provided in s.387 of the Act. 

  
Section 387(a) – valid reason  

1. The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[12]

“In broad terms, the right is limited to cases where the employer is able to satisfy the  Court of a valid reason or valid reasons for terminating the employment connected with  the employee’s capacity or performance or based on the operational requirements of  the employer. …  

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound,  defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced  could never be a valid reason for the purposes of s 170DE(1). At the same time the  reason must be valid in the context of the employee’s capacity or conduct or based upon  the operational requirements of the employer’s business. Further, in considering  whether a reason is valid, it must be remembered that the requirement applies in the  practical sphere of the relationship between an employer and an employee where each  has rights and privileges and duties and obligations conferred and imposed on them.  The provisions must “be applied in a practical, commonsense way to ensure that” the  employer and employee are each treated fairly…”. 

1. In Rode v Burwood Mitsubishi,[13] a Full Bench of the Australian Industrial Relations   

Commission held:   
  

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or  justifiable on an objective analysis of the relevant facts. It is not sufficient for an  employer to simply show that he or she acted in the belief that the termination was for a  valid reason.”  

1. In Qantas Airways Ltd v Cornwall (Cornwall)[14] the Full Court of the Federal Court of Australia said:   

“The question is whether there was a valid reason. In general, conduct of that kind would  plainly provide a valid reason. However, conduct is not committed in a vacuum, but in  the course of the interaction of persons and circumstances, and the events which lead  up to an action and those which accompany it may qualify or characterize the nature of  the conduct involved.”   

(My emphasis)

1. I do not agree with the Respondent’s submission that there is a culture of fighting at the VRRS. I accept that there were two altercations which involved the Applicant. It is not in dispute that the altercation between Mr Glendenning and the Applicant was started by Mr Glendenning and that the Applicant basically acted in self-defence. In relation to the altercation with Mr Maxwell, the Applicant reacted to an inappropriate and highly offensive comment made by Mr Maxwell about the Applicant’s partner. This resulted in the Applicant throwing a punch at Mr Maxwell who then retaliated and allegedly hit the Applicant in the face 20 times.

1. I draw no criticism at the attempt of valour by the Applicant. I, like most men I know, would have done the same thing in the same circumstance. However, rather than report the incident and claim that there were mitigating circumstances for his actions, the Applicant simply lied about what had occurred and concealed the incident from his Supervisor. The concept that men sort these issues out between themselves via the use of violence without repercussions is a throwback to a time portrayed in John Wayne movies from the 1950’s and 1960’s. This type of activity has no place in a sophisticated society like the Northern Territory, even if the workplace is 7 hours’ drive from Darwin on an isolated cattle research station. Violent behaviour cannot be condoned.

1. I am satisfied and find that the Applicant’s behaviour in engaging with Mr Maxwell in a physical altercation was inappropriate. I accept that he was inebriated, I accept that there were mitigating circumstances which provoked the Applicant to throw a punch at Mr Maxwell, but the undeniable fact is that the Applicant should have reported this incident to his superiors. The incident resulted in an unsatisfactory working relationship being created between the Applicant and Mr Maxwell. From the information before the Commission, I am satisfied that if the incident had been reported at the time that it had occurred then both the Applicant and Mr Maxwell, in all likelihood, would have been terminated at this time. I have taken this into account.

1. Society has become far more liberal in recent times in relation to the use of swear words in a conversation. However, the lewd language used by the Applicant towards his friend and former colleague, Mr Luck, was inappropriate and offensive – not to mention homophobic. I do not accept that the phraseology used by the Applicant can be simply explained away as being “the way we talk to each other in the bush”. To use this type of language towards Mr Luck in a deliberate and serious manner, in relation to Mr Luck accessing VRRS to pick up his belongings, would not be interpreted as treated a member of the public “fairly, equitably and with proper courtesy and consideration”. I am satisfied and find this is a breach of s.5F(1)(b) of the PSEM Act. I have taken this into account.

1. For the above reasons, I am satisfied and find that the Respondent had a valid reason to dismiss the Applicant on the basis of his altercation with Mr Maxwell and his text message to Mr Luck.

Section 387(b) – Notified of the reason  

1. It is not in dispute that the Applicant was notified of the reasons for his termination, as provided in the correspondence extracted at paragraphs [7] – [14] of this decision. I have taken this into account.

Section 387(c) – Opportunity to respond  
  

1. It is not in dispute that the Applicant was provided opportunities to respond to the reasons for his termination, and that he did provide responses including via his representative, Mr Matarazzo. I have taken this into account.

Section 387(d) – Refusal of a support person   
  

1. The Respondent acknowledged that there were no meetings arranged with the Applicant prior to his dismissal, accordingly this is not a relevant factor.

Section 387(e) – Unsatisfactory performance   
  

1. The Applicant was not dismissed for unsatisfactory performance. Therefore, this is not a relevant factor.

Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed   
  

1. I note that the Respondent is a large employer with dedicated human resource management specialists or expertise. I have taken this into account.

Section 387(h) – Any other matters  

1. The slogan “C U in the NT” is not an official slogan of Tourism NT, but the creation of an individual who has successfully marketed the slogan themselves. I have noticed the slogan on stickers that have been placed on vehicles and on t-shirts, hats and stubby holders in souvenir shops and newsagents in Darwin and Katherine. My personal views on the appropriateness of this slogan are of little relevance. What is relevant is the photo of Mr Maxwell in a singlet with this slogan emblazoned across the front. I find it hard to believe that Mr Maxwell would own and wear clothing displaying the slogan if he was actually offended by the slogan.

1. I am satisfied and find that Mr Maxwell’s offence at this slogan was contrived.

1. Mr Kelk provided a very lengthy and detailed report, however, he failed to put any of the accusations made by other witnesses back to the Applicant. Therefore, the Applicant did not have an opportunity to respond to these accusations, yet Mr Kelk still made findings and recommendations even though this inadequacy existed. Mr Hathaway acknowledged the Respondent’s process was “flawed”.[15] I agree with Mr Hathaway’s assessment of the report. Mr Kelk, in preparing the report, failed to provide the Applicant the requisite procedural fairness due to the lack of an opportunity for the Applicant to any allegation. Due to this failure by Mr Kelk, I have given his report little weight. I have taken this into account.

1. There is no substantiated evidence before the Commission that the Applicant was “drinking on the job”. The unchallenged evidence of Mr Sack was that, despite working with the Applicant every day, he never witnessed the Applicant drink alcohol during work hours:

“Did you have a chance to observe Mr Thomas during the period you were working there?‑‑‑Yes, I worked with him on a daily basis.

Did you ever see him during working hours consume alcohol?‑‑‑No, not during working hours.”[16]

1. The Respondent has based its finding on this issue on the report from Mr Kelk. I prefer the evidence of Mr Sack, who provided his evidence under affirmation. As a result, I am satisfied that the Applicant did not consume alcohol during working hours. There is no evidence that the Applicant’s performance suffered as a result of his afterhours behaviour. I have taken this into account.

1. I note that the Respondent did not call Mr Hausler as a witness in this proceeding. That was their right:

“THE COMMISSIONER:  Thank you, Mr Hathaway.  Is there any further comment you'd like to make in relation to the fact that some of these department employees did not attend the Commission to give evidence?

MR HATHAWAY:  Yes, Commissioner, and thank you for giving me an indication that you were going to put a Jones v Dunkel question to me.

The only explanation I can give was mine as an advocate, in which I wanted to focus on what were the reasons for the decision and the rationale of the decision‑maker.  Notwithstanding what I think could be demonstrated as some animosity between Mr Hausler and the applicant and also the fact that they are friends who have since fallen out, Mr Hausler wasn't the decision‑maker, and in fact he was kept at arms‑length in this whole process for the very reason that there was this history of antagonism between the two.”[17]

1. However, I am satisfied that Mr Hausler would have been a material witness for the following reasons:

a)An explanation of his and the Applicant’s conduct in their meeting on 14 January 2020.

b)An understanding of when Mr Hausler became aware of the altercation between the Applicant and Mr Maxwell. If it was before the Kelk investigation, why didn’t he take action when he became aware?

c)When visiting VRRS, did he consume alcohol during work time?

d)Was he aware of the views of the Applicant’s immediate supervisor, Mr Jack Wheeler, that what happened outside of work hours was of no business of the Department. Did he agree? If not, did he correct Mr Wheeler on the correct application of the PSEM Act and the Code of Conduct?

e)Are the employees of VRRS entitled to the provision of amenities, such as, a meal room or a bathroom whilst at work? If so, why are these portable amenities not provided?

f)Why wasn’t the Applicant given an induction when commencing employment?

g)Why wasn’t the Applicant provided with computer training in relation to the information and reports that he needed to provide? Was computer literacy a pre-requisite for the role of Station Manager?

h)Was VRRS the only research station that needed to provide these reports? If so, why?

1. The above issues are only a sample of the many lines of enquiry that could have been canvassed with Mr Hausler.

1. I am satisfied and find that a Jones v Dunkel[18] inference can be drawn by Mr Hausler’s non-attendance at the Hearing. As a result, I am satisfied and find that the Applicant has not refused an order or direction from Mr Hausler. In relation to providing a computer report or excel spreadsheet – it is not possible to do something if you do not know how to do it. I have taken this into account.

1. I have taken into account the assertions by the Applicant that he was “singled out” by the Respondent to act to a higher standard compared to his other colleagues. It is certainly questionable how the CEO could say that both the Applicant and Mr Hausler acted unprofessionally in their meeting on 14 January 2020, yet no investigation was undertaken in relation to the conduct of Mr Hausler. On face value, it would appear that the Applicant’s assertion bears some semblance of fact. Whilst I agree with the CEO’s conclusion that Mr Hausler’s conduct does not constitute bullying, it is clearly inappropriate and would appear to be a breach of the PSEM Act and the Code of Conduct.

1. I do not accept the proposition that an employee who lives in a government provided house on a government owned property is “on the job” for all of the hours spent on the property. If such a proposition was factual, then the Applicant may have a claim to be paid for “standing by” for every hour that he was not absent from the property. Such an outcome would be problematic and unreasonable. However, I accept that a senior employee, such as Mr Thomas as the Manager of VRRS, was expected to maintain a dignified and courteous presence in accordance with the Respondent’s Code of Conduct. I have taken this into account.

1. Even though the discussion topic (the Applicant’s partner) which led to the altercation with Mr Maxwell was not an employee of the Respondent, the Applicant’s partner, who appears to be a highly qualified and respected teacher in the Territory, was obviously performing unpaid work for the Respondent and an active member of the VRRS community. For this reason, I am satisfied there is a link between the subject matter of the altercation and the Respondent’s workplace.

1. Mr Drabsch testified that he relied upon both the report and his own investigation when reaching his decision to terminate the Applicant. Even though the Kelk report was flawed and lacked a semblance of procedural fairness for the Applicant, I am satisfied that the post-report enquiries undertaken by the CEO were sufficiently inquisitive and comprehensive to provide the Applicant with the opportunity to respond to these issues. I have taken this into account.

1. It is not in dispute that the Applicant raised his voice and was argumentative in his meeting with Mr Hausler on 14 January 2020, however, I do not accept that Mr Hausler’s response, which was also loud and argumentative, can be condoned by the Respondent. I do not believe it was appropriate for the CEO to not launch an investigation in relation to Mr Hausler’s conduct if the CEO regarded the Applicant’s conduct to be so offensive to warrant disciplinary action.

1. I agree with the submission of the Respondent in relation to the applicability of laws in rural Australia:

“The argument that, well, that happens out in the bush and it stays out in the bush, well, sorry, it doesn't.  The criminal law does extend to the bush, and also the code of conduct extends to our workers in the bush.”[19]

1. This general rule extends to the relevant WH&S Acts and Regulations. As such, the Applicant was entitled to the provision of basic amenities whilst working in the field. The concept of “taking a shovel with you” when an employee needs to use the bathroom is as archaic and wrong as the concept of the use of violence to settle disputes at work. If the only amenities are those back at the workshop, then employees could spend a whole day driving just to have their morning tea, lunch and a bathroom visit. Surely the provision of mobile amenities or the placement of temporary amenities at strategic locations around VRRS is an appropriate and compliant resolution in a sophisticated society like the Northern Territory.

1. I have taken into account that VRRS is a 4-hour drive south of Katherine, that the station is in a very isolated location where temperatures regularly reach 40-45 degrees Celsius, where boredom and familiarity must almost be mind-numbing in relation to out of hours or social activity.

Conclusion

1. For the reasons stated above, I am satisfied and find that the Applicant has no case to answer in relation to breach 3 or breach 4 of his termination letter.

1. I am not satisfied that Mr Hausler would not have been aware of the Applicant’s altercation with Mr Maxwell before the Kelk investigation, which occurred more than two years after the incident. Based on the principles of Jones v Dunkel, if the altercation was the only valid reason for the Applicant’s termination, then my decision would probably have been different. However, the text message from the Applicant to Mr Luck did not have to be sent. A simple explanation to Mr Luck as to why it was inconvenient for him to pick up his belongings would have been sufficient. Instead, Mr Luck received a text message which was bitter and venomous in its content, which destroyed a friendship and has ended a career.

1. I have previously found that the Respondent had a valid reason to terminate the Applicant based on his altercation with Mr Maxwell, which he failed to report, and his crude text that he sent to Mr Luck. After considering all of the issues pertaining to section 387(b)-(h) of the FW Act above, I am satisfied that the Applicant’s termination was not harsh, unjust or unreasonable.

1. I am satisfied that the Applicant has received his statutory entitlement to a fair go.

1. The Application for an unfair dismissal remedy is dismissed.

1. I so Order.

COMMISSIONER

[1] Witness Statement of Mr Thomas, Annexure 22b.

[2] Witness Statement of Mr Drabsch, SD Attachment 1 and SD Attachment 2.

[3] Ibid, SD Attachment 1, p. 71.

[4] Ibid, p.73.

[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[6] Witness Statement of Mr Drabsch, SD Attachment 4.

[7] Ibid, SD Attachment 6, p. 2.

[8] Transcript at PN1373-1380.

[9] (1995) 185 CLR 410.

[10] (1998) 84 IR 1.

[11] [2000] AIRC 1019.

[12] (1995) 62 IR 371.

[13] PR4471.

[14] (1998) 84 FCR 483.

[15] Transcript at PN1479.

[16] Ibid at PN936-937.

[17] Ibid at PN1476-1478.

[18] [1959] HCA 8, 101 CLR 298.

[19] Transcript at PN1461.

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